SARROS and COMMISSIONER OF STATE REVENUE [2022] WASAT 102 | Case summary

HEARD : 2 MARCH 2022, 3 MARCH 2022 AND 23 MARCH 2022

SARROS and COMMISSIONER OF STATE REVENUE [2022] WASAT 102 | Case summary | Zoe

[56]

In his 1716 work, The Cobbler of Preston, the British actor Christopher Bullock coined the phrase 'Tis impossible to be sure of anything but Death and Taxes'. The prophetic observation that there are few certainties in life continues to hold true, even in 2022. However, as Bullock acutely observed, one of life's few certainties is the obligation to pay tax.
These reasons deal with a dispute about tax, namely whether land tax is payable on a property pursuant to the Land Tax Assessment Act 2002 (WA) (LTA Act). In summary, land tax is an annual tax on land that a person owns that is not his or her principal place of residence.
In this matter, brothers Chris and Zifko Sarros (together the Applicants) seek a review of their land tax assessment under the LTA Act. The principal contest is whether land they own at No 10 Harkins Street, Westminster (the Subject Lot) was their primary residence for the purposes of s 21 of the LTA Act for land tax assessment years 2016/2017, 2017/2018 and 2018/2019. Therefore, by reason of s 7(1) of the LTA Act, the key dates that are the focus of the reasons are 30 June in 2016, 2017 and 2018 (together the Relevant Dates).
In these reasons, I will refer to Chris and Zifko by their first names. No disrespect is intended.
The Commissioner of State Revenue (Commissioner or Respondent) considers that the Subject Lot was not the primary place of residence for either Chris or Zifko on any of the Relevant Dates. On 4 March 2021, Revenue WA disallowed an objection from the Applicants against the assessment of land tax issued on 7 August 2019. The dismissal of the objection is the basis for the review in the Tribunal pursuant to the right provided by s 40(1) of the Taxation Administration Act 2003 (WA) (TA Act).
For the reasons that follow, I do not accept the Applicants' case that the Subject Lot was either Chris' or Zifko's primary place of residence on any of the Relevant Dates. Accordingly, the application for review (Review) should be dismissed.

[100]

As stated, the Respondent's decision to disallow the Applicants' objection is a 'reviewable decision' for the purposes of the State Administrative Tribunal Act 2004 (WA) (SAT Act).[49] That is to say, the matter arises in the Tribunal's review jurisdiction.[50]
Pursuant to s 27(1) of the SAT Act, the review hearing is a hearing de novo. In dealing with the review, I am cloaked with the same functions and discretions as the Respondent in making the reviewable decision.[51] My task is to make the correct and preferable decision on the Review.[52]
I am also mindful, as the Tribunal observed in JM Bestall and Commissioner of State Revenue,[53] that although the hearing is de novo and I may consider evidence that was not before the Respondent, such evidence cannot, as it were, be seen to have retrospective effect.
That is to say, the question is whether the use of the Subject Lot by the Applicants was such so as to meet the description of being their 'primary residence' for the purposes of s 21 of the LTA Act as at any of the Relevant Dates. In effect, this is a historical inquiry into events and circumstances as at the Relevant Dates.
Section 5 of the LTA Act provides that land tax is payable every 'financial year' for all land within the State, except land that is exempt under s 17 of the LTA Act. A financial year is the period of 12 months ending on 30 June.[54]
Pursuant to s 7(1) of the LTA Act, land tax is payable for an 'assessment year' by the owner of the land as at midnight on 30 June in the previous year. Section 17 provides that land is exempt from land tax if the Commissioner grants an exemption under s 20 or is exempt under another provision within Pt 3 (which, relevantly, includes s 21).
Section 20 has no application to the proceeding. However, s 21 of the LTA Act includes an exemption with respect to 'private residential property' that is owned by individuals provided it is used as his or her 'primary residence'.[55]
Section 4 of the LTA Act establishes a Glossary of defined terms. That Glossary includes the following definitions:

[171]

Zifko is 81 years old.
Zifko's evidence sets out his relevant interests in a range of properties, which I have set out at [17] above.
Zifko explains that he lived at the Subject Lot from a young age. He was married in 1964 and, at the time, he and his wife lived at the Subject Lot. His son was born in 1966 and his wife left them within a year.
The dwelling on the Subject Lot contains two bedrooms. One bedroom is his. There is no carport or driveway.
When his son was about 12 years old, they moved to the Adjoining Lot. He cared for his son with some assistance from his father, who had moved into the Subject Lot.
Zifko explains that his son lives in the Adjoining Lot. In 2011, a caretaker living at the Subject Lot moved out. In 2012, he moved from the Adjoining Lot to the Subject Lot. It was modestly furnished.[131]
Water and power are connected to the Subject Lot, but not gas. A telephone line was connected in around 2015. The line was disconnected in 2020, as it was not used.
Vehicle 1CLM### is insured by Australian Associated Motor Insurers (AAMI). Zifko advised AAMI that the vehicle was kept overnight at the Adjoining Lot. Later, on or about 18 January 2018, he advised AAMI that the vehicle was kept at the Subject Lot. Nevertheless, he continues to park the car overnight at the Adjoining Lot.[132]
Vehicle 1CLY###, which used to be driven by his son, is parked overnight at the Adjoining Lot. A tractor is also at the Subject Lot, which is used for fire-break purposes. There is also an unregistered vintage truck parked at the Subject Lot which he and Chris plan to restore.
Zifko has friends in the Westminster area with whom he is in regular contact. He spends many evenings out visiting friends or with his son. He sleeps at the Subject Lot.
Zifko says he has the newspaper delivered and has always insured the Subject Lot but does not have records of this. From around October 2015, the Subject Lot has been insured for $200,000 with contents of $10,000 by St George.
From around May 2016, Zifko says that Chris came to live with him. Chris did not bring furniture other than a bed, as the premises were furnished. There is a reverse cycle air conditioner which, if used, would be in the evenings as Zifko is out during the day.
Food and drink are kept at the Subject Lot including tea, coffee, bread, cereals as well as drinks and ice cream.
Zifko explains that most of his clothes are laundered, and he hand washes some clothes, such as his underwear. He also handwashes his bed linen and tea towels. There is no lawn or garden (or reticulation) at the Subject Lot.
Zifko says he is a social person and, unlike other people, does not spend a lot of time at home. He enjoys spending time with his son, family and friends.
He does not cook at the Subject Lot. He either goes out or eats take out. Sometimes he eats at the Adjoining Lot.
Zifko does not shower. He uses a wet cloth with soap to clean himself.
Zifko's son has lived at the Subject Lot or the Adjoining Lot for his entire life. Zifko's son suffers from a range of medical conditions which requires Zifko to 'provide a lot of assistance' including shopping and cleaning.[133] His son runs an electric heater year-round. Zifko checks to see that his son is safe around the heater.
Zifko socialises with his son and checks on him every day. He spends 'a considerable amount' of his spare time looking after his son and performing housework.
Zifko also explains that he has not contacted the Water Corporation in relation to any leaks and there have been no pipe repairs at the Subject Lot. In around September 2019, following a call from Chris, the Water Corporation replaced the water meter.

