Wu v Chief Commissioner of State Revenue [2018] NSWCATAD 292 | Case summary | Zoe

NSWNSWCATAD

Wu v Chief Commissioner of State Revenue

[2018] NSWCATAD 292

NCAT Administrative and Equal Opportunity|2017-09-05

View original source

At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2017-09-05

Source

Original judgment source is linked above.

Judgment (76 paragraphs)

[1]

Solicitors: Applicant (self-represented) Crown Solicitor's Office (Respondent) File Number(s): 2015/383474; 1510590

[2]

Background

Mr Wu applied to the Tribunal to review a decision by the Respondent (sometimes called the Chief Commissioner in these reasons) to assess Mr Wu for land tax in respect of a particular property during the 2006 to 2015 land tax years (referred to collectively as "the Tax Years" or "the Relevant Period"). The property (referred to variously as "2506", "Lot 2506" or "the Land") is situated at Belrose in New South Wales and was owned by Mr Wu at all relevant times.
Mr Wu claims that he has the benefit of a statutory exemption from land tax throughout the Relevant Period because the Land was his principal place of residence. Mr Wu substantially relies on his credit and the credit of his witnesses. He claims that the Chief Commissioner cannot go behind a re-assessment made in his favour in 2005, that the Chief Commissioner intentionally destroyed old documents on which Mr Wu relied, and the Chief Commissioner's witnesses are variously weak and insufficient to disprove his residence at the Land. Mr Wu also claims that the Chief Commissioner has a burden of proof which he has not satisfied.
The Chief Commissioner claims that no such exemption applies because Mr Wu did not reside at the Land, the evidence of Mr Wu and his witnesses was not reliable, documents produced by Mr Wu were not relevant, the onus of proof lies on Mr Wu not the Chief Commissioner and the Chief Commissioner's substantial documentary evidence and witnesses were objective and reliable.

[6]

The Chief Commissioner's material

Documents and oral evidence provided by the Chief Commissioner to the Tribunal comprised: 1. Affidavit of Kathleen Margaret Kerr made 20 April 2017, marked Exhibit R1. 2. Section 58 documents filed 24 February 2016 marked Exhibit R2. 3. Section 58 documents filed 19 September 2016 marked Exhibit R3. 4. Documents stated to be Supplementary s 58 documents filed 13 April 2017 marked Exhibit R4. 5. The Chief Commissioner's Tender Bundle of two volumes of documents filed 21 April 2017, respectively marked Exhibit R5 vol 1 and Exhibit R5 vol 2. 6. Affidavit of Kiri George Armstrong made 20 April 2017, marked Exhibit R6. Ms Armstrong also gave oral evidence. 7. Affidavit of Cornelia Donata Eva Johanna Harris made 19 April 2017, marked Exhibit R7. Dr Harris also gave oral evidence. 8. Affidavit of Peter Alexander Juniper made 7 April 2017, marked Exhibit R8. Mr Juniper also gave oral evidence. 9. Affidavit of Andrew O'Connor made 26 June 2017, marked Exhibit R9. 10. Three hard copy documents produced from a CD, itself produced under summons by Northern Beaches Council, collectively marked Exhibit R10, including documents from Sydney Water in respect of a wastewater connection application for the Land. 11. Letter dated 17 May 2017 from the Chief Commissioner to Mr Wu filed 10 July 2017, marked Exhibit R11. 12. Letter dated 22 May 2017 from Mr Wu to the Crown Solicitor's Office filed 10 July 2017, marked Exhibit R12. 13. Affidavit of Maria Roots made 24 August 2017, marked Exhibit R13. 14. Affidavit of Marianne Dakhoul made 28 August 2017, marked Exhibit R14. 15. Affidavit of Marianne Dakhoul made 5 September 2017, marked Exhibit R15. 16. Photograph of four vehicles marked MFI1. 17. Photograph showing a Porsche and showing Mr Wu in a blue and white shirt, marked MFI2. 18. Page showing two photographs marked MFI 3. 19. Letter dated 6 July 2017 from the Crown Solicitor's office to Mr Wu marked MFI4. 20. Google Earth aerial photograph of Lot 2506 with imagery date 20 December 2015 marked MFI 5. 21. Photograph of Lot 2818 with imagery date 20 January 2007 marked MFI 6. 22. Photograph of Lot 2818 with a yellow arrow pointing to a white rectangular object with imagery date 20 January 2007 marked MFI 7. 23. Aerial photograph of Lot 2818, showing Linden Avenue, Crozier Road and a yellow arrow, with imagery date 17 February 2006 marked MFI 8.
The Chief Commissioner provided written submissions to the Tribunal. Those submissions were his opening submissions dated and filed 21 April 2017 (RS) and his closing submissions dated and filed 8 December 2017 (RCS).
Mr Rider made oral submissions during the hearing.
Except where the context otherwise requires all references to submissions from Mr Rider or the Chief Commissioner containing a paragraph number, are from RCS.

[11]

Overview of Mr Wu's case

Mr Wu's claims, and what he described as his "living history", are outlined in his affidavit as follows: ... 8 04/2002-07/2003, I lived in a caravan and an old fibro dwelling in Lot 2506. … 10 07/2003, I built a new fibro dwelling in the south part of Lot 2506 closing to Lot 2818. 11 26/11/2003-02/2009, Lot 2506 was settled on 26/11/2003 and I lived in the new fibro dwelling built previously and sometimes in my caravan since then. 12 2006, I purchased 3 McMahons Road, Longueville [This property is at times referred to as 17 Northwood Road, Northwood. For ease of reference it is usually referred to in these reasons as "McMahons Rd" or "3 McMahons Rd".] 13 02/2009-03/2012, I lived in Lot 2818 Linden Avenue, Belrose 14 03/2012 - 08/2012, I lived in 3 McMahons Road, Longueville 15 08/2012-11/2014, I lived in 8 Kullah Parade, Lane Cove North [For ease of reference this property is usually referred to in these reasons as "Kullah Pde"] 16 11/2014-current, I live in Lot 2506 Bundaleer Street, Belrose … 24 … I did live [at Lot 2506] ever since I became the land owner until 2009 … 41 During the time between 2003 and 2009, I lived in my caravan and two fibro dwellings in Lot 2506 ... the new fibro dwelling I built in 2003 was under thick trees and bushes, so that the council would not observe it from the satellite. 42 The reason why I did so was that I knew the council would do inspection through aerial photos from time to time and I was worried that they were able to see the dwelling if I constructed it without application in open space. I knew it because during the construction of the other projects which I was in charge of, council penalty notices were issued for illegal tree cutting and not removing temporary construction material (one container) due to the aerial photos they saw. … 44 … I still built it under tree cover because I did not want to be involved in any trouble with council … … 52 I did not live in there [3 McMahons Rd] until 2012.
While giving oral evidence on 31 May 2017 Mr Wu said he had checked all documents and had made a mistake at [14] in his affidavit. Instead of living at McMahons Rd from March 2012 he had lived there from 18 February 2012 to 30 August 2012. Mr Wu said he did not wish to make any other changes to his affidavit.
As a result of several witnesses being interposed during Mr Wu's cross-examination and re-examination, he gave evidence intermittently throughout the hearing.

[15]

Ms Ye's oral evidence

Ms Ye said she lived at Lot 2818 for four years, then three years, then four years, then two years from April or May 2004 until the property was sold in May 2006.
Ms Ye said that in 2002 when she bought Lot 2818 as vacant land, she had a part time job doing accounts for a couple of days a week. She was married.
Ms Ye said her husband gave her money and handled all the money. She did not pay any bills, her husband dealt with that. She and her husband obtained some money from China and some from a bank for the purchase. They borrowed money from a bank to build a five bedroom house. She did not know whether they made any money when the property was sold. Her husband informed her that they "nearly broke even". Mr Wu's company built the house for them and when the property was sold "they" still owed some money for the construction. Ms Ye was not certain as to the cost of the property, how much they borrowed, the cost of the construction, the sale price when she sold the property nor how much she still owed Mr Wu's company more than 10 years after she sold Lot 2818.
Ms Ye said Mr Wu introduced her to the person who bought the property from her. She could not remember whether that person was a friend of Mr Wu or a friend of her husband.
Ms Ye said the house was big because she and her husband wanted their respective parents to live with them and she and her husband were planning to have babies.
Ms Ye's driver's licence documents showed her residential address was in Artarmon from April 2004 until July 2005 and in Hornsby from July 2005 until June 2007. She said those locations were her parents' home addresses. She did not live there but she entered into leases because otherwise her parents could not rent somewhere to live. She had signed the lease for each property.
Ms Ye also said she had not lived with her parents since she was a teenager because of arguments with her parents. When reminded that she had said she was building a large house on Lot 2818 so that her parents and her husband's parents could live with them. Ms Ye responded that her dream was that her parents would stay with her.
I find Ms Ye's above response somewhat at odds with her definitive answer as to why she no longer lived with her parents. I also note that despite having said that she had not lived in either of the properties she leased for her parents, Ms Ye also said she lived at the Artarmon address until April or May 2004 when she moved to Lot 2818.
Ms Ye conceded she had written the Artarmon address she had leased for her parents as her intended address in Australia on an incoming passenger card dated March 2005.
In the middle of Mr Rider's questions on this point, Mr Wu interrupted the cross-examination and claimed that the question did not ask for a residential address. Up to that time Mr Rider had not mentioned the word "residential" in his cross-examination concerning the incoming passenger card. I am concerned that Mr Wu's interruption, and the wording he used, were intended to signal to the witness a possible answer to Mr Rider's questions. In the event, Ms Ye denied that the Artarmon address was her residential address and said the reason she used that address was she understood that she had to follow her driver's licence in completing the incoming passenger card. She said everything which showed her address was placed under the address on her driver's licence.
Ms Ye conceded that she had written April 2006 on another incoming passenger card which stated her intended address in Australia was also the Artarmon address. Ms Ye said she was still living at Lot 2818 at that date, not Artarmon.
After confirming that she had said that she used her driver's license details on incoming passenger cards so they would be the same, Ms Ye was shown a driver's license document showing her residential address from July 2005 until 21 June 2007 was the Hornsby address she had said she leased for her parents.
Ms Ye initially said the driver's licence address must be a mistake. Subsequently she agreed that in July 2005 she had changed the residential address on her driver's licence to the Hornsby address.
Mr Wu then interrupted with irrelevant comments which I regard as an attempt to stop the continuity of Mr Rider's questions. When Mr Rider resumed his questions Ms Ye then denied that she had written the Artarmon address on the incoming passenger card in April 2006.
Ms Ye then conceded that she had written the Artarmon address on the incoming passenger card. It was a mistake and she did not know why she wrote it.

