SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue

601 Federal Commissioner of Taxation v Resource Capital Fund III LP (2014) 225 FCR 290; [2014] FCAFC 37 Georgeski v Owners Corporation SP 49833 (2004) 62 NSWLR 534; [2004] NSWSC 1096 Hallen v Runder (1834) 149 ER 1080 Hellawell v Eastwood (1851) 155 ER 554 Hobson v Gorringe [1897] 1 Ch 182 Lee v Gaskell (1876) 1 QBD 700 Lees & Leech Pty Ltd v Commissioner of Taxation (1997) 73 FCR 136; [1997] FCA 404 Leigh v Taylor [1902] AC 157 Litz v National Australia Bank Ltd (1986) Qld Conv R 54-229 London and Westminster Loan and Discount Co Ltd v Drake (1859) 141 ER 664 McDonald's Australia Ltd v Chief Commissioner of State Revenue [2005] NSWSC 6; (2005) 58 ATR 260 Melluish v BMI (No 3) Ltd [1996] AC 454 Metal Manufactures Ltd v Commissioner of Taxation [1999] FCA 1712 National Australia Bank Ltd v Blacker (2000) 104 FCR 288; [2000] FCA 1458 National Dairies WA Ltd v Commissioner of State Revenue (2001) 24 WAR 70; [2001] WASCA 112 Poole's case (1703) 91 ER 320 Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (recs and mgrs apptd) (2017) 93 NSWLR 765; [2017] NSWCA 8 Re French Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361; [2003] NSWSC 1008 Reid v Smith (1905) 3 CLR 656; [1905] HCA 54 Sparks v Hobson [2018] NSWCA 29; (2018) 361 ALR 115 Spencer v The Commonwealth (1907) 5 CLR 418; [1907] HCA 82 Spyer v Phillipson [1931] 2 Ch 183 Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue of the State of New South Wales (2011) 245 CLR 446; [2011] HCA 41 TEC Desert Pty Ltd v Commissioner of State Revenue (Western Australia) (2010) 241 CLR 576; [2010] HCA 49 The Commissioner of Taxation of the Commonwealth of Australia v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336; [1981] HCA 4 Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd (Subject to Deed of Company Arrangement) [2009] FCA 742; (2009) 258 ALR 89 Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351; [2004] VSCA 10 Winston-Smith v Chief Commissioner of State Revenue [2019] NSWCA 75 Texts Cited: B Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters) C Harpum, S Bridge and M Dixon, Megarry & Wade The Law of Real Property (7th ed, 2008, Sweet & Maxwell) J G Fleming, The Law of Torts (10th ed, 2009, Thomson Reuters) P Butt, "Conveyancing and Property: Selling Land Separately from Fixtures" (2000) 74 ALJ 130 P McMahon, "Legal Nature of a Tenant's Interest in its Fixtures" (2016) 90 ALJ 370 S Hepburn and S Jaynes, "The Nature and Scope of Rights of Removal" (2013) 2 Prop L Rev 123 Category: Principal judgment Parties: SPIC Pacific Hydro Pty Ltd (Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: D Batt QC, P Herzfeld (Plaintiff) R Seiden SC, D Woods (Defendant)

Solicitors: PWC (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2018/185963 Publication restriction: Nil.

Content Relevant facts - [6] The acquisition of the Taralga group - [7] The land and the leases - [8] Establishment of the Wind Farm - [16] The Wind Farm - [20] Fixed asset register - [48] Unencumbered value of the plant and equipment assets - [49] Evidence - [50] Relevant law The nature of the "review" under the Taxation Administration Act - [54] Relevant provisions of the Duties Act - [57] Issues in dispute - [70] Issue 1 - What, if any, of the plant and equipment installed on the leased land is a fixture? - [72] Conclusion about issue 1 - [109] Degree of annexation of the plant and equipment - [110] Purpose of annexation of the plant and equipment - [115] Issue 2 - To the extent that any plant and equipment installed on the leased land is a fixture, to what, if any, interest in land did this give rise on the part of the Holdco Land Trust (through its linked entities)? - [128] Conclusion about issue 2 - [147] Tenants' fixtures: an equitable interest in land? - [151] Issue 3 - Having regard to the answers to issues 1 and 2, was the Holdco Land Trust a landholder? - [156] Issue 4 - How are any interests in land on account of fixtures to be valued? - [158] Conclusion about issue 4 - [200] Issue 5 - Is the power under s 163G of the Duties Act available and, if so, should it be exercised? - [208] Costs - [212] Conclusion and orders - [213]

Judgment

1. PAYNE JA: On 21 July 2017, the Chief Commissioner of State Revenue (the Commissioner) issued a Duties Notice of Assessment (Assessment) to SPIC Pacific Hydro Pty Ltd (SPIC) in respect of an acquisition by SPIC. The Assessment was the subject of an objection under Div 1 of Part 10 of the Taxation Administration Act 1996 (NSW). The objection was disallowed.
2. By summons filed on 15 June 2018, SPIC applied to the Court pursuant to s 97(1)(a) of the Taxation Administration Act for a review of the whole of the Assessment.
3. By the Assessment, the Commissioner assessed SPIC as being liable for landholder duty under Ch 4 of the Duties Act 1997 (NSW) in the amount of $12,394,573.37 plus interest (some of which was subsequently remitted). SPIC has paid the whole of the amount of the duty assessed and that part of the interest which was not remitted.
4. The Assessment arises from the acquisition by SPIC on 12 May 2016 of "Sale Securities" as defined in an agreement between SPIC as purchaser and Inversiones Capital Global, S.A and BlueNRGY Group Ltd as vendors being: 1. 100% of the units in the Taralga Holding Land Trust (Holdco Land Trust); 2. 100% of the shares in Taralga Holding Nominees 1 Pty Ltd (THN1), the trustee of the Holdco Land Trust; 3. 100% of the units in the Taralga Holding Operating Trust (Holdco Operating Trust); and 4. 100% of the shares in Taralga Holding Nominees 2 Pty Ltd (THN2), the trustee of the Holdco Operating Trust.
5. The Commissioner says that, at the time of the acquisition, the Holdco Land Trust was a "landholder" for the purposes of s 146(1) of the Duties Act with the consequence that the acquisition of the units in the Holdco Land Trust by SPIC triggered a liability for duty. SPIC contests the conclusion that the Holdco Land Trust was a landholder. In the alternative, if the Holdco Land Trust was a landholder, SPIC contends that the valuation of its land holdings of $223.6 million relied upon by the Commissioner in the calculation of duty was incorrect. In the further alternative, the plaintiff seeks an exercise of the power in s 163G of the Duties Act to disregard the value of goods in determining the duty payable.

