FSX v Chief Commissioner of State Revenue [2024] NSWCATAP 169

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FSX v Chief Commissioner of State Revenue [2024] NSWCATAP 169 Hearing dates: 16 February 2024 Date of orders: 29 August 2024 Decision date: 29 August 2024 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member G Blake AM SC, Senior Member Decision: (1) Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the true names of the Applicant and her husband are not to be disclosed, including by way of publication or broadcast. (2) Leave to appeal is refused. (3) The appeal is dismissed. (4) There is no order as to the costs of the appeal. (5) In the event that an application for a different costs order is made in accordance with the directions below, order 4 above ceases to have effect and the following directions apply: (a) Any application for a different costs order is to be filed and served, supported by evidence and submissions, within 7 days of the date of these orders; (b) Any evidence and submissions in response to the application for a different costs order are to be filed and served within 14 days of the date of these orders. (c) Any material in reply is to be filed and served within 21 days of the date of these orders. (d) The Appeal Panel may dispense with a hearing and determine any application for a different costs order on the basis of the written submissions and evidence provided. If the parties oppose this course, they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application. If a hearing is not dispensed with the parties will be notified of a date for hearing to determine the application. Catchwords: APPEALS - Leave to appeal - Principles governing - Leave to appeal refused APPEALS – Scope of question of law - Appeal dismissed TAXES AND DUTIES - Land tax – Construction and application of cl 6(2)(c) of Sch 1A to the Land Tax Management Act 1956 (NSW) – Requirement that "intended use and occupation" of land be lawful as part of claim for principal place of residence exemption Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 64, 80 Land Tax Management Act 1956 (NSW), ss 7, 10, 10T (repealed), Sch 1A, cll 2, 3, 6, 8 Cases Cited: Alcan (NZ) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21 Associated Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680 Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 AW v WW (No 2) [2024] NSWSC 146 Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 Collins v Urban [2014] NSWCATAP 17 Commissioner of Land Tax v Christie [1973] 2 NSWLR 526 Commissioner of Police (NSW Police Force) v Adam [2022] NSWSC 789 Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 Crystele Designer Homes Pty Ltd v Wood [2023] NSWCATAP 242 De Marco v Chief Commissioner of State Revenue [2013] NSWCA 86 ENT19 v Minister for Home Affairs (2023) 97 ALJR 509; [2023] HCA 18 Estate of Bovaird v Milstern Retirement Services Pty Ltd [2022] NSWCATAP 174 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134 FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36 Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964 Klan v Federal Commissioner of Taxation (1985) 80 FLR 320 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Bolton ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 Rogers v Vinoly [2016] NSWCATAP 2 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Samchris Pty Ltd v Keogh [2024] NSWCATAP 125 SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338 Tamas v Victorian Civil & Administrative Tribunal & Ors (2003) 9 VR 154; [2003] VSCA 113 West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535; [1979] HCA 10 Wollondilly Shire Council v Styles [2024] NSWCATAP 104 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: Chief Commissioner of State Revenue, Ruling LT 082v5: The principal place of residence exemption Category: Principal judgment Parties: FSX (Appellant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: I Young and O Berkmann (Appellant) J Mitchell (Respondent)