[22]

Mr Pan's oral evidence

Mr Pan was asked several questions as to how much time he actually spent at Lot 2818 between 2002 and 2006. He sought to evade the questions by speaking about other matters. From Mr Pan's answers I formed the opinion that in the two-year period from the time the occupation certificate for Lot 2818 was granted in December 2003 until sometime in 2006, Mr Pan would have been on site for no more than six weeks. Mr Wu agreed with my estimate. Because of Mr Pan's failure to provide clear answers it was not possible for me to make an accurate estimate of the time he spent at Lot 2818 between his first attendance at that site in 2002 and late 2003.
Mr Pan provided clear details of certain of the work he said he carried out at Lot 2818 including installing glass balustrades and a safety fence. He said he did a lot of work for the house.
Mr Pan said he ran his own business when he was working at Lot 2818. He met with Mr Wu at various locations on site and Mr Wu showed him plans and drawings in order for him to provide a quote. Mr Pan did not know where Mr Wu kept his plans and drawings but there were a lot of them.
Mr Pan was asked several questions concerning Mr Wu's site office and was non-responsive and evasive. His answers included "I don't know site office"; "no site office"; "what is the site office, I don't know"; "I don't know, I didn't go there because I was just doing the work … I don't know where it is"; and "I was never interested about that. I don't know.";
When asked about a shipping container or a portable office on the site, Mr Pan's answers included "I didn't pay attention to that, I was just doing my work … Never see, I don't know" and "I was never interested about that. I don't know".
Mr Pan was shown several aerial photographs of Lot 2818. He recognised the house and swimming pool on the property. When asked questions concerning something described as a white rectangular object in the photograph marked MFI 7, Mr Pan responded "I don't know. It is really far from where I used to work, why did I need to come here?"
Mr Pan said Mr Wu's little cottage was 50 to 60 m away from the swimming pool on Lot 2818. He also said the cottage was about 3 to 4 m from the boundary between Lot 2818 and Lot 2506. He said there was not really a path from the cottage to 2818 "it is just a muddy road" on which vehicles could travel.
When asked whether the land where the cottage was situated was flat, Mr Pan responded by answering a question he had not been asked. He said "There are lots of trees above." After being asked the question again he said he was not sure if the land was flat. When asked if it was a level site he said "you can walk on it" and it was not very steep. He did not remember if it was level.
When asked about the gradient of the Land at the site of Mr Wu's cottage, Mr Pan said he did not measure it, he did not know if it was level and he did not know what a "10 degree gradient" meant. However, Mr Pan said he is familiar with working at angles to the horizontal when preparing balustrades for steps and measuring degrees.
I find it highly implausible that Mr Pan, who on his own evidence, was very experienced in building fences of various components and preparing and installing balustrades on steps, did not know the meaning of "10 degree gradient".
I have difficulty reconciling Mr Pan's description of "a muddy road" on which vehicles could travel, with site surveys and oral evidence which describe the area on Lot 2506 near the boundary between Lot 2818 and Lot 2506 as "very rocky area" and on a rocky crest.
Mr Pan said he and his workers went inside Mr Wu's cottage for lunch and he discussed work matters with Mr Wu at night at the cottage. He said the cottage had two rooms, one on the left, one on the right and there was a flush toilet in the middle which worked. Mr Pan did not know if there was a shower in the cottage. He said there was electricity inside the cottage and "they" boiled water. He did not see any air-conditioning.
It seemed to me that Mr Pan was more focused on talking about trees overshadowing Mr Wu's cottage and the contents of Mr Wu's cottage than answering questions asked of him concerning other matters.
It also seemed that Mr Pan was at least partly dependent on Mr Wu for work and had been for several years.
Mr Pan's clarity concerning aspects of Mr Wu's cottage on Lot 2506 were at odds with his recollection of other matters on which it appeared he did not expect to be asked questions such as how long he actually worked on Lot 2818; the location of Mr Wu's site office; and the existence and location of a container on Lot 2818.
I found Mr Pan's answers to questions concerning a site office, a steel container (which Ms Ye recalled being on site) and certain aspects of Mr Wu's cottage and its surrounds were highly implausible for a subcontractor who worked on a relatively small site over a 4 year period in comparison to his clear recollection of other details of Mr Wu's cottage.
Mr Pan's evidence was that he worked at Lot 2818 from 2002 until 2006. His evidence regarding Mr Wu's "dwelling" on Lot 2506, related solely to the dwelling which Mr Wu said he constructed in about July 2003, near Lot 2818. Mr Pan's evidence contrasts with Mr Wu's evidence that he lived for some years until about April 2003 in, initially, a caravan and an old fibro dwelling on Lot 2506 near Linden Ave, then a refurbished fibro dwelling near Linden Ave, prior to moving into his "new dwelling" near Lot 2818 after he built it in about July 2003. This unexplained discrepancy in Mr Pan's evidence, and what appears to be a direct contradiction of paragraph 3 of Mr Pan's affidavit, is in addition to other discrepancies referred to above.
Having regard to my findings regarding Mr Pan's evidence, I place limited weight on its accuracy as to the existence, location, design, use or contents of what he described as Mr Wu's "simple dwelling under dense growth of trees" on Lot 2506.

[25]

Mr Hung and Vigor Master

In his initial cross-examination, Mr Hung said he had never worked for Mr Wu or Vigor Master, nor had he ever worked on any building site that Vigor Master worked on. On further cross-examination when recalled, Mr Hung confirmed his evidence in the previous sentence.
An insurance proposal for Vigor Master for 2012 (the 2012 proposal), signed by Mr Wu on 20 July 2011 as the sole director of Vigor Master, states Mr Wu's personal address was McMahons Rd.
Mr Hung acknowledged writing on the 2012 proposal his name as contact person for Vigor Master with the insurer. Mr Hung initially said he did not know if the proposal was on behalf of Vigor Master or Mr Wu "because I put down the name, this registered company name of director Pei Long Wu …"
Mr Hung then denied that he filled the 2012 proposal in, in relation to Vigor Master. He said Mr Wu was his friend, Mr Wu's English was no good, he only had a few employees and they did not know insurance. Mr Hung said he had worked for an insurance company, so if Mr Wu did not understand insurance, sometimes Mr Wu asked him for help. Mr Hung said he filled out the 2012 proposal for Mr Wu and he was representing Mr Wu, not representing Vigor Master.
Mr Hung confirmed that the mobile phone number in his handwriting under the heading "Contact person" in the 2012 proposal was his personal mobile telephone number at the relevant time. Mr Hung wrote Vigor Master's email address on the 2012 proposal as the Contact person's (his) email address.
Mr Hung said the insurance company would contact him if it had any questions about Vigor Master. He then changed his evidence and said communications would be sent by the insurer to Vigor Master's email address and Vigor Master could call him. He also said that he did not have any access to Vigor Master's emails and he only helped his friend [Mr Wu] once.
Mr Hung's name appears as the Contact person for Vigor Master in Small Employer Declarations of Actual Wages forms for the 2013 and 2015 financial years. Mr Hung denied involvement with Vigor Master's insurance in those years. He agreed his name had been inserted as the Contact person and someone had printed his name on the Declarationsforms.
It seems to me that if Mr Hung had the experience in insurance he said he had, and if he completed an insurance proposal form for a company to the effect that he was the company's contact person, then he would be well aware that he was holding himself out to the insurer as the contact person of, and agent for, the company, rather than merely helping a friend who happened to be an officer of that company.
Mr Hung seemed somewhat anxious regarding multiple appearances of his name as an insurance contact person for Vigor Master.
Either Mr Hung agreed to be contact person for Vigor Master's insurance for 2013 and 2015 or he did not. If Mr Hung did agree, then he is not being candid with the Tribunal. If he did not agree, then the reason for his name appearing in the Declarations is a matter which should be within Mr Wu's knowledge as the sole director of Vigor Master who signed the Declarations. Mr Wu would also be aware if Mr Hung did agree to be contact person for more than one year.
For reasons best known to himself, Mr Wu did not inform the Tribunal as to the extent of Mr Hung's involvement with Vigor Master's insurance other than to say Mr Hung was not an employee or contractor of Vigor Master, and provided no clarification as to the reason Mr Hung's name appeared on the 2013 and 2015 documents.

[26]

Mr Hung and Lot 2506

Mr Hung said that when he used the word "adaption" it was what Mr Wu had said to him. It meant a renovation because a shipping container did not have a cut for windows or doors and Mr Wu told him the structure was a "steel house". There was a toilet, a shower and a bed.
Mr Hung said he moved a bed, desk, chair and small fridge for Mr Wu from Mr Wu's house at Lane Cove because his (Mr Hung's) car was bigger than Mr Wu's car.
Despite Mr Hung's affidavit stating that Mr Wu's "home" was "very comfortable" with "necessary" living facilities including bathroom, cooktop, installed air conditioner, bed, desk, chair and refrigerator, Mr Hung's oral evidence included that he did not know if the bathroom, in which he said he saw a shower and toilet, was connected to water; he did not know if the cooktop or air conditioner which he said he saw, were working, nor did he know if any electrical power was connected to the steel container.
Mr Hung was shown several photographs during cross-examination. He changed his evidence on several occasions as inconsistencies between details shown in photographs and his previous evidence were brought to his attention.
Changes by Mr Hung to his evidence include: 1. whether there was a partly constructed boarding house on the Land in November 2014; 2. whether Mr Wu's steel house was under any trees in late November 2014; 3. saying the steel structure was at the front of the Land near Linden Ave opposite a school, then denying it was at the front of the Land, and then again saying it was at the front of the Land.
Photographs shown to Mr Hung were attachments to affidavits. Those affidavits were admitted into evidence and read without objection. The deponents of the affidavits were not called for cross-examination. The affidavits provide details concerning each photograph's provenance including its creation, the date on which it was taken, the locations shown in the photograph and the direction the camera which took the photograph was pointing. I accept the accuracy of the information in the affidavits concerning the photographs.
Mr Hung insisted that certain photographs were not taken on the dates stated in the relevant affidavits. To the extent that there is any discrepancy between details of the provenance of any photographs in a relevant affidavit and Mr Hung's evidence, I prefer the details in the affidavit.
Mr Hung was asked what he meant by the date "before Christmas 2014" in his affidavit in relation to being invited to the steel structure for a housewarming party and another party for Mr Wu's friends. Mr Hung said somewhere between late November and mid-December.
I have considered the photographs in evidence as well as verbal evidence of witnesses. I am not satisfied that any steel structure, having the dimensions given in evidence by Mr Wu, was situated on the Land, near Linden Avenue whether in the open or under trees on 11 October 2014, 21 December 2014 or 14 July 2015, being the dates of photographs in evidence.
Having considered discrepancies between Mr Hung's evidence and the photographs in evidence, Mr Hung's changes to much of his evidence, and vagueness of many of Mr Hung's answers to questions, I formed the opinion that Mr Hung was very forgetful or less than frank in answering a number of questions put to him.
Mr Hung did not state that the steel structure was on the same location on the Land on each of the three occasions which he said he visited the Land nor did he state that the steel structure had been moved from one part of the Land to another part. This seems to conflict with evidence given by Mr Wu later during the hearing to the effect that the steel structure was moved across the Land.
I find there is no compelling evidence before me, to the relevant standard of proof, that the steel structure was in one location on the Land on the dates in November and December 2014 when Mr Hung says he delivered some of Mr Wu's items and attended two social events, and was removed from the Land prior to 21 December 2014, the date on which a relevant photograph was taken (the December 2014 photograph).
I cannot give any great weight to Mr Hung's evidence in relation to the existence use location or functioning contents of the steel structure except to the extent that it is consistent with the photographs shown to him during the hearing.
I note that Mr Wu made several interjections and objections during parts of Mr Hung's cross-examination. Mr Wu's interjections and objections delayed the proceedings unnecessarily and seemed at times to have been made with the object of interfering with Mr Hung's cross-examination. In re-examination, Mr Wu asked leading questions, questions concerning matters which did not relate to the cross-examination, objected to affidavits which had previously been admitted without objection and attempted to give evidence himself.