Relevant facts

1. The parties agreed on facts for the purposes of the proceedings in accordance with s 191 of the Evidence Act 1995 (NSW) in the form of a statement of non-contentious facts and a statement of further agreed facts dated 16 July 2020. In what follows I set out the most important of the relevant facts agreed between the parties.

The acquisition of the Taralga group

1. On 8 March 2016, SPIC entered into a sale agreement to buy from Inversiones Capital Global, S.A and BlueNRGY Group Ltd the "Sale Securities". I have set out the "Sale Securities" acquired at [4] above. On 12 May 2016, completion of the agreement to buy the "Sale Securities" occurred (the Acquisition).

The land and the leases

1. As at 12 May 2016, THN1 as trustee of the Holdco Land Trust indirectly held certain freehold land and leasehold interests in land in New South Wales through the following entities: 1. Taralga Wind Farm Nominees No 1 Pty Ltd (TWFN1) as trustee for Taralga Wind Farm Land Trust (Land Trust) - THN1 as trustee of the Holdco Land Trust owned all the shares in Taralga Land Co Pty Ltd (Land Co), which in turn owned all the shares in TWFN1 and all the units in the Land Trust; and 2. Taralga Wind Farm Pty Ltd (TWF) - TWFN1 as trustee of the Land Trust owned all the shares in TWF.
2. The freehold land comprised two freehold properties held by TWFN1 as trustee for the Land Trust. Those properties are: 1. "Cushendall Vineyard", 629 Bannaby Road, Taralga NSW 2580; and 2. "Rosvale", 577 Hillcrest Road, Myrtleville, NSW 2580.
3. The combined registered value of the freehold properties as at 12 May 2016 was $454,900. The combined estimated market value of the freehold land as at 12 May 2016, not including any Taralga Wind Farm construction costs or other Taralga Wind Farm property related to this freehold land, was $750,000.
4. The leasehold interests comprised properties leased by TWF, a linked entity of the Holdco Land Trust. The head leases between TWF and landowners fall into two categories: 1. leases from private landowners, all on substantially similar terms; and 2. a lease from the State of New South Wales.
5. Each of the leases was for a term of 30 years and the lease from the State of New South Wales has an option to extend for another 30 years. The lease term of all of the private head leases ends on or about 21 February 2042. The lease term of the Crown head lease ends on 18 May 2038.
6. The land the subject of each head lease was subleased by TWF to TWFN1 as trustee for the Land Trust and in turn subleased by it to Taralga Wind Farm Nominees No 2 Pty Ltd (TWFN2) as trustee for Taralga Wind Farm Operating Trust (Operating Trust). TWFN2 was a wholly owned subsidiary of Taralga Operating Co Pty Ltd, all of the shares in which were wholly owned by THN2 as trustee of the Holdco Operating Trust.
7. All leases, subleases and sub-subleases were entered into prior to the Acquisition.
8. The land described above is predominantly cleared farmland. The landowners use the land for sheep or cattle grazing. The leased land was also used, before and after the Acquisition, to operate the Taralga Wind Farm (the Wind Farm) by the group of entities the subject of the Acquisition.

Establishment of the Wind Farm

1. Development consent was given for the Wind Farm on 17 January 2006. The development consent was varied by order of the Land and Environment Court made on 12 February 2007. The development consent has been varied on a number of subsequent occasions. The consolidated form in which it stood prior to the Acquisition is hereafter referred to as "the Development Consent".
2. The Wind Farm was constructed on the land by or on behalf of TWFN1 as trustee for the Holdco Land Trust (the sub-lessee), after commencement of the respective head leases, but before the Acquisition.
3. The first Wind Turbine Generators' (WTGs) components arrived at site on 15 September 2014 and the first blades were attached on 7 October 2014. The first turbine was commissioned on 14 December 2014.
4. Practical completion of the Wind Farm occurred in July 2015, following which a "Lease Agreement (Plant and Equipment)" dated 16 July 2015 was entered into for a lease of wind farm plant and equipment by TWFN1 as trustee of the Land Trust to TWFN2 as trustee of the Operating Trust (the sub-sublessee of the leasehold interests).

The Wind Farm

1. The following description of the Wind Farm was agreed by the parties as accurate as at 12 May 2016.
2. There are 51 WTGs at the Wind Farm. Each WTG captures energy from the wind and uses it to generate electricity. Each WTG comprises a concrete foundation, the tower sections, the nacelle and the hub and blades.
3. The concrete foundations consist of about 300 to 400 cubic metres of concrete and 35 to 50 tonnes of steel reinforcement, poured into an octagonal shape that is about 15 metres wide and about three metres deep. A photograph of the base of the tower section of WTG38 shows:
4. The tower section connects to the concrete foundation by two rows of bolts that are cast into the concrete. A photograph that depicts the external row of bolts that is cast into the concrete base shows:
5. A photograph that depicts the cap removed from one of the external bolts at the base of the tower shows:
6. The other row of bolts is located inside the tower section. A photograph of the internal row of bolts inside the tower section of WTG38 shows:
7. The tower sections of each WTG are custom designed and built for each project. They are based on a type tested design. The towers are typically 80 metres in height. Each tower comprises three sections, joined together by bolts between metal flanges.
8. The upper sections of the tower can be accessed by a lift and ladder located inside the base of each tower. A "Turbine Switchgear" is also located in the base of each tower. The nacelle houses the transformer, the generator and the gearbox. These are interchangeable and off-the-shelf components. A photograph of the nacelle shows:
9. Each blade is made of fibreglass. Blades require regular maintenance because they get pitting on their leading edge. The blades occasionally require replacement. The gearboxes and generators within the nacelle are occasionally switched out and refurbished. It is not usual for any of the other component parts (the hub, the nacelle or the tower) to require replacement.
10. The hub and blades must be elevated in order to capture the wind. That is the purpose of the tower. An independent assessment of wind climate and energy production dated 27 August 2015 carried out for Inversiones Capital Global, S.A using data over an 18.7 year period found the average wind speed (at turbine hub-height) at the Wind Farm was 7.4m/s (equivalent to 14.38 knots or 26.64km/h).

Fixed asset register

1. The Fixed Asset Register as at 31 December 2015 is at Annexure A to this judgment. There were no asset purchases or disposals between that date and 12 May 2016, save that the cost of spare parts situated at the Wind Farm as at 12 May 2016 was $494,163.

