Civil and Administrative Tribunal New South Wales Medium Neutral Citation: 1735 Pty Ltd v Chief Commissioner of State Revenue [2020] NSWCATAD 186 Hearing dates: 6 December 2019 and 12 February 2020 Date of orders: 23 July 2020 Decision date: 23 July 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: NS Isenberg RFD, Senior Member Decision: (1) The decision under review is affirmed. (2) If the Respondent wishes to pursue an application for costs of this matter: (a) the Respondent is to give to the Tribunal and to the Applicants his written submissions, not exceeding 7 pages in length, including as to costs calculated on an indemnity basis and why the Tribunal should not determine the question of costs without an oral hearing, on or before 7 August 2020. (b) the Applicants are to give to the Tribunal and to the Chief Commissioner their written submissions and their submissions in reply to the Respondent's submissions, not exceeding 7 pages in length, including why the Tribunal should not determine the question of costs without an oral hearing, on or before 21 August 2020. (c) the Respondent is to give to the Tribunal and to the Applicants any submissions in reply to the Applicants' submissions, not exceeding 4 pages in length, on or before 28 August 2020. (d) I direct that: (i) the above page length in respect of submissions and submissions in reply (Submissions) does not include cover sheets; (ii) the Submissions shall be in typeface that is no smaller in appearance than an Arial font in 11 point size or a Times New Roman font in 12 point size, and the lines of typing must be set at least 1.5 lines spacing from each other. (iii) in making their Submissions the parties shall have regard to the provisions of ss 50 and 60 of the CAT Act; and (iv) the Submissions shall replace all oral and written submissions made by any party in relation to costs prior to the date of publication of these orders / directions. Catchwords: MERITS REVIEW – REVENUE LAW – onus - land tax - primary production exemption - dominant use – maintenance of animals - s 10AA Land Tax Management Act 1956 (NSW) – costs. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Land tax Management Act 1956 (NSW) Taxation Administration Act 1996 (NSW) Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 Brown Cavallo Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 18 Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 Gaskell v Denkas Building Services Pty Limited [2008] NSWCA 35 Jones v Dunkel (1959) 101 CLR 298 Leda Manorstead v Chief Commissioner of State Revenue [2010] NSWSC 867 Longford Investments Pty Ltd v Commissioner of Land Tax (NSW) (1978) 8 ATR 656 Manly Council v Byrne [2004] NSWCA 123 McIntosh Bros Pty Ltd (In Liq) v Chief Commissioner of State Revenue [2019] NSWCATAD 124 Texts Cited: None cited Category: Principal judgment Parties: In 2018/00335346: 1735 Pty Ltd & Sheet Station Pty Ltd (Applicants) Chief Commissioner of State Revenue (Respondent) In 2018/00335353: 1735 Pty Ltd as trustee for the Bares Family Trust (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: M Bennett on 6 December 2019 and A H Rider on 12 February 2020 (Applicants) E Bishop with O Berkmann (Respondent) Solicitors: Dandanis & Associates (Applicants) Crown Solicitor for NSW (Respondent) File Number(s): 2018/00335346; 2018/00335353 Publication restriction: Nil REASONS FOR DECISION Background 1. These proceedings concern two applications filed with the Tribunal on 1 November 2018 (the Applications) . The Applications disputed the land tax assessed over several years on certain land in New South Wales. 2. The Application in matter 2018/00335346 challenged a land tax assessment notice in the amount of $73,738.40 issued to 1735 Pty Ltd and Sheep Station Pty Ltd on 2 March 2018 for the 2016 and 2017 land tax years. The notice described the relevant land as 1771 Perricoota Rd Moama, having a PID of 3376827. 3. The Application in matter 2018/00335353 challenged a land tax assessment notice in the amount of $17,614.65 issued to 1735 Pty Ltd as trustee for the Bares Family Trust on 13 April 2018 for the 2015, 2016, 2017 and 2018 land tax years. The notice described the relevant land as 1771 Perricoota Rd Moama, having PIDs of 3959124, 3959125, 3959127 and 3959128. 4. The Chief Commissioner of State Revenue (the Respondent) is the respondent in both matters. References in these reasons to the Applicants is to the applicants in both matters and reference to the Assessments is to both assessments. 5. The Applicants objected to the Assessments and are dissatisfied with the determination by the Respondent in relation to the objections. The Applicants' initial position and final position 1. The property described as the relevant land in [2] and [3] above is collectively referred to as the Initial Land. 2. Initially, the Applicants claimed none of the $91,353.05 in the Assessments was owing as the Applicants were exempt from land tax because all relevant land was used for primary production for the four land tax years from 2015 to 2018 inclusive: (the Applicants' submissions made 3 December 2019 (AS) at [2] and [7]). 3. At the end of the final hearing day orders were made by agreement with the parties that after the transcript for that day was received by the parties, the Applicants would file and serve their closing submissions (ACS), the Respondent would file and serve his submissions and submissions in reply to AS and ACS (RFS) and the Applicants would then file and serve submissions in reply to RFS (ASR). 