Mourched v Chief Commissioner of State Revenue

Material before the Appeal Panel

1. The material before us includes an Agreed Bundle of Documents constituting all of the material before the Tribunal below including transcript of those proceedings. In addition, the Appellants filed an Affidavit of George Mourched sworn 18 October 2022.
2. We also have the written submissions of the Appellants responded to by the Respondent and submissions of the Appellants in reply.
3. The Respondent objected to the Appeal Panel receiving the Affidavit of Mr Mourched of 18 October 2022.

The Decision below

1. The Tribunal went through the evidence and submissions of the parties. After doing so, the Tribunal ultimately decided, noting that the Appellants bore the onus of proof, that it was not satisfied on the balance of probabilities that the Land separately valued as Parcel B at 31 December 2019 or on any other date, was used as a place where children were educated or cared for so as to attract the Childcare Exemption: at [73].

The Notice of Appeal

1. The Notice of Appeal set out three grounds of appeal as follows: 1. The determination of the Senior Member constituted an error of law in that it was contrary to the uncontested material relied upon by the Appellants (notwithstanding that the rules of evidence do not apply to such proceeding). 2. The Senior Member ought to have found on the 'balance of probabilities" or the available material that in respect of the totality of the Land of which Parcel B formed part it was used for the sole purpose as a Childcare Centre and was therefore exempt from land tax in respect of the land tax year. 3. In dealing with the application before him the Senior Member failed to adhere to the Guiding Principle under s. 36 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) in that there was an inordinate delay from the time of the receipt of evidence and submissions until the delivery of judgment so that there arose a miscarriage of justice.
2. The Appellants' written submissions travelled somewhat beyond these grounds of appeal and raised issues such as the reasons being inadequate, rejecting the Appellants' submissions without real analysis and acceptance of the Respondent's submissions similarly without real analysis and failure to consider the relevant evidence and misstatement of the Appellants' case such as to warrant a conclusion that there was a denial of procedural fairness or miscarriage of justice.
3. As we understand it, the Appellants were raising these matters not as independent grounds of appeal so much as to support their proposition that combined with the 'inordinate delay' there was a miscarriage of justice (ground 3). The way the Appellants put it was as follows (at [8] of the Appellants' outline of submissions): The Appellants submit that due to gross delay the Tribunal decision miscarried by reason of failure to consider the relevant evidence, the inadequacy of Reasons and misstatement of the Appellants' case such as to warrant a conclusion that there was a denial of procedural fairness.
4. In the result, the issues raised in this appeal can be stated as covering the following: 1. Whether the Appeal Panel should receive the new evidence from the Appellants, being the affidavit of Mr Mourched of 18 October 2022; 2. Whether the Tribunal erred in not accepting the evidence that the sole use of Parcel B was in supporting the Childcare Centre by the septic sewerage system which was indispensable to the Childcare Centre on Parcel A (ground 1); 3. Assuming such a finding ought to have been made, whether or not Parcel B came within the exemption in s 10(1)(u) (ground 2); and 4. Whether there has been a substantial miscarriage of justice in all of the circumstances including in particular 'inordinate delay' in the handing down of the Decision (ground 3).

Should the Appeal Panel receive the new evidence?