Unencumbered value of the plant and equipment assets

1. The total of the unencumbered value of the plant and equipment assets situated at the Taralga Wind Farm as at 12 May 2016 was $227,182,500. The total sum comprised the following: Asset Joint value Wind turbines 136,834,500 Turbine transformers 5,722,500 Control & switch room buildings 3,381,000 Emergency generator 81,500 Substation 4,303,500 Main transformer 1,828,500 Turbine switchgear 6,416,500 Cabling 9,175,000 Control systems 2,808,500 Reinforced turbine foundations, apportioned as follows: 22,335,500 a) 1m underground 18,768,000 Crane hardstands 7,348,500 Roads and tracks 7,233,500 Masts and transmitters 1,147,500 Development costs 4,050,000 Other construction related costs 14,013,500 Furniture & fittings 8,500 Spare parts 494,000 227,182,500

Evidence

1. The only lay evidence relied upon was that of Mr Julian Robert King. Affidavits sworn on 13 November 2018 and 2 September 2020 were read. No challenge was made to Mr King's credit. I find the following matters based on his evidence: 1. Mr King is a qualified mechanical fitter and had worked for Pacific Hydro Pty Ltd (a wholly owned subsidiary of SPIC) at the Wind Farm since December 2016. When Mr King started at the Wind Farm, it was fully operational. From about December 2013 to December 2016, Mr King had worked for Goldwind Australia at the Gullen Range Wind Farm in New South Wales as the Site Manager. 2. Prior to construction of the wind farm, an 18-year study at the Taralga location was conducted. That study concluded that the location was suitable for a wind farm. The strong winds characteristic of the area makes the land suitable for a wind farm. 3. A simplified description of the use of the land to generate electricity is that the strong winds make the blades of the WTGs rotate. The rotation spins a series of gears which are connected to a generator located in the nacelle. The generator turns the wind or kinetic energy into electricity. Another component in the nacelle, the transformer, transforms the voltage of the energy generated to a higher voltage. The electricity from the turbines travels through underground cables connected to the WTGs to a transmission substation. There is another transformer in the Wind Farm's substation which increases the voltage of the electricity again to match the voltage (132 kV) of the transmission line that goes to the Marulan substation. Electricity dispatched from the substation onto the transmission line owned by Energy Australia is effectively sold and delivered to Energy Australia for use in the National Electricity Market. 4. The more wind that is captured by the blades of the turbines, the more electricity which can be generated. The amount of electricity that is generated depends upon wind speed, the design of the generator and the power curve of the generator. Typically, blade length relates to the strength of the wind speed that it can harness. Longer blades are usually required in a lower wind speed environment. 5. The blades used at Taralga have a pitch system to best catch the wind. The blades can turn towards the wind. The nacelle rotates to face the wind direction, for a full 360 degrees. The turbines have an internal control system that is automated. The turbine operates autonomously and feeds information into the Supervisory Control and Data Acquisition (SCADA) control system. The SCADA control system also provides the ability for human operators to control a turbine. 6. Each of the 51 turbines are located in positions on the land designed to best capture the wind. The hub and blades of the WTGs must be elevated on the towers in order to capture the wind. The length of the blade is a factor in determining the tower and hub height. The WTGs at the Wind Farm have a hub height of 80 metres. The WTGs are optimally sized and placed on the land to optimise the amount of wind that can be harvested so as to maximise the amount of electricity that can be generated and sold.

The nature of the "review" under the Taxation Administration Act

1. A review pursuant to s 97(1)(a) of the Taxation Administration Act is not limited to the grounds of the objection against the Assessment: s 100(2). The Court has power, among other things, to confirm or revoke the Assessment, make an assessment or other decision in place of the Assessment, and make any further order as to costs or otherwise as it thinks fit: s 101(1). Sections 100 and 101 provide: 100 Provisions relating to applications for review (1) An application for review following a failure of the Chief Commissioner to determine an objection cannot be made unless the applicant has given written notice of the proposed application to the Chief Commissioner not less than 14 days before it is made. (2) The applicant's and respondent's cases on an application for review are not limited to the grounds of the objection. (3) The applicant has the onus of proving the applicant's case in an application for review. (4) If the applicant or respondent appeals against a decision of the Civil and Administrative Tribunal in an application for review to an Appeal Panel of the Tribunal, the applicant in the application for review continues to bear the onus of proving the applicant's case in the appeal if the Appeal Panel grants leave for the appeal to extend to a review of the merits of the decision. 101 Powers of court or tribunal on review (1) The court or tribunal dealing with the application for review may do any one or more of the following: (a) confirm or revoke the assessment or other decision to which the application relates, (b) make an assessment or other decision in place of the assessment or other decision to which the application relates, (c) make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid, (d) remit the matter to the Chief Commissioner for determination in accordance with its finding or decision, (e) make any further order as to costs or otherwise as it thinks fit. (2) Nothing in this section limits the application of the following provisions in respect of an application for review before the Civil and Administrative Tribunal: (a) Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997, (b) section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
2. The review for which the Taxation Administration Act provides is quite different to judicial review under s 69 of the Supreme Court Act 1970 (NSW), and this Court is not limited to considering whether the Commissioner erred on the materials that were before him: Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue of the State of New South Wales (2011) 245 CLR 446; [2011] HCA 41 at [22]. Nor, in the case of a power which may be exercised by the Commissioner, is the Court limited to considering whether the Commissioner's exercise or non-exercise of a power is affected by an error of the kind identified in Avon Downs Pty Ltd v The Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26 at 360: Tasty Chicks at [19], [22]. Rather, the Court must itself consider the correct application of the provisions of the Duties Act to the materials before the Court, including (so far as it is relevant) how any power conferred by those provisions should be exercised: Chief Commissioner of State Revenue v Centro (CPL) Ltd (2011) 81 NSWLR 462; [2011] NSWCA 325 at [168] per Sackville AJA (with whom Giles and Macfarlan JJA agreed); Winston-Smith v Chief Commissioner of State Revenue [2019] NSWCA 75 at [2] per Meagher JA (with whom Sackville AJA and I agreed).