4. On 16 April 2020 the Applicants filed ACS. Substantial change to the dispute 1. A major effect of ACS was to substantially alter the ambit of the Applications by stating at [2] that the Applicants were focussing "their case for the just and quick resolution of the real issues in the proceeding" and claiming at [3] and [4]: 3. …the land comprising PID - 3959128 (Lot 11) … was exempt from land tax under s.10AA(1) of the Land Tax Management Act 1956 (NSW) (Act) for the 2017 and 2018 land tax years (Tax Years) on the basis that the dominant use of the land was for the maintenance of animals (beef cattle) for the purpose of selling them under s.10AA(3)(b) of the Act. 4. For clarity, the Applicants confirm they no longer require the Tribunal to review the: a. Land Tax Assessment Notices issued to the Applicants for the 2015 and 2016 Tax Years; or b. Land Tax Assessment Notice issued to 1735 Pty Ltd ATF Bares Family Trust for the 2017 and 2018 Tax Years, except to the extent it assessed land tax on Lot 11. 1. At ACS [5] the Applicants stated they limited the evidence on which they relied to the affidavit of Greg McPherson and the "Expert Reports" of Anthony John Hartley and Peter Edward Schuster. 2. On 23 April 2020 the Respondent filed RFS. 3. The Applicants did not file a reply to RFS. The Applications after ACS 1. The Applicants claim there is no land tax payable in respect of Lot 11 in the 2017 and 2018 land tax years (the Tax Years) as the Land was used for primary production. The Applicants rely on s 10AA of the Land Tax Management Act 1956 (NSW) (LTM Act). 2. At the request of the Applicants, and with the consent of the Respondent, the Tribunal ordered that the Applications be dealt with together and that evidence in each Application be evidence in the other. The Applications were heard together in these proceedings. 3. The proceedings included substantive hearings on 6 December 2019 and 12 February 2020 in which the Applicants contested both Assessments and disputed the Respondent's rejection of the Applicants' objections. Material before the Tribunal 1. The Applicants initially relied on: 1. Mr Hartley's "Expert Report" dated 4 October 2019 together with miscellaneously numbered appendices (THR) – Exhibit A1. 2. Affidavit of Mr Russell Pearson made 28 May 2019 and filed with the Tribunal – Exhibit A2. 3. Affidavit of Mr McPherson made 22 May 2019 and filed with the Tribunal (GM) – Exhibit A3. 4. Affidavit of Mr Gary Bares made 28 May 2019 and filed with the Tribunal – Exhibit A4. 5. AS, written submissions made 21 January 2020, and ACS made 9 April 2020, all filed with the Tribunal; and 6. oral submissions made during the hearing by each of Mr. Bennett and Mr. Rider. 1. The Respondent initially relied on: 1. A bundle of 5 aerial photographs filed during the proceedings as MP4 – Exhibit R1. 2. Documents filed on 10 December 2018 pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) – Exhibit R2. 3. Affidavit made 26 November 2019 by Mr Schuster and the annexures to the affidavit (his "expert report") (PSR) – Exhibit R3. 4. Affidavits made 2 August and 25 November 2019 by Rebecca Sui Ming Lim Kiu and the annexures to both affidavits. The affidavits are respectively Exhibits R4 and 45. 5. Written submissions made on 2 August and 5 December 2019 (Respondent's Supplementary Submissions, (RSS)) and 6 and 12 February and 22 April 2020 (Respondent's Final Submissions, (RFS), all filed with the Tribunal; and 6. oral submissions made during the hearing by Ms. Bishop. 1. The Respondent stated at RFS [1] to [5] that RFS was substantially a 'consolidated factual submission' of his previously filed submissions dated 2 August and 5 December 2019 and 12 February 2020, with particular reference to Lot 11. The Respondent also stated he continued to rely on previous submissions particularly in relation to the question of costs. I observe that RFS is dated approximately 2 weeks after the date of ACS in which the Applicants withdrew from many of the issues previously in dispute. Mr McPherson's written evidence in GM 1. Mr McPherson is in the business of cattle farming which predominantly consists of feeding and maintaining cattle: GM [3], also described as grazing and fattening cattle for meat products: GM [8]. 2. In 2014 the Applicants agreed to licence part of the Applicant's land to Mr McPherson to allow him to graze his cattle and grow and cultivate crops to feed the cattle: GM [4]. 3. Lot 11 amounts to 122.7ha: GM [5(d)] 4. "Lots 10 and 11 of the Bares land are used for cropping": GM [7]. 5. In Lot 11(a) 62 ha was cropped and grazed, and in Lot 11(b) (the remainder of Lot 11) 60.7 ha was grazed: Exhibit GM-1 6. "Lots 10 and 11 … are used for cropping": GM [7]. 7. Mr McPherson makes regular visits to his and the Applicants' property, including Lot 11, to maintain the water trough, check paddocks, herd cattle between gates, and medicate and vaccinate cattle as well as performing cropping operations. This involves an average 20 hours work each week: GM [9] and [10]. 8. Mr McPherson's accountant has advised him, and Mr McPherson believes, that the activities referred to in GM [5] to [10] derive income for him and his business. He declines to provide his financial records due to the confidential nature of the information. Consideration The role of the Tribunal 1. The Tribunal was established by the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The objects of the CAT Act include enabling the Tribunal to review and determine appeals against decisions made by certain persons and bodies; enabling the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible; and ensuring that the Tribunal's processes are open and transparent (ss 3(b)(ii) and (iii), 3(d) and 3(f)). 