Altitude G3 Pty Limited v Chief Commissioner of State Revenue [2022] NSWCATAD 316

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Altitude G3 Pty Limited v Chief Commissioner of State Revenue [2022] NSWCATAD 316 Hearing dates: 23 March 2022 Date of orders: 28 September 2022 Decision date: 28 September 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: The decision of the respondent on 8 April 2021 is affirmed. Catchwords: REVENUE –dutiable value – s 21 Duties Act 1997 Category: Principal judgment Parties: Altitude G3 Pty Limited (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: Mr O Berkmann (Respondent)

Solicitors: Cassab & Associates Solicitors (Applicant) Crown Solicitor (Respondent) File Number(s): 2021/252232 Publication restriction: None

REASONS FOR DECISION 1. Altitude G3 Pty Limited as Trustee for the Altitude G3 Trust is the Applicant ('the Applicant'), seeking a review of a decision of the Chief Commissioner of State Revenue ('the Respondent'), who refused its claim that the dutiable value of Unit 3/1 Boys Avenue, Blacktown in New South Wales ('the Property') was $880,000. The Respondent asserts that the correct dutiable value of the property is instead the unencumbered value of $1,045,000, being greater than the consideration paid by the Applicant.

Background 1. The Respondent has raised duty on two occasions in respect of the Property. First, an initial assessment ('the Assessment') was issued on 21 January 2020 indicating duty payable in the amount of $35,052 raised on the consideration ($880,000) paid by the Applicant. A valuation report prepared by Robertson & Robertson Consulting Valuers ('the Robertson valuation') dated 20 January 2020 derived the consideration for the property. The Robertson valuation was completed the day before execution of the agreement for sale and transfer of the Property. 2. Second, on reassessment on 8 April 2021 ('the Reassessment'), additional duty was raised in the amount of $7,745 plus $613.47 interest. The Reassessment was based upon a market valuation completed by Nicholas Garnsey of Cushman & Wakefield ('the Cushman & Wakefield valuation'). The unincumbered value of the Property was $1,045,000. The Cushman & Wakefield valuation arose in proceedings in the Supreme Court of New South Wales, Owners of Strata Plan 97121 v RCBS Devco Pty Limited (2020) NSWSC 1257 ('the Supreme Court proceedings'). The Supreme Court proceedings related to allegations and findings of fraud against the Applicant pursuant to s 37A of the Conveyancing Act 1919 (NSW) concerning the conveyance of the Property. 3. The additional duty of $7,745 is the subject of these proceedings that arose following the Reassessment. It is this decision the Applicant seeks the Tribunal to review. The application seeking administrative review was filed on 3 September 2021. 4. I note, before filing the application in this Tribunal, the Applicant made a request for a determination of an objection for the purposes of s 96 of the Taxation Administration Act 1996 (NSW) ('TAA') concerning both the assessment and the reassessment. That application was not successful. 5. The Applicant's grounds for administrative review appear to be based on the following: The Respondent 'cherry picked' the valuation evidence presented within the context of the Supreme Court proceedings; the Applicant's valuation, produced an objection to the reassessment that was equally as reputable as the valuation relied upon by the Respondent; reliance on the Cushman & Wakefield valuation by the Respondent was one of 'a self-serving money grab'; and the Cushman & Wakefield valuation relied upon by the Respondent does not reflect the prior offers received in relation to the sale of the property, being $685,000. 6. The Applicant also relies on a history of marketing the Property for sale, offers made and the final sale of the Property to evidence the unincumbered value of the Property to assess duty. For the reasons set out below, I have preferred and rely upon the expert valuer's evidence in the disposition of this application and determining the unincumbered value of the Property to assess duty payable.