Relevant provisions of the Duties Act

1. The relevant provisions of the Duties Act are the provisions as they stood at the time of the Acquisition, on 12 May 2016.
2. The first provisions of note are those establishing the time that a liability for duty arises, ss 148 and 149: [1] 148 When does a liability for duty arise? A liability for duty charged by this Part arises when a relevant acquisition is made. 149 What is a "relevant acquisition"? (1) For the purposes of this Chapter, a person makes a relevant acquisition if the person: (a) acquires an interest in a landholder: (i) that is of itself a significant interest in the landholder, or (ii) that, when aggregated with other interests in the landholder held by the person or an associated person, results in an aggregation that amounts to a significant interest in the landholder, or (iii) that, when aggregated with other interests in the landholder acquired by the person or other persons under acquisitions that form, evidence, give effect to or arise from what is substantially one arrangement between the acquirers, results in an aggregation that amounts to a significant interest in the landholder, or (b) having a significant interest, or an interest described in paragraph (a) (ii), in a landholder, acquires a further interest in the landholder. (2) However, an acquisition of an interest in a private landholder under an arrangement that results in the private landholder ceasing to be a private landholder is not a relevant acquisition because of subsection (1) (a) (iii). (3) If a person who acquires or holds an interest in a landholder is a trustee for 2 or more trusts, any interests in the landholder acquired or held by the person for different trusts are to be treated as if they were acquired or held independently by separate persons. (4) If a person who acquires or holds an interest in a landholder is a life company, any interests in the landholder acquired or held by the life company for different statutory funds are to be treated as if they were acquired or held independently by separate persons. (5) If a life company acquires or holds an interest in a landholder otherwise than for a statutory fund, that interest is to be treated as if it were acquired or held independently of, and by a separate person to, any interest acquired or held by the life company for a statutory fund. (6) In this section: statutory fund has the meaning given by the Life Insurance Act 1995 of the Commonwealth.

Issues in dispute

1. There are five issues in dispute which I must determine. A number are contingent on the determination made about earlier issues. The issues are: 1. Issue 1 - What, if any, of the plant and equipment installed on the leased land is a fixture? 2. Issue 2 - To the extent that any plant and equipment installed on the leased land is a fixture, to what, if any, interest in land did this give rise on the part of the Holdco Land Trust (through its linked entities)? 3. Issue 3 - Having regard to the answers to issues 1 and 2, was the Holdco Land Trust a "landholder" for the purposes of the relevant provisions of the Duties Act? 4. Issue 4 - How are any interests in land on account of the fixtures to be valued? 5. Issue 5 - Is the power under s 163G of the Duties Act available and, if so, should it be exercised?
2. The parties' position about each of the issues in dispute may be summarised as follows: 1. Issue 1 - SPIC submitted that the plant and equipment situated at the Wind Farm are chattels and not fixtures. The Commissioner submitted that the plant and equipment situated at the Wind Farm are fixtures. SPIC submitted that (assuming the plant and equipment situated at the Wind Farm are fixtures) they are tenant's fixtures. The Commissioner agreed but emphasised that as tenant's fixtures SPIC enjoys a right to remove the fixtures during the term of the leases and the obligation to do so at the end of the leases; 2. Issue 2 - SPIC submitted that the right to remove tenant's fixtures does not give rise to any interest in land beyond the existing leasehold interest. The Commissioner submitted that SPIC's right to remove fixtures is a recognised proprietary interest in the land protected at common law and in equity. It was submitted that the right to remove comprised an interest in land in addition to the leasehold interests; 3. Issue 3 - SPIC submitted that the value of the Holdco Land Trust's land holding is less than $2,000,000. The Commissioner submitted that the value of the Holdco Land Trust's land holding is not less than $2,000,000 making Holdco Land Trust a "landholder" for the purposes of Ch 4 of the Duties Act; 4. Issue 4 - SPIC submitted that (assuming the plant and equipment situated at the Wind Farm were fixtures) the value of the Holdco Land Trust's interest in the land was $106,500,000. The Commissioner submitted that valuation should be conducted on the basis of the unencumbered value of the fixtures based on the agreed asset values in the further agreed facts of $227,182,500; 5. Issue 5 - SPIC submitted that the power under s 163G of the Duties Act was available and should be exercised. The Commissioner submitted that as the assets in question were fixtures, s 163G did not apply.

Issue 1 - What, if any, of the plant and equipment installed on the leased land is a fixture?

1. In TEC Desert Pty Ltd v Commissioner of State Revenue (Western Australia) (2010) 241 CLR 576; [2010] HCA 49 (TEC Desert (HCA)), a unanimous High Court explained the application of fundamental principles about the character of chattels affixed to land, particularly by tenants. The Court said: "[23] Accordingly, some statement of basic principle is appropriate. In the seventh edition of Megarry and Wade's The Law of Real Property, the following appears: 'The meaning of "real property" in law extends to a great deal more than "land" in everyday speech. It comprises, for instance, incorporeal hereditaments; and it includes certain physical objects which are treated as part of the land itself. The general rule is "quicquid plantatur solo, solo cedit" ("whatever is attached to the soil becomes part of it"). Thus if a building is erected on land and objects are permanently attached to the building, then the soil, the building and the objects affixed to it are all in law "land", ie they are real property, not chattels. They will become the property of the owner of the land, unless otherwise granted or conveyed.'" (Footnote omitted.)
2. The Court quoted with approval (at [24]) the statement by Conti J in National Australia Bank Ltd v Blacker (2000) 104 FCR 288; [2000] FCA 1458 at [10]: "There is a variety of general principles which should be considered in assessing whether an item of personal property has become attached to land in a manner designed to achieve a specific objective or a variety of objectives, such as to become a part of the realty and therefore, a fixture. Whether an item has become a fixture depends essentially upon the objective intention with which the item was put in place. The two considerations which are commonly regarded as relevant to determining the intention with which an item has been fixed to the land are first, the degree of annexation, and secondly, the object of annexation."
3. In Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30; (2015) 317 ALR 202 Sackville AJA, with whom Bathurst CJ and Beazley P agreed, explained: "[74] The law relating to fixtures is of ancient origin. The law reflects the maxim quicquid plantatur solo solo cedit (whatever is affixed to the ground belongs to the ground). The maxim is based, albeit somewhat loosely, on the Roman law of accessio. The maxim, as modified by common law principles, has provided a doctrinal basis for determining whether the title to or an interest in chattels has been lost or altered by virtue of their physical annexation to land. [75] The law of fixtures is in some ways a relic of a period when greater emphasis was placed on physical acts, such as the annexation of chattels to land, than on whether there were good commercial or policy reasons for concluding that those acts should produce changes in title. As Lord Macnaghten observed as long ago as 1902, the relative importance originally attributed to the mode of annexation was a product of 'ruder or simpler times'. Moreover, those 'ruder or simpler times' generated disputes of a kind that no longer arise, or at least now arise rarely. For example, in the leading case of Elwes v Maw (1802) 3 East 38; 102 ER 510, Lord Ellenborough CJ observed (at 50; 515) that questions respecting the rights to fixtures principally arose between three classes of persons. The first class comprised the heirs and the executors of a deceased person, while the second class comprised life tenants and remaindermen. (The third class comprised landlords and tenants). [76] In the face of changing circumstances, the law of fixtures has not stood still. It has been 'adapted in order to suit the exigencies of modern life'. One form of adaptation has been the recognition of exceptions to the general principles which, on one view, have undermined the doctrine itself. Another form of adaptation has been to modify the emphasis on the degree of annexation of chattels to the land in favour of the more amorphous concept of the purpose or object of annexation. In Palumberi v Palumberi (1986) 4 BPR 9106, Kearney J, after considering the authorities, said (at 9110) that: '… there has been a perceptible decline in the comparative importance of the degree or mode of annexation, with a tendency to greater emphasis being placed upon the purpose or object of annexation, or, putting it another way, the intention with which the item is placed upon land. This shift has involved a greater reliance upon the individual surrounding circumstances of the case in question as distinct from any attempt to seek to apply some simple rule or some automatic solution.' This observation reflects a recognition that the 'statements of principle found in the many decided cases are not easily susceptible of reconciliation'." (Citations omitted.)