[29]

Mr Coster's oral evidence

Mr Coster confirmed he had lived at Lot 2818 since December 2011. When asked, Mr Coster said he was sure Mr Wu had not lived at Lot 2818 during that time. Mr Rider then informed Mr Coster that Mr Wu said he lived at Lot 2818 until March 2012 whereupon Mr Coster immediately changed his evidence and said he moved to Lot 2818 in December 2012, not December 2011.
Mr Coster was asked several times when he first saw the steel structure appear at Lot 2506 and he seemed to try to avoid answering the question. Mr Rider reminded him that he had referred to "Mr Wu's dwelling at Lot 2506" and said "by dwelling do you mean a shipping container?" Mr Coster's response was "I mean that he had like a site office type thing there, yes."
Mr Coster was then asked when he first noticed the site office appear on Lot 2506. His answers included "it would have been around that time", "like it had been there a long time" and "I can't recall to be honest". Mr Coster agreed that the site office could have appeared on Lot 2506 before November 2014, however it was difficult for him to remember. Mr Coster agreed that he first met Mr Wu in November 2014 and it was quite possible that that was a few months after the site office first appeared on Lot 2506.
Mr Coster agreed that he had visited Lot 2506 and was familiar with the Land.
Mr Rider showed Mr Coster several photographs which Mr Coster agreed were of Lot 2506. Initially Mr Coster said the site office might be among certain trees shown in the photographs. However, he subsequently agreed that he could not see the site office in any of the photographs. I have found that all the photographs were taken on 17 November 2014
Mr Coster confirmed an aerial photograph incorporated Lot 2506 and he recognised a white rectangle in the photograph as the site office and said that is "roundabout" the area where it used to be. I note the rectangular structure is clearly visible in an open area of the photograph, near, but not under, a group of trees. The structure is closer to Linden Avenue than to Bundaleer Street. The photograph bears the imagery date 20 December 2015 and I find that it was taken on that date.
Mr Coster was then shown the December 2014 photograph. He agreed that he could see the school, Linden Ave and Lot 2506. He said he could not see the site office on Lot 2506 and denied that the photograph was taken in 2014. I reject Mr Coster's evidence in relation to the date of the December 2014 photograph.
In ACSR Mr Wu submitted that Mr Coster confirmed the toilet in his "steel house is a working toilet". Mr Coster initially said he thought the toilet was being used while he was at the barbecue although he did not use it himself. He thought people closed the door of the site office in order to use the toilet but could not remember whether the toilet was in a separate cubicle. He did not hear anyone flush the toilet.
Mr Coster said the steel structure had "pretty much one area". Later he said he thought there were internal partitions.
Mr Coster said Mr Wu told him he was living at the steel structure as his home and "I could see that he was living there". He also said the site office was being used like a dwelling. Mr Coster's affidavit stated there were "shower facilities as well as a cooktop" in the steel structure.
However, in his oral evidence, Mr Coster said he did not see either the shower or the cooktop being used, nor did he see a refrigerator in the steel structure being used, he did not know if there was any running water, he saw some clothes hanging up but did not know if there was a wardrobe, he could not remember whether a toilet in the structure was in a separate cubicle and did not hear anyone flush the toilet he said he had seen. He also understood that people were using the toilet without it being connected to the sewer.
Mr Coster said that Mr Wu was living in the steel structure at the date of his affidavit but he did not know if Mr Wu was still living there during the hearing.
Mr Coster said it would have been two or three months since he last saw Mr Wu and his last visit to the site office would have been four or five months ago. Mr Coster said that sometimes he would see Mr Wu three or four times a week and sometimes he would not see him for three or four months. Mr Coster would usually see Mr Wu when he [Mr Coster] was walking his dog.
At [45] in ACSR Mr Wu submitted that Mr Coster visited him regularly. Having regard to Mr Coster's evidence in the preceding paragraph, I reject Mr Wu's submission.
I find that Mr Coster's evidence was vague in relation to much of its detail. Mr Coster was not responsive to many of the questions asked and changed his evidence in relation to various matters including the date he moved into Lot 2818, whether there were internal partitions in the steel structure, how frequently he saw Mr Wu, whether a toilet in the steel structure was functional, the location of the steel structure on Lot 2506, and identifying that location in photographs.
I am satisfied that Mr Coster was aware of the existence of a steel structure on lot 2506 and may have visited same. I am also satisfied that Mr Coster may have seen at least part of the interior of the steel structure at some time. I am not satisfied that Mr Coster gave an accurate account of the contents or usage of the steel structure nor am I satisfied that Mr Coster saw the steel structure at Lot 2506 in or about November or December 2014.

[31]

Old fibro dwelling on Lot 2506

Until part-way through the last day of the hearing Mr Wu strongly argued that from 2002 until July 2003 he lived on the Land in a caravan and an old fibro dwelling. These arguments appeared at par 8 in his affidavit where he said "04/2002-07/2003, I lived in a caravan and an old fibro dwelling in Lot 2506", in ASR at [29], and in the Objection where he wrote: … I had bought this property on year 2003, and there was an house on the land, which can be verified by the Land and Property Information Office. I can also provide the contract for the sale of the land that shows there was a house on the land when I bought. I had been living in that house until I decided to demolish it and build a new one on the land ...
In cross-examination on 31 May 2017, Mr Wu said in 1999 the foundation and timbers of an old house were on the Land. He said he rebuilt the old house and he lived in the caravan and the old house for a period.
During the hearing several documents, including some prepared by or for Mr Wu's company, stated the Land was undeveloped or there were no improvements on the Land at relevant dates.
Mr Wu was shown a document which refers to a dwelling having been constructed on the Land and having been demolished some years ago. The English wording was translated into Chinese for Mr Wu by the official interpreter. Mr Wu said he could not see that wording in the document. Eventually Mr Wu conceded that he understood the wording. He was asked whether it was his recollection that in 2001 there was no dwelling on the Land. His response was "I don't know". I find Mr Wu's response less than candid.
The Chief Commissioner submitted at [14]: On 4 June 2003, the Land and Environment Court handed down its decision in Macat Pty Ltd v Warringah Council which granted consent to the above development application and stated "The site is undeveloped... The portion of the site closest to Linden Rd has previously been developed for a dwelling that is now demolished…
I have confirmed the accuracy of the above extract from the judgment of Commissioner A Tuour in Appeal No 10987 of 2002.
Mr Wu said he did not recall litigation by Macat against Warringah Council in 2003. He also did not know if Macat was his company at that time. Mr Wu said he could not recall whether there was a development application to build a single house on the Land.
Mr Wu agreed that he understood that the judgment said there is bushland cover and there is no house there any-more.
Mr Wu was asked if he agreed that what the court said was correct, in that the site was undeveloped and did not have a dwelling on it in 2003. Mr Wu was asked the same question on several occasions. He tried to avoid answering the question by seeking to engage in a discussion concerning bushland and building a new home. Mr Wu said the judgment may be right, he did not know, he could not remember, he could not understand the question.
There is undisputed evidence that Mr Wu entered into a contract to buy the Land on 26 May 2003, some eight days before the Court's decision was handed down. The purchase was settled on 26 November 2003. Having regard to the issues involved in this matter, and other evidence given by Mr Wu as to his activities on the Land before, during and after 2003, I find Mr Wu's apparent lack of recollection and inability to answer questions in respect of the existence or non-existence of an old dwelling on the Land in 2003, the year he bought the Land, highly implausible.
Mr Wu informed the Tribunal on numerous occasions that the old fibro dwelling was connected to a septic system. Later Mr Wu said in about April 2003, he demolished that dwelling, and built a new fibro dwelling under trees near Lot 2818 into which he moved in July 2003. He remained in that dwelling until 2009 and demolished it in 2010.
On 5 September 2017 in response to my questions, Mr Wu said there was a survey inside his purchase contract for Lot 2506. I informed him that I had not seen a survey plan showing a house. He said there was a fibro dwelling house in the contract. When I reminded Mr Wu that he had said that the contract was in evidence and it showed a house, he said the contract was in evidence but then changed his answer to say that only the first page was in evidence and agreed that the description of the Land on the first page was "vacant land".
Later on 5 September 20017, the last hearing day, Mr Wu re-examined himself and reversed his evidence in relation to the existence of the old fibro house when he bought the Land and in which he said he had lived. Mr Wu W conceded that the old fibro house had ceased to be on the Land for some 20 or 30 years before he bought the Land.
Mr Wu said the small fibro dwelling he had referred to was referred to by Ms Armstrong as a small shack in which her parents lived while they built their home at Lot 2410. He agreed it had been demolished some years earlier and then said "the people living there have the water and a septic tank".
I asked Mr Wu whether there was any evidence before me of either a water connection or a septic tank in relation to the former Armstrong family shack. Mr Wu said they should have had water and a tank. He then conceded that there was no evidence of either a water connection or a septic tank in relation to that building.
I am aware that Mr Wu's purchase of the Land did not settle until November 2003, several months after he said he had demolished the old fibro dwelling.
I find it highly likely that Mr Wu reversed his evidence when it had become clear to him that his earlier evidence, that he had lived in an old fibro dwelling which existed on the Land in 2003, did not stand up against multiple documents in evidence, including some prepared by or for his company. Those documents stated that in 2003 there were no improvements on the Land and an old galvanised iron and fibro dwelling, which had previously been on the Land, had been demolished some decades earlier.
Having regard to my findings elsewhere in these reasons regarding Mr Wu's unsubstantiated submissions, which were contrary to objective documented evidence, it is my opinion that it is more likely than not that Mr Wu's reference to the old Armstrong shack's water connection and functioning septic tank, without corroborating evidence, is merely another unsubstantiated submission made to support his claim that he resided on Lot 2506 at the location of the demolished Armstrong shack from before he bought the Land until what he said was the completion of his new fibro dwelling near Lot 2818 in July 2003. My opinion is consistent with the Chief Commissioner's submission that Mr Wu has a history of making up 'facts' from time to time in order to support his story.
Notwithstanding Mr Wu's concessions on the last day of the hearing that the old fibro house he had previously said he lived in had been demolished several decades before he bought the Land, there was no evidence of any water connection or functional septic wastewater system, and his concession that other than in respect of its first page, the contract pursuant to which he purchased the Land was not in evidence in the proceedings, after the hearing Mr Wu submitted in ACS [11]: … . There used to be a fibro house (Old Fibro House) on the land before I bought the Belrose Property. The Old Fibro House was located near Linden Avenue as shown on the survey plan attached to the purchase contract. I once lived in the Old Fibro House before purchasing the Belrose Property. A water tap and a septic tank were connected to the Old Fibro House. The Old Fibro House was demolished before May 2003 without the removal of the water tap and septic tank …
Mr Wu submitted in ACS: 1. at [11] that he lived in the Old Fibro House before purchasing the Land, the contract he used to purchase the Land included a survey plan showing the house, and the house was demolished before May 2003 "without the removal of the water tap and septic tank". 2. at [12] "The waste water was connected to the septic tank built for the Old Fibro House." 3. at [15] "Water was connected to the water pipe within the Belrose Property. I received the invoice from Sydney Water for unmetered water use in October 2016. Sewer was connected to the septic tank built for the Old Fibro House."
Having regard to the lack of evidence in support of the above submissions and Mr Wu's concessions during the hearing I reject each of these submissions.
Mr Wu's repetition, in ACS and ACSR after the hearing, of submissions based on facts which he conceded during the hearing were not true and which were not supported by evidence produced during the hearing, does not assist him, does him no credit and does not enhance his credibility as a witness.

