CITATION: Kourtesis & Anor v Chief Commissioner of State Revenue [2007] NSWADT 64 DIVISION: Revenue Division APPLICANTS George Kourtesis PARTIES: Maryanne Kourtesis RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 066064 HEARING DATES: 5 March 2007 SUBMISSIONS CLOSED: 20 March 2007 DATE OF DECISION: 22 March 2007 BEFORE: Block J - ADCJ (Judicial Member) CATCHWORDS: Land tax exemption - principal place of residence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Land Tax Management Act 1956 Assimakopoulas v FC of T 98 ATC 2037 Brown v Federal Commissioner of Taxation 99 ATC 5416 Chief Commissioner of State Revenue v Aldridge [2003] NSWADTAP 50 CIC Insurance v Bankstown Football Club (1997) 141 ALR 618 CASES CITED: Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 Kamper and another v Chief Commissioner of State Revenue [2005] NSWADT 256 McGrath and another v Chief Commissioner of State Revenue [2007] NSWADT 46 McMillan v Chief Commissioner of Land Tax [1972] 1 NSWLR 544 Ryan v Commissioner of Land Tax [1982] 1 NSWLR 305 APPLICANTS I. Young, barrister REPRESENTATION: RESPONDENT I. Mescher, barrister ORDERS: The decision under review is affirmed for the 2000 land tax year and set aside for the 2001, 2002, 2003, and 2004 land tax years. REASONS FOR DECISION Part A; Preliminary and Background 1 The decision which is under review in this matter is the disallowance of an objection by the Applicants against land tax assessments in respect of the residential property situated at 3 Richmond Ave, Ashfield (referred to as "3 Richmond Ave") for the land tax years 2000 to 2004 (both years inclusive). Those land tax years are collectively referred to as the "relevant years"; an individual relevant year is referred to by reference to its actual year. 2 The Tribunal had before it the documents lodged pursuant to section 58 of the Administrative Decisions Tribunal Act 1997 together also with supplementary section 58 documents. At the hearing on 5 March 2007 ("the hearing day") Tab 7 of the section 58 documents was amplified by the tender of Support Schedules in respect of the 2000 and 2001 land tax years; they were admitted as exhibits R1 and R2 and treated as forming part of Tab 7 of the section 58 documents. 3 Both parties filed written submissions prior to the hearing day (and also after the hearing day); in the case of the Respondent written submissions dated 31st August 2006 ("the Respondent's first submissions") were filed on 8 September 2006 and in contemplation of the hearing which had been scheduled for 20 October 2006 ("original hearing date"). As will be noted, that hearing was adjourned until 5 March 2007, and being the hearing day, and when the matter was in fact heard. Amended written submissions ("the Respondent's second submissions") were delivered to the Applicant's counsel and the Tribunal at or about that time. 4 On 20 October 2006 Mr. Kourtesis appeared in person; the Applicants had not filed any written statements as to the evidence on which they intended to rely. It is to be noted in this context that directions given by the Tribunal on 1 August 2006 obliged the Applicants to file submissions but not statements or affidavits. A discussion indicated that it was conceivable that the Applicants had an arguable case. Accordingly, the matter was postponed until the hearing day and directions were given pursuant to which and inter alia the Applicants were required to serve and file written witness statements. 5 There is one aspect which can usefully be mentioned at this early juncture. The application for review was brought by Mr. Kourtesis as Applicant and it was heard on this basis. The objection which preceded the application, and dated 14 January 2005 (Tab 8 of the section 58 documents) was lodged by Angelopoulos and Michael, accountants, on behalf of Mr. Kourtesis alone. 3 Richmond Ave is owned by the Applicants jointly and it is they who should have been cited as Applicants from the outset. After the hearing day agreement was reached between the parties as to the joinder of Mrs Kourtesis as an Applicant, and all references to the "Applicants" should be construed as referable to both of them. While on the subject of the objection it is relevant to note that the fourth paragraph reads; "Mr. and Mrs. Kourtesis are separated and live apart amicably although next door to each other." 6 Although the Respondent's first submissions and the Respondent's second submissions of similar to a considerable extent, there was one difference which is of particular significance in this context; clauses 22 to 25 of the Respondent's second submissions read as follows: - 22. An application for review following a determination by the Chief Commissioner of an objection must be made not later than 60 days after the date of issue of the Chief Commissioner's determination: s 99(1) Taxation Administration Act, 1996 (NSW) ("TAA"). However, the Tribunal has the power to allow a person to apply for a review after that sixty day period; s. 99(1) TAA. 23. The Application in these proceedings is considerably out of time. The Application was filed in the ADT on 19 June 2006. It should have been filed on 15 November 2005 – being 60 days after 16 September 2005 (the date of determination of the objection). Accordingly, the Application is approximately 7 months out of time. 24. The Respondent objects to the late lodgement of the Application outside of the time period required under s 99(1) TAA. No explanation, let alone satisfactory explanation, has been provided by the Applicant as to the reasons for the delay. 25.The Tribunal has the power to allow a review after the 60 day period. However, it is submitted that, in the absence of any satisfactory explanation for the 7 month delay, the Tribunal should not exercise its power of extension. The application should be dismissed on this basis. 7 Although the Respondent did in his first submissions refer to the fact that the application was out of time, he did not contend that the Applicants' application should for this reason be dismissed; however the Respondent's second submissions include such an application. The fact that no such application was made in the Respondent's first submissions and that no specific mention was made of this aspect of as an issue on the original hearing day, might in my view reasonably lead to an inference that either the Respondent did not intend to contend that the application should be dismissed or in the alternative that the fact that the application was made out of time was not in issue. It is true that there was not an explanation for the delay; the fact that there was no such explanation in Mr. Kourtesis' affidavit dated 28 February 2007 ("the affidavit") is explicable in my view on the basis that there was not previously an application for dismissal, and so that Mr Kourtesis would have been entitled to consider that it was not necessary for him to furnish such an explanation. In the result the hearing proceeded on the basis that the affidavit should be accepted and Mr. Kourtesis was not required for cross-examination. In consequence of this concession there was no need for oral evidence; accordingly there was no opportunity for an explanation, at any rate on the hearing day. 8 At the hearing on the hearing day, Mr.Mescher referred in some detail to a very recent decision by the Tribunal (Judicial Member Verick) in McGrath and another v Chief Commissioner of State Revenue [2007] NSWADT 46 ("McGrath"), and which was handed down on Thursday 1 March 2006, and thus only one clear business day prior to the hearing day. Neither Mr. Young nor the Tribunal was aware of the decision in McGrath's case. It is to be noted that the chronology referred to in the next succeeding clause reveals that 3 Richmond Ave was acquired in October 1999, while the affidavit sets out that it was acquired in November 1999 and used for residential purposes immediately as from the date on which it was acquired. At the end of the hearing on the hearing day, a brief period (until 9 March 2007) was allowed for supplementary submissions by the Applicants to enable them to deal with three aspects, and being the decision in McGrath, the delay in bringing the application, and in relation to the 2000 year the discretion then contained in section 3 (3) (b) of the Act. The Respondent was allowed an opportunity until 16 March 2007 to reply to any such supplementary submissions by the Applicants. The Applicants did in fact file supplementary submissions within the time period allowed and the Respondent filed supplementary submissions in reply on 20 March 2007. In respect of both parties those submissions are referred to as "supplementary submissions". 