[172]

Chris is 79 years old and is a licensed real estate agent. He married in 1978 but the marriage encountered problems in 2010. He has not lived with his wife since 2016.
In May 2016 he decided to live with his brother at the Subject Lot which they conjointly own. He took his personal possessions to the Subject Lot.
From about 2014, he owned vehicle 1DRL### until about May 2020. This car was insured by AAMI. On or about 23 January 2018, Chris advised AAMI that the vehicle would be kept overnight at the Subject Lot.
He did not advise AAMI in May 2016 of the change of address. He says it was a minor detail that he did not get around to.
His wife and son live at 2 Esla Place, which includes a tennis court and swimming pool. The size of 2 Esla Place is 1,367m2. The premises are insured by different providers including Vero Insurance and IAL (Berkshire Hathaway). Three cars are generally kept at the property. Chris still looks after 2 Esla Place, including the tennis court, pool and gardens. He also visits his family at 2 Esla Place. On rare occasions, once or twice a year, Chris will stay at 2 Esla Place.
Chris says that 6 Doriot Way, Carine is used to store a variety of tools and spare parts (lawn mowers, old furniture and an analogue TV) which are kept for use in the business to repair and maintain leased premises. Chris says he frequently attends 6 Doriot Way to collect or drop off tools and spare parts. He may also stop in at 6 Doriot Way between meetings and also to take and make phone calls.
The Charles Street Lot is used to operate the business. It includes offices and a bathroom. The business does not employ anyone. Chris and Zifko do all the work. Chris showers at the Charles Street Lot on occasions.
Zifko's son lives at the Adjoining Lot. Since there is no garage at the Subject Lot, Chris garages his car at the Adjoining Lot as it is protected by a garage. Sometimes he parks his car on the verge of the Subject Lot. The Subject Lot and the Adjoining Lot are situated close together.
In terms of the Subject Lot, Chris explains that it had been furnished by Zifko. It has two bedrooms. The furniture is the same today as it was when he moved in May 2016. As at 15 October 2015, the Subject Lot was insured for $200,000 with contents insurance of $10,000 by St George Underwriting Agency.
Chris does not wash his clothes at the Subject Lot but has them pressed instead. He does not have any receipts. He washes his bedsheets and towels by using the washing machine or basin. There is reverse cycle air conditioning at the Subject Lot, although it is not used much, except sometimes in the evenings.
Chris says he does not use the dwelling at the Subject Lot in the same way that other people use their own home. He says he is a social person and enjoys spending time with family and friends. Even though he is estranged from his wife, he still visits his family and travels on holidays with them. He does not cook meals and eats out six nights a week. He also does not east dinner sometimes due to a large lunch.
Chris showers once a day, the vast majority of the time at the Subject Lot. If he does not shower at the Subject Lot, he showers at the Charles Street Lot.
Chris says that the pattern of water consumption at the Subject Lot 'is gradual in relatively small amounts because there is no lawn or garden to maintain and there is no swimming pool'.[134] As a result of the limited use of water and electricity at the Subject Lot, the water and electricity bills are small.
Around mid-2015, the City of Stirling (City) was considering a scheme amendment to rezone land, including the Subject Lot. The proposed scheme amendment was initiated by the City. Chris understands that the City wishes to see vacant land at 122 Arkana Road, Westminster put to a higher use.
Chris banks with a major bank. There are credit cards issued which his wife and other family members use with Chris' authority.
Chris says that his incoming passenger cards (when returning from overseas) for the period between 2016 and January 2018 were prepared by his daughter. Chris says he signed the cards without checking the details of the address listed or relevant contact details. Since 8 January 2018, Chris completed his own incoming passenger cards and put down the Subject Lot as his address.
Since May 2016, Chris is not aware of any significant water leaks at the Subject Lot. In mid-September 2019, he contacted the Water Corporation over concerns the water meter was faulty. The meter was replaced.

[214]

Mr Lee explained that he closely considered the Applicants' objection and evaluated whether the evidence tended to support or contradict the Applicants' assertions.
In his review, Mr Lee formed the view that the investigation that was undertaken into the Applicants' claim for the land tax exemption was thorough and had considered the factors set out in the Commissioner's Practice LT 4.2.[181]
Mr Lee also noted that the decision-maker had considered the geodata[182] associated with the Applicants' use of their mobile telephones[183] as a critical factor in making factual findings as to the Applicants' actual usage of the Subject Lot. This was particularly so, Mr Lee explains, with respect to the number of nights Chris stayed at the Subject Lot during the Relevant Dates.
Mr Lee undertook his own analysis of the mobile telephone records of Zifko and Chris as well as Chris' wife.
As part of his consideration of this data, on 25 March 2020, Mr Lee requested, and was granted, approval to obtain further internet usage records associated with the mobile telephones of the Applicants and Chris' wife.[184] The additional data was provided on 14 May 2020.
In terms of Zifko, Mr Lee was satisfied that the mobile telephone records he reviewed did relate to Zifko's mobile telephone. Mr Lee agreed with the decision-maker's conclusion as to what the geodata indicated. That data indicated 'that the vast majority of Zifko's usage of his mobile telephone between 9 pm and 5 am during the Relevant Dates was in the vicinity of Westminster'.[185]
In terms of Chris, Mr Lee was satisfied that the mobile telephone data related to Chris' mobile telephone. Mr Lee was also satisfied that he was reviewing the mobile telephone data of Chris' wife.
Mr Lee reached the view that the geodata showed that the vast majority of Chris' usage of his mobile telephone between 9 pm and 5 am during the Relevant Dates was in the vicinity of Carine.
Mr Lee noted that Optus (the Carrier) had advised the decisionmaker that the internet usage records (GPRS) records were provided in New South Wales time.[186] The decisionmaker had not adjusted the geodata records the Carrier had provided. Given the decision-maker focused on the time period between 9 pm and 5 am, Mr Lee considered that the analysis should be time-adjusted to ensure that the geodata records were based on WA local time.
As a result, Mr Lee created his own versions of the spreadsheets relating to the Applicants' mobile telephone records and then adjusted them to reflect WA local time.[187] Mr Lee then filtered the data to isolate the records that pertained to usage in the 9pm to 5am period and undertook his own analysis of the time-adjusted data for Chris and Zifko's mobile telephone records.
For the purpose of his analysis, if the records disclosed that the user was in multiple locations within the 9 pm to 5 am timeframe, Mr Lee inferred that the overnight location was the location disclosed in the last record within the timeframe.[188]
Mr Lee had a map which identified the Carrier's cell towers.[189] Mr Lee noted that the Carrier's cell towers in Balcatta were close to the suburb of Westminster. Zifko's mobile telephone data predominantly disclosed a location of Balcatta for the period 9 pm to 5 am. However, Chris' mobile telephone data predominantly disclosed a location of Warwick. In this regard, Mr Lee noted that that the Carrier's cell towers in Warwick were located closer to Carine as compared to Westminster.[190]
Mr Lee's analysis of the mobile telephone data established that Chris was overnight (that is to say, between the period 9 pm to 5 am) in the Carine area:

[223]

The first ground of objection raised by the Applicants was that the decision-maker misdirected himself as to the correct question to answer in determining the application for exemption. Mr Lee dismissed the objection as he considered that the decision-maker addressed the correct questions (being whether the Subject Lot was used by each of the Applicants as his primary residence at the Relevant Dates).
Mr Lee considered the factors that the decision-maker had taken into account in reaching the conclusion that the Applicants had not established that the Subject Lot was their primary residence and found them to be appropriate.[202]
The second ground was that the decision-maker failed to consider all factors favourable to the Applicants in a realistic manner. Mr Lee rejected this ground as he considered that the decision-maker had properly addressed the matters raised by the Applicants.
Mr Lee agreed with the decision-maker that little weight could be given to the statutory declarations provided on behalf of the Applicants given that the, according to the declarants, the Applicants resided at the Subject Lot at a time when there was no electricity or water being consumed.[203]
Mr Lee agreed with the decision-maker that the low water meter readings were not the result of estimates. The Water Corporation had confirmed the readings were actual readings. Mr Lee also considered that there was a sound basis to exclude two outlier periods where water the water consumption was unusually high from the calculation of average water usage at the Subject Lot.[204]
Mr Lee did not agree with the Applicants that the low consumption of utilities during the period in which they contend the Subject Lot was their primary residence had been adequately explained. Mr Lee considered that the low consumption of utilities to be explained by a low level of occupation.
Mr Lee concluded that Chris was rarely overnight at the Subject Lot and that Zifko spent much of his spare time at the Adjoining Property with his son. Mr Lee calculated that the water and power consumption at the Subject Lot was less than what an average person would consume.[205]
The third ground of objection was that the decision-maker had engaged in an illogical fact-finding process. The Applicants claimed that the decision-maker had made an inference of fact from information on the incoming passenger card of Chris that was not open to be made having regard to the purpose of the cards. Mr Lee considered that the decisionmaker had correctly interpreted the information.[206]
Mr Lee also noted that, since the commencement of the investigation, the Applicants began to make changes to records of their addresses. Mr Lee found that the decision-maker's comparison of the usage of utilities at the Subject Lot and the Adjoining Lot to be appropriate.[207]
Mr Lee dismissed the Applicants' objection, and thus made the decision giving rise to the Review, on 4 March 2021.