2. Section 28 of the CAT Act provides "The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation." Jurisdiction of the Tribunal 1. There is no dispute that the Tribunal is empowered to review the Assessments (ss 9 and 55 of the ADR Act and s 96 of the Taxation Administration Act 1996 (NSW) (TA Act). Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision, to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision. Issues 1. The decisions the subject of review by the Tribunal are the Assessments, not the disallowance of the objections. 2. Accordingly, the issue for determination by the Tribunal is whether the decisions in respect of the Assessments, namely that for each Tax Year, Lot 11 was not entitled to a primary production land tax exemption, is the correct and preferable decision. The substantive law 1. The applicable substantive law is the LTM Act. References in these reasons to legislative provisions are to provisions of the LTM Act unless stated to the contrary. Section 7 provides that land tax shall be levied and paid on all land in New South Wales other than land which the LTM Act exempts from taxation. Section 3 provides that a land tax year is the period of 12 months starting on 1 January for which land tax is levied and s 8 provides that land tax shall be charged on land owned at midnight on 31st December immediately preceding the year for which land tax is levied. 2. The exemption claimed by the Applicant is found in s 10AA which relevantly states: LAND TAX MANAGEMENT ACT 1956 - SECT 10AA 10AA Exemption for land used for primary production (1) Land that is rural land is exempt from taxation if it is land used for primary production. … (3) For the purposes of this section, "land used for primary production" means land the dominant use of which is for: … (b) the maintenance of animals … for the purpose of selling them or their natural increase or bodily produce, … … (4) For the purposes of this section, land is "rural land" if: (a) the land is zoned rural, rural residential, non-urban or large lot residential under a planning instrument, or (b) the land has another zoning under a planning instrument, and the zone is a type of rural zone under the standard instrument prescribed under section 33A (1) of the Environmental Planning and Assessment Act 1979 , or (c) the land is not within a zone under a planning instrument but the Chief Commissioner is satisfied the land is rural land. 1. In summary, s 10AA provides that land zoned rural, the dominant use of which is primary production, is exempt from land tax. Except where indicated to the contrary, references in this decision to the phrase "land used for primary production" mean "land used for primary production as defined in s 10AA(3)". 2. In Brown Cavallo Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 18 (Brown Cavallo) , I referred at [29] to, and adopted, the following submission of the Chief Commissioner of State Revenue, the respondent in that matter: In Leda Manorstead v Chief Commissioner [2010] NSWSC 867, the Court held at [69]-[76] that "dominant use": · in its ordinary meaning connotes ruling, prevailing, or most influential use; · presupposes that land may be used for more than one purpose and requires a determination of which use of the land is the main, chief or paramount use; · is a question of fact and degree that may, in the end, be determined as an objective matter of impression having regard to the facts; · refers to a use that prevails over any competing use and must be sufficiently substantial to prevail over the proposition that the land is primarily to be regarded as unused land; · is determined according to the nature and intensity of the various uses, the physical areas over which they extended, and the time and labour spent in conducting them must be weighed; and · may be a matter of impression that an objective observer would reach from viewing the land as a whole 1. The relevant date for each of the 2017 and 2018 land tax years is respectively midnight on 31 December 2016 and 31 December 2017. However I observe that in Leda Manorstead v Chief Commissioner of State Revenue [2010] NSWSC 867, Gzell J said at [3]: … inquiry is not limited to the use to which land is put on the relevant date. It extends to a consideration of its use during a reasonable period preceding and following the relevant date (Longford Investments Pty Ltd v Commissioner of Land Tax (NSW) (1978) 8 ATR 656 at 660-661). In my view, six months before and after the relevant date is a reasonable period for inquiry in this case. It allows for consideration of financial records pertaining to the uses to which the land was put. Onus 1. Section 100(3) of the TA Act provides that the Applicants have the onus of proving their case in a review by the Tribunal. Mr. Bennett and Mr. Rider each conceded that this obligation was not disputed. 2. The requisite standard of proof for the Tribunal is the "balance of probabilities" Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 (Cornish Investments) at [31] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 at [104]. Common ground 1. The parties agreed, and I find: 1. Part of the Initial Land (known as Lot 5) was subdivided in 2015 into, the land referred to by the parties and in these reasons as Lots 7, 8 10 and 11, all of which are in DP 270580. 