The Applicant's Evidence
10The Applicant relied on witness statements by himself and six other persons. All 7 witnesses, other than Freda Payne the Applicant's mother, gave evidence before the Tribunal and were cross-examined. The Tribunal was informed that Mrs Payne was unwell. The Chief Commissioner expressed a wish to cross-examine Mrs Payne but did not require production of a medical certificate and did not object to the admission of her statement. Mrs Payne's statement was admitted to evidence but the Tribunal has given limited weight to her statement as she was unavailable for cross examination and the statement was not made under oath or affirmation.
11The evidence of the Applicant is:
1) He acquired the Land before 2001 and has throughout the relevant period owned, and continues to own, the Land.
2) For part of the relevant period his mother lived three doors from the Land on a property she had owned for many years ("Mrs Payne's property" or "his mother's property"). He lived at his mother's property from the time he was a child until he moved into a garage he built on the Land.
3) When he acquired the Land an old residence was situated on it. He decided to demolish the old residence and replace it with a new home and garage ("the development"). He obtained an owner-builder licence for the development.
4) The garage was purpose-built in 2002 or 2003 to enable him to reside on the Land and more easily oversee the development.
5) The garage included a mezzanine level which he used throughout the relevant period as personal space and a bedroom.
6) He lived in the garage for a short period after its erection until he decided it was too "rough" for him. From about July 2003 he lived at rented accommodation in Caringbah under a two year lease. When the Caringbah lease ended in July 2005 the Applicant returned to live in the garage.
12Although he resided on the Land from 2002 to mid-2003 and has resided on the Land since July 2005 he did not have a letterbox there during the relevant period and did not notify certain statutory authorities of his changed residential address from his former residence, his mother's property. Accordingly his address for the electoral roll, his driver's licence and the address he gave on Incoming Passenger Cards when returning to Australia in February 2006 and May 2009 was that of his mother's property, not the Land at which, he stated in paragraph 39 of his witness statement, he slept for more than 90% of the relevant period.
13He erected a temporary mailbox on the Land in 2005 however it was "blown up". He believed it was more convenient to use his mother's property as his postal address. While she was living at her property his mother collected his mail and delivered it to him several times each week. In 2008 his mother lived for a period at his sister's home and had mail redirected to that address. During that period his mother would contact him if anything in his mail required his urgent attention. Otherwise he would go to his sister's home approximately fortnightly and collect his mail. This arrangement continued until late 2009 or early 2010.
14During the relevant period he worked initially for Qantas and then for Amadeus. Both workplaces had showers and a cafeteria. He would often shower at work, taking a change of clothes with him. Qantas provided dry-cleaning facilities for his uniform(s) while he worked there. Amadeus did not provide such a service. He often ate at work and also ate a lot of takeaway food at the garage.
15The facilities inside or immediately outside the garage during the relevant period included a bed, cooking facilities (including a two burner gas BBQ outside and a camp stove inside the garage, an electric jug, a toaster and a microwave oven), a table and chairs, lounge chairs, a refrigerator, a TV and music system, floor rugs, a chest of drawers, washing facilities, electric lighting and power points.
16He required minimal electric power on the Land. He used one main light, power points for the electrical appliances referred to above and to charge his laptop computer. He used gas for cooking other than for the microwave, toaster and electric jug. He also ran an extension lead up to the house which was in the course of construction.
17The house reached lock-up stage in about February 2008 and as at mid-2012 the internal fit out of the house was continuing. Completion of the house is dependent on his finances
18A water meter was installed at the Land in November 2009. Prior to that water was connected but no meter was installed.
19He installed a temporary toilet and shower on the ground level of the house so as to meet his personal needs and to be accessible to contractors while he was asleep in the garage or absent from the site. At times prior to the installation of the toilet and shower he used bathroom facilities, including a toilet and shower in the backyard of a neighbour, Mr Nick Fylaktidis.
20A water heater was added to the temporary shower in December 2009.
21His friend, Mr Ronald Doolan, visited him socially about six times during the relevant period and ate and drank at the garage. Sometimes they would have a barbecue and hot and cold drinks. At other times they had takeaway food. Mr Doolan worked as labourer on the Land for no pay to assist him. During the relevant period Mr Doolan visited the Land about 10 times in each year.
