Spiros Theophilas v Chief Commissioner of State Revenue

Jurisdiction to appeal

1. Section 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) provides that an appeal against an internally appealable decision may be made to the Appeal Panel. An internally appealable decision is defined in s 32 of the Act to include a general decision made by the Tribunal. A general decision is defined in s 29 of the Act as a decision made in the exercise of the Tribunal's general jurisdiction which is, in turn, ascertained by reference to legislation other than the Act. In this case, the Tribunal's general jurisdiction was enlivened by s 96 of the Taxation Administration Act 1996 (NSW).
2. By s 80(2) of the Act, an appeal from an internally appealable decision lies, as of right, on any question of law or, with the leave of the Appeal Panel on any other grounds.
3. The appellant's notice of appeal did not seek leave to appeal. However, in written submissions in reply and in oral argument, the appellant sought leave to appeal if necessary.

Questions of Law

1. It is necessary that a question of law be stated with precision, as an appellant's right to appeal to the Appeal Panel arises from the question of law and is the subject matter of the appeal. This was recently highlighted by the Court of Appeal, in the context of an appeal from a decision of the Appeal Panel to the Supreme Court, in Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378: see in particular Leeming JA at [3] and White J at [22]. The difficulties in formulating a question of law are referred to by Leeming JA at [4] to [6]. The importance of the question of law was the subject of extensive consideration by the Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [11] and [13].
2. The grounds of appeal stated in the notice of appeal are as follows: 1. The Tribunal erred in law in holding that the applicant (the appellant) was entitled to have his use and occupation of 6 Rogers Avenue Panania ("Panania") taken into account under schedule 1A of clause 6(7)(a) of Schedule 1A of the Land Tax Management Act 1956 2. The Tribunal erred in the construction it gave to the said clause 6(7)(a) 3. The Tribunal erred in holding that "the objective factors … compelled the conclusion that Panania was the applicant's principal place of residence at the relevant time". 4. The Tribunal erred in holding that the version of a telephone conversation with the appellant on 26 September 2013 as recorded by an officer of the respondent who did not give evidence and could not be cross examined was to be preferred to evidence given by the applicant thereby denying the applicant procedural fairness.
3. The following additional grounds were raised: 5. The Tribunal erred in law in saying (paragraph 69) that "the objective factors, including mailing address on the Telstra Bill and the RMS and Electoral Commission record all point to Panania as the applicant's principal place of residence at the relevant time." 6. The Tribunal erred in law in saying (paragraph 62) that the "apparent acceptance of an instalment plan for paying the outstanding assessment indicated he had no immediate objection to the proposition that he had no immediate objection to paying land tax". 7. The Tribunal erred in law in having regard to facts and matters occurring after midnight on 31 December 2012 ("the taxing date") and in particular erred in having regard to matters well after the taxing date. 8. The Tribunal erred in law, to the exten[d] it did, in placing reliance on, or applying the decision of the Tribunal in Aronstan v Chief Commissioner of State Revenue [2008] NSWADT 8. 9. The conclusion that Panania was the appellant's principal place of residence was erroneous in law.
4. The appellant contends that: 1. Grounds 1, 2, 8 and 9 raise questions of law concerning the construction of key statutory provisions. 2. Grounds 3 and 5 concern the question of law of whether the facts as found or admitted are capable of sustaining the inference that Panania was the appellant's principal place of residence. 3. Ground 4 concerns the question of law whether the Appellant was afforded procedural fairness. 4. Grounds 6 and 7 concern the question of law whether the Tribunal took into account irrelevant factors.
5. The respondent accepts that Grounds 1 and 2 raise questions of law concerning the proper construction of key statutory provisions, but contends that no other ground raises questions of law. The respondent contends that the remaining grounds of appeal raise questions of mixed fact and law.
6. In Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 at [9] to [23] the Appeal Panel considered the distinction between questions of law and fact. Where what is alleged is that the facts as found are incapable of satisfying the statutory provision, a question of law arises: see too Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744; (2001) 65 ALD 141 at [34], Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 at 394-5. Whether there has been a denial of procedural fairness is also a question of law: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]. Whether an irrelevant factor, in the sense contemplated in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 40, has been taken into account is also a question of law.
7. The Appeal Panel is satisfied that the grounds of appeal raise the following questions of law: the proper construction of key statutory provisions, whether the facts as found are capable of satisfying the key definition of principal place of residence and whether the Tribunal took into account irrelevant factors or denied the appellant procedural fairness.