2. Lot 11 was zoned 'rural' and would be exempt from land tax under s 10AA(1) and (3) if its dominant use was (as claimed by the Applicants) for the maintenance of cattle for the purpose of selling them or their natural increase or bodily produce in each Tax Year. 3. Mr McPherson purchased Lot 11 from 1725 Pty Ltd in November 2018 and added it to his PIC in January 2019. Some concessions by the Applicants 1. Concessions by the Applicants during the hearing included: 1. There is some evidence as to the identification of land Mr McPherson owns and of his use of land the subject of these proceedings for sales, purchases or maintenance of cattle, but no evidence of differentiation between the use of land the subject of these proceedings and the use of Mr McPherson's adjacent or proximate land for any particular activity – T 06.12.19 – p24 at 23-47 to p25 at 1-16 and p26 at 13-34. References to "McPherson land" or "land owned by Mr McPherson" include land owned by any trust of which Mr McPherson is a beneficiary. 1. Mr McPherson informed the Tribunal that from time to time he moved cattle between paddocks and through gates. However, the Applicants conceded that no information was provided as to how often and how many cattle were moved to or from Lot 11 in the Tax Years: RSS [26] and T 06.12.19 at p26, 36-43. Other evidence concerning Mr McPherson and some submissions 1. Annexures to Ms Kiu's November affidavit include the following customer copies received from Murray Valley Land Services of the NSW Department of Planning, Industry and Environment of Annual Returns of Land and Stock of Mr McPherson's PIC, declared to be correct by Mr McPherson, disclosing: 1. at pages 24 and 25, as at 30 June 2016, no area used for pasture, 50 Ha used for cropping and no stock for Lot 6; 2. at pages 26 and 27, as at 30 June 2017, no area used for cropping or pasture and 49 cattle for Lot 6; and 3. at pages 28 and 29, as at 30 June 2018, no area used for cropping or pasture and 66 cattle for Lot 6. 1. At ACS [9] the Applicants submitted the standard of evidence the Tribunal consistently requires for taxpayers to discharge their onus concerning the "dominant use" test in s.10AA does not require "intricate details about which lot or paddock was used at a particular point in time" but merely evidence from farmers' about the ongoing use of land for grazing. The Applicants support this submission by relying on Brown Cavallo and McIntosh Bros Pty Ltd (In Liq) v Chief Commissioner of State Revenue [2019] NSWCATAD 124 at [171] (McIntosh Bros). Brown Cavallo 1. In Brown Cavallo I referred at [33] to evidence from one or more of 2 persons and a government agency that the relevant land had been used to improve the condition of beef cattle for breeding and sale since its acquisition by a named family over 40 years previously with the exception of some 0.7 ha used for other rural purposes. 2. The applicant in Brown Cavallo provided details of the increase in weight of cattle on the relevant land prior to sale; the increased price paid for such cattle at sale; and the carrying capacity of the land. The latter was close to the number of cattle maintained on the land throughout the whole of the four tax years in question other than 3 months during a period of drought. 3. I referred at [16] to the total land area comprising 2.987 ha. The excepted land (not used for beef cattle) comprised less than 24% of the relevant land some 8 years prior to the relevant tax years. That excepted use was to maintain a small nursery so that genetic material was not lost. 4. Notwithstanding the lack of certain accounting records for reasons outside the control of the operating family, the use of the relevant land, in conjunction with other land some kilometres away, for the cattle business operated by the relevant family was provided in substantial detail. 5. Notwithstanding the Applicants' submissions in these proceedings, there was no real dispute in Brown Cavallo regarding the identification of the subject land and the use to which it had been put at all relevant times. McIntosh Bros 1. In McIntosh Bros, Senior Member R L Hamilton SC held at [170] there had been no essential change in the primary production use of the land during the relevant period, nor for decades before that. 2. What the Applicants described as "merely evidence from farmers" actually included findings at [171] that the identified land was: … mainly devoted to primary production uses which significantly outweigh the competing non-primary production uses and thus the primary production use of the land during the relevant years meets the dominant use test in s10AA(3) … This is because of the area devoted to cattle, the number of cattle grazed, the number of cattle grazed relative to the area and the carrying capacity of the land, the amount of work done on the land by the McIntosh family, and the size and intensity of the continuing grazing activity on the broadacres of land by the McIntosh family and agistees who use the vast part of the surface area and produce most of the cash income generated by the land … 1. The detailed evidence of the successful applicants in Brown Cavallo and McIntosh Bros may be contrasted with the conflicting and unclear evidence on which the Applicants relied in the subject proceedings. Accordingly I reject the Applicants' submissions at ACS [9] supposedly based on Brown Cavallo and McIntosh Bros . 2. The Applicants also submitted at ACS [10] that as a matter of common sense the Tribunal has accepted comparisons of the number of cattle grazed to the carrying capacity of land as an objective indicator of the extent to which land was relevantly used, that is the intensity of relevant use, and referred to Brown Cavallo at [44] and McIntosh Bros at [171]. 3. I accept that the comparison of the actual number of cattle maintained on identified land in comparison to the grazing capacity of that land was regarded as a factor in both these matters. 