[32]

The steel structure from 2014

Mr Wu agreed that the white box in a photograph in Exhibit R3 is the "steel house" structure he said he lived in on Lot 2506. Mr Wu said the location shown in the photograph was at "the end of 2015 or maybe in, you know, the 2015 sometime". He said the steel structure was initially positioned "under the tree". I accept that the photograph was taken in October 2015.
In cross-examination Mr Wu initially denied that the steel structure had ever been used as a shipping container. Later he conceded that it had been previously used as a shipping container.
Mr Wu stated at [15] in his affidavit that he lived at Kullah Pde from August 2012 until November 2014. This conflicts with Mr Wu's driver's licence address history which states Mr Wu's residence was at Kullah Pde from 29-02-2014 until 14-11-2015. I note that an incoming passenger card, related to Mr Wu's return to Australia and signed by Mr Wu on 1 January 2015, shows his intended address on that date was at Kullah Pde.
Mr Wu said he could not have lived at Kullah Pde beyond November 2014 because demolition started at that location in November 2014. No evidence corroborating Mr Wu's claimed start date for was brought to my attention and I am not satisfied that his claimed date is accurate.
Mr Hung and Mr Coster corroborated Mr Wu's evidence that he lived at Lot 2506 from November 2014. However, this evidence contradicts Mr Wu's driver's licence history, details on an incoming passenger card Mr Wu signed and aerial photographic evidence that the steel structure in which Mr Wu said he lived was not on the Land as late as 21 December 2014. Mr Wu has provided no documentary evidence in support of his claim.
Mr Juniper's and Dr Harris' evidence is provided in some detail below. I note that Mr Juniper said he lived on Lot 2410 from May 2013 to December 2016, the steel structure was not on the Land during 2014 but definitely there for some months before he left in 2016. Dr Harris said she discussed the steel structure with Mary Armstrong, who died in May 2015. The photographic evidence is that the steel structure was not on the Land on 20 December 2014 but was there on 14 July 2015.
I have had regard to verbal evidence from Mr Wu, Mr Hung, Mr Coster, Dr Harris and Mr Juniper. Where there is a conflict between documentary and verbal evidence, I prefer documentary evidence including photographs and Mr Wu's incoming passenger card dated 1 January 2015 and his driver's licence history to verbal evidence.
Having regard to the material before me I find that the steel structure arrived on the Land after the 20 December 2014 photograph was taken and before Mary Armstrong's death. I am not satisfied that Mr Wu resided on the Land in a building which accorded with the requirements of cl 3(1) between 20 and 31 December 2014 nor am I satisfied that Mr Wu's used and occupied the Land as his principal place of residence on 31 December 2014.

[34]

Electricity supply to the Land

There is a dispute as to the availability of electricity on the Land before August 2015.
Prior to the hearing Mr Wu submitted at [28] in ASR "During the period when I live on the Land, there are always utility services available in my home including … electricity … "
Documents in evidence disclose: 1. an enquiry in July 2015 by Vigor Master for a quote for a "temporary electrical supply" to a "temporary building" at the Land. 2. A certificate of compliance for testing electrical work and an invoice to Vigor Master for supplying and installing power, both dated August 2015. 3. An email dated 8 December 2015 at 13:47 hours to OSR from Vigor Master over Mr Wu's printed signature referring to misunderstandings on gas and electricity bills, stating … Lot 2506 where I live is located at rural residential zoning. Thus, there is no gas available around this area and I used to have storage battery for electricity. In 2014, I moved back to Lot 2506 and one of my stuff (sic)… helped me get quotations from different companies over the electrical work. Around August 2015, I finally got electricity …
In oral evidence Mr Wu said he "couldn't recall" whether electricity was connected to the Land in 2014.
Both Mr Wu and Ms Ye said Mr Wu obtained electricity for Lot 2506 from Lot 2818 when Ms Ye owned Lot 2818 [from 2002 to about May 2006].
After the hearing, Mr Wu submitted at [15] and repeated at [66]: The electricity connection application was started at the end of 2014 and connection was done in August 2015. Prior to August 2015, electricity was supplied by a generator and its battery. That electricity was supplied to the Land by a generator and its battery.
Despite the ongoing dispute regarding the availability of electricity to the Land generally and to Mr Wu's alleged dwellings on the Land prior to August 2015, I have found no reference to any generator on the Land in Mr Wu's affidavit, in his oral evidence, nor any evidence given by any other witness. The word "generator" does not appear in the transcript of the proceedings.
In the circumstances I am not satisfied that at any relevant time any generator supplied any electricity to the Land in general or to any relevant structure on the Land.
Nor am I satisfied, without supporting evidence, that Mr Wu's submissions, that for an indeterminate period prior to August 2015, electricity was supplied to the Land by a generator and a battery, are anything more than unsubstantiated submissions. I reject them.
The Chief Commissioner relied at RS [93] on the decision of Boxall SM in Haddad v Chief Commissioner of State Revenue (No 2) [2017] NSWCATAD 23 who said at [15]. … (4) In urban Australia … in the 21st century, a house would not in my view be considered adapted for use for habitation by a family if it was neither: (a) supplied with electricity (whether from mains supply or domestic generation), nor …
With respect, I concur with Boxall SM and find that his opinion applies to any dwelling on the Land during the period relevant to these proceedings.
Without evidence as to the supply of electricity to the Land, and more particularly to any structure which Mr Wu claims was his residence on the Land, it seems to me that such structure was not "designed, constructed or adapted for residential purposes". Accordingly, the structure is not a building in accordance with cl 3(1). Therefore the Land is not a parcel of residential land as defined in that clause, the Land is not land used and occupied for residential purposes pursuant to cl 2, and the exemption does not apply.
It seems to me that Vigor Master's action in July 2015 in seeking to obtain a temporary electrical supply for a temporary building on the Land is consistent with obtaining electricity for a site office to be used for the construction of the multistorey boarding house as much as it may be consistent with obtaining an electrical supply for a residence for Mr Wu in the steel structure. The onus lies on Mr Wu to prove that relevant utilities, including an electricity supply, a water supply, and sewerage services were available and functional at all relevant times to what he described as his residence. To my mind Mr Wu has not satisfied that onus.
I also observe that cl 2(1) provides that the land tax exemption is available only when the relevant land which is used and occupied as the principal place of residence is not used or occupied for any other purpose. Mr Wu has not satisfied me that, whether or not he actually resided for a period in the steel structure, it was not also used as a site office for construction on the Land consistent with the various development applications throughout the Relevant Period which are in evidence..

[35]

Water supply and sewerage connection to the Land

There is a dispute as to the connection at any relevant date of a water supply to the Land, and in particular to any structure on the Land.
There is no reference to the connection of water to any structure on the Land in AS or in Mr Wu's affidavit.
In cross examination on 2 June 2017 Mr Wu was asked whether he agreed that in 2014 there was no water connected to Lot 2506. His answer was "No there's water connected." He said town water was connected when he bought the Land in 2003.
It seems to me that if town water was connected to the Land in general, and more importantly, to any dwelling on the land, there would have been no need for Ms Ye to have supplied (or "loaned") water to Mr Wu between 2002 and 2006. Mr Wu has provided no explanation for any such need nor has Mr Wu provided any documentary evidence of any relevant connection of town water to any structure on the Land at any relevant time. Mr Wu seems to rely on a connection of town water to Lot 2506 through Lot 2818 until mid-2006 when Ms Ye sold Lot 2818. No evidence is presented of water being connected through Lot 2818 or elsewhere to Mr Wu's cottage after Ms Ye sold Lot 2818 some three (or four) years before Mr Wu said he dismantled his cottage and left the Land.
Mr Wu claimed that a sewer was connected to the septic tank built for the old fibro house. He did not explain what system he used for sewerage after he said he demolished the reconstructed old fibro house in about April 2003 and built a new house some distance away in which he said he lived from July 2003 until 2009. Mr Wu also said there was a sewerage connection for a septic tank in 2014. However, in cross-examination, Mr Wu conceded that a sewer was not connected. This concession is consistent with Mr Wu's documented application to Warringah Council in 2017 for approval to operate an on-site sewerage system on the Land.
It may well be that there was an old septic tank on the Land near Linden Ave and it had been there since at least the 1960s. However, by itself, that does not evidence that the septic tank was functional and utilised or utilisable by Mr Wu or any other person at any relevant date. Mr Wu's inconsistent statements do not satisfy me that at any relevant time there was a functional septic or other sewerage system on the Land from 2003 until after the 2017 application referred to above.

[41]

Driver's licence

NSW government historical records as at 23 February 2016 in Exhibit R3 relevantly show Mr Wu's residential address to have been: 1. French's Forest from 21-06-1999 to 04-11-2003; 2. Lev 3 4 George PL Artarmon from 05-11-2003 to 21-07-2010; 3. 3 McMahons Rd from 21-07-2010 to 29-02-2012; 4. Kullah Pde from 29-02-2012 to 14-11-2015; and 5. Lot 2506 from 14-11-2015.
All these documents, other than item (5) which is equivocal, are inconsistent with Mr Wu's evidence. Mr Wu acknowledged that certain of the dates and addresses in the immediately preceding paragraph correctly represented the information in the records but said the information was not accurate. He also said that evidence of a residential address on a driver's licence was not reasonable and his driver's licence should not have been put into evidence.
Although these documents were available to him at all relevant dates, Mr Wu made no submission in relation to his residential or any other address on any licences in any of AS, ASR or ACS.
In ACSR Mr Wu submitted at [12]: … all RTA Licence Renewal Application form require address but not residential address prior to 2017.
Mr Wu's authority for this statement is "Tab 18 (88,91,93) R14". Those pages contain driver's licence renewal application forms signed by Mr Wu on January 2002, February 2007 and February 2012.
The covering letter sent to Mr Wu for his driver's license renewal in 2002 clearly requires him to provide proof of his residential address. Accordingly, I reject Mr Wu's submission at ACSR [12].
Mr Wu confirmed that he made his affidavit in February 2017 and at par 16 said "1/2014-current, I live in Lot 2506 Bundaleer Street, Belrose".
Mr Rider then showed Mr Wu his "licence renewal application" dated 31 January 2017. Mr Wu said he did not fill in the form but agreed that he had signed it in 2017. When asked if he understood that the contents of the form had to be true he said he was not 100% sure that a lot of the form was okay or not.
Mr Wu then confirmed that he had read a particular part of the form which states that if he did not tell the truth he could be fined. Mr Wu said that when he signed the form he was not sure whether everything was correct and blamed his lack of understanding English.
Mr Rider then showed Mr Wu a part of the form which stated "Suite 201A, 24 Thomas Street, Chatswood NSW 2067" (Thomas St) was shown as Mr Wu's residential address. Mr Rider put to Mr Wu that when he signed the form he read it. Mr Wu then interrupted Mr Rider and, contrary to his earlier evidence he denied having read the form. Mr Wu also denied that Thomas St was his residential address. He said it was a business address and it was illegal for anyone to live at that address.
I asked Mr Wu whether he was aware when he completed and signed his licence renewal applications that the forms had to be correct Eventually, he said that he was aware that the forms should be correct.

[48]

Ms Armstrong's oral evidence

In her oral evidence Ms Armstrong said Lot 2410 sloped upwards from Linden Avenue towards Lot 2506 and Lot 2818. She said the Lot 2506 boundary was possibly 10 m above the level of the ground at Linden Avenue. The height of the boundary with Lot 2818 at the back of Lot 2410 was about the same height as the top of the roof of the building on Lot 2410.
Ms Armstrong said "we look straight west to [Mr Wu's] block. [Lot 2506] is all sitting lower than our veranda and our house looks straight from our veranda over to the north and to the west". The highest point is on the southern side of the block on the boundary between Lot 2410 and Lot 2818.
Ms Armstrong also said: 1. She moved out of Sydney in 1996. Thereafter, until her mother died in May 2015, she visited her mother regularly at Lot 2410. 2. She understood that development applications had been made by Mr Wu for both Lot 2506 and Lot 2818 and assumed that as he was making the applications he owned both properties. 3. She did not recall seeing any cables, pipes or hoses running from Lot 2818 to Lot 2506 at any time. 4. Her mother had said Mr Wu was living in Lot 2818, but had not mentioned any particular period.
During his cross-examination of Ms Armstrong, Mr Wu asked her if her mother had informed her that he had lived at Lot 2410 for two weeks in 2003, possibly in winter. Ms Armstrong said she had no such recollection. Mr Wu said he had photographic evidence. I asked him to provide the relevant evidence, however he failed to do so.
Mr Wu claimed that Mrs Armstrong did not like him because she objected to his development applications. Mr Wu also claimed that Ms Armstrong was biased because she was Mrs Armstrong's daughter.
Mr Wu had the opportunity to make submissions that Ms Armstrong was biased and to provide evidence in support of his submissions. No relevant evidence was provided to the Tribunal. I found Ms Armstrong answered questions candidly and I believe she did so to the best of her recollection.