[228]

Chris was subject to extensive cross-examination by Ms Panetta, counsel for the Respondent.
Ms Panetta took Chris through a range of topics including the extent to which he complied with, or assisted the Respondent's investigation,[210] utilities consumption at the Subject Lot (and 2 Esla Place and the Charles Street Lot),[211] insurance arrangements (both motor vehicle[212] and for the Subject Lot),[213] the state of his marriage,[214] photographs provided by the Applicants,[215] the incoming passenger cards[216] as well as the geodata from his mobile telephone.[217]
Following consideration of the parties' submissions together with the evidence (both written and viva voce), I have reached the view that Chris was an unreliable witness.
I find Chris' evidence was farfetched, implausible and largely fabricated to bolster his case. His application for an exemption for the Subject Lot on each of the Relevant Dates was, I find, an attempt to avoid what is a significant land tax liability for the Subject Lot over the Relevant Dates.
I am mindful of the limits of my jurisdiction in this matter. The Tribunal is a creature of statute, and its review jurisdiction is tied to the reviewable decision in question.[218]
In this instance, I am only dealing with whether, relevantly, Chris is entitled to an exemption for the Subject Lot for the Relevant Dates. In the event that I am not satisfied that Chris can claim the exemption under s 21(1) of the LTA Act for the Subject Lot for the Relevant Dates, it is not my role to, as it were, otherwise declare with any legal effect, where his primary residence is.
Nevertheless, in instances where a taxpayer uses and relies on and uses a number of residences, the authorities, including Mesiti, suggest that I am required undertake an analysis of each of the residences so as to form a view as to which is their 'principal' place of residence. However, my ultimate focus is whether the Subject Lot was Chris' principal place of residence as at any of the Relevant Dates.
As I will come to explain, I am not satisfied that Chris used the Relevant Lot as his principal place of residence as at any of the Relevant Dates. I find that Chris' primary residence was 2 Esla Place throughout the Relevant Dates and I am far from convinced that he is not still, both legally and practically, married.
In the background of this matter, I regard it as relevant that there is a plain incentive for Chris to establish that the Subject Lot was his primary residence for the purposes of the land tax exemption available under the LTA Act. The Subject Lot is 2.75 hectares of urban zoned land which can accommodate substantial future residential subdivision and/or development. Its value (which is not challenged by the Applicants), as at the Relevant Dates, was approximately $4,000,000.[219]
As a consequence, the land tax liability that attaches to the Subject Lot is very significant. It would make financial sense for Chris to be able to claim the exemption available under the s 21(1) of the LTA Act for the Subject Lot. However, in order to be able to claim that exemption, he must, in a real and tangible sense, use the Subject Lot as his primary residence. I find that the evidence, viewed objectively and considered as a whole, establishes that he does not.
It is also the case that the Applicants own a vast array of properties across Carine and Westminster. Their portfolio of properties (owned individually or through their companies) exceeds 30 dwellings and commercial units. Their business involves leasing residential land for commercial profit. A necessary corollary of that is that land tax will be payable on all their properties aside from their primary residence.
It follows that, in my view, the Applicants should well be aware of the need to be able to substantiate where their primary residence actually is for the purposes of obtaining the land tax exemption. This is especially so if they divide their lives between multiple residences.
Having stated my overall impressions of Chris' evidence, I will explain my findings.
First, I am satisfied and find that the geodata from his mobile telephone places him in Carine far more often than in Westminster. No doubt to overcome this significant obstacle, this is where Chris' reliance on 6 Doriot Way derives from. His explanation that he keeps a 'night office' at 6 Doriot Way (only 150 metres away from 2 Esla Place) emerged not during the Respondent's investigation, but instead only at the point where the Applicants filed their statement of issues, facts and contentions. I find his assertion that his association with 6 Doriot Way is the reason why the geodata might place him in Carine very often late at night is a recent invention and a fabrication.
The geodata, the accuracy of which I accept, is largely fatal to Chris' case. For example, he agreed that between 1 July 2016 and 30 June 2017, he spent only 14 nights in Westminster.[220] That is 14 nights in an entire year. During the same period, the geodata places Chris in Carine for 242 nights, a proposition which he also agreed with.
For the period 1 July 2017 to 30 June 2018, the geodata places Chris in Westminster. In the same period, Chris was placed in Carine for 241 nights. While Chris did not agree, I do not accept his evidence. While he suggested he had his own geodata analysis which shows the Respondent's analysis was wrong, none of this analysis was provided to the Respondent nor the Tribunal.[221]
I also do not accept his explanation that what the geodata is showing is that he was at 6 Doriot Way.[222] Furthermore, I do not accept that he is on call 24/7 as part of his businesses and that he is required to be 'out and about' in the Carine area so very late and so very often.
While the full range of circumstances must be considered, and as was explained in Kyriakou, the scrutiny on lifestyle habits should not be approached overzealously, the case authorities do tend to focus on where a person eats, drinks and sleeps as important considerations on the question of evaluating a person's primary place of residence. These factors provide an indication of someone's usual place of abode.[223] The geodata available to me suggests that Chris does not at all, as a matter of fact and degree,[224] 'live' at the Subject Lot such that it could be regarded as his primary residence.
More than that, the geodata tends to, at the very least, suggest that Chris is still married in a practical sense (or at least was during June 2017). Mr Lee's geodata analysis[225] compared Chris' mobile phone data with that of his wife for one randomly selected week. That analysis focused on the period between 9 pm and 5 am, that is to say when people are most often at home.
That analysis was as follows:[226]

[236]