9 The Respondent furnished the Tribunal with a helpful chronology of relevant events reading as follows: Respondent's Chronology 1988 Mr & Mrs Kourtesis purchase 5 Richmond Avenue Ashfield NSW Folio Identifier 2/14124 ("5 Richmond Avenue") 15.10.99 Mr & Mrs Kourtesis purchase 3 Richmond Avenue Ashfield NSW Folio Identifier 3/14124 ("3 Richmond Avenue") 22.4.04 Council rates notice for 3 Richmond Avenue in joint names 4.6.04 Water Account for 3 Richmond Avenue in joint names 4.7.04 NSW Electoral Roll searches show address of Mr & Mrs Kourtesis as 5 Richmond Avenue 28.8.04 Optus Telephone Account issued to Mr Kourtesis at 3 Richmond Avenue 28.10.04 Land Tax Questionnaire – home address shown as 5 Richmond Avenue for both Mr & Mrs Kourtesis – exemption sought for 3 Richmond Avenue on the basis of "personal use as home office and residence" since 1999 28.11.04 Optus Telephone Account issued to Mr Kourtesis at 3 Richmond Avenue 9.12.04 Land Tax Notice of Assessment issued to Mr & Mrs Kourtesis for 5 tax years, 2000-2004 totalling $10 301.65 5 Richmond Avenue always treated as exempt under PPR exemption 3 Richmond Avenue subject to land tax 13.12.04 Electricity account issued to Mr Kourtesis at 3 Richmond Avenue 14.1.05 Objection lodged to assessment by Angelopoulos & Michael – 3 Richmond Avenue occupied and lived in by Mr Kourtesis – 5 Richmond Avenue the residence of Mrs Kourtesis – Mr & Mrs Kourtesis are separated and live apart amicably 18.4.05 RTA licence searches show address of Mr Kourtesis as 5 Richmond Avenue and Mrs Kourtesis as 5 Richmond Avenue 3.5.05 Letter OSR to Mr Angelopoulos – evidence not sufficient to show that Mrs Kourtesis residence is 5 Richmond Avenue - further evidence requested – inter alia, statutory declaration advising when they first commenced residing separately 9.6.05 Telephone conversation – OSR and Mr Kourtesis – residing separately from his wife – both have separate credit cards but linked to same account – arrangement to pay own portion of expenses relevant for each property – will provide stat dec re living arrangements 22.7.05 Letter Mr Kourtesis to OSR – 3 Richmond Avenue used for personal residential purposes and as an extension to our home; used as a home office and to place extensive collection of books and medical records; no boundary fence now separating the two residences. 15.9.05 Internal land tax objection prepared by OSR 16.9.05 Determination of Objection – objection disallowed in whole – 3 Richmond Ave not eligible for PPR exemption for 2000-2004 tax years 19.6.06 Application filed in the ADT – home address of Mr Kourtesis shown as 5 Richmond Avenue – "have been residing in residence since day of purchase" 20.10.06 Hearing of matter in ADT 10 The Applicants furnished the affidavit (the content of which was confirmed by Mrs. Kourtesis in a short separate affidavit of the same date) and Mr. Mescher (as set out previously) advised the Tribunal that the Applicant would not be required for cross-examination; the affidavit is set out in full as follows: 1. I am the Applicant in these proceedings. 2. My wife Maryanne Kourtesis and I purchased the property known as 5 Richmond Avenue, Ashfield ("No. 5") as joint tenants in 1988. 3. We immediately took up occupation of No. 5 as our matrimonial home and principal place of residence. 4. In November 1999 my wife and I purchased the adjoining property at 3 Richmond Avenue, Ashfield ("No. 3") as joint tenants. 5. No. 3 was purchased by us with the intention of it providing us with additional living space and accommodation as in effect an extension of No. 5. 6. Following our purchase of No. 3 we immediately removed the dividing boundary fence between No. 3 and No. 5 to facilitate our movement between the properties. 7. I then established a study at No. 3 containing my professional books and reference materials thus freeing up space and clutter at No. 5. 8. My preference for listening to loud music and watching certain television programs was causing some friction and annoyance with my wife. I therefore also moved my Hi-Fi system and record collection into No. 3 so that I could enjoy listening to the music that I prefer at the volume that I prefer without disturbing my wife. I also installed a television set at No. 3 so that I could enjoy watching the programs that I prefer, including sporting events, which my wife does not enjoy watching. 9. I also installed in No. 3 my extensive collection of sporting memorabilia and collectibles which my wife did not appreciate being on display at No. 5. 10. On various occasion I have invited my friends over to No. 3 to enjoy a noisy late night game of cards and perhaps a drink without causing disturbance to my wife. 11. Generally my routine is to have an evening meal with my wife at No. 5 and then retreat to No. 3 to either work or relax listening to music or watching television. I have a bedroom established at No. 3 and on occasion if it suits me I will sleep at No. 3. 12. My wife suffers from a disturbed and noisy sleep pattern. When I am operating the next day, I choose to sleep at No. 3 to avoid a sleepless and restless night due to my wifes condition. 13. I am regularity on call from Bankstown Hospital and I operate at Ashfield Private Hospital and Strathfield Private Hospital. I am frequently contacted by telephone either to be called out to the hospital for an emergency or to advise hospital staff in relation to a patients condition and treatment. Again, by sleeping at No. 3 the disturbance to my wife is minimised as it is also upon my return home from a late night or early morning hospital call out or social event. 14. I essentially use and have used the space and amenity provided by No. 3 as an extension of No. 5 so as to provide me with quiet and privacy for my research reading and other work and so as to prevent or reduce the disturbance and annoyance that my habits and unusual working hours where causing my wife. 15. My mother is aged 87 years and is a widower. Some years ago I commenced bringing my mother over to No. 5 to spend the weekend and occasionally some weekdays with my wife and me. Over the past 18 months as my mother has become more and more frail, I have tended to pick her up daily from her house in Redfern and bring her over to stay the night with us so that she is not alone at night. She is accommodated at No. 5 with my wife while I sleep at No. 3. 16, In 2005 my wife's sister Gina Vecchio separated from her husband. Since that time we have accommodated her and her 2 children at No. 3 as a family arrangement so as to be living with my wife and me as part of our family. 17. Annexed hereto and marked A is a copy of the result of an internet search of White Pages.com.au of the surname Kourtesis conducted on 27th February 2007. The phone line number 9705 8901 which was at one time installed at No. 5 was used by me for dial-up internet access and has since been cancelled. I have never had a telephone line installed at No. 3 for my use. 18. From about mid 2004 my wife and I experienced matrimonial difficulties and became estranged. We essentially commenced living separately and apart, her in No. 5 and myself in No. 3 until about March 2005 when we reconciled. 19. In January 2005 I approached my accountant Michael Angelopoulos and requested that he lodge an objection on my behalf to the Office of State Revenue seeking an exemption for the assessment of land tax upon No. 3 for the 2000 to 2004 land tax years on the basis that No. 3 and No. 5 were being used by my wife and I as one residence. I explained to Mr Angelopoulos that my wife and I were estranged at that time and were living separately at No. 5 and No. 3. 20. Neither No. 5 nor No. 3 have ever been rented out by us. Part B; Developments and evidence after the hearing day and in particular the fact that the application was seven months out of time. 11 Mr Mescher in submissions on the hearing day described the delay in bringing the application as long. In my experience in this area, a delay of seven months is not aptly so characterised. In Assimakopoulas v FC of T 98 ATC 2037 handed down in the Administrative Appeals Tribunal in 1998 I attempted a survey of those principles which are relevant in respect of an application for an extension of time. That case was decided at a time when it was considered that the principles governing extensions of time were broadly those specified in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344.In 1999 Hill J delivered what has come to be regarded as one of the leading judgements in this area in Brown v Federal Commissioner of Taxation 99 ATC 4516; while noting that the Hunter Valley principles are relevant, he determined that they were by no means exhaustive. He put, in summary, that the following matters require consideration: 1. The taxpayer's explanation for the delay in lodging an objection against the assessment within in the time stipulated by parliament. 2. The circumstances attendant upon that delay. 