[50]

Dr Harris' affidavit evidence

The Chief Commissioner submitted at [74]: … Dr. Harris deposed in R7 that she had been regular visitor to 2410 and observer of the Land for many years before and after the Applicant bought it and did not recall seeing any hoses, pipes or electrical cables connected to the shipping container structure on the Land, which she recalled noticing around 2014/2015.
I have compared the above summary with Dr Harris' affidavit and am satisfied that it is an accurate summary of part of Dr Harris' affidavit.
Dr Harris' affidavit evidence included: 1. from about 2000 she visited Lot 2410 frequently, at times weekly or more often. 2. She worked with Mrs Armstrong in bush regeneration over several years including adjacent to the western side of the Land. 3. She is familiar with Lot 2410 and how the neighbouring land around that property has changed over the last 20 years. 4. She had a particular interest in weeds and bush regeneration and was actively involved in monitoring the Land for weeds and wildlife. Mrs Armstrong and Dr Harris inspected the Land for this purpose on occasions before Mr Wu purchased the Land. 5. Shortly after the early 2000s the Land was largely cleared of vegetation excluding mature scribbly gums. 6. She did not see Mr Wu on the Land and was not aware that he lived at the Land. 7. Her estimate is that the shipping container taken onto the Land around 2014 / 2015 had dimensions which were "3 metres wide, 4 metres long and 2 metres high. [She] did not see any activity around the structure, any open doors or windows, any light or other signs of habitation. [She] never saw the inside of the structure." 8. At [30] "[Mrs Armstrong] told me she saw Mr Wu appear and she joked with me about him moving into the container. However, when I saw her later and asked what happened, she told me Mr Wu was no longer being seen." 9. Par [32] included "I did not recall seeing any utility services connected to the container structure … I did not see a portable toilet on the Land"

[51]

Dr Harris' oral evidence

Dr Harris said in cross-examination that the south-western corner of Lot 2410 is approximately 4 m higher than the south-eastern corner of the lot.
The boulders on the western side of Lot 2410 are higher than the veranda floor. The veranda of the house on Lot 2410 is on the north-western side of the house. The veranda is much higher than the north part of Lot 2506 but lower than the west part of Lot 2506. The boulders at the rear of Lot 2410 are higher than the roof of Mary Armstrong's [Mrs Armstrong's] house.
Dr Harris said, in relation to the good view of the Land referred to in par [24] of her affidavit, that there are some sandstone boulders and "certain areas which you can't see 100 per cent, but overall, you can see most of the land very well." We cannot see the whole of the south-western area of the Land from the veranda: So I would have to go from the verandah onto sandstone boulders, which we often did, and then you can see the rest, yes. … Initially, there was thick vegetation [on the Land]. You could not see through. At the end it was cleared, so this is over the nearly 15-year time frame we are talking about, and you could see right through it, yes.
Dr Harris was asked whether there was a lot of vegetation in Lot 2506 to the west of Lot 2410 in about 2005. She said the area west of Mary Armstrong's house had trees and scribbly gums. "It is actually more open in this area than in the other area". Some large trees remained in this area. Dr Harris believed that trees remained in Lot 2506. The really large trees are still there. A lot of the smaller trees and scrubs were cut away later.
Dr Harris understood that no one lived at Lot 2506 at any relevant date. She never saw any inhabited structure there. She did not know whether Mr Wu lived on Lot 2506 and has no evidence to that effect. However, that is her belief.
Dr Harris said she could not recall exactly when in 2014 / 2015 a shipping container was brought on to the Land. She thought the container was approximately 25 m from Linden Avenue. She did not see inside the container and did not see two windows and one door.
Dr Harris said Mary Armstrong told her it appeared as if Mr Wu was planning to move into the steel structure. To the best of her recollection that conversation was probably in late 2014. However she was not certain of the date.
Mr Wu submitted in ACSR: ... Ms Harris saw the steel structural house from a distance that was too far away to see any windows. It is obviously that she makes false assumption in relation to the existence of any utility services.
Notwithstanding the above submission I observe that no evidence was put to the Tribunal to the effect that there were at any relevant time any windows, open or otherwise, on any side of the steel structure which faced Lot 2410.
Mr Wu submitted that Dr Harris's affidavit was arguably inadmissible because he had a long-term dispute with her and other people in relation to his development applications for Lot 2506. I find that Dr Harris' evidence, both in her affidavit and orally, provided details of her pro-environmental background and her interest in various aspects of the natural environment. Beyond Dr Harris's interest in the environment, I detected no relevant bias in her affidavit, answers to questions or demeanour when answering Mr Wu's questions. I reject Mr Wu's submission as to the inadmissibility of Dr Harris's affidavit although I have taken Dr Harris' pro-environmental interest and her opposition to certain of Mr Wu's development applications into consideration as to the weight I gave her evidence.
Much of the content of Dr Harris's affidavit was not relevant to the issues before the Tribunal and having regard to irrelevant questions asked by Mr Wu, much of Dr Harris' oral evidence was irrelevant to the real issues before me. However, I find that, to the extent that Dr Harris's affidavit and oral evidence were relevant, the contents of both were accurate to the best of her recollection.
I find that Dr Harris visited Lot 2410 frequently before and during the Tax Years. She had an interest in certain types of vegetation and visited parts of the Land prior to its purchase by Mr Wu. Subsequently from vantage points on Lot 2410 Dr Harris viewed much of the Land. She saw the steel structure on several occasions in 2014/2015 but was uncertain as to the dates. She did not see Mr Wu on the Land and did not recall seeing any utility services connected to the steel structure nor did she see a portable toilet on the Land.

[53]

Mr Juniper's affidavit evidence

At [103] in ACS Mr Wu submitted "Mr Peter Juniper's affidavit is inadmissible as it was filed on 21 April 2017 but affirmed on 7 June 2017." Th0is submission was substantially repeated at [83] and [26] in ACSR.
The affidavit contains a typed date "7th April 2017" as the date of affirmation, and immediately above Mr Juniper's signature on the last page a handwritten date "7/6/2017" which could give rise to some confusion as to the date of affirmation. However, there is no reason for Mr Wu not to be aware of the Tribunal stamp on the front page of the affidavit which clearly states "Original Received 21 APR 2017 NCAT - AEOD & OD". Mr Wu will also be aware that, as a sworn witness in these proceedings, Mr Juniper confirmed that he affirmed his affidavit on 7 April 2017.
Accordingly, I reject Mr Wu's repeated submissions as to the inadmissibility of Mr Juniper's affidavit.
In his affidavit, Mr Juniper said he was familiar with the Land having lived on Lot 2410 from May 2013 to December 2016. Also, in 2011 and 2012 he had on approximately three occasions visited a friend who lived at the bottom level of Mary Armstrong's house on Lot 2410. On one such occasion Mr Juniper and his friend had "walked over to the Land to look at the heath" because they are both bush regenerators and botanical enthusiasts. He said "The Land was vacant, apart from the vegetation and there was no structure or human habitation on it."
Mr Juniper's affidavit included: 5 Most days when I was living at 2410 Linden Avenue, I would sit on a favourite rock overlooking the Land to have an afternoon coffee or cigarette and so was able to observe anything that happened on the Land. 6. The Land was covered by weedy grass towards the eastern and northern boundary and native heath which varied from knee height to the east to over head height in the west. 7. On the first morning I had at 2410 Linden Avenue, I saw the vegetation on the Land being cleared by machine and subsequently saw the vegetation regrow over the next 2.5 years or so. 8. At one point (I can't recall when exactly) a shipping container was positioned on the Land about 30 metres from Linden Avenue. The container was there for some months, at least until I had left 2410 Linden Avenue to live elsewhere. 9. Within days of its arrival, I entered the Land and had a closer look inside the container. It had two windows and contained a single bed, waste paper bin and a pair of shoes. 10. I specifically remember thinking that it was odd, as the set up was clearly not adequate for habitation, nor did it look used. 11. During the time I saw the container on the Land, I do not recall seeing any wires or pipe connections attached to the container and there was no portable toilet on the Land. 12. I do not recall ever seeing a light in the container during the night. … 14. On one occasion when Mr Wu and a machine operator were present with an earth moving machine on the land, I walked over to see what was happening. I specifically recall asking Mr Wu what the container was for and he said that he was living in it. 15. However, between May 2013 and December 2016, when I lived at 2410 Linden Avenue, I never observed Mr Wu living on the Land.

[58]

Mr Wu's claims in respect of 3 McMahons Rd as his principal place of residence.

Mr Wu submitted at [13(d)] in ASR that if his claims for principal place of residence exemption in relation to the Land were unsuccessful, then pursuant to cl 6, 3 McMahons Rd was his principal place of residence for the 2008 to 2012 Tax Years.
The Chief Commissioner submitted at [110]: …the Applicant asserts that the PPR exemption under cl.6 of Schedule 1A of the Act applied to 3 McMahons Rd …for the 2008 to 2012 Tax Years. However, as the Applicant did not object to the assessments of land tax on 3 McMahons Rd … for the 2008 to 2012 Tax Years, the Tribunal does not have jurisdiction to review these assessments or determine this issue.
Mr Wu's response to the Chief Commissioner's jurisdiction submission at ACSR [60] was: Contrary to [110] RS, it was clarified at the beginning of the hearing that the disputes are the assessments for relevant tax years but not limited to the Belrose Property, therefore the Tribunal has jurisdiction to review this issue. In addition, the Respondent has provided all relevant documents in relation the Longueville Property.
Section 28(1) of the CAT Act states "The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation." Relevantly s 96 of the TA Act provides that under certain circumstances a taxpayer may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of a decision (including an assessment) that has been the subject of an objection. Irrespective of any agreement between parties, I find there is no legislative provision enabling those parties to confer jurisdiction on the Tribunal.
In a matter in which the Tribunal has jurisdiction, it may confirm or revoke the assessment or other decision to which a relevant application relates or make a decision in place of the reviewable decision and make orders as to costs or otherwise as it thinks fit, s 101(1) of the TA Act.
In determining the application the subject of these proceedings, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, s 63 ADR Act.
On 13 March 2014 the Chief Commissioner issued land tax notices of assessment and reassessment (the 2014 assessment) to Mr Wu for the 2006 to 2014 Tax Years. The 2014 assessment related to several properties owned by Mr Wu, including the Land for each Tax Year, and 3 McMahons Rd also owned by Mr Wu, for the 2007 to 2012 Tax Years.
On 7 May 2014 Mr Wu sent an email to objections@OSR.NSW.gov.au with what he stated was "an objective (sic) letter" against the 2014 assessment. Mr Wu's letter expressly objected to the 2014 assessment in respect of the Land during the period 2006 - 2009. His letter also claimed the Land "can be regarded as [his] principle residence (sic) from 2006-2011". Correspondence then took place between the Chief Commissioner and persons representing Mr Wu.
The 7 May 2014 objection included: I had bought [the Land in] 2003, and there was an house on the land, which can be verified by the Land and Property Information Office. I can also provide the contract for the sale of the land that shows there was a house on the land when I bought. I had been living in that house until I decided to demolish it and build a new one land ...
On 21 January 2015 the Chief Commissioner issued a further land tax assessment notice (the 2015 assessment) to Mr Wu in respect of the 2015 Tax Year. The supporting information enclosed with the 2015 assessment included details of other amounts due and payable in respect of the 2006-2014 tax years. The 2015 assessment itself related solely to the Land.
On 22 January 2015 the Chief Commissioner disallowed Mr Wu's objection to the 2014 assessment in respect of the 2006-2009 tax years.
On 18 November 2015 Joanna Wang of Vigor Master sent, on behalf of Mr Wu, an email to the OSR which amongst other matters objected, for the 2010, 2011 and 2012 years, the calculation by the OSR of land tax in respect of Lot 2506 without having regard to that property being Mr Wu's principal place of residence.
Mr Wu claimed he was entitled under cl 8 to a principal place of residence exemption for six years from 2010 to 2015 due to having previously lived at the Land from 2003 to 2009. He relied in this regard on a land tax exemption granted by OSR for the Land in respect of 2004 and 2005.
The objection notice enclosed with the email was an objection to the 2010 - 2014 tax years and referred to the date of assessment/decision as 21 January 2015. The objection notice claimed that Mr Wu had not lodged his objection within 60 days from date of service of the assessment/decision as by the time he received the assessment the time limit for objecting had already expired, he wrote to the OSR to ask for an assessment notice with a valid time-limit but did not receive a reply, he had appealed to the Tribunal and the Tribunal required OSR to make a response.
Importantly, the objection claimed that Mr Wu had lived in a house on the Land since he bought the Land "which is from 2003 to 2009. Around 2010, [he] demolished the house and moved out." Mr Wu relied on s 119 of the TA Act and cl 8.
Also on 18 November 2015, Joanna Wang sent a further email to the OSR objecting to the 2015 assessment. Amongst other matters this objection claimed that after Mr Wu sold his Kullah Pde property in 2014, he moved back to the Land and had lived on the Land up to the date of the objection. It was his sole property and he claimed it to be his PPR. He "should get land tax exemption for 2015".
On 8 August 2016 OSR issued an objection determination disallowing the objections in respect of the 2010 to 2015 tax years.
The above sets out the relevant history of land tax assessments for the 2006 to 2015 Tax Years, Mr Wu's objections to those assessments and the disallowance of the objections. Each of the objections related solely to the Land.
Mr Wu has provided no statutory or case-law authority in support of his submissions as to the jurisdiction of the Tribunal to review any assessment in respect of 3 McMahons Rd. I agree with the Chief Commissioner's submission at [110]. As there is no evidence before me of an objection by Mr Wu to a land tax assessment other than in relation to the Land, I find that I have no jurisdiction to deal with a claim that 3 McMahons Rd was Mr Wu's principal place of residence in any Tax Year. I reject Mr Wu's submission to the contrary.