1. It is clear that the Appeal Panel may, if the grounds so warrant, determine an appeal by way of a new hearing and in such a case, receive further evidence (including evidence additional to or in substitution for the evidence at first instance): s 80(3), NCAT Act. Section 80(3)(b) gives the Appeal Panel considerable latitude for the receipt of evidence where it is conducting a "new hearing". However, that is only where the Appeal Panel decides to conduct a hearing as a "new hearing" because it is satisfied that "the grounds of appeal warrant a new hearing": s 80(3)(a). Otherwise, internal appeals to the Appeal Panel are not determined by way of a new hearing.
2. In the circumstances of this case, the appeal hearing was not conducted as a "new hearing" in the sense referred to in s 80(3). No submissions were made that the grounds of appeal required a new hearing. Even if such submissions had been made, we do not think that the grounds of appeal raise issues that warrant a new hearing, nor that we would necessarily allow each party to lead new or different evidence on the appeal to that put before the Tribunal.
3. As the appeal in this matter is not by way of a new hearing, it is important to understand the nature of the appeal. There was a discussion of the issues dealing with the nature of internal appeals relevant to the receipt of further evidence in Yuen v Thom [2016] NSWCATAP 243 at [14]-[22]. Receiving further evidence on an appeal was further discussed in Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14 affirming Yuen v Thom. We adopt the analysis in these cases. As such, subject to the guiding principles under s 36 of the NCAT Act, the Appeal Panel has the ability to receive further evidence if appropriate.
4. There are a number of other authorities which set out the principles on which the Appeal Panel might consider an application for admission of further evidence. Even though the Appeal Panel has power to receive further evidence, its powers in an appeal that is not a new hearing would ordinarily be construed on the basis they are to be exercised for the correction of error and the appeal is usually conducted by reference to the evidence given at first instance: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at [13] - [14] per Gleeson CJ, Gaudron and Hayne JJ.
5. Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. As is whether the further evidence was available at the time and the reason why it was not lead at first instance.
6. The further evidence in question is the affidavit of Mr Mourched dated 18 October 2022. It is clear it is not 'fresh' evidence. It was reasonably available at the hearing of the Tribunal at first instance. We note that there has been no explanation for why this evidence was not lead below. The Appeal Panel is not "affirmatively satisfied" that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was "likely to have produced a different result": see Building Professionals Board v Hans [2008] NSWADTAP 13 at [54], cited in Taouk v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATAP 225 at [12].
7. Further, the lateness of its service on the Respondent, three days before the hearing, supports the Respondent's submissions that it should not be received. It was served on the Respondent too late for it to be dealt with by the Respondent's written submissions. We accept the Respondent would be prejudiced if we were to receive this new evidence on appeal.
8. For all of these reasons and considering the overarching interest in finality of litigation, we have decided to reject this new evidence.

Did the Tribunal err in not accepting some of the evidence as to the use of Parcel B?