Conclusion about issue 1

1. I have concluded that the WTGs and met masts, together with the infrastructure affixed to the land necessary to send generated electricity to the National Electricity Market, were fixtures at the time of the transaction whereby SPIC purchased the interests in the securities. I find that they were tenant's fixtures. I accept, as SPIC submitted, that development costs, construction-related costs, furniture and fittings, spare parts and those parts of the electronic control system not affixed to land were not fixtures. I also accept that the roads and tracks on the land were fixtures and, if it were necessary to categorise them, should be regarded as landlord's fixtures.

Degree of annexation of the plant and equipment

1. A non-exhaustive list of matters to be taken into account in assessing the degree of annexation are: 1. whether removal would cause damage to the land or buildings to which the item is attached: Hellawell v Eastwood (1851) 155 ER 554 at 561; Adams v Medhurst & Sons Pty Ltd (1929) 24 Tas LR 48 at 49; Spyer v Phillipson [1931] 2 Ch 183 at 209-210; 2. the mode and structure of annexation: Leigh v Taylor [1902] AC 157 at 162; Reid v Smith at 667; Boyd v Shorrock (1867) LR 5 Eq 72 at 78-79; 3. whether removal would destroy or damage the attached item of property: Litz v National Australia Bank Ltd (1986) Qld Conv R 54-229 at 57,549; and 4. whether the cost of removal would exceed the value of the attached property: Metal Manufactures at [165].
2. In relation to the degree of annexation, I find that the turbines are very strongly affixed to the land: 1. The concrete foundations consist of about 300 to 400 cubic metres of concrete and 35 to 50 tonnes of steel reinforcement, poured into an octagonal shape that is about 15 metres wide and about three metres deep. 2. The tower section connects to the concrete foundation by two rows of bolts that are cast into the concrete. 3. The tower sections of each WTG are custom designed and built for each project. They are based on a type tested design. The towers are 80 metres high. Each tower comprises three sections, joined together by bolts between metal flanges. The upper sections of the tower can be accessed by a lift and ladder located inside the base of each tower. 4. Next to each WTG is a hardstand. During construction, the hardstand was used by a crane to assist assembly and during decommissioning the hardstand will also be used by a crane.
3. SPIC accepted that the WTGs were "strongly affixed to the land" but submitted that I should conclude that was so because otherwise they would fall over. Whilst that may be correct, it is an insufficient explanation for the degree of annexation of the WTGs to the land: 1. The hub and blades must be elevated in order to capture the wind. That is the purpose of the tower. An independent assessment of wind climate and energy production dated 27 August 2015 carried out for Inversiones Capital Global, S.A using data over an 18.7 year period found the average wind speed (at turbine hub-height) at the Wind Farm was 7.4m/s (equivalent to 14.38 knots or 26.64km/h). 2. The land is used to generate electricity by building WTGs to the height at which they are best able to capture the strong winds to make the blades of the WTGs rotate. The rotation spins a series of gears which is connected to a generator located in the nacelle. Another component in the nacelle, the transformer, transforms the voltage of the energy generated to a higher voltage. The electricity from the turbines travels through underground cables connected to the WTGs to a transmission substation. There is another transformer in the Wind Farm's substation which increases the voltage of the electricity again to match the voltage (132 kV) of the transmission line that goes to the Marulan substation.

Purpose of annexation of the plant and equipment

1. As to the purpose of annexation, the following non-exhaustive list of factors is relevant: 1. whether the attachment was for the better enjoyment of the property generally or for the better enjoyment of the land and/or buildings to which it was attached: see Hobson v Gorringe [1897] 1 Ch 182 at 190; Leigh v Taylor at 158; Reid v Smith at 680-681; Litz at 57,550; 2. the nature of the property the subject of affixation: Metal Manufactures at [165]; 3. whether the item was to be in position for a substantial period or temporarily: Coroneo at 712-713; and 4. the function to be served by the annexation of the item: see, for example, Attorney-General (Cth) v R T Co Pty Ltd (No. 2) (1957) 97 CLR 146; [1957] HCA 29 at 156-157 where printing presses were secured to a concrete foundation by nuts and bolts in order to keep the printing presses steady when in operation.
2. I find that every item was fixed in place on the land for the better enjoyment by the tenant of the land as an integrated wind farm operated on the land. The Wind Farm was purpose-built after an extensive (18-year) wind study of the area establishing its suitability as a wind farm. The location of the WTGs was selected based on this wind assessment. A characteristic of the land was that 80 metres above the land the wind blew at a speed conducive to the operation of a wind farm.
3. SPIC's submissions on use of the land tended to focus on use of the land limited to the two-dimensional plane of the earth's surface. The third dimension of land comprising the airspace above the land is also important here. As Professor Butt explains, [14] land is above all a spatial category. In Fleming's The Law of Torts (10th ed, 2009, Thomson Reuters), the learned author says (at p 51): "Much play has been made of the maxim 'cuius est solum ejus est utque ad coelum' (he who owns the surface owns up to the sky), but this 'fanciful phrase' of dubious ancestry has never been accepted in its literal meaning of conferring unlimited rights into the infinity of space over land. The cases in which it has been invoked establish no wider proposition than that the air above the surface is subject to dominion in so far as the use of space is necessary for the proper enjoyment of the surface." (Emphasis added, footnotes omitted.)
4. In the way described in Fleming, rules regulating land prescribe what may or may not be done above it, including the right of a tenant to make use of the airspace above the land. In this case, that use is made by annexing the plant and equipment to the land better to enjoy the wind passing immediately above the surface of the land.