[60]

Mr Wu claims that, pursuant to clause 2, the Land was his principal place of residence for the 2006 to 2009 and 2015 Tax Years

In accordance with s 10(1)(r) land is "exempt from taxation under the principal place of residence exemption, as provided for by Schedule 1A."
Clause 2 relevantly states: (1) Land used and occupied by the owner as the principal place of residence of the owner of the land, and for no other purpose, is exempt from taxation under this Act, in respect of the year commencing 1 January 2005 or any succeeding year, if the land is: (a) a parcel of residential land … … (2) Land is not used and occupied as the principal place of residence of a person unless: (a) the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes since 1 July in the year preceding the tax year in which land tax is levied, or (b) in any other case, the Chief Commissioner is satisfied that the land is used and occupied by the person as the person's principal place of residence. …
Clause 3(1) includes: "residential land" means land that is used and occupied for residential purposes and for no other purpose, that use and occupation being use and occupation of a building or buildings designed, constructed or adapted for residential purposes …
The word "building" has not been defined by statute and neither party provided any relevant definition. I accept that the word has its usual or common meaning and, for the purpose of these proceedings in relation to the 2015 Tax Year, I am prepared to accept that a steel structure, originally being a shipping container, could be a relevant building if it was appropriately "designed, constructed or adapted for residential purposes". I confirm that the onus is on Mr Wu to prove that the steel structure was at all relevant times so designed, constructed or adapted and was used and occupied in accordance with cl 2.
The term "principal place of residence" is defined in s 3(1) as set out at [12] above.
In Yen-Cheng Chuang & Anor v Chief Commissioner of State Revenue [2009] NSWADT 160 the late Verick JM provided at paragraphs 19 to 23 a range of matters to be considered in determining whether a place of residence of a person is the principal residence of that person. He said: 19 The Act does not provide any technical or legal meaning for the expression "principal place of residence" and accordingly, the expression has its ordinary meaning. A person's place of residence is usually understood as "the place where he eats, drinks and sleeps" (per Ridley J in Stoke-On-Trent Borough Council v Cheshire County Council [1915] 3 KB 699 at 706). The use of the term "principal" in the expression suggests that a person may use and occupy more than one residence but that the exemption is only available for the principal place of residence of the person. 20 In ascertaining whether a particular residence of a person is the principal place of residence of that person it is necessary to use an objective test and the conclusion is determined by considering the extent and quality of use and occupation of the residence in each case (per Fryberg J in Dean v Commissioner of Stamp Duties (Qld)(No 2) [1996] 2 Qd R 557 in considering the meaning of the expression "principal place of residence" found in the Stamps Act 1894 (Qld)). 21 The onus to establish one's principal place of residence is usually discharged on the basis of various matters. It is important to note, as observed by the Victorian Civil and Administrative Tribunal in Re Ziino and Commissioner of State Revenue [2004] VCAT 1707 that: "… while sleeping by itself in a place can be an indication of a principal place of residence, it is not the sole matter to be taken into account. One needs to look at a whole indicia of matters …One needs to look as well at where the applicant ate; his use of electricity and the furniture and fittings and other matters such as entertainment of friends in the house… Sleeping in a place does not make a residence. It has got to be the whole indicia of things that are done in a home which are described in the cases…" 22 Other indicia of matters would include evidence of an applicant's use of the address of the property as the residential address for purposes of his or her mail, driving licence, on the electoral roll, in immigration records, income tax returns and telephone bills. 23 In Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41 the Appeal Panel of the Tribunal agreed that "to occupy a home as his or her 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 occupation for any other reason". The Appeal Panel also held that "the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue". (Also see Zakariya v Chief Commissioner of State Revenue [2003] NSWADT 26).
Mr Wu's case substantially relies on his affidavit and the affidavits of his witnesses together with his and their oral evidence.
In order for Mr Wu to succeed in his reliance on cl 2 he must demonstrate compliance with either cl 2 (2) (a) or cl 2(2)(b).

[62]

The 2006 Tax Year

In respect of 1 July to 31 December 2005 Mr Wu relies on his own evidence and that of Ms Ye and Mr Pan. Ms Ye gave no evidence that Mr Wu entertained her at his home on Lot 2506 at any time. Mr Pan's affidavit evidence included that he discussed "construction issues during and after work with Mr Wu at his home". The amount of time Mr Pan spent discussing such issues, as a proportion of the amount of time he spent at Mr Wu's home is not known. Nor is there any evidence as to the amount of time Mr Pan actually spent at Mr Wu's home. There is no other evidence that Mr Wu entertained friends at his home during the relevant period. It may well be that a substantial majority of the time spent by Mr Pan at Mr Wu's home, assuming Mr Pan's evidence is accurate, related to construction work being carried out by Mr Pan at Lot 2818. If this was the case then the use of Mr Wu's home with Mr Pan may well have been for a "non-residential" purpose contrary to the requirements of cl 2 (2) (a).
Ms Ye said she let Mr Wu "borrow" electricity and water. Presumably this would have involved electrical and water connections from Lot 2818 to Mr Wu's house on Lot 2506 near Lot 2818. Ms Ye's evidence was vague as to whether she entered the building, she did not know whether it was constructed of brick or timber, she did not recall seeing a refrigerator, a kitchen, a bathroom or any bedrooms, but said she knew Mr Wu lived there because the light was on at night and Mr Wu parked his car there.
Mr Pan did not know whether the ground around the building was flat although he did say "you can walk on it". He said there were two rooms in the building and a flush toilet in the middle. He did not know if there was a shower. He did not see any air-conditioning although he said there was electricity inside because "they" boiled water.
Mr Wu submitted, after the hearing ended, that electricity was provided by a generator and a battery. This is not consistent with Ms Ye's evidence that she let Mr Wu "borrow" electricity and I am not satisfied on the evidence before the Tribunal that a generator existed and supplied electricity at any relevant time to any structure on the Land for the purpose of Mr Wu's residence. Nor is Mr Wu's submission that he used a generator to provide electricity to his house consistent with his questions in re-examination of Ms Ye to confirm that he borrowed water and electricity from her to support his new home close or next to the boundary of Lot 2818 prior to his purchase of the Land.
In addition, in order for cl 2 to apply, the Land must relevantly be a parcel of "residential land" as defined in cl 3. In order to comply with the definition of "residential land" the relevant use and occupation must be "of a building … designed, constructed or adapted for residential purposes …".
Having regard to my findings as to the weight to be given to Mr Wu's evidence and that of Ms Ye and Mr Pan I am not satisfied as to the existence of a bathroom nor that a sewer or septic system was connected to or within a short distance of Mr Wu's house nor that there was a supply of electricity to the house. Nor am I satisfied that Mr Wu's "house" was throughout any relevant period a building "designed, constructed or adapted for residential purposes".
Having regard to the above findings I am not satisfied on the material before me that the Land was continuously used and occupied by Mr Wu for residential purposes and for no other purpose for the 6 month period from 1 July to at least 31 December 2005.

[68]

Mr Wu claims that, pursuant to clause 8 and the reassessment for 2004 and 2005, for at least the 2006 to 2011 Tax Years the Land was his principal place of residence