4. However, I find that the evidence summarised at ACS [11] and [12] as to intensive use of Lot 11, on which the Applicants relied, mistakes Lot 11 for not only Lots 8, 10 and 11, but also for several other parcels of land. The submission disregards Mr McPherson's written evidence that the cattle referred to in ACS were actually "grazed and fattened" on the aforesaid Lots 8 and 10 as well as Lot 11 during the Tax Years and also on Mr McPherson's land. That land is said at GM [5] to be an adjoining property (Lot 6): …of approximately 75.9 hectares which consists of grassed paddocks, cropped land with fencing and gates, cattle yard, loading ramp, hay and machinery sheds, shelter and water troughs (the McPherson Land) … 1. The Applicants' submissions at ACS [11(b)] rely on the Hartley Report which includes under the heading "2017 and 2018 land tax years": [5.24]: McPherson advised that approximately 80 head of Charolais were grazed across the entire area of Lot 8, 10 and 11 in 2017, due to the failed canola crop being available to graze in addition to pasture on the remaining areas of the Bares land used by McPherson. [my emphasis] 1. At ACS [11] the Applicants submitted: c. Lots 10 and 11 (about 175 hectares in total`) had a carrying capacity of about 75 steers; and d. for the 2017 and 2018 Tax Years, Lots 8, 10 and 11 had approximately 294 tonnes of feed, which was sufficient to feed 80 head of cattle for approximately 370 days. 1. The authority for [11(c)] is the Schuster Report at [91]. However, after using a substantial part of his expert report to outline the benefits and disadvantages of various methods of determining the carrying capacity of various types of land, and having had the opportunity to consider the documents listed at pages 6 and 7 of his expert report, including the Hartley Report, Mr Schuster states in his summary: 93) Insufficient information has been provided to allow the actual carrying capacity of the Land to be estimated at the time of land tax assessment in each of the relevant tax years. 94) Insufficient information has been provided to allow me to form an opinion as to whether the land was being used to its capacity in each of the land tax years. 1. Mr Hartley's evidence includes that his Expert Report is partly based on oral information received from a Mr Whipp. I note that Mr Whipp was not called by the Applicants to give evidence; Mr Schuster was instructed to disregard his evidence; and an unsworn affidavit by Mr Whipp was not in evidence in the proceedings. 2. In cross-examination Mr Hartley conceded that, contrary to [5.46] and [5.47] in the Hartley Report, not all of the infrastructure he saw on Lots 8, 10a and 11a "pertained to farming and grazing". He also conceded, including at T- pp105-106, that certain of the calculations he used to form his opinions in his Report were not real but were based on hypothetical assumptions he had made. 3. ASC [11(d)] relies on the Hartley Report at [5.30(d)] in relation to the alleged use of Lot 11 for grazing beef cattle having regard to a certain number of tonnes of feed on Lots 8, 10 and 11 for the Tax Years. However, ASC does not reveal that many figures and calculations in the Hartley Report, including this tonnage of feed, were based on hypothetical assumptions Mr Hartley made. Nor did ACS refer to Mr Hartley's statement at [5.31]: "…it should be noted that his (sic) does not take into account, the grazing value of other areas of the Bares land, that McPherson had access to. 1. I observe that Mr Hartley did not expressly refer contextually to Lot 6 of 75.9 ha, an unknown area of which was "grassed paddocks and cropped land" used by Mr McPherson for grazing and fattening cattle. 2. The Respondent submitted in RFS: 7. Mr McPherson confirmed in cross-examination that he has a property identification code (PIC) … for the landholdings used by him for his cattle activities. During the relevant land tax years these landholdings include 2268 Perricoota Road, Moama ("2268 Perricoota"), … [Lot 6] and … 8. Documents were produced by the Local Land Services and Mr Mr (sic) McPherson which indicate as follows: (a) …2268 Perricoota is 230 hectares and … has a carrying capacity of approximately thirty-six 400kg steers. (b) … Lot 6 … adjoins Lot 11. It has a carrying capacity of forty 400kg steers …' 1. I have checked, and confirm the accuracy of, the extract in the immediately preceding paragraph. 2. Although the Applicants were provided with the opportunity to respond to RFS and challenge its contents, they chose, for reasons which were not disclosed to the Tribunal, not to respond. 3. Irrespective of the potential accuracy of Mr Hartley's hypothetical calculations, I find that, whatever the carrying capacity of Lot 11 was, is not of itself evidence of the number of cattle which were actually maintained on Lot 11 at any particular time or throughout any particular period such as either or both of the Tax Years. 4. Mr Hartley states at [5.34] in his report "In the absence of records, I can only rely on the recollections of MacPherson in relation to the number of cattle grazed each year". 5. However, RFS includes the following unchallenged submissions in relation to records in evidence: 10. Mr McPherson confirmed in cross-examination that he fills in all the necessary Annual Census forms and paperwork required for the cattle activities and that he takes care to ensure those documents are completed accurately." 