Issue 2 - To the extent that any plant and equipment installed on the leased land is a fixture, to what, if any, interest in land did this give rise on the part of the Holdco Land Trust (through its linked entities)?

1. SPIC submitted that if the correct conclusion was that the plant and equipment comprised tenant's fixtures, it would be necessary to consider what, if any, interest in land the Holdco Land Trust (through its linked entities) had with respect to the items in question.
2. Although the parties addressed the issues before me as raising this question, I am not sure that it is correct. The immediate question before me is whether the interests in land acquired by the Holdco Land Trust through its linked entities had a value of over $2,000,000 such that it was a "landholder" as defined by the Duties Act. On SPIC's case the interests in land acquired were the legal interests granted by the various leases. As I will explain, I accept SPIC's submission as correct.
3. The question then is the value of those leasehold interests. SPIC for this purpose relied upon the valuation prepared by the valuer called by the Commissioner, Mr Ross, who described the leasehold interests as having a nil value. As I will explain, I reject Mr Ross' method of valuation and his conclusion about the value of the leasehold interest as essentially irrelevant to the task before me. Mr Thomas, the valuer called by SPIC, in one of his six scenarios, scenario two (explained below at [175]-[176]), produced a valuation of the leasehold interests of over $100 million on the assumptions that SPIC has a proprietary interest in the land arising from and governed by the terms of the applicable lease(s) and that the leasehold interests include the right to sever and remove the fixtures during the term of the lease and an obligation to do so upon its expiry.
4. On the basis of Mr Thomas' valuation methodology and evidence, which, with one very important exception (which materially increases the valuation) I accept, the Holdco Land Trust is a "landholder" and SPIC is obliged to pay duty. The outcome of the valuation question determines the amount of duty payable.
5. Given that the parties chose, however, to address the question of the nature of the Holdco Land Trust's interest in land at length, I will address the issues raised.
6. SPIC accepted that the reasoning of the Western Australian Court of Appeal in Commissioner of State Revenue v TEC Desert Pty Ltd (2009) 40 WAR 344; [2009] WASCA 128 (TEC Desert (WASCA)) at [128] per Wheeler JA (with whom Newnes JA agreed) and [226] per McLure JA is to the effect that the right of a tenant to remove fixtures gives to the tenant an equitable interest in the land. In that case, Wheeler JA said at [128]: "[128] It is therefore my view that WMC's interest in Fixtures, which it had annexed to its mineral leases, may be described as an equitable interest in the land, and was capable of being sold to TEC. I would, to this extent, uphold ground 2." McLure JA said at [226]: "[226] Considerable research has not unearthed any binding authority or detailed judicial consideration of the nature of the right of a tenant to remove tenant's fixtures. There can be little doubt that it is a property right and is thus transferable. The controversy is whether the right constitutes an equitable interest in the land (either as an incident of the leasehold interest or otherwise). In this context, the answer does not depend on the contractual intention of the lessor and lessee. The right arises at law. That right confers an entitlement to remove a physical part of the owner's land. It has been described as a 'power coupled with an interest' (Poole's Case (1703) 1 Salk 368; 90 ER 934) and in the nature of a profit à prendre (Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534). The latter characterisation is consistent with the analysis of Ormiston J in Vopak and Emmett J in Metal Manufactures. I would follow their analysis and conclude that a tenant's right to claim and remove tenant's fixtures gives rise to an equitable interest in the land to which they are attached. Thus, the tenant's interest would have priority over a subsequent equitable interest in the land created by the freehold owner."

Conclusion about issue 2

1. The principal way the Commissioner puts this part of the case is that landholder duty is payable on the basis that a tenant who has installed fixtures on leased premises has two relevant "land holdings", being: 1. a legal interest, comprising the leasehold interest in the land; and 2. a separate equitable interest in the land, which is said to arise from the tenant's right to sever and remove fixtures installed by it on the premises, exercisable during or at the end of the lease.
2. I have concluded that a tenant's interest in unsevered leasehold improvements is a purely legal interest in land which arises from and is governed by the terms of the particular lease and rights under the common law.
3. Legal title to a tenant's fixture is in the landlord until the tenant chooses to exercise the power to sever it. Where a tenant brings chattels onto leased land, and the chattels become fixtures under accepted general law tests, they become part of the realty, and hence, the property of the landlord: TEC Desert (HCA) at [25]. The landlord's legal ownership of a tenant's fixture is qualified by the tenant's common law right of severance and removal in the case of fixtures installed by the tenant for, in this case, trade purposes, as well as any contractual right to remove the fixtures allowed for under the terms of the lease: Vopak (FCA) at [67].
4. I accept that there are unresolved questions about whether an owner of land can transfer a legal interest in unsevered fixtures separately from the land, or whether an owner of land can sell land and buildings while retaining legal title to unsevered fixtures within the building. The possibility of an assignment of fixtures under the common law by a landowner was considered in obiter by Carr J in Eastern Nitrogen at [45]-[50]. In TEC Desert (HCA), the High Court did not consider the efficacy of such a transaction at law, although it noted the "unsettled state of authority" on the question: TEC Desert (HCA) at [52] and fn 71. It is unnecessary for me to attempt to resolve that issue in this case as regardless of the outcome no separate interest in land is engaged.

Tenants' fixtures: an equitable interest in land?