Mr Wu submitted at ACS lll that even if the Respondent successfully challenges his principal place of residence for Tax Years 2006 to 2012 he is entitled to 6 years' concession for absence from his former residence pursuant to cl 8.
Clause 8 provides a conditional land tax concession for absences from a former residence. Certain of the conditions are discussed in some detail below. Clause 8(1) requires, as a prerequisite, that the Chief Commissioner/Tribunal must be satisfied that: (a) the person used and occupied the former residence as a principal place of residence for a continuous period of at least six months, and (b) the person does not own any other land used and occupied by the person as a principal place of residence.
In relation to subcl 8(1)(a) Mr Wu relies heavily on the Chief Commissioner's re-assessment of the Land for the 2004 and 2005 Tax Years as exempt from tax.
In summary, the Chief Commissioner assessed the Land as being subject to tax for 2004 and 2005. Mr Wu objected, stated that the Land was his only residential property and applied for exemption as being his principal place of residence. Thereupon the Chief Commissioner reassessed the Land and issued notices of assessment for each year.
Mr Wu has alleged that as well as lodging a Variation Return form for 2004 and 2005, he lodged various other documents which he would have been able to use in these proceedings, however the Chief Commissioner destroyed those documents.
I observe that those other documents, which according to Mr Wu included photographs, have not been produced in these proceedings. I also observe that the relevant documents produced by Mr Wu in MFI-A1 are: 1. Page 47 - Mr Wu's covering letter dated 18 February 2005 to the Chief Commissioner stating that attached to it was a "reply form of Land Tax-Variation Return". 2. Pages 48 - 49 - a two-page Land Tax-Variation Return for the "2005-2004 Tax Years". 3. Page 50 - a letter dated 27 February 2005 from Office of State Revenue to Mr Wu acknowledging receipt of Mr Wu's 18 February 2005 letter. 4. Pages 51 - 55 - a Land Tax Notice of Assessment for the 2004, 2005 Tax Years issued 4 March 2005, reassessing land tax in respect of the Land and providing a principal place of residence exemption.
I make no findings in respect of, the existence at any time or the contents of, documents which Mr Wu claims are missing. However I have no recollection of any evidence concerning: 1. any covering letter or other document from Mr Wu to the OSR/Chief Commissioner referring to any attached or annexed documents now claimed to be missing; or 2. any acknowledgement of receipt by OSR/Chief Commissioner of any such documents from Mr Wu being brought to my attention.
Having regard to the 4 March 2005 notice of assessment, it is not surprising that Mr Wu relies on s 119 of the TA Act which is: Production of a notice of assessment, or of a document signed by the Chief Commissioner purporting to be a copy of a notice of assessment, is: (a) conclusive evidence of the due making of the assessment, and (b) conclusive evidence that the amount and all particulars of the assessment are correct, except in objection or review proceedings when it is prima facie evidence only.
Mr Wu submits in ACS that as the Chief Commissioner has not challenged the reassessments for 2004 and 2005 then those reassessments must be considered conclusive evidence of his residing on the Land.
In response, the Chief Commissioner submits at [106]: … s. 119(b) TAA makes it clear that the 2004 and 2005 reassessments are not conclusive evidence in these proceedings. … the Respondent does not bear any onus of proof, including disproving that the Land was the Applicant's PPR in 2004-2005 or at any other time."
Regrettably, neither party provided any authority to support their position.
With respect, and disregarding for the moment, the second submission by the Chief Commissioner, I disagree with the Chief Commissioner's first submission concerning s 119 of the TA Act.
In my opinion, the section refers to the production of a particular notice of assessment or copy thereof and states that such production is conclusive evidence of the due making of that assessment and that the amount and all particulars of that assessment are correct except in objection or review proceedings concerning that assessment when the production will be prima facie evidence only. In other words, unless relevant proceedings deal directly with a review of the subject assessment, the production of the assessment is conclusive evidence that all particulars are correct.
The Chief Commissioner submits that he could revoke the principal place of residence exemption for the Land for the 2004 and 2005 Tax Years and reassess the Land to land tax for those years.
It may well be, and I make no finding to this effect, that the Chief Commissioner could reassess the Land for those years, pursuant to s 9(3)(b) of the TA Act, on the basis that all facts and circumstances were not fully and truly disclosed to the Chief Commissioner, as the Chief Commissioner asserts at [104]. However, on the material before me it appears that the Chief Commissioner has not made any such reassessment. The Tribunal's powers in these proceedings relate to Mr Wu's application that it review assessments for certain Tax Years from 2006.
As the proceedings before me are not objection or review proceedings in respect of the 2004 or 2005 years I find that the production of the assessments for those years are conclusive evidence that the amount and all particulars of those assessments are correct. Those particulars include the words that for each year there is an exemption "… under section 10(1)(r) of the [LTM Act] - land used and occupied as the principal place of residence".
Mr Wu inserted the following in ACS at "III. Concession for absence from former residence": Schedule 1A of the Land Tax Management Act states: 8 Concession for absences from former residence (1) If the Chief Commissioner is satisfied that: (a) a person is the owner of land ("the former residence ") that has been used and occupied by the person as his or her principal place of residence for a continuous period of at least 6 months, and (b) the person uses and occupies other land (whether or not in New South Wales), that is not owned by the person, as his or her principal place of residence, the person is taken, for the purpose of the principal of residence exemption, to continue to use and occupy the former residence as his or her principal place of residence
Mr Wu then submitted at [a]: The reassessment of Tax Years 2004 and 2005 indicates the Respondent is satisfied that I used and occupied the Belrose Property for more than 6 months. The Belrose Property is "residential land" during all relevant Tax Years. The land was use as residential purpose before I even purchased it and I have been living there before I moved out. Thus I am entitled to 6 years concession for absence from former residence. Even if the Respondent successfully challenges my PPR for Tax Years 2006 to 2012, I am still entitled to have the PPR exemption under Schedule 1A Clause 8 of the LTMA for Tax Years 2006 to 2011.
In response the Chief Commissioner submitted: 107 … cl.8 of Schedule 1A of the Act, as it applied as at the taxing date for the 2005 Tax Year (i.e. 31 December 2004), would not assist the Applicant in these proceedings. Relevantly, the historical version of cl.8 of Schedule 1A that applied as at 31 December 2004 provided: 8 Concession for absences from former residence (1) If the Chief Commissioner is satisfied that: (a) a person is the owner of land (the former residence) that has been used and occupied by the person as his or her principal place of residence for a continuous period of at least 6 months, and (b) the person uses and occupies other land (whether or not in New South Wales), that is not owned by the person, as his or her principal place of residence, the person is taken, for the purpose of the principal place of residence exemption, to continue to use and occupy the former residence as his or her principal place of residence. (2) The maximum period for which a person may be taken, under this clause, to continue to use and occupy a former residence as a principal place of residence is 6 years starting at the end of the last period (of at least 6 months) during which the former residence was used and occupied by the person as a principal place of residence (not including any period for which the person may be taken, under clause 7 or this clause, to have used and occupied the former residence as a principal place of residence). (3) If the principal place of residence exemption applies to the former residence of a person by operation of this clause, the exemption is revoked if the person is the owner of the former residence at the end of the 6-year period referred to in subclause (2) and fails: (a) to resume actual use and occupation of the residence as a principal place of residence by the end of that period, and (b) to continue that use and occupation for at least 6 months. (4) The effect of the revocation is that the principal place of residence exemption is taken not to have applied to the former residence in respect of any tax year to which, but for the revocation, it would have applied. Land tax liability is to be assessed or reassessed accordingly. 108. Thus, the exemption under cl.8 was revoked (i.e. taken not to have applied at all) unless the taxpayer resumed actual use and occupation of the land as their PPR for at least six (6) months within six (6) years starting at the end of the last period that the taxpayer continuously used and occupied the land as their PPR for at least six (6) months. Here, this would require the Applicant to prove that he used and occupied the Land as his PPR for at least six (6) months before 31 December 2010 (i.e. within six (6) years of 31 December 2004, being the taxing date for the 2005 Tax Year). For the reasons set out above and below, the Tribunal would reject the Applicant's evidence that he used and occupied the Land as his PPR at any time during (and before) the Tax Years, such that the Applicant has failed to discharge his onus that cl.8, as it applied on 31 December 2004, had any application during the Tax Years.
I have had regard to the Chief Commissioner's analysis. With respect it seems to me that his analysis appears to have overlooked the content and effect of State Revenue Legislation Further Amendment Act 2005 No 111 (the 2005 Act) to which assent was granted on 7 December 2005. The 2005 Act amended cl 8 (3) to replace "exemption is revoked" with "exemption ceases to have effect" and omitted cll 8(4) and (5), all with retrospective effect
Part 17 of the 2005 Act relevantly provided at [37] the general provision that the amendment applied in respect of the assessment of land tax in the 2006 Tax Year and all subsequent tax years but not in respect of the 2005 or any previous tax years.
Paragraph 38 in Part 17 referred expressly to amendments to the principal place of residence exemption and stated that the amendments to cl 8 had effect as if the amendments had commenced on 31 December 2004 and extended to the assessment of any land tax payable for the land tax year commencing on 1 January 2005.
As the Second Reading speech noted, the 2005 Act intentionally removed the retrospective liability from cl 8(3).
I note that the Chief Commissioner is aware of the 2015 Act, having confirmed the removal of the retrospective liability and the lack of any requirement for the owner to resume occupation in Revenue Ruling No. LT 082 Version 5. … The exemption ceases if the owner fails to resume occupation within six years and the land will be taxable from that time ... [my emphasis]
However, it seems to me somewhat more importantly for these proceedings, that Mr Wu's analysis of his excerpt from cl 8(1) omitted the mandatory requirement that, in order for the cl 8 concession to take effect, the Chief Commissioner/Tribunal must be satisfied that Mr Wu used and occupied other land which he did not own as his principal place of residence.
In his affidavit, as amended by his oral evidence, Mr Wu said he lived at Lot 2818 from 18 February 2009 to March 2012, at 3 McMahons Rd from 18 February 2012 to 30 August 2012, at Kullah Pde from 30 August 2012 / 1 September 2012 to 20 November 2014 and then he returned to the Land...
Mr Wu said that when he lived at Lot 2818 he rented one bedroom from the owner, who he identified. He said he shared a bathroom, kitchen, living room, laundry, swimming pool and games room with persons who rented the other four (or five) bedrooms. Mr Wu did not identify any person who lived at Lot 2818 during the three years he said he lived there, nor for reasons best known to him, he did not call any such person nor any other person as a witness to support his submission that he resided at Lot 2818 for any period.
I note that in a Vigor Master insurance proposal, dated 25 July 2011 signed by Mr Wu as an authorised representative of Vigor Master (the Vigor Master July 2011 insurance proposal), Mr Wu's address (as sole director) is shown as 3 McMahons Rd.
Mr Wu said, and there is no dispute, that he owned McMahons Rd from 2006 until he transferred it to Ms Wang on 30 August 2012. Mr Wu acknowledged he owned McMahons Rd while he lived there.
Mr Wu provided no evidence in these proceedings as to the use to which 3 McMahons Rd was put between the date in 2006 when he purchased the property and years later in February 2012 when he said he commenced residing there. I note that contrary to Mr Wu's evidence that he lived at Lot 2818 throughout 2011, Mr Wu's driver's licence history shows him living at McMahons Rd from July 2011 until after 31 December 2011. This is consistent with the information in the Vigor Master July 2011 insurance proposal signed by Mr Wu.
Mr Wu said he bought Kullah Pde before he lived there and settled the sale of the property in November 2014 when he moved to the Land. He said he had made a development application as owner, received approval and sold the property with the benefit of the DA..
Lane Cove Council v Wu [2011] NSWLEC 43 (the Lane Cove proceedings) involved a conviction of Mr Wu of a charge under the Environmental Planning and Assessment Act 1979 (NSW) that, as the holder of an owner-builder licence, carried out development of McMahons Rd otherwise than in accordance with a grant of consent. In the reasons for judgment Sheahan J said: 23 In early 2007, Mr Wu's relationship with Ms Wang deteriorated, and he decided to sell the property for whatever he could get for it. She opposed the sale, and wanted to build a (new) house on the property, and live there with their children. No sale eventuated and they separated, with Mr Wu agreeing to transfer the title to Ms Wang, and to let her use their loan facility to fund the construction of the house. Mr Wu, under cross-examination, stated that this agreement to transfer the title was detailed in a document, which at the time of the hearing was at his residence. 24 He offered to assist her with the project, but deposes (par 8) that he " did not get involved much ... from the stage of Construction Certificate " (1 August 2007). Ms Wang employed a " site manager " (apparently Hogarth Jiang) from July 2007, when construction commenced. Mr Wu was not on site " at any time that excavation was taking place " (par 9). He did, however, become involved by telephone when so requested by Ms Wang, mainly regarding the excavation. An important fax addressed to him at Vigor Master on 23 August 2007 did not reach him, as he was not working there at the time.
The above details appear to have been drawn by His Honour from Mr Wu's affidavit in the Lane Cove proceedings. The whole of that affidavit was not drawn to my attention in these proceedings.
It may well be, that in the context of pars [23] and [24] in the Lane Cove proceedings, His Honour found, from Mr Wu's affidavit, that Mr Wu, presumably after he purchased McMahons Rd in 2006, lived at that property in a de facto relationship with Ms Wang and their children until sometime between early 2007, when Mr Wu and Ms Wang's relationship deteriorated, and July 2007, when construction apparently commenced.
I note that Mr Wu states in his affidavit in these proceedings that he resided at the Land from November 2003 to February 2009. However, in these proceedings Mr Wu makes no reference to cohabiting with Ms Wang at any time, nor that his children were present at any place in which he was residing.
Whether Mr Wu lived at 3 McMahons Rd for 6 ½ months in 2012, during which period Ms Wang withdrew a caveat over the property is not clear to me on the evidence before me.
Mr Wu did not call Ms Wang as a witness in these proceedings nor did he provide any reason for failing to do so. It may well be that Ms Wang was not called because she was not available, or perhaps that her evidence would not have assisted Mr Wu. In any event, the location of Mr Wu's residence from time to time is a matter which is peculiarly within Mr Wu's knowledge. The onus lies on Mr Wu to not only satisfy me as to that location but also to satisfy me that the location was his principal place of residence at all relevant dates.
There is no evidence from Mr Wu nor from any other witness that any person lived with him in a caravan or a fibro cottage at Lot 2506 at any time during the Relevant Period.
At [28] in the Lane Cove proceedings the reasons for judgment quote from an excerpt of Mr Wu's affidavit in that matter as follows: … While the house has remained incomplete, she [Ms Wang] has had to find alternative accommodation in Belrose, which is a long distance from the school of the children and that has caused much inconvenience to both [Ms Wang] and the children …
It may be that Ms Wang and the children resided in Belrose at Lot 2818 at some time. However, Mr Wu stated that he lived in one of six bedrooms with a shared bathroom and other shared accommodation and made no mention of Ms Wang and their children living with him. Perhaps Ms Wang and the children lived elsewhere in Belrose at the relevant time. Once again, the onus lies on Mr Wu to prove his case on the basis of the material before the Tribunal.
I have referred elsewhere in these reasons to my concern regarding defects in relation to the accuracy of Mr Wu's evidence, his credibility, and the amount of weight to be given to his evidence and that of his witnesses.
As the Chief Commissioner submitted, numerous documents in evidence in these proceedings, signed by Mr Wu, include various addresses other than the Land, which purportedly were his residential address on dates on which Mr Wu has, without producing corroborating documents, stated that he resided at the Land and used and occupied it as his principal place of residence.
Lot 2818 is the only property stated by Mr Wu not to have been owned by him but to have been used and occupied by him as his principal place of residence so as to entitle him to the benefit of cl 8 for the purpose of these proceedings. Having regard to my above findings, I am not satisfied, on the basis of Mr Wu's uncorroborated testimony, that he lived in Lot 2818, whether as his principal place of residence or otherwise, at any relevant date.
I also find that the Chief Commissioner, by his disallowance of Mr Wu's objections and his submissions in these proceedings has indicated that he is not satisfied that Mr Wu has complied with the requirements of cl 8 (1) (b).
Accordingly I find that Mr Wu did not satisfy the requirements of cl 8.