Leave to Appeal

1. In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel which included the President, stated as follows at [84]: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
2. The appellant contended that this test sets the bar too high for the Appeal Panel of the Tribunal. We disagree, the Appeal Panel in Collins v Urban are right for the reasons they gave, noting also that the mechanism for leave to appeal acts as a filter.
3. We apply these principles here because, as is clear from the reasons given in Collins v Urban, those remarks were not limited to applications for leave to appeal from decisions of the consumer and commercial division. Applying those principles, we would not grant leave to appeal because: 1. the substance of the appellant's complaints can be adequately canvassed in the grounds of appeal which do raise the questions of law which we have identified. 2. the appellant has not contended that there otherwise arises, and we have not identified, any of the matters set out in paragraph 84(2) of Collins v Urban.

The Legislation

1. Land tax is imposed on land owned at midnight on 31 December, in respect of the following year (in this case 31 December 2012 in respect of the 2013 calendar year): s 8 of the Land Tax Management Act.
2. Section 10(1)(r) of the Land Tax Management Act relevantly provides an exemption as follows: 10 Land exempted from tax (1) Except where otherwise expressly provided in this Act the following lands shall, subject to sections 10B, 10D, 10E, 10G and 10P, be exempted from taxation under this Act: … (r) land that is exempt from taxation under the principal place of residence exemption, as provided for by Schedule 1A, …
3. The definition of "principal place of residence" is found in s 3 of the Land Tax Management Act as follows: 3 Definitions … principal place of residence of a person means the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person.
4. Schedule 1A of the Land Tax Management Act identifies when the principal place of residence exemption to land tax applies. The exemption applies where residential land is used and occupied as the principal place of residence of the owner: clause 2 and 3 of Schedule 1A of the Land Tax Management Act. The Schedule also contains many deeming provisions. If a deeming provision applies, the land is taken to be the principal place of residence of the owner and entitled to the exemption. The relevant deeming provisions for this appeal are as follows: 6 Concession for unoccupied land intended to be owner's principal place of residence (1) An owner of unoccupied land is entitled to claim the land as his or her principal place of residence, if the owner intends to use and occupy the land solely as his or her principal place of residence. In such a case, the owner is taken, for the purpose of the principal place of residence exemption, to use and occupy the unoccupied land as his or her principal place of residence. Note. It is an offence under section 55 of the Taxation Administration Act 1996 to make a statement to a tax officer, or give information to a tax officer, orally or in writing, knowing that it is false or misleading in a material particular. (2) This clause does not apply unless: (a) the land is unoccupied because the owner intends to carry out, or is carrying out, building or other works necessary to facilitate his or her intended use and occupation of the land as a principal place of residence, and (b) if those building or other works have physically commenced on the land, no income has been derived from the use and occupation of the land since that commencement, and (c) the intended use and occupation of the land is not unlawful. (3) This clause applies in respect of the assessment of a person's ownership of land only in the period of: (a) 4 tax years immediately following the year in which the person became owner of the land, or (b) if the land is used and occupied for residential purposes by a person other than the owner at any time after the person became owner, 4 tax years immediately following the tax year in which the building or other works necessary to facilitate the owner's intended use and occupation of the land are physically commenced on the land. … (7) This clause does not apply in respect of land owned by a person if: (a) the person or any member of the person's family (within the meaning of clause 12) is entitled to have his or her actual use and occupation of other land taken into account under section 9C or 9D or under this Schedule …