22Sometimes he would still be in bed in the garage when Mr Doolan arrived on the site. On some occasions when Mr Doolan visited the site Kimberley Jones, the Applicant's son's mother ("Ms Jones")was present.
23When the Applicant was not at work he spent most of his time at home at the Land either asleep or doing housework.
24Attached to the Applicant's witness statement are 12 colour photographs ("the photographs"). The photographs are referred to in the statement as follows:
"35. I annex 12 photos of the garage as it was at all relevant times.
36. These photo (sic) represent the condition of the interior of the garage during the relevant years.
37. What isn't shown is the small bar type fridge, that has since ceased working and been thrown away.
38. The only thing that was not actually there is the TV."
25The s 58 documents included, at pages 62-64, a letter from the Applicant to the Chief Commissioner dated 17 November 2010. That letter included the following:
"4. Services connected to the property include:
Sewerage - previous house ran on septic, sewerage connected 2004.
Water - has always been connected
Gas - Connected November 2009...
5. Furnishings in Garage included a lofted area with a bed, microwave, mini fridge, lounge, TV, air conditioning unit. Main house comprises of fully functional kitchen (installed November 2006), 1 showers + 1 toilet (both functional from 2005), 2nd shower functional from 2008, washing machine functional from 2005 and dryer functional from 2009. Bookcase, lounge and 2 sun lounges, dining table and chairs, 4 bar stools, but Fay, TV Cabinet, 2 TV's, 3 built in wardrobes, built in linen closet and built-in pantry, 2 chests of drawers.
6. I have resided only at (the Land) and no other address since 2005.
...
I inherited a house at (the Land) when my father passed away, not an unoccupied block of land. Due only to the fact that the house was in need of major renovations, I made the decision to knock down and rebuild. Had I chosen to renovate I believed this to be problematic due to old footings, plumbing etc, not to mention costly, yet I would not be faced with such a tax.
Instead, with the best intentions to improve the area, and provide a pleasant updated home for my family, I chose to rebuild the old house.."
26During cross examination the Applicant's evidence included the following:
(1)an acknowledgement that the photographs of the toilet, laundry and shower annexed to his statement were not in the interior of the garage;
(2)an acknowledgement that the Land was not metered for water from 2006 to 2009 and that a reason for properties to be metered for water is to ensure that payment is made for water used;
(3)the Land had not been rented out nor used for any purpose other than his residence during the relevant period;
(4)a washing machine was installed in 2005 in the main house and was connected by a 60 m power cord from the garage;
(5)he understood that Mr Fylaktidis who assisted him in the development was a qualified builder. It was put to him that Mr Fylaktidis carried out the main task of the development - he denied this and stated that he worked as an owner builder; and
(6)he performed shift work throughout the whole of the relevant period and up to March 2013.
27The Applicant was shown Mr Doolan's witness statement and asked to explain why part of Mr Doolan's statement was identical to his own statement. He said that he had no explanation and he had not previously seen Mr Doolan's statement.
28In re-examination the Applicant stated:
(1) his mail address was left at his mother's property as a convenience;
(2)the use of his mother's address in Incoming Passenger Cards during the relevant period is because that was his contact address at the time. When completing the Cards his main concern was what had to be declared for customs;
(3)he did not at any time during the relevant period reside at his mother's address
29Mr Doolan gave evidence that:
(1)he was a friend of the Applicant and had known Ms Jones for about a decade;
(2)he visited the Land about 10 times each year during the relevant period and assisted the building work as a labourer for no pay in order to help the Applicant;
(3)the Applicant lived in the garage. Sometimes when he arrived at the Land the Applicant was not there, sometimes the Applicant was in bed and sometimes Ms Jones was at the Land;
(4)he often went inside the garage and had a beer or cup of coffee with the Applicant. Often they had takeaway food together. Sometimes he (Mr Doolan) boiled water using the electric jug in the garage;
(5)he had seen the photographs which were annexed to the Applicant's affidavit and the "scenes depicted in the photos appear to closely represent my recollection to what I observed on the interior of the garage" other than that "the small bar fridge, is not there";
(6)he visited the Applicant's home in the garage about six times for a social drink during the relevant period. At those times the Applicant would cook on the barbecue and the Applicant and Mr Doolan drank beer. On some occasions Ms Jones was there but not on others. After the meat was cooked those present "would go inside the garage and sit down on chairs, eat the food, and drink more beer."