11. The documents produced by Mr McPherson indicate as follows: (a) as at 31 December 2016 (the relevant taxing date for the 2017 land tax year) Mr McPherson had no cattle; (b) as at 30 June 2017, 49 cattle were held on land within Mr McPherson's PIC"; (c) as at 31 December 2017, approximately 12 cattle were held on land within Mr McPherson's PIC; (d) as at 30 June 2018, 66 cattle were held on land within Mr McPherson's PIC … 12. This is consistent with the applicant's concession made on 6 December 2019, that there is no evidence that the sale of cattle is directly referrable to the Land as distinct from Mr McPherson's other landholdings. … 14. Mr McPherson stated in cross-examination that until November 2018, Lots 10 and 11 were unfenced and he did not know where the boundaries of Lot 11 were until he installed the fencing sometime after he purchased the lane (sic) … 16 The respondent further notes and relies on the contemporaneous documentary evidence which was submitted by the applicant to the Local Land Services which show during the relevant land tax years, the applicant had its own PIC … for its landholdings which included Lot 11. 17. The contemporaneous annual census forms provided by 1735 Pty Ltd to the Local Land Services were executed by Jayne Bares [Mrs Bares] in her capacity as director of 1735 Pty Ltd. Those forms indicate that as at 30 June 2017 and 30 June 2018 no cattle were maintained on Lot 11 and no area of Lot 11 was cropped … 1. The Respondent further submitted that Mrs Bares was a director of 1735 Pty Ltd Pty Ltd during the Tax Years and could have explained the evidence in the above extracts. However, without explanation, she was not called as a witness by the Applicants. Accordingly, having regard to "Jones v Dunkel' the Tribunal may infer that her evidence would not have assisted the Applicants' case. 2. This submission was not challenged by the Applicants. 3. I have considered customer copies, in evidence, received from Murray Valley Land Services of the NSW Department of Planning, Industry and Environment of Annual Returns of Land and Stock of 1735 Pty Ltd's PIC disclosing: 1. at pages 37 and 38, as at 30 June 2017, no area used for pasture or cropping and carrying no cattle, for Lots 7, 8, 9, 10 and 11, certified as correct by Mrs Jayne Bares acting on behalf of the occupier; and 2. at pages 39 and 40, as at 30 June 2018, no area used for pasture or cropping and carrying no cattle, for Lots 7, 8, 9, 10 and 11, certified as correct by Mr Bares acting on behalf of the occupier. 1. I observe, in respect of the failure of Mrs Bares to give evidence, that in Jones v Dunkel (1959) 101 CLR 298 the High Court held that in certain circumstances if a party did not call a particular witness, there is an inference that the evidence of that witness would not have assisted that party's case. 2. In Manly Council v Byrne [2004] NSWCA 123 at [51]-[52] Campbell J, when considering the inferences recognised by Jones v Dunkel. said: "if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn." 1. In Gaskell v Denkas Building Services Pty Limited [2008] NSWCA 35 Bryson AJA, with whom Hodgson and Basten JAs agreed, referred favourably to Campbell J's reasoning in Manly Council v Byrne, and said at [48]: "..the second type of result to which Campbell J. referred in which an unfavourable inference is drawn is available only if evidence otherwise provides a basis on which that unfavourable inference can be drawn; an unfavourable inference cannot be drawn solely on the basis that the witness was not called. There must be a basis elsewhere in evidence to support the inference." 1. In Cornish Investments, Judicial Member A. Verick, said at [34]: Although there is no statutory requirement for an applicant to produce as a witness any particular person or produce any documentary evidence (see Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 83 ATC 4015), it is, however, necessary for the applicant to produce sufficient evidence to discharge the onus. 1. It is undisputed that the onus lies on the Applicants to prove their case. I find that if Mrs Bares had given evidence, that evidence may have assisted the Applicants to prove their case as well as assisting the Tribunal. The failure of the Applicants to call Mrs Bares does not assist the Applicants to discharge their statutory onus in these proceedings, especially having regard to the contents of the Annual Returns above, the accuracy of which was certified as correct by each of Mr and Mrs Bares for separate Tax Years. Further Consideration of Mr McPherson's oral evidence 1. In his oral evidence to the Tribunal on 12 February 2020 Mr McPherson said "maybe half" of lots 8, 10 and 11 were used for cropping. He did not indicate whether he was referring to half of the overall area of the three lots or half of the area of each lot. 2. Mr McPherson said he was "not sure where the boundaries of the lots are": T - p10 at 5-20 and in relation to lots 8 and 11 "…that's the clear paddock that I crop. There's a lot of bushland attached to that – those lots as well, which is you can't crop. You can just run stock on them." T - p10 at 20-22. 3. Mr McPherson's oral evidence in the immediately preceding paragraph is not wholly consistent with Mr Hartley's Expert Report at [5.1] that Lots 8, 10 and 11 have been used for both cropping and grazing; and with Mr McPherson's affidavit at GM [7] to the effect that both Lots 10 and 11 are cropped, implying that cropping is the only use made of those lots. However GM-2 states that Lot 11(a) is both cropped and grazed while Lot 11(b) comprising nearly 50% of Lot 11 is (solely) grazed and Mr McPherson's oral evidence that one-third of Lot 11 is bushland. 