1. The Appellants relied upon two letters which they tendered before the Tribunal. First, the Tribunal had before it the letter of 9 October 2019 the relevant portions of which were reproduced at [3] as follows: On 5 June 2015, the NSW Roads and Maritime Services compulsorily acquired part of the Property [297 Bringelly Rd, Leppington] to create a right of access and a drainage easement. Prior to this date, the entirety of the Property received a land tax exemption under section 10(1)(u) or section 10(1)(v) of the Land Tax Management Act 1956 (NSW) (the Childcare Exemption). The result of the acquisition was that the Property was divided into two parcels, with only one parcel of land (Parcel A) retaining the Childcare Exemption. Parcel B is now subject to the usual rates of land tax. … We have been asked by our client to ascertain the reasons for why Parcel B lost the Childcare Exemption… … Situated on Parcel B is the septic system used for the childcare centre. This is the only current use of Parcel B. The childcare centre could not be operated without the septic system. …
2. Of particular relevance is the fact that the letter included a reference to the fact that 'situated on Parcel B is a septic system used for the Childcare Centre. This is the only use of Parcel B. The Childcare Centre could not be operated without the septic system'.
3. Secondly, the Appellants relied upon the letter of Dr Accoto dated 28 November 2019 wherein Dr Accoto stated that Parcel B is solely used for the operation of the Childcare Centre and is not being used for any other purpose'. The letter forms part of the evidence in the affidavit of Mr Mourched made 7 September 2020 as recorded by the Tribunal at [10]. The affidavit of Dr Dion Accoto of 20 October 2020 was also in evidence: see Decision at [10].
4. Both of these affidavits were accepted without objection.
5. The Tribunal referred to the relevant evidence at [40] as follows At [12(c)(vi)] the Applicants made early "assertions" by way of letters from each of Brown Wright Stein dated 8 October 2019 and Dr Accoto dated 28 November 2019 to the effect that the Childcare Centre could not operate without the septic system, and other assertions: respectively annexures "H" and "I" to Mr Mourched's Affidavit. Amongst the additional assertions, Dr Accoto's letter stated he was instructed that after a "compulsory acquisition" of part of the Property, the remainder had been split into two "lots" and "the rear of the Property currently contains part of the septic system which is solely used for the operation of the childcare centre. The rear of the Property is not being used for any other purpose." Both letters acknowledged that the owners of the Property (the Applicants) had submitted a development application in relation to Parcel B (Brown Wright Stein) / "the rear of the Property" (Dr Accoto).
6. At [52] of the Decision this evidence is not regarded as conclusive of the current use of Parcel B where the Tribunal stated, 'in summary, assertions are not evidence'.
7. In respect of the statement that 'assertions' are not evidence the Appellants made the following submission: Under s.38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence, and they [may] enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. In the context of merits review and to enable the Tribunal effect to arrive at the correct or preferable administrative decision, the Tribunal should not have rejected the evidence as to current use of Parcel B as disclosed in the Affidavit evidence.
8. In our view, this submission mischaracterises the approach of the Tribunal to the evidence in question. In our view, the Tribunal was merely pointing out that the fact that a statement to the effect that Parcel B 'is solely used for the operation of the Childcare Centre' cannot be determinative of this question and is of limited value on its own.
9. In particular, such statements are at such a high level of generality as to be of limited utility in the fact-finding process given the specific context of the evidence and submissions of the Respondent that there is a potential competing use, that of commercial land development.
10. As noted by the Tribunal at [40], the Appellants had submitted a development application in relation to Parcel B. This was for the construction of a commercial commuter car park. The Respondent tendered exhibits R3, R4 and R5 to demonstrate that the Appellants have carried out 'significant preliminary steps in commercial land development' including test trenches, boreholes and 'proposed further excavation works' which the Respondent contended contradicted the proposition that Parcel B is not used at all other than for the use of the sewerage treatment facility.
11. The Tribunal at [54] accepted that exhibits R3, R4 and R5 are evidence that for a period prior to April 2019, the date of exhibit R4, exploratory trenches and geotechnical boreholes were dug in parts of Parcel B.
12. As recorded by the Tribunal at [52], the Respondent in his submissions did challenge the evidence of the Appellants as to the alleged current use of Parcel B. The Respondent clearly put the Appellants on notice that he was disputing the adequacy of the evidence lead by the Appellants as to the current use of Parcel B. The Respondent's contention was that the evidence as a whole, including the evidence the subject of this ground of appeal, could not satisfy the Tribunal that commercial land development was not also a current use of Parcel B.
13. In our view, there is no dispute that the critical date for the enquiry as to Parcel B's current use is 31 December 2019 which in turn is to be informed by how this part of the Land was being used for a 'reasonable period' either side of that date.

Can preparatory or exploratory activities constitute a use of land?