At First Instance

1. On the undisputed facts (which the Tribunal summarised at [44] of the Decision) and on the acceptance by the Tribunal that the Randwick property was the intended principal place of residence of the appellant, the Tribunal concluded (at [47] to [50]) that the then applicant had discharged the burden of proving the preliminary issues required by clause 6 of Schedule 1A that: 1. the appellant intended to use and occupy the Randwick property as his principal place of residence: cl 6(1); 2. the appellant intended to carry out building or other works necessary to facilitate his use and occupation of the vacant land as his principal place of residence: cl 6(2)(a); 3. no income had been derived from the land: cl 6(2)(b); and 4. the intended use and occupation of the land was not unlawful: cl 6(2)(c).
2. Those conclusions are not challenged.
3. The Tribunal then turned to clause 6(3) of Schedule 1A. It was agreed by the parties that the appellant did not satisfy subclause (a) (which required building works to be carried out within four years of commencing to own the land). At [51] the Tribunal said in relation to subclause 6(3)(b) as follows: Next, the applicants must satisfy cl 6(3), relevantly subclause (b). It is not disputed that the relevant taxing date fell less than four years after work commenced in 2011 and that the applicant's niece occupied the land for residential purposes for about seven years after the applicant became its owner. The requirements of cl 6(3)(b) are thus also met.
4. The respondent challenged the conclusion concerning paragraph (b) and this was the subject of a notice of contention.
5. Next, the Tribunal considered the "crucial provision" (clause 6(7) of Schedule 1A) which would preclude the appellant from attaining the unoccupied land exemption if he "is entitled to have his or her actual use and occupation of other land taken into account under … this Schedule" (at [53]). The Tribunal noted what had been earlier said by Judicial Member Verick, (at [49]) in Aronstan v Chief Commissioner of State Revenue [2008] NSWADT 8, and said at [53] of the Decision: the provision "simply denies the concession...if the person seeking the concession owns another residence within or outside New South Wales, which is on the relevant taxing date being used and occupied as the principal place of residence of the person …".
6. The appellant contends that the construction adopted by the Tribunal is too wide and that the exemption is not "simply denied" if there is another property that may be eligible for the principal place of residence exemption. It is necessary, so the appellant contends, for the other residence to be the principal place of residence, not merely a contender for the exemption. This is the subject of Grounds 1, 2, 8 and 9.
7. The Tribunal then turned to consider whether, objectively, the Panania property was being used and occupied as the appellant's principal place of residence. At [54] of the Decision, the Tribunal noted that the then applicant's position was that he had not intended Panania to be his principal place of residence, but concluded (at [69]) that whilst not irrelevant that was a factor of small moment. On the other hand, the Tribunal noted that the applicant's residential address was, so far as the Roads and Maritimes Services database was concerned, from February 2012 until at least 22 November 2013, the Panania property (at [56]); that the Electoral Roll Commission database recorded the applicant residing at Panania from July 2012 until at least November 2013 (at [57]); the Telstra phone bills issued for the September to June 2013 period were addressed to the applicant at the Panania property; and a postal redirection service (from Randwick to Panania) had been paid for until April 2014.
8. The Tribunal said at [58] "all the above evidence points to Panania being used and occupied by the applicant as his PPR at the taxing date." Further, the Tribunal took into account that there was no evidence the applicant spent any time away from Panania during the relevant time.
9. The appellant contends that the evidence adverted to by the Tribunal shows no more than that the appellant was, at the relevant date (31 December 2012, the taxing date) residing at Panania and further that so far as evidence concerning the period after the taxing date is concerned, it is irrelevant to the determination of the principal place of residence of the appellant. These contentions are the subject of Grounds 3, 5, 6 and 7.
10. In arriving at the conclusion, the Tribunal also had regard to a file note (referred to as "print notes") of a telephone conversation between the appellant and an officer from the Office of State Revenue recording that the appellant had entered into an instalment plan to pay the land tax and said, in connection with determining the admissibility of that document: Finally, the applicant's apparent acceptance of an instalment plan for paying the outstanding assessment debt suggests that he had no immediate objection to the proposition that he was liable to land tax in respect of Randwick. As regards the contents of the conversation generally, Ms Tasich's contemporaneous written note is more likely to constitute a reliable record of the exchange than the applicant's unaided recollection. For that reason, and also for the reasons given below, her version of the conversation is to be preferred.
11. At [59] the Tribunal refers to "an important piece of documentary evidence". This evidence was the document referred to as the "print notes" recording the appellant apparently advising the officer that Panania had been "their PPR for past 18 months".
12. At [61] the Tribunal considers the admissibility of the print notes and records the then applicant's submission that the print notes had little probative value was incomplete and that the use of the key phrase "principal place of residence" was denied by the appellant. At [62] the Tribunal noted that the applicant's oral evidence was that he could not recall whether the phrase "principal place of residence" was used, rather than a denial and that the words asserted to have been missing were inconsequential. The Tribunal accordingly admitted the note into evidence as relevant in the proceedings, despite the fact that the maker was not called to give evidence and further the Tribunal preferred the version of the conversation set out in the print notes to the appellant's evidence of what was said.
13. At [63] the Tribunal concluded that whether or not the applicant or the officer had actually used the specific term "principal place of residence" in the course of the conversation, "that document strongly points to Panania, where he had actually been living since September 2011 being the applicant's PPR at the relevant time".
14. The admission of the print notes into evidence and the use to which they were put form the subject of Ground 4.
15. The Tribunal said at [72]: The objective factors referred to above compel the conclusion that Panania was his principal place of residence at the relevant time, and I so find.
16. The Tribunal concluded, at [73], that subclause 6(7)(a) was not satisfied.