3. Whether the objection is one which, on its face, is frivolous or which in law must fail, or, … is one in which the taxpayer has no arguable case. … [The] stronger the case the more likely that the discretion would be exercised in favour of a taxpayer even where the explanation for delay was thought not to be strong. … 4. Such other matters as the circumstances … make relevant, including, if prejudice to the Commissioner be asserted, such prejudice as is shown to arise." 12 In an affidavit dated 7 March 2007 ("the second affidavit") delivered after the hearing day Mr Kourtesis sought to explain the delay in the following terms: The penultimate paragraph of that letter indicates that I may ask the Administrative Decisions Tribunal or the Supreme Court to review the Chief Commissioner's decision but does not indicate the existence of a time limit of 60 days within which that request is to be made. I was not aware and was not made aware by my accountants or anybody else at that time that there existed a time limit of 60 days. 13 In supplementary submissions filed after the hearing day the Applicants sought to explain the delay as "one of ignorance and inadvertence". 14 In my view the explanation of the delay was somewhat lame. Mr.Kourtesis is an experienced surgeon and judging by his real property acquisitions referred to in this decision, a successful one. (3 Richmond Ave appears to be free of mortgage). A man of his experience and education might be expected to know that in matters of this nature there are always relevant time periods. It is possible that he relied on his accountants but they would (one would have thought) have known that the application had to be brought within the statutory period. I revert to this aspect later in this decision, and at the stage note that an explanation of the delay is one only of the relevant factors. 15 At least as important is the fact that the Applicants have a very arguable case. In Brown Hill J held that "an extension of time should be granted where the justice of the case requires" and that matters such as these should not be approached "on the basis that it will only be in an exceptional case that an extension would be granted". 16 Another relevant factor is the likelihood of prejudice both to the Applicants and to the Respondent. To refuse the application for an extension of time would indeed cause grave prejudice to the Applicants whereas to do so will not prejudice the Respondent; this will generally be so unless evidence which would otherwise be available to the Respondent, has because of the delay become unavailable. 17 This then is a case where the extension should be granted and the application for dismissal is therefore denied. Part C; The affidavit and also the second affidavit 18 In closing submissions the affidavit was criticised by Mr. Mescher on the basis that it was not in a number of respects sufficiently specific; by way of example it was criticised on the basis that it did not specify the number of occasions on which the Applicant, who is a surgeon, used 3 Richmond Ave for one or other of the purposes set out in the affidavit. 19 They are aspects of the affidavit which are of limited relevance. The fact that Mr. Kourtesis' sister-in-law (Gina Vecchio) was accommodated in 3 Richmond Ave (and see clause 16 of the affidavit) is not relevant because the 2005 land tax year is not one of the relevant years. Much the same can be said about his mother (and see clause 15 of the affidavit). Moreover the fact that the Applicants were separated for a period commencing in mid 2004 and ending in March 2005 (about nine months) is of little relevance given that the taxing date for the 2004 year, which is one of the relevant years, was 31 December 2003. 20 Notwithstanding the criticism by the Respondent of the content of the Applicant's affidavit, the fact that he was not required for cross- examination has the effect that it should be accepted (and notwithstanding the discrepancy between it and the second affidavit referred to more fully later in this decision); it was expressly acknowledged at the hearing that there was no dispute of fact. The affidavit indicates in categoric terms that the Applicants having acquired 5 Richmond Ave, Ashfield ("5 Richmond Ave") in 1998, subsequently acquired 3 Richmond Ave for the purposes set out in the affidavit. The affidavit sets out that 3 Richmond Ave was acquired in November 1999 and that immediately after its acquisition the boundary fence was removed and a study for Mr. Kourtesis was established. The Respondent's investigations (and see the chronology) indicate that 3 Richmond Ave was acquired in October 1999 and not November 1999. Moreover and in the second affidavit furnished after the hearing day, Mr. Kourtesis said that 3 Richmond Ave having been acquired, the vendors to the Applicants of that property were allowed to retain occupation for a period of time; I refer in this context to clauses 4 5 and 6 of the second affidavit reading as follows. 4. The vendors of No 3 sold the property to us as they had planned to return to their native Spain. As they were not yet ready to leave by the date of settlement, they requested permission to remain in occupation of the property for a few weeks until they were ready to leave. As they had been friendly neighbours for some years my wife and I agreed to allow the vendors to remain in occupation of No 3 until they were ready to leave. We allowed them to stay on gratis. We did not charge them in any way nor was there any adjustment to the purchase price. 5. The venue doors remained in occupation at No.3 with our consent until about 15 November 1999 whereupon they vacated the property and, I believe, moved into their daughter's house for a short time prior to then leaving the country. 6. My wife and I took position of No 3 on or about 15 November 1999 and immediately removed the dividing fence between that property and our adjoining property at 5 Richmond Ave Ashfield ("No 5") and took the steps referred to in my affidavit sworn 28th February 2007 filed in these proceedings." 21 3 Richmond Ave was thereafter (in accordance with the affidavit) used for residential purposes by the Applicants in conjunction with 5 Richmond Ave, which was during the relevant years occupied by the Applicants, subject only to the proviso that in the second half of 2004 and the first quarter of 2005 (and while the Applicants were separated, Mr.Kourtesis lived in 3 Richmond Ave. . 22 The Applicants' objection (Tab 8 of the section 58 documents) differs from the affidavit in that it states in the fifth paragraph that the Applicants were separated and lived apart amicably and next door to each other. The objection was not accurate insofar as it might be said to have suggested that the Applicants were living apart during the relevant years. They lived apart for a small part only of the relevant years. Part D; the legislation 23 As at 31 December 1999, the taxing date for the 2000 land tax year, section. 10 of the Land Tax Management Act 1956 (the "Act") relevantly provided: "10 Land exempted from tax (1) Except where otherwise expressly provided in this Act the following lands shall, subject to sections 10B, 10D, 10E, 10G and 10P, be exempted from taxation under this Act: … (r) with respect to taxation leviable or payable in respect of the year commencing on 1 January 1998 or any succeeding year, land that has a land value in respect of the year of less than the premium tax threshold and that is used and occupied as the principal place of residence of the owner of the land (or, if there are joint owners, as the principal place of residence of one or more of them) and for no other purpose (except as provided by subparagraph (iii)), being: (i) a strata lot, or (ii) a parcel of residential land, or (iii) a parcel of residential land on which there is also one of the residential occupancies referred to in subsection (1D) (b) (ii) (A)–(F),unless the owner or all of the joint owners who so used and occupied the lot or parcel (as appropriate) is such an owner by reason only of being a trustee … (1D) In paragraph (r) of subsection (1 ) 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: (a) not being land that: (i) is owned by a company, (ii) is owned by or on behalf of a company and is land of which a mortgagee or person by way of security for money is in possession, (iii) is held by a trustee for or on behalf of a company, or (iv) in respect of which a company is jointly assessed with any other person, and (b) not being a building or buildings: (i) comprised of lots within a strata plan or residential units, (ii) containing (out of the total of all rooms in the building or buildings) occupancies other than that of the owner and any one of the following residential occupancies: (A) one