1. At this point the Appellants submitted that such preliminary or proprietary work as is referred to in the Respondent's evidence cannot constitute a relevant current use for the purposes of s 10(1)(u) of the LTM Act.
2. The Tribunal went on to state at [54] the following: Test excavating apparently occurred for a few days in January 2019 and further work was proposed to be carried out in February 2019. However, there is no evidence as to any such work not continuing at any time in the following 10 months to 31 December 2019. At page 48 in Exhibit R4, as part of "6.3 Testing Methodology", there is a reference to "Test excavations units will be backfilled as soon as practicable". There is no evidence as to the continuing existence of excavations on Parcel B at or near to 31 December 2019.
3. The Appellants contended that the Tribunal at first instance, and in particular at [55] erred in finding that preparatory exploratory work as set out in the evidence lead by the Respondent could constitute a current use of the land.
4. As referred to above, the evidence in particular was constituted by exhibits R3, R4 and R5. These exhibits comprised 'Aboriginal Cultural Heritage Assessment - April 2019 (exhibit R3), Aboriginal Test Excavation Report (exhibit R4) and Ground-Technologies Report (exhibit R5)'.
5. Exhibit R3 indicates in the executive summary that 'Test excavation consisted of the excavation of 18 test trenches (50cm x 50cm)'.The approximate sites of the GA technical boreholes are indicated in the report.
6. Exhibit R4 in the executive summary indicates that 'tests excavations were undertaken over three days 23, 24 and 25 January 2019'. The Appellants contended that this was a reference to exactly the same test excavations as referred to in R3.
7. Exhibit R5 is a contamination and salinity assessment. There was no indication in this report of any work or excavation taking place on the Land. However, some testing of the Land can be assumed to have taken place.
8. The Appellants relied upon a number of authorities in support of their contention that the exploratory work in question could not constitute a current use for Parcel B. These authorities were Joukhador v Chief Commissioner of State Revenue [2015] NSWCATAD 43 at 19, Parramatta City Council v Brickworks Limited [1972] 128 CLR at 21.9; Eaton & Sons Pty Ltd v The Council of the Shire of Warringah [1972] 129 CLR 270 at 285f; Abbott v Commissioner (1999) VR 298 at 300; Commissioner of Land Tax (NSW) v Joyce (1974) 132 CLR 22; Peabody Pastoral Holdings Pty Ltd v Mid-Western Regional Council [2013] NSWLEC 86 at [72].
9. We agree with the Respondent's submissions that these cases are not relevant and to the point. They merely establish that the word 'use' means an actual use of the land; it does not include a contemplated or intended use.
10. In our view, the relevant principle was explained in Saville v Commissioner of Land Tax (NSW) (1980) 81 ATC 4, 373, where the Court held at 4, 376- 4, 377 and 4, 379: What is of direct concern for present purposes is the actual use to which the land was put [at the taxing date for the relevant years]. Basically, what is to be determined is the actual use of the land, and this of course may be quite different to any intention the owners may have as to its later or ultimate use, or indeed any wish that the owners may have as to its use at that particular time.
11. The Supreme Court in Leda Manorstead Pty Limited v Chief Commissioner of State Revenue [2010] NSWSC 867 accepted that for the purposes of section 10AA of the LTM Act, preparatory work for a particular use could amount to the land being used for that purpose.
12. In that case, the Court found that the dominant use of 593 hectares of land at Cobaki Lakes in the Tweet Shire was not primary production, despite the deep pastry of between 268 and 279 cattle at the relevant time, because of the scale of earthworks preparatory to a residential subdivision which made commercial land development the dominant use of the land.
13. The property had been purchased by a property development company, with development consent for a residential subdivision. It conducted very significant earthworks in accordance with that consent. As Gzell J found at [101]: The scale, extent and intensity of the earthworks activities far outweighed the use of the cattle raising operation.
14. In considering the meaning of the phrase 'land use for primary production' in section 10AA(1) Gzell J examined various authorities as to whether 'use for' could be construed as implying an element of futurity, so that land could be 'used for' a purpose when it was being developed for that purpose. After an extensive review of the authorities, His Honour concluded at [61] - [62]: 61 In my view, the impact of the earthworks on Cobaki at 31 December 2005; their sheer size and cost; the extent of the devotion of labour and machinery to the activity; the intention of Leda from the time it acquired Cobaki that it would be a residential subdivision; and Leda's continued negotiation with Tweed Shire Council and other regulatory bodies to obtain consents to development applications for subdivision and development applications for associated earthworks; establishes that the purpose of the use of Cobaki was manifested by the commencement of the earthworks, and it was "used for" residential development. Put another way, although in the development phase, Cobaki was being "used for" the end purpose that was to follow completion of construction - residential subdivision. Leda had demonstrated in very specific terms its commitment to Cobaki being "used for" a residential purpose. 62 I therefore reject Leda's submission that earthworks cannot constitute a "use for" a residential purpose.
15. As noted by the Tribunal below at [71], Gzell J said at [3] in Leda's case: … inquiry is not limited to the use to which land is put on the relevant date. It extends to a consideration of its use during a reasonable period preceding and following the relevant date (Longford Investments Pty Ltd v Commissioner of Land Tax (NSW) (1978) 8 ATR 656 at 660-661). In my view, six months before and after the relevant date is a reasonable period for inquiry in this case. It allows for consideration of financial records pertaining to the uses to which the land was put.