Consideration

1. There is no dispute that the Randwick property, being at the relevant time unoccupied land, was not the appellant's principal place of residence as defined in s 3 of the Land Tax Management Act.
2. It was agreed that the only relevant exemption is found in clause 6 of Schedule 1A of the Land Tax Management Act.
3. The notice of appeal focuses upon whether or not clause 6(7) was satisfied and the respondent's notice of contention concerns the time limits within which the exemption applies (clause 6(3)).
4. Grounds 1, 2, 8 and 9 concern the appellant's construction argument that clause 6(7) only disentitles an owner for the exemption if other land actually satisfies the conditions for exemption under Schedule 1A. The other grounds concern the appellant's contention that the Tribunal erroneously held that the Panania property was the appellant's principal place of residence.

Submissions Grounds 1, 2 and 9

1. As extracted above, clause 6(7) provides that the unoccupied land exemption does not apply if the owner "is entitled to have his or her actual use and occupation of other land taken into account … under this Schedule."
2. The appellant submits that, properly construed, subclause 6(7)(a) does not disentitle an owner to an exemption from land tax for unoccupied land unless the other land is "the" principal place of residence of the owner. In other words, a land owner will be disentitled to the exemption only if the other land satisfies the definition of principal place of residence in s 3 and clause 2 of Schedule 1A, or is deemed to so satisfy the definition by one of the other clauses in Schedule 1A.
3. On the other hand, the Respondent contends that so long as there is another property that is a contender for the exemption under Schedule 1A, the unoccupied land is not eligible for the exemption. The respondent contends that in order to activate subclause 6(7)(a) all that is required is that an owner has a right for his actual use and occupation of other land to be taken into account. The right to have his actual use and occupation taken into account does not require the other land to satisfy an exemption. In the respondent's submission, whenever an owner of unoccupied land is actually using and occupying as his residence, other land he owns, clause 6(7)(a) is enlivened and the unoccupied land is disentitled from the exemption in clause 6. In other words, the respondent says that the appellant was entitled to have his actual use and occupation of Panania taken into account because he was residing there and that was sufficient to disentitle the Randwick property from the exemption.
4. The appellant contends that clause 6 ought to be given a beneficial construction as it is an exemption provision. The respondent contends that it is not necessary to delve into beneficial constructions. The words are clear. As stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [57]: First, tax statutes do not form a class of their own to which different rules of construction apply; they are to be construed by application of the settled principles referred to above. Secondly, the fact that a statute is a taxing Act, or contains penal provisions, is part of the context and is therefore relevant to the task of construing the Act in accordance with those settled principles.
5. The respondent's construction was apparently accepted by Judicial Member Verick in Aronstan. It is also apparent from [66] and [67] of Aronstan, that Judicial Member Verick concluded that certain property was the owner's principal place of residence, and thereby disentitled the unoccupied land from being so deemed. Judicial Member Verick was following the decision of the Tribunal in Wilks v Chief Commissioner of State Revenue [2002] NSWADT 248 where Judicial Member Block, at [19] considered the concession under s 10T, which was only available where an applicant was not entitled to an exemption for another property under s 10(1)(r) of the Land Tax Management Act. On the facts of Wilks, the concession was denied for the reason that another property satisfied the exemption. Judicial Member Block noted that whilst the other property may, from the applicant's subjective perspective, have only been owned on a temporary basis, nevertheless, because it qualified for the exemption, the property the subject of the application could not.
6. In any event, the respondent contends that irrespective of the outcome of this ground, there was no evidence that any property other than the Panania property was the appellant's principal place of residence and that therefore even on the appellant's construction, the conclusion reached by the Tribunal was correct. The respondent noted that even if the Panania property was a temporary residence, that does not preclude it, during the relevant tax year, from being the respondent's principal place of residence. The respondent's submission was that, on the appellant's own evidence, the appellant fails.