room, (B) one suite of rooms (not being a flat) each room of which all occupants of the suite are entitled to occupy, (C) one flat, (D) one suite of rooms (not being a flat) each room of which all occupants of the suite are entitled to occupy, and one room, (E) one flat and one room, (F) 2 rooms, each of which is separately occupied, or (iii) from any part of which income is derived otherwise than as the consideration for one (but not more than one) of the residential occupancies referred to in subparagraph (ii) (A)–(F)." (emphasis added) 24 Section 3 of the Act , as it applied at the taxing date for the 2000 land tax year, relevantly provided: "3 Definitions (1) In this Act, unless the context or subject-matter otherwise indicates or requires: … Flat means a room or a suite of rooms constructed, designed or adapted for occupation or use as a separate dwelling, whether the room or suite is a detached building or forms part of a building. … principal place of residence of a person means the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person. … (3) For the purposes of this Act, in respect of any year in respect of which taxation is leviable or payable, land or a flat is not used or occupied as the principal place of residence of a person unless: (a) that land or flat and no other land or flat has, since before the first day of July that last preceded the commencement of that year, been continuously used and occupied by that person for residential purposes and for no other purpose, or (b) in any other case, the Chief Commissioner is satisfied that the land or flat is used and occupied by that person as the person's principal place of residence." 25 Although and after December 1999 the Act was amended from time to time I need be concerned only with the amendments effected by the State Revenue Legislation Further Amendment Act 2003 which took effect on 31 December 2003 and thus in relation to the 2004 (and later) land tax years. In accordance with those amendments the substantive provisions dealing with the principal place of residence ("PPR") exemption were moved from Section 10(1) (r) to a new Schedule 1A. Section 10 of the Ac t now relevantly provides, and provided at the relevant time in respect of the 2004 land tax year: "10 Land exempted from tax (1) Except where otherwise expressly provided in this Act the following lands shall, subject to sections 10B, 10D, 10E, 10G and 10P, be exempted from taxation under this Act: … (r) land that is exempt from taxation under the principal place of residence exemption, as provided for by Schedule 1A". 26 Section 3 relevantly provides, and provided at the relevant time in respect of the 2004 land tax year: "3 Definitions (1) In this Act, unless the context or subject-matter otherwise indicates or requires: … principal place of residence of a person means the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person." 27 Schedule 1A of the Act provides, and provided (in part) at the time relevant for the purposes of the 2004 land tax year: "Schedule 1A Principal place of residence exemption Part 1 Preliminary 1 Definitions (1) In this Schedule: principal place of residence exemption—see clause 2. residential land—see clause 3. taxing date—means midnight on the thirty-first day of December. (2) For the purposes of this Schedule, a reference to the owner of land includes, if there are joint owners, any one or more of those joint owners. Part 2 Principal place of residence exemption 2 Principal place of residence exemption (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 on 1 January 2004 or any succeeding year, if: (a) the land has a land value in respect of the year of less than the premium tax threshold, and (b) the land is: (i) a parcel of residential land, or (ii) a lot under the Strata Schemes (Freehold Development) Act 1973 or a lot under the Strata Schemes (Leasehold Development) Act 1986. (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. (3) If the owner of land is entitled to the exemption conferred by this clause, no other person is liable to be assessed for taxation under this Act in respect of the land during the period of the owner's entitlement to the exemption. (4) The exemption conferred by this clause is referred to as the principal place of residence exemption. 3 Residential land—meaning (1) In this Schedule, 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, other than a building or buildings: (a) comprised of lots within a strata plan or residential units, or (b) containing (out of the total of all rooms in the building or buildings) occupancies other than that of the owner, or (c) from any part of which income is derived. (2) Land does not cease to be used and occupied as provided by subclause (1) by reason of there being on that land any building or improvement that is used or occupied for a purpose ancillary to the purposes for which the building is, or the buildings are, designed, constructed or adapted . 12 Only one principal place of residence for all members of same family (1) For the purposes of the principal place of residence exemption, only one place of residence may be treated as the principal place of residence of all members of the same family. (2) If members of a family own (whether jointly or separately) more than one residence used and occupied by any of them as a principal place of residence, the Chief Commissioner is to treat the one place of residence elected as the principal place of residence of the family as the principal place of residence of all members of the family in respect of a tax year. . (3) Such an election is to be made, by or on behalf of the members of the family, in writing and must be lodged with the Chief Commissioner within the period for the lodging of objections under section 89 of the Taxation Administration Act 1996. (4) An election may be made, in respect of a tax year by the end of the period allowed for the lodging of an objection to a notice of assessment of land tax liability (being an initial assessment of land tax liability) for that tax year. (5) If an election is not made, the Chief Commissioner is to treat the residence that has the highest land value for land tax purposes as the principal place of residence of all members of the family. (6) For the purposes of this clause, a "family" consists of the following: (a) a person and his or her spouse (if any), (b) any dependent child or dependent step-child of the person and his or her spouse (or of either of them) who ordinarily resides with the person or his or her spouse. (7) A person is the "spouse" of another person if: (a) they are legally married, or (b) they are living together as a couple in a de facto relationship within the meaning of the Property (Relationships) Act 1984. (8) However, if the Chief Commissioner is satisfied that a person: (a) is legally married to another person but not cohabiting with that other person and (b) has no intention of resuming cohabitation with that other person, the person is not to be regarded as the spouse of that other person and if a dependent child or dependent step-child of the person has a joint interest in the principal place of residence of the spouse, that interest is to be disregarded. (9) A person who is the child or step-child of another person is a "dependent child" or a "dependent step-child" if the person is under 18 years of age and is not legally married. (10) Nothing in this clause prevents more than one residence from being treated as the principal place of residence of members of a family under clause 7 (Concession for sale of former principal place of residence) (Emphasis added) 28 It is unnecessary for me to include the whole of Schedule 1A. Suffice it to say that it includes the "granny flat" provisions previously contained in section 10(1D). I do not consider that the "granny flat" provisions are relevant for the purposes of this case. It is also unnecessary to refer to other amendments to the Act; by way of one example the "premium tax threshold" provisions previously applicable no longer apply. 