Chris agreed that this is what the data may show but that he was actually not at 2 Esla Place. Rather he says he was at 6 Doriot Way, his night office.[227] When asked whether his wife also spends time at 6 Doriot Way, Chris initially explained that he spends most of the time there. He then was more adamant that his wife does not go to 6 Doriot Way at all.[228]
I have already explained that I do not accept Chris' explanation that while it may appear he is still in Carine very close to his marital home, he is actually some 150 metres away at 6 Doriot Way.
Moreover, even if I were to accept Chris' explanation that rather than being at his matrimonial home, that he was instead at his night office, that does not place him in Westminster where he says he lives.
Before I move away from the geodata, I should address the challenges that were made to Mr Lee's analysis. Dr Robson, counsel for the Applicants, challenged Mr Lee on the basis that the geodata did not identify a specific location and that it would be possible for Chris to be at 6 Doriot Way and therefore be within the same cell tower area. Mr Lee agreed that that was possible.[229]
Dr Robson also challenged Mr Lee that the analysis was flawed in that the overnight location was recorded based on the last transmission from the mobile phone. It was therefore possible that the last data point between 9 pm and 5 am was a person in possession of a mobile phone in a vehicle travelling within range of a mobile phone tower. Mr Lee agreed it was possible.[230]
However, Mr Lee later explained that the mobile telephone stays connected to the network through the night which is evinced by records throughout the night (that is, from 12 am - 5 am). Mr Lee was therefore very confident that the geodata identified the locality of where someone spent (or was located through) the night.[231]
Dr Robson also suggested the period in June 2017, where Mr Lee matched the geodata of Chris and his wife, was not representative of the entirety of the Relevant Dates. Furthermore, the analysis was irrelevant to the question of whether Chris slept at the Subject Lot. Mr Lee disagreed.
Mr Lee also explained that the remaining geodata supported the same conclusion as the week he chose to intensely scrutinise. Mr Lee explained that another week (he picked 12 April 2017 to 19 April 2017) shows exactly the same data. That is, Chris' mobile telephone is continually connected to the cell tower in Warwick and, crucially, Zifko's was connected to a cell tower in Balcatta.[232]
Mr Lee was a fair witness. The analysis he undertook was reasonable, balanced and thorough. I accept his evidence and his analysis of the mobile telephone geodata. I also find his evidence is a reasonable interpretation of the data. As I have said, that evidence is damming for Chris.
I am mindful of, and have carefully considered, Dr Robson's closing submissions that Mr Lee did agree that more than one conclusion was open on the data (including that the communication with the phone cell tower could have been while Chris was driving to either visit his family or even to collect rent).[233]
While it may be so, in theoretical terms, that more than one conclusion is open from the data, the geodata evidence overwhelmingly supports the view that Chris was staying in the Carine area for the majority of evenings.
Whether or not he was ultimately at 2 Esla Place or 6 Doriot Way (Mr Lee did not even know about 6 Doriot Way when he undertook his analysis) it matters not. Chris and Zifko were in different cell tower locations. If both of them were living together in Westminster, the geodata would look very different and would indicate they were together during the late evening and early morning periods.
I do accept that there may be the odd evening when Chris may have been driving late at night and recorded a location of a cell tower away from where he ultimately slept. Indeed, that seems to be confirmed by Appendix B to Mr Lee's statement which identifies locations such as Burswood or Narrows Bridge.[234] However, the overwhelming weight of the geodata evidence points to Chris routinely staying in a Warwick locality within a few hundred meters of the cell tower, and not in a locality in Balcatta which is where Zifko was located (it being not in dispute that Zifko spent his evenings in Westminster).
However, the geodata is not the end of the matter.
Second, I now turn now to the incoming passenger cards which I will use to open up a broader discussion about Chris' relationship with 2 Esla Place and the evidence he has chosen to adduce in this proceeding generally.
Let me commence by observing that, despite his marriage being in apparent difficulty, Chris continues to travel and holiday overseas with his wife and children twice a year. As an observation, it does seem rather odd (at least to me) that a family unit with adult children would still holiday overseas together when the marriage was, in practical terms, over. That kind of arrangement, to me, seems to be a more realistic proposition when younger children are involved, as the children may draw comfort and security from joint holidays with both parents. However, it is not my role to make any findings on such arrangements, other than to say that these arrangements evince, at the very least, an affable and functional relationship between Chris and the other members of his immediate family, despite the asserted marital difficulties.
On the incoming passenger cards, which are to be completed (as a legally binding declaration) on international arrivals, the form that Chris says was completed for him on his behalf by his daughter indicated that his 'intended address in Australia' was 2 Esla Place.
In circumstances where he now says that he and his wife were not in any practical sense, married, it seems odd for his adult daughter, on multiple occasions, to identify his address as the marital home, if he did not live there. I find it reasonable to infer, as I do, that his daughter considered, at least up until January 2018 (when Chris became aware of the investigation), that upon returning from multiple overseas holidays as a family unit, Chris intended to live at 2 Esla Place with his wife.
I also observe that the facts clearly establish that Chris owns (or more accurately co-owns) a wide number of properties at which he could choose to reside. The point being, this is not a case where Chris is suggesting that he and his wife were separated but still living together independently. Rather, his case is that he no longer resides at 2 Esla Place and has not done so since May 2016.
As I indicated, Chris' marriage status is not a reviewable decision in the context of this matter. However, Chris' relationship with 2 Esla Place has long been in issue. It was made clear in the reviewable decision (made on 4 March 2021) that the Respondent found, on the balance of probabilities, that Chris resided at 2 Esla Place.[235] That is to say, Chris has known that his relationship with 2 Esla Place was a focus for the Respondent.
It is therefore convenient at this point to reiterate that Chris bears the onus in demonstrating the reviewable decision was incorrect.[236]
Chris admits to spending time with his wife at 2 Esla Place and calling her a few times a day.[237] The family unit holidays together twice a year and, as I have set out, the geodata, places Chris and his wife in close proximity most evenings, including visiting their daughter together. He also admits that he only slept 14 times at the Subject Lot in the 2016/17 assessment year.
Yet, the evidence he has offered to support his claim that he used the Subject Lot as his primary residence as at the Relevant Dates as part of this proceeding is, I must say, scant and flimsy.
His case primarily relies on 6 Doriot Way (his association with which only emerged in his evidence for this hearing), the statutory declarations from friends (which I will come to) and his explanations as to why the utility consumption at the Subject Lot is so low.
He also relies on photographs of the Subject Lot that were taken for the hearing (in circumstances where the Respondent was not allowed to take photographs as part of the investigation) as well as some other documentation which evinces some ongoing association with the Subject Lot.
In this context, if Chris' lifestyle is as he says it is, it seems odd that no other member of Chris' family was called to give evidence. If the relationship Chris has with his wife as a separated couple is affable, evidence of this would have assisted. However, no such evidence was produced.
Chris' wife declined to participate in the investigation, nor could she even provide written answers to questions based on medical advice. His family could have come and given evidence to support his claim that he does not live at 2 Esla Place, but that since May 2016 (or at least as at the Relevant Dates) he has resided at the Subject Lot. Chris produced no such evidence of this nature.
Having regard to the facts in this case, an inference in the nature of Jones v Dunkel[238] that any evidence so called may not have assisted Chris' case is certainly open. It also seems to me that the necessary preconditions for such an inference, set out by Buss P and Mazza JA in Whitby v The State of Western Australia[239] by reference to Gray J in Police (SA) v Kyriacou, are present.[240]
However, such an inference was not pressed for nor, I have decided, is it necessary for me to rely on. The simple fact is, in general terms, I am unpersuaded by the evidence that Chris has presented in support of his case. Chris' case does not appear to be realistic against the weight of the evidence that has been amassed by the Respondent.
The fact he chose not to call his family to support his case, nor any of the friends which apparently live near the Subject Lot and are part of his life there, is a matter for Chris. There may be reasons why no such evidence was called. It is unnecessary for me to draw any inference from that. However, what I can say, and so find, is that the evidence Chris has produced has not persuaded me.
After that digression, I return to the incoming passenger cards. I find these passenger cards indicate that Chris' family (at least his daughter) considered that Chris intended to live at 2 Esla Place up until the point that Chris became aware of the investigation. Following that point (in January 2018), Chris identified the Subject Lot as his intended address on the incoming passenger cards.
Third, I turn next to the insurance information. Both the motor vehicle insurance and the contents insurance indicate that Chris' primary residence is not the Subject Lot.
The contents insurance for the Subject Lot, only taken out after the commencement of the investigation, was for Landlord's insurance. It was, I find, not insurance on the basis that the Subject Lot was the Applicants' primary residence. Rather, it was, by its terms, Landlord's contents insurance.[241] Furthermore, I find it unrealistic for the Applicants, being brothers with a lifetime's worth of possessions, to be able to adequately insure those for the very modest sum of $10,000.
In terms of vehicle insurance, Chris' motor vehicle insurance renewal arose in October 2016. Chris' case is that he moved to the Subject Lot in May 2016. While it may be the case that up until that point (October 2016), it was understandable that Chris had not yet changed his motor vehicle insurance details, it was incumbent on him to advise his insurer of the change in his circumstances at the time his policy was renewed. He did not.
Only until after Chris became aware of the investigation did he, on 23 January 2018, contact his insurer and advise that the vehicle was to be kept overnight at the Subject Lot. However, even then, that is far from ideal because Chris' evidence in this case is that the motor vehicle was not, in general terms, kept at the Subject Lot, but at the Adjoining Lot because there is a garage. The point being that Chris' own evidence in this regard is inconsistent and therefore difficult to accept.
I am only prepared to give very marginal weight to actions taken by the Applicants to re-order their state of affairs (such as changing insurance details and the incoming passenger cards discussed above) when those actions were taken after they became aware of the investigation. Viewed objectively against the evidence prior to that date, I find they were actions undertaken with the primary intention of bolstering their claims for a land tax exemption for the Subject Lot.