Conclusion Grounds 1, 2 and 9

1. The language of clause 6(7) is cumbersome, but the Appeal Panel is satisfied that the appellant's construction is correct. The clause 6 concession is denied in the event the landowner uses and occupies another residence he owns, as his principal place of residence. It is not sufficient to deny the exemption if the land owner merely resides at other premises he owns. This is consistent with ss 8 and 9 of the Land Tax Management Act that together provide that land tax is levied on the taxable value of all land that is not exempt, owned at midnight on the 31st of December of the year preceding the tax year. In order to determine the relevant taxable value it is necessary to determine whether any exemptions actually (not possibly might) apply, at the taxing date.
2. Furthermore, the reference in clause 6(7)(a) to a person being "entitled" to have his occupation of other land "taken into account" is a product of the reference in clause 6(7)(a) to s 9C and s 9D of the Land Tax Management Act. Section 9C allows a reduction of the land value for calculating land tax on flats or mixed development land when a flat is used and occupied by the owner of land as his principal place of residence. Section 9D allows a reduction in the land value for the purposes of assessing land tax in single dwellings on mixed use land where the single dwelling is used and occupied by the owner of land as his or her principal place of residence.
3. The phrase employed in subclause 6(7) "taken into account" is explained by reference to the calculations required by s 9C or s 9D. In either case, the actual use or occupation of the other land "is" only taken into account in assessing land value under s 9C or s 9D if the land is the principal place of residence of the owner: s 9C(3); s 9D(6). It is insufficient for s 9C or s 9D purposes if the flat or dwelling is merely one of all residences of the owner.
4. This supports the construction advanced by the appellant that the other land must be the principal place of residence of the owner, either as a result of the operation of s 3 and clause 2 of Schedule 1A, or as a result of a deeming provision in Schedule 1A, in order to activate clause 6(7) and disentitle an owner to the unoccupied land tax exemption. It is not enough if the other land is merely a contender for the principal place of residence exemption, rather, it must be the principal place of residence.
5. Despite this conclusion, we are not satisfied that the Tribunal at first instance made any error. Even though Aronstan was followed and in that case the Judicial Member appears to have accepted the Respondent's submission on construction, here the Tribunal concluded that the Panania property was the principal place of residence of the appellant and not merely a contender for that position. At [72] of the Decision it is noted as follows: The fact remains, however, that his intention to occupy Randwick as his PPR did not come to fruition by the taxing date or during the six months before and after it, and that still remains the case. That factors beyond his control were responsible does not lead to the result that the applicant is not entitled to have his actual use and occupation of Panania taken into account under schedule 1A. The objective factors referred to above compel the conclusion that Panania was his principal place of residence at the relevant time, and I so find.
6. There is no error of law in the Tribunal's application of the provisions, as the Tribunal was satisfied that the Panania property actually was, objectively determined, the principal place of residence of the Appellant and thus the exclusion in subclause 6(7) was engaged, to preclude the Randwick property being exempt from land tax.
7. Grounds 1, 2 and 9 accordingly fail.
8. The next question is whether the Tribunal erred in its conclusion that the Panania property was the appellant's principal place of residence. This is the substance of Ground 3.