[69]

Mr Wu's submissions and the Chief Commissioner's witnesses' evidence

Mr Wu submitted at [102] "Mr Juniper's affidavit confirms the relocation of the steel structural house further away from Linden Avenue." This submission was copied and repeated at [24] in ACSR. There is nothing in Mr Juniper's affidavit to support Mr Wu's submissions and I reject them.
Mr Wu submitted at both [104] in ACS and [27] in ACSR "… Mr Juniper confirms the thick and overhead height vegetation between Lot 2410 and the New Fibro House." Neither Mr Juniper's affidavit nor any oral evidence by Mr Juniper referred to any fibro house. Indeed, Mr Juniper's evidence was that the Land was vacant apart from vegetation, there was no structure or human habitation on it and subsequently a shipping container was positioned on the Land. I reject Mr Wu's submissions.
Mr Wu submitted at [122] "The Respondent relied on inadmissible and irrelevant evidence, including Mr Juniper's affidavit …" I find much of Mr Juniper's affidavit to be relevant and I have rejected Mr Wu's submissions that the affidavit was inadmissible. I reject Mr Wu's submission at [122].
At [34] in ASR Mr Wu submitted "… due to the ground levels of Lot 2506 and Lot 2410, it is actually impossible to see through the entire Lot 2506 without entering it." At [89] in ACS Mr Wu submitted "The area supported the New Fibro House was approximately 50 metres away from Lot 2410, has dense blue gum forest and a level that significant higher than Lot 2410 which should be the reason that Ms Armstrong and Ms Harris did not notice my house while visiting the owner of Lot 2410."
Having regard to my prior findings concerning the lack of reliability of Mr Wu's purported statements of fact, I prefer to rely on statements by Ms Armstrong, Mr Juniper and Dr Harris as to the extent of the area of Lot 2506 which was visible to them from Lot 2410 at relevant dates.
At [34] in ASR Mr Wu submitted " … the statements of Dr. Cornelia Harris and Mr. Peter Juniper about the container on Lot 2506 are contradicting to each other." Mr Wu's authority for this submission was "[29] (CH), [9] (PJ)" which I take to mean paragraph 29 of Dr Harris's affidavit and paragraph 9 of Mr Juniper's affidavit. A perusal of those paragraphs indicates to me that Mr Juniper's paragraph refers to him having a close look inside the container and describes what he saw. Dr Harris's paragraph refers generally to the container, provides her estimation of its dimensions from a distance, and her comments as to the lack of activity around the structure and what she saw of and around the steel structure from some distance. To the extent that Dr Harris said she did not see the windows referred to in Mr Juniper's paragraph 9, there is no evidence from any witness that any windows in the steel structure faced the direction from which Dr Harris was looking at the structure. I reject Mr Wu's submission.
At [107] Mr Wu submitted: The Respondent's witnesses' evidence are considered weak and insufficient to disprove my residence at the Belrose Property for Tax Years 2006 to 2009 and 2015
On several occasions I have preferred the Chief Commissioner's witnesses' evidence to that of Mr Wu and his witnesses. I reject Mr Wu's general submission at [107].

[70]

Mr Wu's English language skill

Mr Wu requested that an interpreter be available to assist him throughout the hearing and an official interpreter was provided each hearing day for that purpose.
In ACS Mr Wu submitted: 85. I am not a native English speaker. I can understand, speak and read simple sentences. I cannot spell correctly or express myself freely. I am not able to fill any form in English myself. I cannot understand the legal terms or warnings on the forms that someone filled (sic) and I signed.
On several occasions during the hearing, in relation to questions asked of Mr Wu concerning documents to which he was referred, I commented positively on his knowledge of English. I also said to him "I am getting the impression that you fully understand the questions and you are trying to delay your answer" and "I think your English is very good".
An example of Mr Wu's long-standing proficiency in written English is in the s 58 documents in Exhibit R3. The documents include an application for an Individual Contracting Licence in relation to home building in Mr Wu's name, which appears to have been signed by him in August 2001, more than 17 years ago. The application, amongst other matters states that Mr Wu's TAFE/University (etc) Qualifications include CERTIFICATE IN BUILDING CONTRACTING MANAGEMENT NSW TAFE COMMISSION and CERTIFICATE IN FULL BUILDERS BUSINESS MANAGEMENT issued by the Housing Association.
At page 27 and following in the extract of the transcript of 1 June 2017 Mr Wu denied that Chinese words on a Commonwealth of Australia incoming passenger card meant or were to the effect of "your intended address or residence in Australia?" Mr Wu said that meaning was mistaken. The interpreter said the meaning was "intended residence". Mr Wu disputed the accuracy of the interpreter's interpretation. The interpreter said "he [Mr Wu] tried to teach me how to interpret" and said to Mr Wu "Don't coach me."
Mr Wu included his version of a translation of "simplified Chinese" rather than the interpreter's translation. I prefer the official uninterested interpreter's translations to those of Mr Wu, who on several occasions during the hearing, improperly attempted to put his version of matters forward, including interrupting witnesses who were giving evidence with which he disagreed or attempting to give their evidence for them, rather than allowing the Tribunal to consider all the evidence being placed before it. I cautioned Mr Wu on several occasions against such behaviour.
During the course of the hearing Mr Wu disagreed with several interpreters as to the accuracy with which they were translating between the English and Chinese languages. This indicates to me, and I find, that Mr Wu exhibited substantial confidence in his ability to accurately translate between those two languages.
I am satisfied that, while Mr Wu may not have a university degree in English literature, he fully understood the vast majority of the questions asked of him. I am not satisfied that all of the apparent confusion exhibited by Mr Wu during the hearing as to the meaning of relevant parts of the English language, both written and oral, was genuine confusion or lack of knowle0dge and understanding of words used.
In making the above comments and findings I accept that Mr Wu was representing himself and he is not a lawyer. However, unlike other unrepresented applicants in my experience, Mr Wu acknowledged on the sixth day of the hearing that a group of 3 or 4 of his colleagues had attended each day of the hearing and at least one member of that group is a legal practitioner. I observed Mr Wu speaking with those persons on numerous occasions during the hearing. They also provided him with numerous documents throughout the hearing.

[72]

Interest

Each of the 2014 assessment and the 2015 assessment included amounts for "interest on tax". Mr Wu claimed he should not be liable for any interest payable to the Chief Commissioner.
Division 1 of Part 5 of the TA Act provides for interest in respect of tax defaults (including failure to pay land tax) as the sum of a market rate component and a premium component. (ss 21 and 22).
The Appeal Panel in Chief Commissioner of State Revenue -v- Incise Technologies Pty Ltd & Anor (RD) [2004] NSWADTAP 19 at [60] stated: "In our view the primary interest rate (the market rate component) is intended to compensate the Commissioner (on behalf of the Government of New South Wales) for not having the benefit of the tax payment from the time it was due." In Trust Co. of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21 ("Trust Co of Australia") Judicial Member Verick stated at paragraph 27." In cases where an amount of interest is imposed by the application of the market rate, only exceptional circumstances would justify any remission. The narrow category of circumstances would include cases where the 'tax default' is entirely due to a fault of the Chief Commissioner. Other circumstances would include situations completely out of the control of the taxpayer."
The premium component of the interest rate is a fixed 8% per annum (s22(3) of the TA Act). At [25] in Trust Co. of Australia the Appeal Panel stated "..the fixed premium rate component is a rate imposed by way of a penalty for the 'tax default' in question. A premium rate of interest is imposed where a 'tax default' is a result of some culpable conduct on the part of the taxpayer.."
On the last hearing day Mr Rider informed both Mr Wu and me of his instructions that the premium rate of interest had been remitted and notations as to "interest on tax" included in the assessments related to the market rate of interest as at 22 April 2014. Mr Rider said that when assessments were not paid in full any unpaid amounts thereafter attracted interest at the premium plus market rate. Mr Rider informed me that his instructions were that the interest charged thereafter was interest on the unpaid tax, not interest on the outstanding interest.
I explained to Mr Wu that he had an obligation to prove his case and in relation to any charge of interest on outstanding tax it was necessary for him to explain his interpretation of the law as to why relevant interest should not be charged.
In his post-hearing submissions Mr Wu made a series of allegations from [108] to [122] under the heading "the Respondent's mistakes", many of which are irrelevant, others of which I have rejected, and none of which directly address the legislative basis for interest charges or specifically refer to 'interest'.
Mr Wu submitted at [96] and [123]: Land Value of the Belrose Property 96.1 won the court cases against valuer general regarding the land value of the Belrose Property for 2006 to 2011. The determinations were made in 2013. If there was any outstanding land tax prior to 2013, no interest should be charged 123. In any event, I should not be liable for any interest payable to the Respondent.
In relation to [96] I note that both the 2014 assessment and the 2015 assessment post-date the 2013 determinations referred to by Mr Wu and Mr Wu did not provide any evidence that correct valuations had not been taken into account.
The Chief Commissioner dealt with interest in the assessments at [152] by submitting "In response to [123] AS, the Applicant has not made out any grounds for remission of interest."
Mr Wu responded in ACSR at [87] by submitting "Contrary to [152] RS, In any event, I should not be liable for any interest payable to the Respondent."
In my opinion, merely by stating that he "should not be liable for any interest payable" without providing reasons, and without providing any calculations showing that the amounts of interest included in the relevant assessments were incorrect, Mr Wu has not satisfied his onus of showing why either or both of the market rate component and the premium component of interest should not be charged and why the Chief Commissioner's calculations were in error.
I note that the Chief Commissioner did not impose any penalty tax pursuant to Division 2 of Part 5 of the TA Act and make no comment thereon.

Wu v Chief Commissioner of State Revenue

At a glance

Court

Decision date

Source

Judgment (76 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (5)