29 It may be noted at this juncture that clause 12 of schedule 1A to the Act (applicable to the 2004 year) was not specifically replicated in the prior legislative provisions. The Tribunal was informed that there is a ruling which might be said to suggest that clause 12 of schedule 1A was part of the law prior to the enactment of schedule 1A with effect from the commencement of the 2004 year; a ruling is not of course law. The Respondent's supplementary submissions make it clear that he was referring to paragraph 11 of Ruling LT20 which provided that "a person is entitled to claim an exemption for only one place of residence." Clause 27 of the Respondent's first submissions reads as follows: Despite the difference in wording of the PPR exemption between the 2000-20003 land tax years to the 2004 land tax year, it is submitted that there is, in substance no relevant difference in the application of the PPR exemption to the Acts in these proceedings from the 2004 land tax year to the 2000-2003 land tax years. - 30 The Tribunal is inclined to agree with the proposition set out in clause 27 of the Respondent's first submissions but for reasons which are not in all respects the same as those advanced by the Respondent. There is prima facie one significant difference in that clause 12 of Schedule 1A applies to the 2004 land tax year but not the prior relevant years. However for reasons dealt with later in this decision the Tribunal does not consider that clause 12 of Schedule 1A affects the matter. (As will be seen a different view was taken in McGrath) Part E McGrath. 31 It became clear during the course of the hearing that the crucial point to be decided by the Tribunal is whether its decision in Kamper and another v Chief Commissioner of State Revenue [2005] NSWADT 256 ("Kamper") was correct. The correctness of that decision was (at least implicitly) doubted in McGrath; that this is so, and despite a number of factual differences between the two cases, is clear having regard to clauses 50 to 55 of McGrath reading as follows: 50 The scheme of the law also restricts the exemption to one residence other than the concessions found in clause 4 of Schedule 1A of the Act. The excluded occupancies under clause 4(2) do not extend to include another freestanding dwelling other than what is allowed as "one flat". When the concession for the flat was introduced in 1987, the Explanatory Note in respect of the amendments to the Act provided as follows: 'The object of this Bill is to amend the Land Tax Management Act 1956 to expand the scope of exemption from land tax in cases of multiple occupancy of land. The bill provides that land used as the principal place of residence of the owner of the land will not cease to be exempt because there is a "granny flat" on the land as well as the owner's home.' 51 The Explanatory Note assists in understanding the scheme of the principal place of residence exemption provisions. The legislature when introducing the amendment to allow the 'granny flat" clearly recognised that the exemption for the principal place of residence under the law only allowed the exemption for the one home of the owner. 52 In recognition of this concession and also because of other free standing buildings for example a garage, or a greenhouse, or a pool house, clause 3(2) ensures that the exemption will not be denied provided any such buildings or improvements are used and occupied for a purpose ancillary to the building or buildings designed, constructed or adapted for residential purposes. Otherwise a number of residences would not qualify for the principal place of residence exemption. 53 But an independent single dwelling or residence could not be said to be used or occupied for a purpose ancillary to the purposes of another independent single dwelling or residence within the concession allowed by clause 3(2). 54 The suggested interpretation of clauses 3 and 4 is also consistent with clause 12 of Schedule 1A of the Act which clearly restricts the principal place of residence exemption to only one residence. The word "residence" is not defined in the Act but the ordinary meaning of the word would include a house, an abode, a home or, in some cases, a mansion. Two independent residences on adjoining blocks cannot be taken to be just one residence for purposes of clause 12. They are clearly two residences. (Emphasis added by the Tribunal) 55 The cumulative effect of clauses 3, 4, and 12 is that the exemption for a principal place of residence will not apply to both dwellings if there are two. 32 Put in succinct terms the learned judicial member concluded in McGrath that the principal place of residence exemption (at least in respect of the 2004 year) could not apply to two residences where there are in fact two independent residences; (see in particular the second-last sentence of clause 54 of the decision in McGrath). 33 The facts in McGrath indicate that the comments in clauses 50 to 55 might have been obiter. In McGrath there were two residences but one of them was in fact and for a period derelict and thus not being used for residential purposes. This indeed is the clear distinction between the facts in McGrath and the facts in Kamper. It would seem then that the exemption was denied in McGrath because the second residence was not being used for residential purposes. Given that it was not necessary for the learned judicial member to come to the conclusion in support of his decision in McGrath that the exemption can never apply where there are two separate residences, his finding is in this regard may be thought to be obiter. Part F. Kamper's case and also Ryan v Commissioner of Land Tax [1982] 1 NSWLR 305 ("Ryan") and McMillan v Chief Commissioner of Land Tax [1972] 1 NSWLR 544 ("McMillan"); 34 In Kamper case the relevant years exactly the same as the relevant years in this case; there were two adjoining residences and for the reasons set out in that decision, (and put in broad terms), the parents lived in one of them while the children lived in the other. 35 It was accepted at the hearing that there is no doubt that Ryan is binding on the Tribunal. 36 Part E (clauses 32 to 43) of the Tribunal's decision in Kamper reads as follows: 32 I consider, as I have said, that Ryan is binding on this Tribunal. 33 Ryan was, again as noted previously decided at a time when section 10(1D) of the Act referred to "a building" As to how Ryan would have been decided if there had been a building on 3 Baden Road (and if title had not been divided) is a matter of conjecture. It seems likely that McMillan would have been decided differently if there had been a house where the garden was. 34 The 1987 amendments were enacted, according to the Explanatory Note in order to enact the so-called granny flat provisions. It is important to remember that in respect of a granny flat the construction of accommodation of this nature on the property would not cause the loss of the PPR exemption notwithstanding the fact that the granny flat would be occupied and used by someone other than the owner. The granny flat provisions in other words deal with concepts of occupation. They are designed to ensure that occupation of the granny flat by someone other than the owner is permissible and does not preclude the PPR exemption. (The provisions in question are not of course confined to a granny flat; they extend to other structures but which need not be considered in these reasons.) 35 It must be arguable that the 1987 amendments were designed only to enact the "granny flat" provisions and for no other purpose and so that conceivably it was intended that the then existing law would otherwise be unchanged. 36 Notwithstanding the preceding clause the legislation both prior to and after the 2003 amendments (effective as from the commencement of the 2004 land tax year) are cast in a form which in its terms does not preclude more buildings than one. After the 1987 amendments section 10(1D) referred to "building or buildings". Section 10(1D)(b) then proceeded to exclude certain buildings but not, per section 10(1D)(b)(ii), occupancies of the owner and the other residential occupancies referred to in (A) to (F). 37 Post the 2003 amendments clause 3(2) of Schedule 1A provided that land would not cease to be used and occupied because there were buildings or improvements of an ancillary nature. 38 Having regard to section 33 of the Interpretation Act 1987 and CIC v Bankstown I must have regard to the purpose of the Act. The 1987 amendments were enacted, as I have said, to allow for inter alia the so-called granny flat provisions. I do not read the Act in its amended form so as to preclude the application of the Ryan principles where there are two houses on lots said to constitute a parcel and where, as is the case in this matter, one house was adapted so as to constitute an adjunct to the other. It is possible that amendments to the legislation have had an effect which goes further than was intended by the 1987 amendments. 39 Clauses 33 to 36 of the Respondents submissions read as follows: 33.It is certainly the case that the LT Management Act contemplates that a parcel of residential land may be the site of more than one building. This can be seen from the reference to "building or buildings" in the definition of "residential land" in cl. 3 of Sch 1A of the Act, which relevantly provides that "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". 