4. Mr McPherson also said: "… I honestly don't know where the boundaries to all is. It's not my land. I don't know. Most of what was cropped was lot 11, as I understand. Where 10 and 8 come into it, I can't be certain … it's not my land, so I haven't got … intimate details of where the lots are, but there's bushland attached. There is … open cropping land that form mostly lot 11, but I … don't know where the boundaries stick in for ..... lot 8, but having said that, behind the clear land, there is quite amount of bushland that – so I wouldn't have cropped any of the bushland, which is just river flats with lots of trees on it. I've just cropped front clear land, which I think, from my memory, deals with lot 10 and lot 11." (T- p10 at 46 to p11 at 7) "..a third of Lot 11 is bushland" (T – p29 at 3-4). 1. His PIC, the number of which was agreed with Ms Bishop, was correct at 31 December … 2016 and 2017 and it included Lot 6 on the subject land and another property at Thyra Rd Moama: (T– p27 at 20-25). 2. He filled in annual census forms for his PIC and he hoped he took care to complete the forms accurately. He annually declared the number of cattle held and lodged the forms with Murray Local Land Services: T - p 27 to 28 at 35-17. 3. He knew roughly how far Lots 10 and 11 extended into the bushland but they were not fenced in accordance with their lot numbers and it was all free-roaming land. The boundary of Lot 11 was fenced after he purchased the Lot. T- p28 at 18-41. 1. Mr McPherson's oral evidence included probably 30% of lot 10 is bushland: T - p28 at 42 to p29 at 5. On being reminded, Mr McPherson conceded that there was a quarry on lot 10. On being further reminded, he conceded that the Aqua Island water park was also on lot 10: T - p29 at 3-15. Mr McPherson confirmed that these areas were not available for use by cattle. Consideration of Mr Bares' written/oral evidence 1. At T 6.12.19 p34-8 ff Mr. Bennett said: … today I am taking instructions from Mr Bares in relation to both applicants, one of which he is the sole director, the other his wife is the director but he is the manager and an authorised representative in relation to these issues … 1. At T-p63 at 43 to p64 at 2) Mr Bares stated his role in relation to the Applicants. He is the manager of 1735 Pty Ltd and sole director of Sheep Station Pty Ltd. 2. In cross-examination Mr Bares said he largely oversees the development of Lots 7, 8, 10 and 11 as well as anything that happens on the land; he attends the land up to 3 times each week and has a fairly good idea of the activities that are conducted on the land including oversight of management of what occurred on Lot 11 in 2016, 2017 and 2018: (T-p66). 3. Mr Bares completed a Primary Production Land Exemption Application form on 24 October 2017 in respect of Lots 7, 8, 10 and 11. There is no dispute that a copy of the form, signed by Mr Bares at page 34 is at pages 22 to 35 of the s 58 documents and Mr Bares declared as "Manager" that all the information was true and correct. 4. In respect of item 1 at page 25 of the form, which relates to the dominant use of the 4 lots (the property) Mr Bares said it was an oversight that he did not tick the box in respect of "cropping". However, I observe there is a tick in the box in respect of "grazing/livestock". 5. Mr Bares confirmed that he wrote "not applicable" in relation to a question in respect of item 2 at page 25 concerning the number of livestock grazed on the property in the last 12 months. 6. Page 26 includes a question asking whether stock were agisted on the property. There is a tick in the "yes" box. Mr Bares wrote "CATTLE 50-100 HEAD" in relation to the number and type of stock. 7. In respect of the question as to the number of bales of wool produced each year for the period of the exemption claim, Mr Bares wrote 100 at an average price per bale of "N/A". Mr Bares agreed that was an error and said he misread the form and believed it referred to bales of hay. (T-p68) 8. Mr Bares wrote "you are welcome to inspect the property" under the heading "Records" on page 30 at item 1(a) which sought details of the records kept to substantiate the business activities being conducted on the property. Item (b) asked if there was engagement in full time or part time primary production. Mr Bares ticked "Part-time" and wrote primary production was undertaken for 10 hours each week. 9. At page 31 Mr Bares wrote no profit was made for the period claimed (2014 to 2017) and in relation to item 2(a) which requested details as to why no profit was made Mr Bares wrote "WE MAINLY DO IT TO KEEP THE WEEDS & FIRE HAZARD UNDER CONTROL AND MAINTAIN THE TRACKS & FENCES". 10. Mr Bares other answers to questions in cross-examination in relation to Lots 7, 8, 10 and 11 included: 1. At T- p66, he oversees advertising for the Waterfront Moana future development. 2. At T- p66 and 67, he has a general understanding of the advertisements for the development including Facebook and YouTube. 3. At T- p67 he has a rough idea of what is on Facebook for Waterfront Moama; he is aware of what is on Facebook for Aqua Island; and his understanding of the arrangement with Mr MacPherson in relation to Lot 11 is that Mr MacPherson had beef cattle that he wanted to raise on the lot and he wanted to crop some of the lot. 4. Contrary to some of his above answers, At T- p69, Mr Bares wrote on page 32 of the form that the only "non-primary production use" of the property was "camping" which utilised 0.01% of the overall area; and 5. At T – p73, a pathway shown in a video in evidence was on Lot 7; a landscaped area was Lot 7 which Mr Bares stated was on an easement which is owned or controlled by a marina which carried out improvements. 1. While in cross-examination Mr Bares was shown some maps of the property and he conceded that they showed other non-primary production uses of parts of the property: T- p73 and pages 75-83. 