1. There are cases which have recognised rights of third parties in some limited circumstances to access or remove unsevered fixtures. These arose from the need to protect or enforce rights under contractual arrangements in circumstances where the third party had no rights of access to the fixtures at law. The high point of the Commissioner's case on this issue, TEC Desert (WASCA), concerned a purported sale and licensing by WMC Resources Ltd to TEC Desert Pty Ltd of power-generation assets situated on WMC's mining tenements and on freehold land. The ultimate question was whether the sale was chargeable with duty under the Stamp Act 1921 (WA) as a conveyance of fixtures and, thus, of an estate or interest in land. The Court held that, in equity if not in law, it was possible for the owner of fixtures to sell them to a third party separately from the land. TEC's argument on appeal was that, if it is possible to sell fixtures separately from the land to another person, such a sale is not a sale of an estate or interest in land. TEC relied on a line of 19th-century English cases, including Hallen v Runder and Lee v Gaskell (1876) 1 QBD 700, as well as McDonald's Australia Ltd v Chief Commissioner of State Revenue [2005] NSWSC 6; (2005) 58 ATR 260. These cases held that where a tenant disposes of unsevered tenants' fixtures to a landlord, there is no sale of an interest in land (or goods), but rather a waiver of the tenant's right of severance and removal. Wheeler JA stated that although the position was "by no means clear", Hallen v Runder and Lee v Gaskell were "against the weight" of other authorities and were "unreliable": at [127]. Her Honour concluded that "WMC's interest in Fixtures, which it had annexed to its mineral leases, may be described as an equitable interest in land, and was capable of being sold to TEC": at [128]. For Wheeler JA, the case with the greatest factual relevance was Eon Metals NL v Commissioner of State Taxation (WA) (1991) 22 ATR 601. McLure JA concluded that a tenant's right to claim and remove tenant's fixtures gives rise to an equitable interest in the land to which they are attached: at [226]. McLure JA also stated that the characterisation of the licensee's interest in Georgeski "is consistent with the analysis of Ormiston J in Vopak (FCA) and Emmett J in Metal Manufactures": at [226].
2. With unfeigned respect, I disagree with the analysis of Wheeler JA (with whom Newnes JA agreed) and McLure JA in TEC Desert (WASCA). The authorities relied upon do not seem to me to support the conclusion about the nature of a tenant's interest in removing tenant's fixtures giving rise to an equitable interest in the land. As TEC Desert (WASCA) was overturned in the High Court, albeit not on the fixtures point, I am not bound to follow the decision of the Western Australian Court of Appeal.

Issue 3 - Having regard to the answers to issues 1 and 2, was the Holdco Land Trust a landholder?

1. The market value of the relevant freehold land at the time of the Acquisition was only $750,000. SPIC submitted that, if the other items of Wind Farm plant and equipment did not constitute fixtures, the only evidence as to the value of the leases was that of Mr Ross, who valued them at "nil". Were this the case, the land holdings of the Holdco Land Trust would have a threshold value of less than $2,000,000 and it would not be a "landholder" within the meaning of s 146(1) of the Duties Act.
2. As I have explained, Mr Thomas, the expert called by SPIC, valued the leasehold interests on the correct assumption that the plant and equipment installed at the Wind Farm constitute fixtures, which may be removed at any time by the leaseholder and must be removed at the conclusion of the leases. He valued the Holdco Land Trust's interests in land, limited to the leasehold interests, on this basis as over $100 million; well over the $2,000,000 threshold. As I will explain, I accept Mr Thomas' methodology and, with one important exception, his application of that methodology. Despite my rejection of the Commissioner's principal submission that the tenant's fixtures gave rise to an equitable interest in land, Mr Thomas' evidence provides a firm basis to conclude that the Holdco Land Trust was a "landholder" within the meaning of s 146(1) of the Duties Act.

Issue 4 - How are any interests in land on account of fixtures to be valued?

1. In assessing the question of the value of Holdco Land Trust's land holding, the starting point must be the statutory scheme of Ch 4 of the Duties Act. The Duties Act "provides the legal context in which the valuation exercise is to be undertaken and that context determines the relevant principles of valuation to be applied": Commissioner of State Revenue (WA) v Placer Dome Inc (2018) 265 CLR 585; [2018] HCA 59 per Kiefel CJ, Bell, Nettle and Gordon JJ at [13], citing Federal Commissioner of Taxation v Resource Capital Fund III LP (2014) 225 FCR 290; [2014] FCAFC 37 at [47]. As the majority in Placer Dome made clear at [16], it is the statutory context and the purpose for which the values are to be determined which must be discerned.
2. In Placer Dome, the Stamp Act 1921 (WA) at issue in that case defined "land" at the relevant date (being 4 February 2006: at [32]) as follows (s 76(1)): "land" includes a mining tenement, and also includes - (a) any estate or interest in land; and (b) anything fixed to the land including anything that is, or purports to be, the subject of ownership separate from the ownership of the land;
3. The Duties Act at the time at issue here did not include a similar definition of land. The Dictionary to the Duties Act provides only: "land includes a stratum." The Duties Act has since been amended to insert s 147A, which more closely reflects the definition of land in the Stamp Act (WA). As I have explained, s 147A of the Duties Act was not in force at the relevant time for this case. [25]
4. In the context of an entity which is operating as a going concern, the High Court in Placer Dome emphasised that the statutory valuation exercise there engaged required identification of the land as part of a going concern. As the High Court said at [102]: "[102] … It follows that, if and insofar as the going concern value of the corporation may inhere in the value of the land, there is no statutory or other warrant for stripping going concern value out and attributing it with a value separate from the land. It is part of the value of the land."
5. The judgment of Gageler J highlighted that where a valuation methodology applied by a taxpayer leaves a large gap between the valuation placed on the entity's land assets and the purchase price paid for the entity, this gap necessarily raises a question about the reliability of the valuation. At [149], Gageler J said: "[149] Second, and no less significantly, the DCF methodology of valuing the land assets as applied by Barrick's experts yielded a large gap between the valuation of Placer's land assets and the purchase price paid. That gap necessarily raised a question about the reliability of the DCF valuations and, in turn, a question about the content of the $6.506 billion allocated to goodwill in Barrick's accounts. Barrick did not and could not explain the large gap as representing the value of an asset which inhered in Placer at the acquisition date." (Emphasis in original.)

