KEMPSEY SHIRE COUNCIL v VAN PARK PTY LTD [1995] NSWCA 237

KEMPSEY SHIRE COUNCIL v VAN PARK PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA 1 September 1995, 27 September 1995

[1995] NSWCA 237

MEANING of "rateable person" under Local Government Act 1919 — Construction of s145(2) Local Government Act 1919 — natural reading of statute.

Sheller JA I agree with Cole JA.

Powell JA The facts which gave rise to these proceedings in the District Court, and which give rise to the appeal from the Judgment delivered by Grogan DCJ on 21 January 1991, are set out in the Statement of Agreed Facts which has been reproduced by Cole JA in his Judgment which I have seen, and read, in draft form.

Although, both at first instance, and on appeal, the matter was argued, and although the Judgment of Cole JA, with which I understand Sheller JA agrees, proceeds, upon the basis that the only question in issue was, and is, whether the Respondent was, at any relevant time, "a rateable person" in respect of the rate sued for, it seems to me, with respect to those who are of a different view, that the first question to be determined - albeit that it involves questions similar to those which were debated at first instance,and which have been debated on the hearing of the appeal - is, whether, or not, the land in respect of which the Appellant claimed to have levied a rate, which rate it sought to recover in the proceedings, was "rateable land" for the purposes of the Local Government Act 1919 ("LGA"). To those who would assert that such a question cannot be raised in a proceeding to recover unpaid rates (LGA s599 cf LGA s133(2); Hawkesbury Shire Council v Hills!; distinguishing Bankstown MuniciPal Council v Fripp?, and overruling Mosman Municipal Council v Spain? and Bland Shire Council v Rural Bank of New South Wales)4 I would but point out that, at all relevant times, LGA provided (inter alia) as follows:-