2. Mr Bares was asked if it was correct that the real purpose of maintaining animals and cropping on the land was to keep weeds down. He replied "It primarily has a maintenance function, yes": T- p83. Mr Bares denied that the maintenance of animals and cropping in respect of the property was to obtain a land tax exemption. Further consideration of Mr Hartley's evidence 1. THR states at [1.11] that Mr Hartley made all the inquiries he believed desirable and appropriate and no matters of significance which he regarded as relevant have to his knowledge been withheld from the Tribunal. 2. However, it appears that Mr Hartley was not provided with all documentary records, including statutory returns by Mr MacPherson and by the Applicant, which the Respondent located and were annexed to Ms Kiu's November affidavit. I find that the apparent unavailability to Mr Hartley of those documents and the information therein did not enhance my reliance on the uncorroborated opinions and findings in the Hartley Report. 3. In cross-examination at T– p100 Mr Hartley said in 2019 he looked at land that Mr MacPherson then owned, being Lot 11 and Lot 6. He did not attend any other parcels of land owned by Mr MacPherson. 4. In cross-examination at T – p108 Mr Hartley: 1. accepted that a purpose for maintaining cattle was "to keep the weeds down and manage fire hazards and the like" although he also stated sheep were best for that purpose, and 2. initially said cattle yards were at the southern end of Lot 11 but when pressed, conceded that Mr Bares had informed him that the yards were on Lot 6. 1. In re-examination at T– p109 Mr Hartley conceded that he was not saying that everything he viewed on the property "like houses and parks and signage and such" was agricultural infrastructure. Findings and decision 1. The Applicants ended ACS at [12] and [13] submitting: 12. ,,, it may readily be accepted that Lot 11 was intensively used during the 2017 and 2018 Tax Years for grazing and fattening beef cattle for sale, such that its dominant use was for the maintenance of animals for the purpose of selling them. 13. Accordingly … Lot 11 was exempt from land tax under s.10AA(1) for the 2017 and 2018 Tax Years. 1. In opposing the Applicants' submissions, the Respondent submitted at RFS: 15. The evidence makes it highly improbable that cattle were maintained on Lot 11 at all during the relevant land tax years … … 19. Given the total area of land available to Mr McPherson elsewhere in Moama, it seems unlikely Lot 11 was grazed at a capacity or of an intensity that an objective observer would consider the land was dominantly used for the maintenance of animals. While an objective observer would see the cattle yards and troughs on the neighbouring property on Lot 6, it is unlikely that it would have considered cows were grazing on Lot 11… 20. … the Tribunal cannot be satisfied, on the balance of probabilities, that the dominant use of Lot 11 in the 2017 and 2018 was for the maintenance of cattle. 1. Having regard to my above findings, I do not agree with the Respondent that it is highly improbable that no cattle were maintained on Lot 11 during the Tax Years. However, largely having regard to the inconsistent and conflicting evidence provided by or for the Applicants and the documentary evidence provided by the Respondent, including documents signed by officers of the Applicants and the only witness relied on by the Applicants, I am not satisfied on the balance of probability on the material before me that the dominant use of Lot 11 for either the 2017 or 2018 Tax Years was the maintenance of animals for the purpose of selling them or their natural increase or bodily produce in accordance with s10AA(3) of the LTM Act. 2. Accordingly the correct and preferable decision of the Tribunal is that the decision of the Chief Commissioner under review is affirmed. 3. The Respondent has foreshadowed an application for costs including costs on an indemnity basis. If the Respondent wishes to pursue an application for costs of this matter the parties shall make submissions in accordance with the orders / directions below. Orders and directions 1. The decision under review is affirmed. 2. If the Respondent wishes to pursue an application for costs of this matter: 1. the Respondent is to give to the Tribunal and to the Applicants his written submissions, not exceeding 7 pages in length, including as to costs calculated on an indemnity basis and why the Tribunal should not determine the question of costs without an oral hearing, on or before 7 August 2020. 2. the Applicants are to give to the Tribunal and to the Chief Commissioner their written submissions and their submissions in reply to the Respondent's submissions, not exceeding 7 pages in length, including why the Tribunal should not determine the question of costs without an oral hearing, on or before 21 August 2020. 3. the Respondent is to give to the Tribunal and to the Applicants any submissions in reply to the Applicants' submissions, not exceeding 4 pages in length, on or before 28 August 2020. 4. I direct that: 1. the above page length in respect of submissions and submissions in reply (Submissions) does not include cover sheets; 2. the Submissions shall be in typeface that is no smaller in appearance than an Arial font in 11 point size or a Times New Roman font in 12 point size, and the lines of typing must be set at least 1.5 lines spacing from each other. 3. in making their Submissions the parties shall have regard to the provisions of ss 50 and 60 of the CAT Act; and 4. the Submissions shall replace all oral and written submissions made by any party in relation to costs prior to the date of publication of these orders / directions. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2020