Indeed, that is precisely what has occurred in this case. The insurance details for the house (including, curiously, attempting to obtain retrospective contents insurance) and the motor vehicle were quickly changed after Chris was made aware of the investigation and the importance of such information. Those insurance arrangements were adjusted and then hastily provided by the Applicants in support of their claim.
Viewed objectively, the insurance details for Chris support the Respondent's case that, up until January 2018, his primary residence was not at the Subject Lot. Only after he became aware of the investigation did he take action to change his insurance arrangements.
However, the fact that he did make changes to his home and motor vehicle insurance arrangements is relevant and must, at some level, support Chris' case. However, in the circumstances of this case, I find they were actions taken not to correct an oversight, but with the primary aim of bolstering the claim for a land tax exemption for the Subject Lot.
Fourth, and some of these comments will apply equally to Zifko, the utilities consumption at the Subject Lot does not support a claim that the Applicants used the Subject Lot as their primary residence at the Relevant Dates. The water consumption is, I find, so low as to be inconsistent with ongoing and routine human habitation.
The ordinary experience of domestic life involves showering or bathing, brushing teeth, washing hands, cleaning, washing dishes, drinking, watering indoor plants (if any) and flushing the toilet. Yet, as was explained by the Respondent in closing, the data indicates that the water consumption at the Subject Lot during the Relevant Dates amounted to a general water consumption rate of 28 litres per day, barely enough for three toilet flushes each per day.[242] That is not a lot of water.
On the meter reading on 8 April 2017, no water had been consumed since the last reading (some 58 days earlier).[243] The average house, for what it is worth, consumes 1,259 litres of water a day, with 523 litres used inside a house.[244] The per capita use of water is about 155 litres per person per day. The average has not varied significantly since 1981.[245]
However, I agree with the Applicants that it can be distorting to focus on average consumption rates as lifestyles can and do vary significantly.
The Applicants' case that throughout this period, they were living at the Subject Lot together (in that the Subject Lot was their primary residence) is, I find, not tenable. It is not the fact that the utilities consumption is below average, it is at a point where there are hardly any utilities being consumed at all.
I do not accept the Applicants' explanations for the very low consumption rate of water at the Subject Lot.
For example, Chris' explanation of his showering arrangements has evolved over time. He, initially explained, when contacted by Mr Saunders, that he showered at the Charles Street Lot. Then in his witness statement he explained he showered every day at the Subject Lot and, if not there, at the Charles Street Lot.[246] In oral evidence he also explains that he also occasionally showers at 6 Doriot Way.[247]
In my view, a person should be able to explain where they shower or wash with reasonable clarity as it forms an integral part of the routine of everyday life. That is so, even taking account of the broad range of lifestyles that people choose to lead. I find Chris' evolving explanation of his showering routine unconvincing.
While the Applicants made much of the fact that the water meter was replaced at the Subject Lot in September 2019, the Water Corporation explained that the replacement of the meter did not impact previous usage or readings.[248] In the absence of some further evidence that challenges the position put forward by the Water Corporation, I find that issue to be irrelevant.
I therefore do not accept Chris' evidence that, in general, he showered every day at the Subject Lot. That arrangement is not reflected in the consumption rates for water for the Subject Lot.
I have considered that the water meter reading increased substantially around mid-August to mid-October in 2016 and 2017. The consumption of water through these periods does point to some usage of the Subject Lot as a residence. However, viewed against a wider picture of almost no water consumption over almost six years (noting that I am only focusing on the Relevant Dates), these two readings look anomalous and not evidence of a continued and ongoing pattern of permanent occupation of the Subject Lot as at the Relevant Dates.
That said, if these two readings were for periods that included 30 June, they would, perhaps, require closer attention given that the focus (for land tax purposes) is on arrangements that exist as at that date each year. However, being outside of that period, and with no explanation offered by the Applicants as to why their water consumption was so elevated during this time across two consecutive years, I find these two periods to be anomalous against the broader picture of the evidence.
Turning now to electricity, the consumption at the Subject Lot between 13 June 2016 and 8 August 2018, was for an average of 3.5 kWh per day.[249] By way of comparison, the Adjoining Lot consumed a daily average of 8.75 kWh between 1 June 2016 to 8 August 2018.[250] The Respondent's bundle included guides as to how much electricity a range of domestic appliances consume.[251] Those guides indicate that an average consumption of 3.5 kWh could run a small fridge and provide for one use of an electric stove per day.[252]
I accept the Respondent's submission and I find that the consumption of utilities at the Subject Lot reflects only nominal and perfunctory use in order to claim a land tax exemption.[253] Certainly, the utilities consumption does not point to ongoing and permanent occupation of the Subject Lot by two adults at the Relevant Dates.
Focusing only on Chris, I am not satisfied that the utilities consumption rates support his claim that, in a real and tangible sense, the Subject Lot was his primary residence as at each or any of the Relevant Dates.
These consumption rates are not explained away by the Applicants' submission that because they do not use the Subject Lot in an ordinary or average way, that they are very social and therefore the utilities consumption data is therefore inutile.[254]
Of course, I accept that submission to the extent that focusing only on per capita or average consumption of utilities would be too narrow a lens through which to approach this task. I also accept that there is no 'bright-line', or threshold point, at which utilities usage can be taken to confirm that a residence is being used as a primary residence. I also agree that it is ultimately a question of fact and degree. To that I would add, in my view, it is also a matter of common-sense having regard to the evidence presented.
However, focusing on the Applicants, this is not a situation where the utilities consumption is below average, or even well below average. The simple fact is there was barely any utilities being consumed at the Subject Lot, at all, throughout the Relevant Dates. I find the Applicants' submission that the utilities consumption rates demonstrate nothing because of their unusual lifestyles, is a submission that seeks to elide what, I find, is the reality of the situation. That reality is that Chris does not use the Subject Lot as his primary residence and that is why, in part, the utilities consumption is so low.
Fifth, I turn to the statutory declarations provided by the Applicants. I find that they do support the Applicants' case at some level. There are four statutory declarations in total. Dealing with the first two, Emanuele Salvatore[255] and Jim Saldaris[256] both declare that Chris and Zifko 'reside' at the Subject Lot. Mr Salvatore and Mr Saldaris live on Harkins Street. Mr Salvatore, as at April 2018, says that Zifko has lived at the Subject Lot for six years and Chris since 2015. Mr Saldaris says likewise.
While these statutory declarations do go in the Applicants' favour, their evidential weight is diminished, I find, by reason that these declarations stand in stark contrast to the water consumption at the Subject Lot. For example, from 12 June 2014 to 12 February 2016 there was, quite literally, no water consumed at the Subject Lot. Yet, these statutory declarations indicate that Zifko and possibly even Chris was 'residing' at the Subject Lot during this period. These statutory declarations cannot therefore be accepted, at least without the opportunity being provided to the Respondent to test and probe those statements. However, neither Mr Salvatore nor Mr Saldaris filed a witness statement for the purposes of this proceeding, nor were they called to give evidence.
The other two statutory declarations were made by James Ivanoff[257] and Charles Schiavatti.[258] These statutory declarations were made in September and October 2019 respectively. They declare that they attended the Subject Lot for social purposes (as well as discussing business opportunities) over the last four years (that is, since 2015).
I therefore have the same concerns as I have with the statutory declarations of Mr Salvatore and Mr Saldaris. That is to say, the idea that up to four adult men would be at the Subject Lot 'frequently' or 'once or twice a week', with two men living their fulltime, is not borne out in the consumption of utilities, in particular water. The accuracy of these statutory declarations cannot just be accepted on their face. They needed to be tested and evaluated against the broader picture of the evidence. However, neither Mr Ivanoff nor Mr Schiavatti filed witness statements nor were they called to give evidence.
While the statutory declarations do support the Applicants' case, for the reasons I have explained, I am not prepared to accept them at face value. Those statements cannot be easily reconciled with the other evidence in this proceeding.
Sixth, as I explained at [39] and [40] above, investigating officers from the Respondent inspected the Subject Lot on 19 January 2018. The investigating officers, Mr Saunders and Ms Sato, took handwritten notes which were typed up at 2.05 pm that afternoon. That inspection identified that the dwelling was furnished and contained some personal possessions. These factors must, I find, at some level, go in the Applicants' favour.[259]
However, even accepting that, the notes from the inspection do detail a very sparsely furnished property which further reinforces the view that the Subject Lot was being used by, relevantly, Chris in only a nominal manner with the intention of being able to claim a land tax exemption.
While the Applicants disputed the evidence of the inspection, and included photographs they had taken of the Subject Lot, both inside and outside, taken in October 2021,[260] I prefer the evidence of Mr Saunders and Ms Sato as it was produced during the Relevant Dates and at the commencement of the investigation.
That evidence suggests that while the Subject Lot was furnished at some level, it was furnished in a manner which, I find, indicated that it was only being used superficially and on occasion, not as, relevantly, Chris' primary residence.
Seventh, the hearing materials include a range of documents provided by the Applicants in support of their case. These include inter alia water and electricity bills for the Subject Lot. However, I am not sure the extent to which these assist the Applicants.
For example, the water bill issued on 9 August 2016 for the Subject Lot indicated that only 34 litres were consumed per day and that in the billing period prior to that, there was zero litres consumed per day. If Chris and Zifko were both living at the Subject Lot from May 2016, the level of water consumption seems remarkably low, indeed too low.[261]
Other documents provided by the Applicants included a licence renewal sent to Chris at the Subject Lot on 28 April 2016,[262] a letter from the Australian Electoral Commission to Chris dated 21 April 2016 (outlining that his electoral address was the Adjoining Lot) and a tax return for the 2014/15 tax year where Chris lists his home address as the Subject Lot.[263]
The documents are indeed relevant, but I am not sure they assist Chris' case that from May 2016 throughout the Relevant Dates, he used the Subject Lot as his primary residence. All of the correspondence referred to above pre-date when Chris says he moved into Subject Lot. Zifko says that Chris moved in on 16 May 2016.[264]
Viewed objectively, I find this various correspondence confirms that, relevantly, Chris has had an ongoing association, at some level, with the Subject Lot. That can be accepted. However, that is a different question as to whether it was his primary residence as at any of the Relevant Dates.