34. Accordingly, the mere fact that there are two separate buildings in the present scenario – one situated on the lot at 56 Woodlands Road and one situated on the lot at 56A Woodlands Road – is not determinative in showing that there are separate parcels of land. However, in the context of considering whether two separate lots constitute a single parcel of residential land, the presence of two separate buildings does become significant where the buildings are self-contained, freestanding houses, each being separately accessible and each adapted for and capable of being used as an independent, complete dwelling house. 35. The situation would be different if the building on the secondary lot was a building of an ancillary nature to the main residence, such as a garage, shed, poolhouse, greenhouse or granny flat (as to the treatment of granny flats under the "excluded residential occupancy" provisions, see below). But where the building on the secondary lot is a separate, self-contained house the secondary lot should not be treated as part of the same parcel of residential land as the primary lot. 36. To consider an example of the former situation, if one has to characterize an area of land that is bordered by a single fence and contains a house, a garden, a swimming pool, a poolhouse and a greenhouse all used by the one family which resides in the house, it is natural that the entire area be described as a single parcel of residential land. The effect of Ryan is that (provided the elements as to title are also satisfied) this characterization is not changed merely because the land happens to be divided into separate lots. However, where one considers the area of land that is at issue in the present case – an open area not united by a single fence boundary, featuring two separate, freestanding houses each separately accessed from a common driveway – it is not comparably natural to characterize the entire area as a single parcel of residential land. 40 As I read the Respondents submissions the Respondent contends that a pool house or a greenhouse is one thing whereas a self-contained house is quite another. I do not see why this should be so. In this case the house on the Second Property was adapted in such manner that it was and is ancillary to the use of the house on the Main Property. (It is also conceivable that the house on the Second Property could be ancillary without alteration. Assume by way of hypothesis only that it had not been adapted in any manner at all but that the Applicants' large family (five children) need the house on the Second Property in which to live perhaps because the Applicants needed more space in the house on the Main Property, and more particularly because of Mrs. Kamper's health problems. It does not seem to me that it is likely that the latter alternative would bring about any different result; on this hypothesis the house on the Second Property would nevertheless be ancillary) 41 If anything and under the Act as amended the Ryan tests are easier to apply. The words "a building" have been replaced by "building or buildings". The question in Kinging as to the status of the cabana would not be relevant. Assuming compliance with the Ryan tests, which is the case in this matter, I can see no reason why a seemingly arbitrary limitation or distinction not referred to in the Act should be adopted. If the legislation which is couched in plain and ambiguous language, goes further than was intended or desired, that it is a matter for the legislature to rectify. 42 Mr. Xenos said that a consolidation of the Properties would have cured any possible problem. I am not at all sure that this is so. Leaving aside any other considerations I doubt whether the local authority would permit consolidation. In Coleman subdivision was necessary in order to achieve the passing of plans for a second house, on what was previously the same lot. In any event there was no such consolidation and so that comment as to what might have been is hardly relevant, 43 In McMillan Isaacs J thought it relevant to enquire as to how the land was valued by the Valuer-General. The Respondent referred to McMillan and the fact that the Main Property and the Second Property are separately valued, and in particular to section 26 of the Valuation of Land Act 1916 which reads as follows: "Where several parcels of land adjoin, are owned by the same person, and where no part is leased, they shall be included in one valuation, unless the Valuer-General otherwise directs: Provided that any such parcels of land shall be valued separately if buildings are erected thereon which are obviously adapted to separate occupation." While, in my view this is a relevant factor, it is not decisive and does not detract from the Ryan principles. Ryan, which was decided after McMillan, did not specify this aspect as a further test. 44 In respect of the subsequent relevant years the Applicants are entitled to the PPR exemption for the Second Property and the assessment is to this extent set aside. Part G; post-hearing submissions. 37 As I have indicated the parties were allowed time after the hearing within which to file supplementary submissions; see clause 8 above. 38 It is apparent that this case is likely to be of some importance; accordingly and although to do so may involve some degree of repetition, I include extracts from the supplementary submissions by both parties. 39 Clauses 50 to 56 of the Applicants' supplementary submissions read as follows: 50. The Commissioner and the Tribunal in McGrath say that the second, or more buildings, can be " a garage, or a greenhouse, or a pool house " but not " another independent single dwelling ". 51 The Applicant here poses the rhetorical question: where in Clause 3 and 4 (or clause 12 for that matter) does it say expressly, or by necessary implication, the second or more building, in the composite expression "building or buildings" can be "a garage, or a greenhouse, or a pool house", in fact anything but "another independent single dwelling". 52. Third, the word "ancillary" is not decisive. The Tribunal says the second dwelling could not be "ancillary to the purposes of another independent single dwelling". 53. Again with respect, all that ancillary means is one is supplementary or subservient or providing support to the other. Thus, in Smith v Smith "ancillary relief" was "supplemental, an additional remedy, the making more effective" of existing relief. 54. The applicant would pose a second rhetorical question, why cannot the second building, "another independent single dwelling": be considered to be used and occupied, as ancillary to, integrated, and in effect an extension of, helping and supplemental to the first single dwelling? Why cannot those two combined buildings be the place of residence? 55. Suppose here, the Applicant and his wife had the proverbial cricket team of dependant children and the 6 older children slept in No 3, but the main home for dining and family purposes et al was still No 5. On the Commissioner's analysis, No 3 is an independent single dwelling house and only No 5 qualifies as the principal place of residence for this family. 56. If the Commissioner does wish the exemption to be limited to a parcel of land where the second or more subsequent building, in the composite expression "building or buildings" is not "another independent single dwelling" then the legislature could very easy have said so. If that desired policy position is so, then the observations of Kitto J in Newton v Federal Commissioner of Taxation in the context of section 260 of the Income Tax Assessment Act 1936 are apposite: "Section 260 is a difficult provision, inherited from earlier legislation, and long overdue for reform by someone who will take the trouble to analyse his ideas and define his intentions with precision before putting pen to paper." 40 Clause 9 to 15 of the Respondent's supplementary submissions read as follows: 9. The distinction made in paragraphs 44-47 ASWS between "place of residence" and "residence" is specious. "Place of residence" and "residence" are, for all intents and purposes, synonymous. "Place" has many meanings. It may mean a particular portion of space, a residence, a dwelling, a group of houses, or a country estate with its surroundings: Australian Oxford Dictionary . The multiple meanings that can be given to the word "place" especially in the phrase "place of residence" leads to the conclusion that no utility can be obtained in differentiating between the concept of "place of residence" and "residence". 10. In reply to paragraph 43 ASWS, even though the word "residence" is not defined in the LTMA, Judicial Member Verick did not err in law by considering the ordinary meaning of the word "residence" in paragraph 54 McGrath. Indeed had he not defined what was meant by the word "residence" in McGrath (even though it was not defined in the LTMA) then an error of law may well have been committed. 