16. As noted by the Tribunal at [56] on appeal (Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2011] NSWCA 366), Allsop P at [43] approved the analysis of Gzell J at first instance in relation to the evaluating task of comparing competing uses of land. The Respondent's submission before us, and before the Tribunal below, was that the evidence of the application for development of Parcel B for use as a commercial car park along with the evidence of the actual exploratory work earlier in 2019 meant that Parcel B did not have as its 'sole use' an approved educational and care service within the meaning of section 10(1)(u) of the LTM Act.
17. In conclusion, we reject the Appellants' submission that the preliminary work in the nature of excavations cannot constitute a competing current use for Parcel B. Given that the Appellants were pursuing approvals to construct a commercial car park on Parcel B, it may be that such work has occurred earlier in 2019 if continued to 31 December 2019 may have amounted to a competing use, that of the development of the commercial car park.
18. Whether or not this submission should have been upheld is a question of fact looking at the totality of the evidence and bearing in mind it was not in dispute that the Appellants before the Tribunal below bore the onus of proof of establishing that Parcel B had only one use and that was consistent with the exemption under s 10(1)(u). We reject the submission that the Tribunal erred in law in not accepting that the sole use of Parcel B was its water treatment facility.
19. In our view, the Tribunal also did not err in its interpretation of s 10(1)(u) or misunderstand its task or the submissions being put to it by the Appellants below.
20. The conclusion of the Tribunal was: 72 The Applicants have not provided evidence as to what period if any, around the date of 31 December 2020, would be a reasonable period for inquiry in relation to a childcare centre. Once again, they have not satisfied their onus. Findings and decision 73 Having regard to my above findings, I am not satisfied on the balance of probability that the land which comprises Parcel B in Lot 105 at 31 December 2019, or on any other date, was solely used as the place where children were educated or cared for. Orders and directions (1) The decision under review is affirmed.
21. It is clear that the Tribunal did not, and felt it could not, make a specific finding one way or another as to whether or not the works in the nature of preparatory work for the commercial development of the Land as a car park constituted an 'actual use' of the Land.
22. The potential for further works to take place was alluded to in the evidence referred to by the Tribunal and relied upon by the Respondent. In this regard, it is clear that the Tribunal was looking for and regarded it as necessary to discharge the Appellants' burden of proof, specific evidence in the nature of primary facts as to what was being conducted on Parcel B, in particular in and around six months either side of 31 December 2019, but none was forthcoming from the Appellants.
23. In our view, the Tribunal was pointing out that a bald statement in the letters in question that Parcel B was only used for a septic tank for the Childcare Centre located on Parcel A did not condescend to deal satisfactorily with the various factual matters and submissions placed before the Tribunal by the Respondent at first instance including: 1. That there was evidence of the use of Parcel B for preparation for land development; 2. Parcel B was not necessarily used in a manner consistent with the use for a Childcare Centre because it was fenced off from Parcel A; and 3. The letters relied upon did not put forward any evidence as at 31 December 2019 to refute the evidence of development applications and ground works for the development of Parcel B that may have been inconsistent with its sole use as a place where children are educated or cared for; and 4. Finally, there was no evidence before the Tribunal as to the state of trenches, exploratory boreholes and the like on or closer to the date of 31 December 2019.
24. The Tribunal was entitled to regard this state of evidence as being unsatisfactory and insufficient to discharge the onus on the Appellants to demonstrate that commercial land development might not have been one of the uses for Parcel B so as to preclude the application on the Childcare Centre exemption for land tax.
25. In our view, the Tribunal was not bound to accept the statements in the letters tendered as to the current use of Parcel B, particularly in the context of the specific contrary indications or submissions being put by the Respondent based on the actual works previously done to Parcel B.
26. Ultimately, whether or not there was a current use of Parcel B beyond the sewerage septic system is a question of fact and not a question of law. The Appellants require leave to appeal pursuant to s 80 of the NCAT Act and the well known principles for the grant of leave: Collins v Urban [2014] NSWCATAP 17.
27. We note the Appellants were not seeking leave to appeal. Nevertheless, we are not persuaded that consistent with these principles leave to appeal should be granted. The conclusion of the Tribunal that it was not satisfied on the balance of probabilities that Parcel B at 31 December 2019 was solely used as a place where children were educated or cared for was a conclusion open on all of the evidence before it.
28. Further, and in the alternative, for the reasons which follow, even if there was a finding that Parcel B was not being used for any other purpose other than as supplying the sewerage system required by the Childcare Centre on Parcel A this would have not affected the ultimate outcome.