Ground 3

1. The Tribunal concluded that, viewed objectively, the Panania property was the principal place of residence of the appellant. Those factors included: 1. The mailing address; 2. The address on the Telstra bill; 3. The address held by the Roads and Maritime Service; 4. The address on the Electoral Roll Commission records, 5. Lack of evidence that the appellant spent any nights at all away from Panania and the fact that he had been living there since September 2011.
2. Other factors were also taken into account by the Tribunal, such as the fact that the intention to move back to Randwick had not reached fruition by the time of the hearing. This is the subject of Ground 8. The Tribunal also had regard to the print notes which is the subject of Ground 4. Also, the Tribunal had regard to the appellant's apparent acceptance of an instalment plan to pay the tax.
3. The appellant contends that notifications by the appellant to authorities such as Roads and Maritime Services (formerly Roads and Transport Authority) is consistent merely with the fact that a driver must notify the relevant authority of a change of address and failure to do so is an offence: see clause 117 of the Road Transport (Driving Licensing) Regulation 2008 and clauses 116 and 118. The notification of change of address may be evidence that he was residing at Panania, but it was not evidence that Panania was his principal place of residence. Similarly, addresses for phone bills, electoral rolls and mailing address may point to residence, but not principal residence.
4. The appellant submits that reliance the Tribunal placed on the appellant's acceptance of an instalment plan for paying the outstanding assessment was misplaced. Land tax is due and payable as required by the relevant notice (see s 39 of the Land Tax Management Act). The Commissioner may recover the amount as an unpaid debt (ss 43 and 44 of the Taxation Administration Act). The mere fact that an objection is pending or there is an application for review in the Tribunal or the court does not affect that position (ss 94 and 103 of the Taxation Administration Act). Accordingly, acceptance of the legal right of the respondent to collect the tax despite an objection or appeal is not an indication that the premises were his principal place of residence.
5. The Appellant contended that taken separately or together, the factors referred to above could not "compel" (an expression found in [72] of the Decision) the conclusion, as to principal residence as opposed to simply residence.
6. Further, the appellant contends that the Panania property, despite being the property used and occupied as his residence over the taxing date, was nevertheless a temporary residence and his occupation of it did not disentitle the Randwick property from being deemed his principal place of residence, as his intended residence.
7. The Appeal Panel is satisfied that the factors that the Tribunal pointed to were relevant to determining whether the Panania property was the appellant's principal place of residence. The test is objective. Whilst they point to residence, they are also capable of supporting an inference of principal residence.
8. Whilst it is not disputed that the appellant intended to reside again at Randwick, this does not negate or override the other factors fairly taken into account by the Tribunal. Acceptance that Panania was a temporary residence does not preclude Panania being, in the meantime, the appellant's principal residence.
9. Furthermore, whilst there is persuasive force to the appellant's submission that acceptance of the tax liability is not an indication of principal residence, this does not negate the conclusion, properly grounded, by the Tribunal at [69] that "the objective factors…all point to" Panania as the principal place of residence of the appellant.
10. Fairly read, the Tribunal used the abovementioned factors to form an impressionistic view that the Panania property was the appellant's principal place of residence. The Tribunal accepted that the intention was that Panania was a temporary residence, but nevertheless held that it was, at the taxing date, the principal place of residence. The Appeal Panel is satisfied those factors are capable of grounding an inference of principal place of residence and hence there is no error of law disclosed in this regard.