Conclusion about issue 4

1. SPIC bears the onus of persuading me that the Commissioner's assessment was excessive. As I have explained, I reject the Commissioner's principal submission that the valuation question is to be determined by reference to an equitable interest in land arising by reason of the right to remove the fixtures on the land. I have also rejected the adoption of the value of the plant and equipment as an appropriate valuation methodology.
2. I find that Mr Thomas' valuation in scenario two addresses the correct legal interest in land. I am not satisfied, however, that Mr Thomas' conclusion of a value of $106,501,078 has been proven. As I have explained, in the context of the Duties Act, the relevant valuation task is to be conducted on the basis that an interest in land is to be valued in the context of a hypothetical sale of the land holding as part of a going concern where the hypothetical purchaser will also have access to and receive the benefit of other assets of the landholder (and its linked entities) which affect land value. As the going concern value of the enterprise (of which the land forms an integral part) may inhere in the value of the land, there is no statutory or other warrant for stripping going concern value out. It is part of the value of the land.
3. Mr Thomas did not conduct such an exercise but, rather, on instructions, engaged in a valuation exercise about a hypothetical transaction that he cogently explained to me would never have occurred in the real world.
4. I find that the 20% discount rate selected by Mr Thomas was the product of his assuming that the hypothetical sale of the land holding interest was not one where the going concern was sold and the hypothetical purchaser would also have access to and receive the benefit of other assets of the landholder which affect land value. This, I have found, was an incorrect approach in the context of the Duties Act.
5. By reason only of his adoption of a 20% discount rate, I am not satisfied that Mr Thomas' valuation provides a basis to draw any reliable conclusion about value. Mr Thomas' repeated, and persuasive, answers in cross-examination where he stated that he could think of no reason why a tenant enjoying the benefits he was asked to assume would sell its land holding interest rather highlights the artificial nature of the sale transaction he has been asked to assume for his valuation. Mr Thomas modelled a sale that does not include a willing but not anxious vendor and purchaser, but rather assumed (as he put it) a sale under financial distress of a land holding asset divorced from the context of the benefits of the other assets relevant to the interest in land which affect the value of those interests.

Issue 5 - Is the power under s 163G of the Duties Act available and, if so, should it be exercised?

1. The final issue is the possible application of s 163G of the Duties Act which provides: 163G Significant holdings in goods If the Chief Commissioner is satisfied that the unencumbered value of all goods in New South Wales of a landholder comprises not less than 90% of the total unencumbered value of all land holdings and goods in New South Wales of a landholder, the Chief Commissioner may disregard the value of the goods in determining the duty chargeable under this Chapter.
2. SPIC submitted that it was possible that a conclusion could be reached as to particular items of plant and equipment being fixtures and as to the value of the interests in land thereby arising which in combination would enliven the power under s 163G of the Duties Act. In that event, SPIC submitted that the power in s 163G should be exercised.
3. I have concluded that on the facts I have found, s 163G has no relevant application. The basis of SPIC's claim is that the Holdco Land Trust owns goods which can be disregarded under s 163G of the Act in determining the duty chargeable. I do not agree. As I have explained, the items that SPIC characterises as "goods" are fixtures. I accept that the proper characterisation of those items is as "tenant's fixtures" but that does not mean that the items are "goods". I reject the application of s 163G on the facts of this case.
4. I am not satisfied that the unencumbered value of all goods in New South Wales of SPIC comprises not less than 90% of the total unencumbered value of all land holdings and goods in New South Wales of SPIC.

Costs

1. Although SPIC failed in a good deal of its attack upon the Assessment, it nevertheless succeeded in demonstrating that the Assessment was excessive. I considered treating the issues as severable such that a set off in relation to costs would be appropriate but have tentatively concluded that such an approach is unnecessarily complex here. SPIC succeeded in a number of its principal arguments. It is entitled to succeed in having the Assessment revoked and is entitled to a fresh assessment for a lesser amount. I will, however, give the parties a brief opportunity to make written submissions about the form of orders I should make, including as to costs.

Conclusion and orders

1. But for the submission made by SPIC, which I accept, that I should invite additional written submissions about the form of orders I should make, the orders I would have made are as follows: 1. Pursuant to s 101(1)(a) of the Taxation Administration Act 1996 (NSW), revoke the Duties Notice of Assessment No 1656952346 dated 21 July 2017; 2. Pursuant to s 101(1)(d) of the Taxation Administration Act 1996 (NSW), remit the matter to the defendant for determination in accordance with the Court's reasons, namely that the assessment of duty to the plaintiff is based upon a valuation of $201,621,227 of the interests in land; 3. The defendant repay the plaintiff any amount already paid pursuant to the Notice of Assessment No 1656952346 dated 21 July 2017 in excess of the amount of the further assessment the subject of order (2), plus interest; 4. The defendant pay the plaintiff's costs.
2. In deference to SPIC's submission that I seek further submissions before making orders I direct: 1. The plaintiff to file with my associate written submissions about the form of the orders to be made based on these reasons (not exceeding 3 pages) by 4pm on 26 April 2021; 2. The defendant to file written submissions about the form of the orders to be made based on these reasons (not exceeding 3 pages) by 4pm on 30 April 2021; 3. The plaintiff to file with my associate written submissions in reply about the form of the orders to be made based on these reasons (not exceeding 2 pages) by 4pm on 4 May 2021.
3. My expectation is that upon receipt of those written submissions I will then be in a position to make orders. If either party desires an oral hearing about the form of orders to be made they should explain why this is a necessary course in their written submissions.

Annexure A - Fixed Asset Register as at 31 December 2015 (210427, pdf)

Endnotes

1. Section 148 has not since been amended. Section 149 was amended in 2017.
2. Section 150 was amended in 2017. Section 151 has not since been amended.
3. Section 146 was amended in 2020.
4. Section 147 has not since been amended.
5. The definition of "interest" has not since been amended.
6. Section 158 was substituted in 2017.
7. Section 146A was repealed in 2020.
8. Section 23 has not since been amended.
9. Sections 155, 162 and 163K have not since been amended.
10. Section 163G has not since been amended.
11. 147A What does "land" include? (1) For the purposes of this Chapter, land includes anything fixed to the land, whether or not the thing - (a) constitutes a fixture at law, or (b) is owned separately from the land, or (c) is notionally severed or considered to be legally separate from the land as a result of the operation of any other Act or law. (2) Land does not include anything excluded under section 163K from the definition of goods in this Chapter. (3) The Chief Commissioner may determine that land does not include a thing fixed to land if - (a) the thing is owned by a person who is not the person who owns the land or an associated person of the person who owns the land, and (b) the thing is not used in connection with the use of the land. (4) For the removal of doubt, anything that is land because of this section is not goods for the purposes of section 163G (Significant holdings in goods).
12. An appeal against the decision was dismissed: Commissioner of Taxation v Metal Manufactures Ltd (2001) 108 FCR 150; [2001] FCA 365.
13. At [145].
14. B Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters) [1.280].
15. Citing The Commissioner of Taxation of the Commonwealth of Australia v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336; [1981] HCA 4 at 410 per Aickin J; Re French Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361; [2003] NSWSC 1008 at [59] per Campbell J; Sparks v Hobson [2018] NSWCA 29; (2018) 361 ALR 115 at [35]-[38] per Basten JA.
16. P McMahon, "Legal Nature of a Tenant's Interest in its Fixtures" (2016) 90 ALJ 370. I have drawn heavily upon Mr McMahon's analysis with which, in large part, I agree.