Should the Tribunal have found that Parcel B came within the exemption in s 10(1)(u) of the LTM Act? (ground 2)

1. Section 10(1)(u) of the LTM Act exempts the following land from land tax: (u) land that is used solely for the provision of an approved education and care service (within the meaning of the Children (Education and Care Services) National Law (NSW)), but only if: (i) the service is provided by an approved provider under that Law, and (ii) the land is the place where children are educated or cared for by the service…
2. The task before the Tribunal was to construe the meaning of the phrase 'land that is used solely for the provision of an approved education and care service' and the meaning of the phrase 'the land is the place where children are educated or cared for by the service'.
3. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] 239 CLR 27 (Alcan), the High Court of Australia held that the task of 'statutory interpretation must begin with the consideration of the text itself', per Hayne, Heydon, Crennan and Kiefel JJ at 46. French CJ said that the starting point must be 'the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose' (at 31). His Honour observed, 'context and legislative purpose will cast light upon the sense in which the words of statute are to be used'.
4. Section 33 of the Interpretation Act 1987 (NSW) provides that, in the interpretation of a statutory provision: a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule) … shall be preferred to a construction that would not promote that purpose or object.
5. In Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky), McHugh, Gummow, Kirby and Hayne JJ said (at 384): …the duty of a court is to give the words of a statutory provision the meaning that the legislation is taken to have intended it to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with a literal or grammatical meaning.
6. The proper construction of section 10(1)(u) begins with an examination of the text, which we have set forth above. The exemption is firstly attracted only by land 'that is used solely for the provision of an approved education and care service'. That phrase is expressly qualified by clauses (1) and subclauses (i) and (ii) of the section. Of particular relevance in the case before us is that subclause (ii) confines the exemption to land 'but only if … the land is the place where children are educated or cared for by the service'. This phrase places particular emphasis on the location where children 'are' educated or cared for by the education and care service.
7. The ordinary meaning of this text would suggest that merely providing services which are used simply to assist in the provision of an approved education and care service located on another parcel of land, being the place where the children 'are' educated or cared for, is insufficient.
8. This would be the case even if the service in question, such as the septic service located on Parcel B, was indispensable to the operation of the educational and care service if it is still not the place where the children are actually educated or cared for.
9. In this regard, the fact that there is a fence preventing children from using Parcel B as a place where they are being educated or cared for fortifies this conclusion.
10. Such an interpretation is not inconsistent with the purpose or object underlying the LTM Act, which is to provide for the levying and payment of land tax on land in NSW, except where specific exemptions provided for by section 10 apply. Nor is it inconsistent with the purpose or object underlying section 10(1)(u) itself, which is to encourage the operation of Childcare Centres by exempting the relevant land from tax once the Centre has been approved and is operating 'but only if' the land is the place where the children are educated or cared for.
11. For these reasons, in our view, the exemption would not be attracted merely by the supply of a sewerage water facility to Parcel A. For the exemption to be attracted Parcel B must be the place where the actual conduct of educating or caring for children in an approved facility takes place.
12. Accordingly, the Tribunal did not err in failing to find that Parcel B came within the exemption, and we reject ground 2.