Ground 7

1. Somewhat related to Ground 3 is Ground 7. The appellant contends that the Tribunal took into account irrelevant factors in reaching its conclusion that the Panania property was the appellant's principal place of residence. The evidence said to be wholly irrelevant includes the Telstra bills and other evidence relating to periods after the taxing date of 31 December 2012. Whilst it was accepted that events surrounding the taxing date may be relevant, the appellant contended that events after the taxing date could not be relevant, even if occurring during the relevant tax year. That is because by 31 December of the previous year the fact that a residence is the principal place of residence must be established.
2. True it is that the conclusion on principal place of residence must be formed as at 31 December 2012, but events surrounding that date are capable of being relevant.
3. There is no fixed period set by the Land Tax Management Act. In Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2010] NSWSC 867; (2010) 79 NSWLR 724 Gzell J, concerned with the land tax exemption for primary production, noted (at [2]) that by s 8 of the Land Tax Management Act, land tax is charged on land as owned at midnight on the thirty-first day of December immediately preceding the year for which the land tax is levied. Nevertheless, his Honour noted as follows at [4]: [4] But inquiry is not limited to the use to which land is put on the relevant date. It extends to a consideration of its use during a reasonable period preceding and following the relevant date (Longford Investments Pty Ltd v Commissioner of Land Tax (NSW) (1978) 8 ATR 656 at 660-661). In my view, six months before and after the relevant date is a reasonable period for inquiry in this case. It allows for consideration of financial records pertaining to the uses to which the land was put.
4. In that particular case a reasonable period included six months after the taxing date, as the exemption required the applicant to demonstrate that the primary production use of the land had a significant and substantial commercial purpose or character and was engaged in for a purpose of profit on a continuous or repetitive basis. To satisfy the test it was necessary to demonstrate some ongoing activity. The Court of Appeal in Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2011] NSWCA 366 at [4] affirmed the decision of Gzell J and his Honour's reasoning.
5. Here the appellant contends that anything after the taxing date is simply irrelevant, as the test relates to the principal place of residence on a fixed date which does not require continuity beyond the taxing date.
6. Whilst there may be cases where evidence of events after the taxing date may not assist the Tribunal, for instance where the owner changes his principal place of residence the day following the taxing date, in this case, the appellant's activity in the year after the taxing date was pertinent. The appellant's submission before the Tribunal had been that his move to the Panania property was temporary and it was not his principal place of residence for that reason; it having been accepted that he resided at Panania at the relevant taxing date. By looking at events after the taxing date, some scrutiny was being given to the intention to reside, ultimately, at Randwick. The constancy to his residence at Panania pointed to it being his principal place of residence despite his intention, accepted by the Tribunal, to ultimately reside at Randwick. In Paspaley v Chief Commissioner of State Revenue [2014] NSWCATAD 217 at [77] Senior Member Isenberg referred to a factor highlighted in Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 4 (which concerned the first home owner grant): [to be the ] principal place of residence a person's occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose.
7. Despite accepting that the intention of the appellant was ultimately to reside at Randwick, the degree of permanence (or put another way the degree of temporariness) of the appellant's occupancy at Panania was relevant to the Tribunal's enquiry.
8. In terms of error of law, for a factor to be "irrelevant", it must be a factor the decision maker was bound not to take into account, as explained by Mason J in Peko-Wallsend at 40. The Tribunal was not precluded from taking account of events after the taxing date.
9. Where it is contended that the alternative residence is temporary and not the principal place of residence, it is not irrelevant to consider factors occurring after the taxing date. These factors were simply part of the multifactorial test applied by the Tribunal. No error of law is disclosed.