30In cross examination Mr Doolan stated that he had not been in the garage since the Applicant moved into the house; on occasions he had gone upstairs in the garage and saw the bed there; the shower, toilet, washing machine and dryer in the photos were in the house not the garage; and Mr Doolan denied seeing Mr Payne's statement before making his own statement.
31Mr Doolan acknowledged that his evidence was given in order to support his friend. He said there had been no collusion and his statement was true.
32Mr Garry Jones gave evidence that:
(1)he was the father of Kimberley Jones, the Applicant's partner. He knew the Applicant and Mrs Payne well. Sometime before 2001 the Applicant told him he would build a house on the Land.
(2)He visited the Land several times each year during the relevant period. On one occasion the Applicant was still in bed when Mr Jones arrived. Mr Jones stated that the Applicant "appeared to be living in the garage on the property" and that occasionally he went into the garage "and had a cup of tea or coffee with" the Applicant. Mr Jones described some of the furniture in the garage and said that he had been to the loft in the garage which he accessed with a ladder.
(3)The Applicant had stayed at Mr Jones' home on 6 to 10 occasions.
(4)The scenes depicted in the photographs closely represented his recollection of the interior of the garage other than that a small bar fridge was not in the photographs.
33In cross-examination Mr Jones said:
(1)on one occasion the Applicant had to get up in the middle of the night to intercept a burglar on the Land.
(2)A washing machine, shower and toilet in the photographs were not located inside the garage. Later he said they were in the house on the Land.
(3)Some of the photographs were of the interior of the garage and some were of the exterior.
(4)He thought he had visited the Land some three or four times. Later he said he was unsure of the exact number of times he visited the Land.
(5)Throughout 2006-2009 the Land appeared to be a typical building site with material over the ground and a chain link fence across the front of the Land with a swinging panel to allow access.
(6)He had accessed the bedroom loft in the garage using a ladder.
(7)He was unaware as to when the washing machine and dryer became operational.
34Ms Kimberley Jones gave evidence to the effect that:
(1)she was the Applicant's partner and they had a child. She had known the Applicant for some 20 years.
(2)The Applicant's mother lived a few doors from the Land and she had visited the Applicant's mother's home on many occasions.
(3)She only stayed in the garage with her child sporadically because of the rough nature of the accommodation.
(4)She saw the Applicant living in the garage.
(5)There was no letterbox on the Land in the relevant period.
(6)For much of the relevant period she was separated from the Applicant.
(7)In about 2001 or 2002 the Applicant informed her that he was going to have a house built on the land and would live in the garage while the house was being built.
(8)At times, particularly during 2006-2007 she saw Mrs Payne bring mail to the Applicant and sometimes she saw Mrs Payne visit the garage without mail.
(9)Facilities at the garage included a bed, cooking facilities, a table and seating, electric power, TV and a music system.
(10)Power points were used for some cooking utensils, the Applicant's laptop computer and a bar fridge.
(11)Some cooking was done on a 2 burner gas BBQ outside the garage or on a camp stove.
(12)The majority of the time she attended the garage with the Applicant they would eat takeaway food.
(13)A toilet and shower were located at the bottom level of the main house.
(14)She has seen photographs of the interior of the garage annexed to the Applicant's affidavit. During the relevant period, the garage interior was substantially the same as represented in the photographs except that the Applicant's bar fridge is not in the photographs.
(15)Water was connected to the garage. Hot water was first available in the garage in about November 2009.
35In cross examination Ms Jones stated:
(1)she was aware that her witness statement was prepared as evidence for the Applicant in relation to a tax dispute.
(2)Some of the photographs were not of the garage, for example the washing machine and the shower.
(3)She confirmed she slept with her son in the loft bedroom. At times she carried her son up to the loft. From the time that her son was about 15 months he could climb to the bedroom and she would be with him.
(4)She acknowledged that there was no balustrade at the open edge of the loft and that there was an access hole in the floor of the loft. She denied that her son sleeping in the loft was highly dangerous as he slept in bed between two adults. There was no risk of him getting up and falling because she was very closely attuned to her child.