Was there a miscarriage of justice due to the inordinate delay involved?

1. Notwithstanding the significant length of time between the closing of written submissions and the delivery of the Decision at first instance, we agree with the Respondent's submissions that delay, in itself, does not form a ground of appeal.
2. The NSW Court of Appeal examined the question of the consequences of delaying giving judgment on the result in proceedings in the decision Cheng v Pan; Cheng v Zhou [2022] NSWCA 21 (Basten and Payne JJA, Simpson AJA) at [55]-[63]. The Court confirmed the principle that delay is not, by itself, a ground of appeal, nor does delay indicate that the decision has miscarried or that the decision is erroneous.
3. The Appellants have failed to establish or identify how the delay between the close of written submissions and delivery of the Decision at first instance caused the Decision to miscarry.
4. The hearing proceeded by way of documentary evidence, the credibility of witnesses not being an issue. The Appellants have not complained about this process.
5. Thereafter the parties each provided written outlines of submissions in advance of the hearing. The parties were given opportunities to provide closing written submissions following the hearing. We note the Appellants at all times were legally represented. The opportunity was also afforded to the Appellants to amend their application at the hearing.
6. The Tribunal had access to all of the parties' written submissions, the documentary evidence and, to the extent necessary, the transcript of the hearing. The Appellants had the opportunity to put before the Tribunal evidence of what had occurred if anything in the nature of exploratory works in support of its car park development application on and around 31 December 2019, but chose not to.
7. In conclusion, the Appellants have not established that the delay between the hearing and delivery of the decision affected the ability of the Tribunal to assess the cases put forward by each party. To the extent that a denial of procedural fairness is put forward as part of this appeal, in our view, the Appellants have not demonstrated any relevant denial of procedural fairness that would have affected the outcome of the proceedings.
8. Similarly, we are not satisfied that there was any inadequacy in the expression of the reasons for Decision: see NSW Land and Housing Corporation v Orr [2019] NSWCA 231 per Bell P at [54]-[55], [71]; Ward JA at [111]-[114]. In any event, given our full consideration of all the submissions of the Appellants on appeal, we are not satisfied that any lack of reasoning has caused the Appellants any prejudice: see Beale v GIO of New South Wales (1997) 48 NSWLR 430.
9. . As we understand the submissions of the Appellants before us this was not in dispute and was not sought to be relied upon as a stand-alone ground of appeal justifying overturning the Decision below.
10. Accordingly, we reject ground 3 of the appeal.
11. In conclusion, the appeal will be dismissed.

Notification of the intention to seek costs

1. The Respondent has informed the Appeal Panel that he intends to seek his costs of this appeal. Some brief arguments were put in support.
2. The argument essentially was that the Appellants' appeal was baseless. This it was submitted was the case because the Appellants raised the same arguments as raised at first instance and provided no statutory or other legal basis for the proposition that Parcel B of the Land is to be assessed with Parcel A and is also entitled to the exemption of land tax.
3. Further it was submitted that there were no submissions made identifying sufficient error of law in the Tribunal's Decision at first instance to establish grounds of appeal.
4. Our preliminary view is that the appeal could not be described as 'baseless' or 'misconceived'. Further, there appear to be no special circumstances attending this appeal that would justify an order as to costs.
5. However, we will provide for a timetable for application to be made if the Respondent wishes to continue to pursue its application for costs.
6. In such circumstances there is no need for us to comment any further on the limited submissions put forward already on costs by the Respondent and we note the Appellants have not replied to those submissions.

Disposition

1. The orders of the Appeal Panel are: 1. Leave to appeal is refused. 2. Appeal is dismissed. 3. The Respondent if he wishes to seek costs must do so by filing submissions and any evidence in support within seven days of publication of the decision. 4. The Appellants are to respond to those submissions with submissions of their own and any evidence in support within seven days thereafter. 5. Such submissions as to costs are to include submissions as to whether or not the Appeal Panel should dispense with the hearing on the question of costs pursuant to s 50(2) of the NCAT Act. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2022