Ground 8

1. The appellant contends that the Tribunal erred in following Aronstan. The appellant's complaint related to two distinct issues. First, whether the construction of clause 6(7)(a) adopted from Aronstan was correct and secondly whether, as stated in Aronstan (at [72]) it was necessary for the appellant's stated intention of returning to the Randwick property, to come to fruition.
2. The first question has already been dealt with in answer to Grounds 1, 2 and 9.
3. We turn now to deal with the second issue. This aspect is also related to Ground 7. In Aronstan, in a passage cited by the Tribunal here at first instance (at [55] of the Decision) it was stated that: "It is necessary that the original subjective intention of a person does in fact come to fruition for the original subjective intention to be accepted. The original intention, in any case, does not play a dominant role in the final determination of a person's principal place of residence" (at [39]).
4. Here there is no question that the Tribunal accepted the appellant's evidence that he intended, ultimately, to reside at the Randwick property and further, that the Tribunal took this into account in ascertaining whether Panania was the appellant's principal place of residence. At [68] it is so stated.
5. The reference at [72] to the intention not coming to fruition cannot be read, in context, as something viewed by the Tribunal as a requirement. There is no error disclosed in the Tribunal's reasoning. The Tribunal viewed the facts and objectively formed a view as to the appellant's principal place of residence. There is no error of law.

Ground 4

1. By Ground 4 of the Notice of Appeal, the appellant contends that he has been denied procedural fairness, in relation to the Tribunal, in effect, preferring the print notes to the evidence of the appellant.
2. The appellant's counsel, under pressure of argument, eventually put the denial of procedural fairness argument as follows: although the file note of the telephone conversation was in evidence, and was always known to be in evidence, and indeed was being responded to by the evidence given in person by the appellant, at the point at which the Tribunal proposed to prefer the evidence from the file note to the oral evidence of the appellant, it should have advised the appellant's counsel of that circumstance so that counsel could have taken such action as advised, which might have included issuing a summons for the appearance of the author of the file note, so that she could be cross-examined.
3. There is no substance in this ground. First, it is not a point which matters in this appeal, because although in the course of the decision below, the Tribunal indicated that it preferred the evidence contained in the file note to the oral evidence of the appellant, that evidence does not appear to have been explicitly relied upon in the Tribunal's final conclusions, see e.g. at [69].
4. Second, as counsel for the respondent points out, the difference between the oral evidence and the file note is small and inconsequential.
5. Thirdly, as counsel for the respondent stated at the appeal, from the bar table, without demur from counsel for the appellant:- had counsel for the appellant, at the initial hearing, required the respondent to produce the author of the file note, this would have been done. We accept that this would be the expected behaviour of a model litigant such as the respondent.
6. Fourth, in circumstances where the appellant bore the onus of proof and knew the identity of the author of the file note, the point cannot arise: the appellant could have required the production of the officer and either that would have occurred, or alternatively, a summons could have been issued.
7. Fifth, there would be no denial of procedural fairness even on the appellant's hypothesis. The rules of evidence do not apply in the Tribunal; it is a commonplace, both in this and similar Tribunals, that 'business records' of decision-making departments and entities are routinely tendered and may be given weight as appropriate by the Tribunal. There is simply no basis for introducing a new rule to the effect that once the Tribunal moves from hearing the matter to formulating its reasons for the matter, if it then decides that it might prefer the file note to other evidence tendered by the opponent, that notice should be given. So formulated the rule would require the Tribunal to provide a running commentary on its thought processes, and binding authority is squarely against that. In a passage frequently cited with approval in Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (itself cited with apparent approval by a majority of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 56; 216 CLR 212 at [21]-[22]) a Full Court of the Federal Court said at 591-592: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (emphasis added)
8. The Full Court also cited with approval what Lord Diplock said in F Hoffman-La Roche and Co. A.G. v. Secretary of State for Trade and Industry (1975) AC 295 at 369: ...the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished.
9. Finally, procedural fairness in this context, as Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]: … is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
10. Although a claim of denial or procedural fairness raises a question of law, this ground fails.

Conclusion on the appeal

1. No error of law has been disclosed in the individual grounds of appeal. The Tribunal, viewed objectively, determined that the Panania property was at the taxing date the appellant's principal place of residence. That conclusion was properly grounded in the undisputed facts which accepted the appellant's stated intention that ultimately he would reside at the Randwick property.
2. That conclusion activated clause 6(7), which disentitled the Randwick property from the principal place of residence exemption. That clause was construed according to law.
3. There is no need, therefore, to consider the respondent's notice of contention.

Orders

1. The Appeal Panel makes the following order: 1. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 March 2015