(5)She did not recall getting out of bed during the night to go to the toilet.
36Mr Nick Fylaktidis, provided a witness statement in which he stated:
(1)He was a builder who agreed in about August 2002 to assist the Applicant, as owner builder, to build a house on the Land.
(2)Construction of the garage commenced in about February 2003. The Applicant informed him that the garage was to be the Applicant's residence until the house was completed.
(3)During the relevant period he saw the Applicant living in the garage.
(4)He allowed the Applicant to use bathroom facilities in his back yard during the relevant period. He saw the Applicant go to those facilities on several occasions during that period.
(5)At times during the relevant period when he arrived at the Land he observed that the Applicant was either in bed in the garage or absent at what he understood to be the Applicant's work. If the Applicant was in bed when he arrived on the Land he would sometimes come out of the garage during the day and speak to him. If the Applicant was away from the garage when he arrived then the Applicant would often return to the garage later in the day.
(6)He did not see a letterbox on the Land.
(7)On some occasions, particularly during the first half of the relevant period, he saw Mrs Payne attend the Land and see the Applicant, often with mail in her hand.
(8)He often saw Ms Jones and her son visit the Applicant at the Land.
37In cross examination Mr Fylaktidis stated:
(1)his witness statement was correct except that he was not a licensed builder.
(2)He was paid by the Applicant to work on the Land.
(3)Bathroom facilities used by the Applicant with his permission were in his backyard. The last time the Applicant used those facilities was some years ago, before the house on the Land was at lock-up stage in about February 2008.
(4)He saw Mrs Payne visit the land, at times daily, and hand over mail.
(5)He saw Mr Doolan at the Land from time to time possibly weekly.
(6)Mrs Payne knew him by name. He saw her from time to time. The local area is a small suburb and everyone knows everyone.
(7)A toilet and shower were installed after lock-up by the plumber.
38In re-examination Mr Fylaktidis stated he did not help install the shower. The plumber started some work before the lock-up stage and ended after the lock-up stage. He was not sure of the details of the work or the timing.
39Mr Brett Sussmilch, a plumber, gave evidence. He removed a water meter from the Land in about September 2004 and installed a water meter in about November 2009. He fitted a number of plumbing items to the Land during the relevant period and was not aware of any other plumber carrying out work on the Land during that period. Mr Sussmilch installed an external tap on the side of the Land between the garage and the street. He could not recall installing a tap in the garage. He was uncertain of relevant dates and could not confirm them without checking his records which he had not done.
40Mrs Payne provided a witness statement dated 20 June 2012 in support of the Applicant but, as noted above, did not give oral evidence. Her witness statement includes the following:
(1)she lives a few doors from the Land.
(2)In about October 2001 the Applicant informed her that he was going to build a house on the Land but he would build a garage first, then move into the garage while the house was being built.
(3)She was the person who habitually emptied the letterbox at her home. She saw correspondence come to her house for the Applicant from various authorities. During the relevant period there was no letterbox at the Land. The house was nearly finished in early 2010 and a letterbox was erected on the Land at about that time. When she was ill during the relevant period, mail was redirected from her home to her daughter's address. She would call the Applicant to collect his mail and let him know if there was anything urgent he needed to attend to. Otherwise the Applicant would collect a bundle of mail every fortnight or so. This arrangement continued until late 2009 or early 2010.
(4)Construction on the Land started in late 2001 or early 2002. She often saw Mr Fylaktidis, a builder and neighbour, working on the construction and would say hello to him.
(5)She would go to the garage on the Land several times a week during most of the relevant period to deliver the Applicant's mail and see how he was getting on.
(6)She knew that the Applicant worked shift work with Qantas and usually knew what shift he was working. Usually when she went to the Land she would find the Applicant in the garage. Often he was still in bed.
(7)The Applicant showed her around the garage when he first moved in in about 2002. She was aware that the garage had a shower, bed, cooking facilities, a table and seating and had electricity connected.
(8)She saw the photographs annexed to the Applicant's witness statement. The photographs are essentially identical with what she saw of the inside of the garage during the relevant period.
(9)Sometimes when she entered the garage Ms Jones was there with her child.