11. In reply to paragraph 47 ASWS, Ryan does not lay down a universal proposition that in every single circumstance two contiguous lots can always both be the subject of the principal place of residence so long as the Ryan unities are satisfied: Ryan v. Commissioner of Land Tax (1982) 1 NSWLR 305. Indeed, reference is made to paragraph 55 of the Respondent's Written Submissions where Hunt J referred to the relevant provisions concerning the principal place of residence exemption in the LTMA at that time and held that the provisions relate to "what may compendiously be called a man's home or to the land he owns upon which his home is constructed" (emphasis added). Hunt J was referring to "home" in the singular and then the ultimate proposition in Ryan (at 310B) followed. There were no two separate independent dwelling houses on contiguous lots in Ryan. 12. In paragraphs 48-51 ASWS, the Applicant relies heavily on the fact that in Clauses 3 and 4 Schedule 1A LTMA the words "building or buildings" occur. The Respondent submits that the reference to "building or buildings" does not extend to two separate independent dwelling houses by reason of the existence of Clause 12 Schedule 1A (for the 2004 tax year and subsequent tax years) and paragraph 11 LT 20 for the tax years prior to the 2004 tax year. It could not have been intended by the legislature that the words "building or buildings" necessarily extend to any number of single independent dwellings. 13. At paragraph 53 in McGrath, Judicial Member Verick makes the finding that an independent single dwelling can never be used or occupied for a purpose ancillary to the purpose of another independent single dwelling and therefore the ancillary use test provided for in Clause 3(2) Schedule 1 LTMA necessarily fails. Although the word "ancillary" is not necessarily decisive, the presence of this word in Clause 3(2) Schedule 1A LTMA together with the words of Clause 12 Schedule 1A lead to the conclusion that two independent single dwellings could not have been intended by the legislature to both come within the principal place of residence exemption. 14. The answer to the rhetorical question posed in paragraph 54 ASWS is that the second building can be "ancillary" so long as that second building is not an independent dwelling house of its own. 15. The response to the cricket team family example posed by the Applicant in paragraph 55 ASWS is that the legislature never intended the principal place of residence exemption to extend to an unlimited number of single independent dwelling houses so long as such dwelling houses are on contiguous lots and the Ryan unities have been satisfied. This is the necessary effect of the Applicant's Submissions and the decision in Kamper. Once the PPR exemption is extended beyond one single independent dwelling then there is no limit to the number of independent dwellings that can come within the principal place of residence exemption. Part H. Analysis 41 It is relevant that the Respondent noted an appeal in Kamper but then withdrew it. 42 There is no statutory definition of the term "parcel of residential land"; however that particular difficulty is overcome by the tests in Ryan; two lots can constitute a parcel of residential land if they not physically separate and are undivided as to use, occupation, and title. (I do not agree with clause 11 of the Respondent's supplementary submissions; it is my view that Ryan does lay down a rule the effect of which is that the PPR exemption will be available, so long as the Ryan tests are satisfied, regardless of the nature of the relevant buildings.) 43 The Tribunal in McGrath noted that there was no statutory definition of the term "residence", and concluded that it must therefore have its ordinary meaning. The Respondent in his supplementary submissions contended (in clause 9) that "a "place of residence" and a "residence" are, for all intents and purposes synonymous", and then went on to note that the word "place" has many meanings. 44 I disagree with the Respondent's contentions as set out in the preceding clause and in particular I do not accept that a "place of residence" and a "residence" are equivalent. Clause 12 of Schedule 1A does not in its terms refer to a "residence". However wide a meaning the term "place" is capable of bearing, we are here concerned with the words "place of residence" in the context of the relevant legislation. It is in my view that a "place of residence" is not an expression which can be treated as equivalent to the term "residence". If it is true to say that a residence connotes a building, a place of residence connotes the place where the building or buildings (and the legislation comprehends both the singular and the plural) are situated and in other words the land used for this purpose. This construction is in accord with the concept of a parcel of residential land and which is the concept which is of primary importance. It is for this reason in particular that I do not think that clause 12 of Schedule 1A takes the matter any further for the 2004 land tax year and so that the law is (relevantly) the same for all relevant years. The fact that there are two separate self-contained buildings cannot in my view be the basis upon which the exemption is denied for one of them, more particularly having regard to the use of the plural form ("buildings") utilised in a number of places in the legislation. The legislation read in the context of Ryan and McMillan applies not to a residence, but rather to residential land and which is land used for residential purposes. 45 In clause 12 of his supplementary submissions the Respondent contended that the references in the legislation to "building or buildings" does not extend to two separate independent dwelling houses because such an outcome could not have been the legislative intention. That contention as to the legislative intention was not supported by any authority or evidence in the form of a relevant explanatory memorandum or otherwise. 46 The Respondent in his submissions in Kamper contended (and see clauses 34 35 and 36 of his submissions in that case and quoted earlier in this decision) that a "garage, shed, pool house, greenhouse or granny flat" would be acceptable but a self-contained house would not. A distinction is drawn between buildings of different kinds. The fact that some of the exempt buildings would have a roof is apparently and on this line of argument not relevant; this would be so for a garage or a shed or a pool house. A squash court which is a similar amenity would have a roof; so for that matter would a shed or a garage or an enclosed tennis court. It is plain then that a roof is not of itself a fatal feature. 47 The fallacy in the Respondent's argument is that there is no legislative basis upon which it is possible to say that buildings of some kinds are excluded but others are not. It is easy to think of examples which might be in point. Assume that a family decided to use its land (two lots) for residential purposes but instead of constructing one house only, procured the construction of two (or more) cottages or rondavels. Such a choice might be made in the interests of greater privacy especially where members of the family are adults. In Kamper there were two self-contained residences. The health of Mrs. Kamper was one reason why it was convenient to house the children in the second of the two houses. The Tribunal held that the Kampers were entitled to the PPR exemption; that view was implicitly rejected in McGrath. The facts in this case are not in my view relevantly distinguishable from those in Kamper although there is a distinction in relation to McGrath. The learned judicial member, as I have noted, determined that because there was no statutory definition of "residence" it should have its ordinary meaning. It is my view with respect, that it was unnecessary to traverse its ordinary meaning because the legislation is concerned rather with land used for residential purposes. And as I have noted those residential purposes can be encompassed by more buildings than one. The legislation does not (as I have noted) seek to draw a distinction between two different types of building. And clause 12 of schedule 1A refers in its terms (to the 2004 year only) to a place of residence; a place of residence is not (as I have noted) relevantly the same as a residence. (For what it is worth and in relation to the relevant years prior to the 2004 year, clause 11 of Ruling LT 20 also used the term "place of residence.") 48 It is again necessary to consider whether 3 Richmond Ave was used for residential purposes ancillary to the residential purposes for which 5 Richmond Avenue was utilised and in my view that question must be answered, in respect of the relevant years, in favour of the Applicants. 