[240]

In this case I have given the most weight to objective factors as I consider they, at least in the circumstances of this case, provide the best indication of whether, relevantly, Chris used the Subject Lot as his primary residence as at any of the Relevant Dates. I find he did not.
As I have explained, the geodata is, of itself, overwhelmingly against Chris. While this evidence was challenged, as I have set out, I do not accept the Applicants' concerns. It is evidence that I accept. Chris could have, but did not, call his own evidence to challenge this evidence, or the conclusions to be drawn therefrom. As I have indicated, the geodata evidence, which establishes that Chris was in the Carine area late in the evening for the vast majority of evenings through the Relevant Dates, is, I find, determinative of this matter. I have given the geodata the most weight in my consideration of Chris' application.
The other key factor which, I find, weighs heavily against Chris is the utilities consumption at the Subject Lot through the Relevant Dates. I find that these two factors, each considered separately, but moreover considered together, leave no room for argument that Chris was using the Subject Lot as his primary residence at the Relevant Dates for the purposes of land tax.
I accept that the intentions of Chris can be considered based on the principles set out in Ferrington.[267] However, such intentions are to be assessed objectively. Viewed objectively, the utilities consumption is, to my mind, clear evidence that Chris had no real intention to use the Subject Lot as his principal place of residence in any meaningful or tangible way.
Added to this are the insurance details which also support the conclusion that Chris was not using the Subject Lot as his primary place of residence as at the Relevant Dates. However, I place less weight on this factor as compared to the geodata and the utilities consumption.
I have also given considerable weight to the incoming passenger cards. Up until Chris became aware of the investigation, he was quite content to sign declarations that his intended address in Australia was not the Subject Lot but was instead 2 Esla Place. The inference that arises is that his family (at least his daughter) considered he was still residing at 2 Esla Place during the Relevant Dates. I find this is further evidence that Chris' family, with whom he plainly has an affable relationship, did not recognise him as living at the Subject Lot in the sense that it was his primary residence.
Next, I have given the information gleaned from the inspection of the Subject Lot some weight. The inspection of the Subject Lot by Mr Saunders and Ms Sato in January 2018 is relevant in that it confirms and supports the other findings above. While that inspection did confirm the dwelling as furnished and contained personal possessions, the observations made and recorded during the inspection support the conclusion that Chris was only using the Subject Lot in a nominal and perfunctory manner in order to secure a land tax exemption.
In reaching this conclusion, I have also had regard to Chris' evidence. As I have stated, I find it is weak and flimsy. I find it is, in effect, little more than an explanation which tries to explain away the case put against him.
Rather than pointing to and relying on objective factors (such as geodata and utilities consumption), his explanation is that he is at 6 Doriot Way much of the time late in the evening and the reason why the residence at the Subject Lot is furnished only basically is because, in effect, he is social and eats out a lot (although no receipts were produced).
The reason why the water consumption is low, Chris says, is because all of his clothes are washed by a company (but didn't keep receipts). He washes his bed linen and shirts but does not say how often. He showers, apparently, at a number of residences but primarily at the Subject Lot (despite what the utilities consumption suggests).
As part of the investigation, and after, a total of four statutory declarations were furnished which suggested that Chris lived at the Subject Lot. However, no witnesses were made available to the Tribunal. As I also explained, the statutory declarations cannot simply be accepted because they do not sit comfortably with other evidence (such as the utilities consumption). Accordingly, I have given the statutory declarations little weight.
Furthermore, I accept that where someone entertains is relevant to the question of where someone's principal place of residence is.[268] The Applicants' evidence suggests that Chris regularly entertains at the Subject Lot. If that were so, that would have an impact on utilities consumption. Yet, as I have found, the utilities consumption at the Subject Lot was inconsistent with ongoing human habitation, much less a dwelling where there was regular and routine entertaining, even only a regular coffee.
As I have set out above, I accept Chris has put forward some evidence which demonstrates he has had an ongoing association with the Subject Lot. That evidence is in the form of bills or other notices addressed to Chris at the Subject Lot. However, that, of itself, does not demonstrate that he was using the Subject Lot as his primary residence as at the Relevant Dates. It demonstrates only longstanding nominal and perfunctory use. I find Chris' use of the Subject Lot was a ritual of occupancy at some level while he was, in fact, living elsewhere in the sense explained in Abela.[269]
For the avoidance of doubt, I should add that the fact that the geodata for the first assessment liability date (being 30 June 2016) was not available does not result in a different outcome for that assessment year. I am more than satisfied on the other remaining factors, in particular the utilities consumption, that Chris was not using the Subject Lot as his primary residence as at 30 June 2016.
In short, Chris' case does not stand up against the case put against him by the Respondent. I am satisfied that the correct and preferable decision is to affirm the decision of the Respondent that as at each of the Relevant Dates, the Subject Lot was not Chris' primary residence for the purposes of s 21 of the LTA Act.
On the evidence before me, I am satisfied that Chris continued to use 2 Esla Place as his primary residence as at the Relevant Dates. Chris' reliance on 6 Doriot Way is far too convenient. It has all the hallmarks of a recent invention. Put another way, I consider he selected a place he owns that is close to 2 Esla Place, in order to mask the fact that he continues to reside there, for the purposes of this hearing.
The correct and preferable decision is to dismiss Chris' application for each of the Relevant Dates.

[241]