49 It is unnecessary for me to deal with the granny flat provisions contained in schedule 1A, which apply to a specific regime and pursuant to which the use of the granny flat need not be ancillary to the larger house on the land. 50 I again refer to my decision in Kamper and in particular clause 41 (included in clause 36 above). The Act was amended so as to substitute "building or buildings" for "a building". The legislation as amended is couched in plain and unambiguous language, and which must be given an effect which accords with that plain and unambiguous language. In this case, as in Kamper, we have two buildings (houses) one of which is used in a fashion which is ancillary to the use of the other. It is of course true to say that the former house could have been used in a manner which was not ancillary (and in which event one of the Ryan tests would not have been satisfied) but that is not in fact what occurred. The legislation draws no distinction between types of buildings and there is in fact, and in my view, no legislative basis upon which such a distinction should be drawn. The test is rather as to the manner in which buildings (of whatever type) are in fact used. As I noted in Kamper it is conceivable that the amendment in question had an effect which went further than was intended (although there is no evidence to suggest that this is so) but that if this is so it is for the legislature to make the necessary amendments. As the law stands two independent houses are not disqualified so long as they are used in the requisite (per Ryan) ancillary fashion. Part I The 2000 year. 51 The 2000 land tax year is of necessity considered separately because it is common cause was that the Applicants did not comply with section 3(3)(a) of the Act in its then applicable form and must therefore seek the exercise of the discretion contained in section 3(3)(b) of the Act in its then form. 52 Clause 12 of ruling LT 20 provides as follows: 12. The Chief Commissioner has discretion to grant the exemption where one or more of the requirements in section 3(3)(a) are not met. In exercising the discretion, each case will be considered on its merits. Examples where exercise of the discretion may be justified include circumstances in which: (a) the owner did not take up residence until after the preceding 30 June, particularly where the owner purchased the land after 30 June; (b) for part of the period after the preceding 30 June, the residence was rented out, but the arrangement was only temporary, e.g. the owner went on a holiday, or; (c) part of the residence was used for non-residential purposes after the preceding 30 June, but that use was temporary or was of a relatively minor nature. 53 Clause 12 (a) of ruling LT 20 suggests that where property is acquired and used for residential purposes (and more particularly as the principal place of residence of the acquirer) within the statutory period of six months, the fact that the relevant period is less than six months maybe excused. 54 Clauses 12 (b) and (c.) of ruling LT 20 are also relevant in this particular context but not directly in point. Clause 12 (b) applies in its terms where property is leased and clause 12 (c) applies in its terms where a part of the relevant property is used for non-residential purposes. It may be noted that clause 12 (b) was criticised in Chief Commissioner of State Revenue v Aldridge [2003] NSWADTAP 50 because it does not make it clear that it is necessary that the relevant property be owned and used by the taxpayer as that the relevant taxing date (and in this case 31 December 1999); that criticism is not relevant for the purposes of this decision. It is accepted of course that paras (a) (b) and (c) are examples and that there may be other situations in which relief may be granted. 55 The evidence before the Tribunal in this particular context is confused. The affidavit sets out that 3 Richmond Ave was acquired in November 1999 and immediately put to residential use. The content of the affidavit was accepted as truthful having regard to the fact that Mr Kourtesis was not required for cross-examination. However the second affidavit conflicts with the affidavit in an important respect in that it provides, (for the first time), that 3 Richmond Ave was not immediately upon its acquisition used for the residential purposes of the Applicants but was rather, and for a period, (the duration of which is itself unclear) made available to the vendors of 3 Richmond Ave prior to their return to Spain. 56 If 3 Richmond Ave had been acquired and immediately utilised for residential purposes by the Applicants as set out in the affidavit I would have been inclined to the view that the discretion should be exercised in their favour. The significant difference between the affidavit and the second affidavit in this particular respect leaves me in doubt as to the true position. The use of 3 Richmond Ave by the vendors in accordance with the second affidavit was not apparently a part of the contract of sale since if this were so mention would surely have been made of this provision; (the Tribunal was not furnished with the contract of sale); this being so it is entirely unclear as to why these particular provisions of the second affidavit were never mentioned previously. It is to be borne in mind in this context that there was a significant period between the original hearing day and the hearing day and which resulted in the production of the affidavit, and the Applicants' supplementary submissions, neither of which made any mention of the fact that the vendors retained possession and occupation, for a period described in the supplementary submissions as a few weeks but which in accordance with the second affidavit would appear to have been considerably less. 57 It must be said that the conduct of this case on behalf of the Applicants prior to Mr Young being briefed leaves something to be desired. The objection was inaccurate in an important respect. The application for review was filed late and there has not been any proper or acceptable explanation for the delay. The conflict between the affidavit and the second affidavit leaves me in doubt as to precisely when 3 Richmond Ave was used by the Applicants for residential purposes ancillary to those for which 5 Richmond Ave was used. It is my view that a taxpayer who seeks the exercise of discretion of this nature should be able to present a case which is not open to criticism on the basis set out in this part. (There was no evidence before the Tribunal by the vendors; similarly and although there was a confirmatory affidavit by Mrs. Kourtesis of the affidavit there was not in respect of the second affidavit,). 58 Accordingly and in respect of the 2000 year I do not consider that it would be proper to exercise the discretion set out in section 3 (3) (b) of the Act (in its then form) in favour of the Applicants and in respect of the 2000 year, the decision under review must be affirmed. Part J. All other relevant years 59 Although the date on which the use of 3 Richmond Ave in accordance with the affidavit commenced is unclear, it must be accepted that it occurred long before the taxing date for the 2001 land tax year. At the risk of labouring the point, the crucial question in this case is as to whether Kamper was correctly decided. It may be noted, as set out previously, that the Respondent noted an appeal in Kamper but then, for reasons which are not known, withdrew his appeal. The crisp question is as to whether my view as expressed in Kamper was correct or by contrast the view of the judicial member in McGrath as set out in clause 54 (and whether or not that view was obiter) was correct. I consider that the decision in Kamper was correct. 60 I repeat that it is my view that the wording of the legislation (and particularly its use of the plural form in relation to "buildings" compels this view. In Kamper, (and as I have said), I noted that legislative amendments might have gone further than was intended or might perhaps have resulted in unforseen consequences. But if this is so, and it is by no means clear that it is, this is a matter for correction by the legislature. 61 It follows that I have come to the same conclusion in this case as I did in Kamper. As I have noted McGrath is distinguishable on its facts but whether or not obiter I do not agree that clauses 54 and 55 of the decision in McGrath correctly state the applicable law. I should note that although I have expressed reservations as to some aspects of the decision in McGrath, I do not suggest that on its facts it was incorrectly decided. 62 Accordingly the objection under review must be set aside, in respect of all relevant years other than the 2000 land tax year, and must be affirmed for the 2000 year. 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