I am required to apply the same legal principles to Zifko's application as for Chris.
However, Zifko's circumstances are very different to Chris'. The evidence plainly establishes that he lives in Westminster. The question for me is whether his primary residence is the Subject Lot as at any or all of the Relevant Dates. Having regard to Zifko's circumstances, if he was not residing at the Subject Lot, it can reasonably be deduced from the evidence that he was living at the Adjoining Lot with his son.
I have found Zifko's application more difficult to determine than Chris'. The geodata analysis that was so overwhelming against Chris, does not arise in Zifko's application.
My findings in relation to Zifko's application are as follows.
First, Zifko was cross-examined. He was taken to his conviction for giving false information to investigators in relation to his claim that he and Chris were living at the Subject Lot in July 2011. That statement was false. The Subject Lot was, in fact, rented out at the time.
In sentencing, the Magistrate rejected Zifko's stated belief that he was entitled to the land tax exemption for the Subject Lot. The Magistrate also highlighted that Zifko has had 'extensive involvement in property over the years [which] would indicate that [he] must have a very good idea of law relating to real estate, including taxation'. The Magistrate described Zifko's attempts at subterfuge of his real living arrangements as 'ham-fisted'.[270]
Whatever else may be said about that the relevance of that conviction in this context, it is not in doubt that from 2011 Zifko was aware that the Respondent had taken an interest in where he was residing and the fact that he had sought to claim a land tax exemption for the Subject Lot.
The point being, since his conviction for fraud in relation to land tax at the Subject Lot, Zifko has been on notice that in order for him to be able to lawfully claim that the dwelling on the Subject Lot is his primary residence, he must actually live there in a real and tangible sense.
Second, I find there is a compelling reason for Zifko to live at the Adjoining Lot given his son's long standing health issues. Whatever else may be said about Zifko, it is clear to me that he has a very strong, indeed admirable, sense of parental responsibility to his adult son.
Zifko was asked about his son who, as I have set out above, has been, and continues to be, unwell. Zifko says his son was suffering with three separate health conditions during the Relevant Dates.[271] From his son's birth in 1966 to 1978, Zifko lived at the Subject Lot. In 1978, he moved to the Adjoining Lot. Zifko has lived with his son until, at least, 2012.[272] At that time, his son was 46 years old. It is also the case that the Adjoining Lot contains a larger dwelling than the Subject Lot.[273]
Zifko agreed that his son lived with him for a long time 'because he needed a lot of help and care' due to his medical issues.[274] Zifko agrees that he provides a lot of assistance to his son.[275] He says that he visits his son every day and to make sure that the electric heater, which is used every day, is kept at a safe distance. He agreed that if left alone for long periods, his son can sometimes do things that are not safe for him. As a father, Zifko needs to remind and warn him.[276]
Zifko was taken to correspondence sent on his behalf by his lawyer to the Respondent.[277] That correspondence indicates that Zifko spends a 'considerable' amount of time at the Adjoining Lot.[278] In crossexamination, Zifko tried to retreat from that statement somewhat by suggesting that there were 'words [in the letter] that shouldn't have been put there'.
Nevertheless, Zifko agrees that he visits his son every day to socialise and to check in, including during the Relevant Dates.[279] In reexamination, Zifko said he 'does not spend considerable time at the Adjoining Lot'.[280]
I do not accept his evidence during re-examination. Up until his cross-examination (and re-examination) the evidence clearly established that Zifko played a key role in his son's life as his carer and also for social reasons. As a consequence of that, Zifko needs to be with his son on a very regular basis. It is for that reason that Zifko needs to be at the Adjoining Lot. Zifko's need to be at the Adjoining Lot brings me to the next issue I shall address, the consumption of utilities.
Thirdly, as with Chris, I find the utilities consumption at the Subject Lot is inconsistent with ongoing human habitation.
Because of the time he spent at the Adjoining Lot, it was put to Zifko that he was showering at the Adjoining Lot and not at the Subject Lot. Zifko responded that his washing habitats were 'very different'.[281] It was also put to Zifko that he was cooking at the Adjoining Lot, and not at the Subject Lot. Zifko's reply was that he purchases takeaway food.[282]
It was put squarely to Zifko that during the Relevant Dates he continued living with his son at the Adjoining Lot to assist him. Zifko's reply was 'no, not really, no'.[283] Zifko maintained that he moved to the Subject Lot in 2012 and that Chris moved in May 2016.[284] I do not accept his evidence in this regard.
It was also put to Zifko that for a 10-month period (9 April 2013 to 7 February 2014) (a period which is outside of the Relevant Dates but at a time when Zifko's evidence was that he was living at the Subject Lot) there was no water consumed at the Subject Lot. Zifko explained that he believed the water meter was faulty.[285] The report to the Water Corporation was ultimately made on 12 September 2019.
Zifko explained that he was 'happy not to get a [water] bill'. When asked whether he liked not getting bills; he explained 'they should be on top of the work'.[286] Zifko's evidence is, in effect, that the water meter readings over two years which show no water being consumed were wrong. However, because he liked not getting a bill, he did nothing.
Zifko was questioned on water consumption at the Subject Lot. He agreed that general household cleaning and maintenance requires water. The following exchanges took place:[287]

[243]

Between 14 August and 12 October 2017, the water consumption at the Subject Lot was only 26 kilolitres. That is a point in time when Zifko and Chris both say they were using the Subject Lot as their primary residence. Zifko's evidence was that the '[water] readings [were] not correct'.[288]
It was put to Zifko that the water meter readings from 2013 to 2018 at the Adjoining Lot[289] were generally uniform throughout. Zifko's reply was that '[he] couldn't say'.[290]
In terms of washing clothes, his witness statement sets out that 'most of my clothes are washed by a business called Pressed for Time,[291] but he does not keep receipts.[292] However, his oral evidence was that he washes most of his clothes himself.[293]
Zifko says he handwashes items and does not use a washing machine. He says he last used a washing machine some 50 years ago.[294] When asked why he moved his washing machine back from the Adjoining Lot if he had not used it for 50 years, his answer was he did it for 'space'.[295]
It was put to him that he regularly washed his clothes during the Relevant Dates and did so at the Adjoining Lot. He rejected that proposition.[296]
Zifko's evidence is that he does not shower or bathe but instead uses a wet cloth to clean himself. He did not agree that he actually showered at the Adjoining Lot. He also did not agree that he went to the toilet at the Adjoining Lot. [297]
In terms of electricity consumption, it was an agreed fact that between 30 June 2016 and 8 August 2018, the average daily consumption of electricity at the Subject Lot was 3.5 kWh. For the same period, the average consumption rate for the Adjoining Lot was 8.75 kWh.[298] Between 2013 to April 2016, the average daily consumption rate of electricity for the Subject Lot was 0 kWh.
When these consumption rates were put to Zifko, his answers were that the Subject Lot had 'some LED lighting' and he also queried whether the readings were accurate.[299] Zifko could not 'agree or disagree' that the consumption of electricity at the Subject Lot, as compared to the Adjoining Lot, was minimal.[300] He did not agree that the reason why the electricity consumption was so low at the Subject Lot was because he was actually using the Adjoining Lot as his primary residence during the Relevant Dates.[301]
Following these various exchanges about utilities consumption between Ms Panetta and Zifko at [414] above, I find I am not left with any impression of how Zifko 'lives' in the Subject Lot or, put another way, how he uses it as his primary residence. The questions put to him were straight-forward questions; they were not apt to mislead, confuse or trap. They were, in effect, questions about how he lived at the Subject Lot.
True it is that he did agree that ordinary day-to-day living requires water for a wide range of reasons. Nevertheless, he gave me no real impression or insight into how he lives his life at the Subject Lot (and more importantly, what was his routine in terms of how he lived his life (and thus consumed water)).
Rather than just agreeing that many household tasks necessitate the consumption of water, for example, his answers were, in effect, it depends on how you do it (which, of course, is no doubt correct). In relation to mopping, his answer was that it depends how much you do it and that he may do it once a week, or once a month. I struggle to understand how Zifko cannot be certain how often he mops at the Subject Lot.
Zifko owns, or co-owns, a large number of properties and he eats take out every night. He has his clothes pressed. There is nothing in the evidence to suggest that money is an issue. Indeed, it would appear he is financially very comfortable. So why is the water consumption so low? Why is the electricity consumption so low? The evidence establishes that he and his brother - living together - use less than half the electricity of that of his son who, Zifko says, lives alone at the Adjoining Lot.
On the Applicants' case, all of that is largely unexplained other than they say they do not use the Subject Lot in the way that others might. At the risk of being overly repetitious, I do not accept that explanation.
That is not to say that Zifko may not regularly have been attendance at the Subject Lot. Indeed, he probably was not infrequently at the Subject Lot. However, I find the evidence establishes that he was not, as a matter of fact and degree,[302] using it at his principal place of residence as at any of the Relevant Dates.
Fourth, as with Chris, Zifko's insurance arrangements are, I find, further evidence that he was not using the Subject Lot as his primary residence at any of the Relevant Dates.
Zifko was questioned about his car insurance arrangements. Despite his evidence that he moved into the Subject Lot in 2012, from 20 January 2015 to 18 January 2018, Zifko nominated the Adjoining Lot as the place where his vehicles were kept overnight.[303] The date of 18 January 2018 is not without significance. It was the date that the Applicants became aware of the Respondent's investigation.
Ms Panetta put to Zifko that to the extent that he says he parks his vehicles at the Subject Lot, he is not being truthful. Zifko says he is being truthful and that the arrangements are hard to describe because there is no fence.[304]
It was also put to Zifko that the reason why he changed his car insurance arrangements on 18 January 2018 was because Chris had been made aware of the Respondent's investigation and Chris had told him of the importance of such documents in establishing where someone's primary place of residence might be. Zifko agreed that conversation with Chris may have happened.[305]
Zifko denied he made the changes to his vehicle insurance arrangements on 18 January 2018 in order to bolster his claim for a land tax exemption.[306]
He was also asked about home contents insurance for the Subject Lot which was, on the evidence, landlords' insurance.[307] His response was that he did not know and was not aware of that.[308]
In terms of contents insurance for the Subject Lot, it was put to Zifko that throughout the Relevant Dates, up until 18 January 2018, there was no contents insurance.[309] It was put to Zifko that on 18 January 2018, contents insurance for $10,000 was added. Zifko's reply was that the insurance arrangements for the Subject Lot were 'one big holus-bolus' but that it was not correct that the contents insurance was only added on 18 January 2018.[310]
Zifko's evidence in this regard cannot be accepted. The certificates of currency for the insurance clearly establish that only the building was insured up until 18 January 2018. While 'confirmation notes' were produced by the Applicants showing contents insurance for the 2015/16, 2016/2017 and 2017/18 periods, these 'cover notes' are not insurance certificates and moreover, each was produced on 18 January 2018, the date the Applicants were made aware of the Respondent's investigation.
The insurance certificates identified the correct insurance arrangements. The Subject Lot had no contents insurance up until 18 January 2018. Furthermore, I rhetorically ponder as to the utility in trying to seek retrospective contents insurance given that it would be a policy that could never be claimed on?
Fifth, there was, I find, a plain incentive for Zifko to attempt to claim the exemption that is available for one's primary residence.
Zifko was cross-examined about the financial benefits (or savings) that would accrue if the Subject Lot was his primary residence, given that its unimproved value is far beyond that of the Adjoining Lot. Zifko agreed that the Subject Lot is a lot more valuable, in terms of unimproved value, as compared to the Adjoining Lot.[311]
It was put to Zifko that, contrary to his evidence, he did not move into the Subject Lot in 2012. What he did do instead is move some furniture back just to make it look like he was living there. Zifko did not agree.[312] It was put to Zifko that he had discussed the idea of shifting furniture around to make it look like he was living at the Subject Lot.
Zifko was taken to the transcript from the Magistrates Court where in sentencing the Magistrate set out that:

[247]

Like Chris, I find Zifko was an unreliable witness. I do not accept his explanation as to his living arrangements as at the Subject Lot. As I have found, the amount of utilities being consumed at the Subject Lot, throughout the Relevant Dates (leaving aside the two periods where water consumption did increase) is inconsistent with ongoing human habitation by two elderly adults.
I have given the utilities data the most weight in assessing Zifko's application. The water consumption rates contained at page 171 of the Respondent's Bundle are, I find, largely fatal to Zifko's claim that he has resided at the Subject Lot since 2012. There was, quite literally, no water used at the Subject Lot between 12 June 2014 and 12 February 2016. That fact, of itself, casts serious doubt on the extent to which I can accept any of Zifko's evidence in relation to his association with the Subject Lot during the Relevant Dates. Human habitation, at any level, requires water to be consumed. People need water to drink, to wash, to clean and to flush the toilet.
While the water consumption rates between 2014 and 2016 are outside of the Relevant Dates, the water being consumed during the Relevant Dates was also very, very minimal. The average consumption rate during the Relevant Dates was 158 litres per day. If the two outlier periods are removed, then the average consumption drops to 28 litres.
I accept the Respondent's submissions that 28 litres 'would barely cover three toilet flushes a day for each of Zifko and Chris'.[315] That does not leave any water for drinking, showering or cleaning. It just does not add up to human habitation in the sense of being a principal place of residence for anyone.
In terms of the two 'outlier' periods between August and October 2016 and 2017, I agree and accept that the recorded water usage does indicate that the Subject Lot was being used in a practical sense at those times. However, the Applicants could not explain why their water consumption was, in a relevant sense, so elevated during these two isolated periods (other than to suggest the water meter was faulty). As I have explained in the context of Chris, I therefore consider it appropriate to regard these as two periods as unexplained anomalies.
The overarching impression I have, and the conclusion I reach in relation to the water consumption rates, is that the Subject Lot was not being used as a principal place of residence for either Chris or Zifko as at 30 June in either 2016, 2017 and 2018.
Likewise, in terms of electricity consumption, the average daily use was 3.5 kWh. While that consumption may be, as the Applicants submit, 'gradual and continual', it is also consistently very low. It is also true that some appliances do need to run constantly, such as refrigerators. That may explain the 'gradual and continual' consumption of power at the Subject Lot. As I have stated, on the Applicants' case, two elderly adults living together use less than half of the power than Zifko's son living next door.
The very low consumption of utilities is not explained away by Zifko on the basis that he says he eats take out and is social. A primary residence is one's home. It is where one spends a significant amount of time in the evenings, if only to sleep. A corollary of that is the incidental need to consume utilities such as water and power (noting that gas is not connected).
Zifko's case does not add up. I set out above that I am left with real questions as I grapple with these issues as to why the consumption of utilities is so low at the Subject Lot. Why is Zifko so frugal with his water consumption? Why does he say he only mops at the Subject Lot maybe once a month but cleans the Adjoining Lot once a week?[316] Why has he not used a washing machine in 50 years? Why does he say he prefers not to shower?
The conclusion I have come to is that his evidence as to how he lives his life at the Subject Lot is not truthful. It is a fabrication that seeks to explain away the fact that the consumption of utilities is so low.
I find Zifko has created a narrative to explain away why so little water and power were being used at the Subject Lot so as to put together a claim for a land tax exemption for the Subject Lot. I find that throughout the Relevant Dates, Zifko lived at the Adjoining Lot with his son who he needs to care for.
The utilities consumption weighs heavily against Zifko's case.
The insurance arrangements also go against Zifko. I have given the insurance arrangements considerable weight in assessing Zifko's application. These arrangements demonstrate that Zifko kept his vehicles overnight at the Adjoining Lot (at least until he became aware of the Respondent's investigation) and that the only insurance held for the Subject Lot was landlords' insurance for the dwelling.
The observations and notes taken following the site visit by Mr Saunders and Ms Sato on 19 January 2018 also go against Zifko. While no photographs were permitted, these contemporaneous notes detail that the Subject Lot was furnished in only a very nominal way. I find these notes are of more evidentiary value than the photographs produced by the Applicants for the hearing. I have given these observations and notes some weight in reaching the conclusion I have.
In reaching my decision, I stress I have considered the evidence produced by Zifko which supports his case. As I have indicated, the statutory declarations cannot simply be accepted as accurate. The Applicants could of, but did not, call these witnesses and make them available to the Respondent. On their own and viewed against the wider picture established by the evidence, the statutory declarations can be given little weight.
I am also mindful of, and have had regard to, the evidence which demonstrates that Zifko has some ongoing association with the Subject Lot. For example, an account from a newsagent in October 2016 indicates Zifko has the West Australian delivered to the Adjoining Lot.[317]
That evidence may be accepted. However, it does not mean Zifko was using the Subject Lot as his primary residence, even though he maintained an association with it. In a practical sense, it would not be a long walk for Zifko to retrieve the newspaper each day from the Subject Lot. Adapting the language of Abela, like Chris, I find that Zifko was indeed 'observing a ritual of [some level of] occupancy [at the Subject Lot] while in fact living elsewhere'.[318]
Having regard to the utilities data and the insurance information, together with the notes from the inspection, I am satisfied that Zifko was not using the Subject Lot as his primary residence at any of the Relevant Dates. I find he was, in fact, living at the Adjoining Lot with his son at all relevant times.
It follows that the correct and preferable decision is to affirm the decision under review as it relates to Zifko across all the Relevant Dates.

SARROS and COMMISSIONER OF STATE REVENUE [2022] WASAT 102 (18 November 2022)

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Judgment (347 paragraphs)

SARROS and COMMISSIONER OF STATE REVENUE [2022] WASAT 102 (18 November 2022)

Legislation Cited (5)

Cases Cited (11)