Chief Commissioner of State Revenue v Citivale [2000] NSWCA 111

Reported Decision : (2000) 107 lgera 338 2000 ATC 4327

New South Wales Court of Appeal

CITATION : Chief Commissioner of State Revenue v Citivale [2000] NSWCA 111 FILE NUMBER(S) : CA 40774/98 HEARING DATE(S) : 20 April 2000 JUDGMENT DATE : 4 May 2000

Chief Commissioner of State Revenue PARTIES : v Citivale Pty Limited JUDGMENT OF : Handley JA at 1; Sheller JA at 16; Davies AJA at 20

LOWER COURT JURISDICTION : Administrative Law Division LOWER COURT ALD 30018/97 FILE NUMBER(S) : LOWER COURT Hodgson CJinEq JUDICIAL OFFICER :

COUNSEL : H R Sorensen (Appellant) B J Sullivan SC (Respondent) SOLICITORS : I V Knight Crown Solicitor's Office (Appellant) Gadens Ridgeway (Respondent) CATCHWORDS : LAND TAX - exemption - construction - whether exemption in earlier Act applied - Local Government Act 1919 (NSW), s 651(1) - Land Tax Management Act 1956, ss 7(1), 9(1), 10(1)(a), 21C(1) Local Government Act 1919 (NSW) Land Tax Assessment Act 1910 (Cth) Land Tax Management Act 1956 (NSW) LEGISLATION CITED : Licensing Act 1958 (Vic) Justices Act 1958 (Vic) Local Government Act 1993 (NSW) Stamp Duties Act 1920 (NSW) CASES CITED: Rose v Hvric (1963) 108 CLR 353 DECISION : Appeal allowed with costs - orders made

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40774/98 ALD 30018/97 HANDLEY JA SHELLER JA DAVIES AJA

4 May 2000 CHIEF COMMISSIONER OF STATE REVENUE v CITIVALE PTY LIMITED LAND TAX - exemption - construction - whether exemption in earlier Act applied - Local Government Act 1919 (NSW), s 651(1) - Land Tax Management Act 1956, ss 7(1), 9(1), 10(1)(a), 21C(1) The respondent was assessed for land tax for the tax years 1990 to 1993 inclusive in respect of properties it had acquired from Woollahra Council. The subject land had been used as a Council car park and continued to be used for that purpose until April 1993. The company claimed exemption under s 651(1) of the Local Government Act 1919 which operated "Unless the contrary is expressly provided by any Act passed after the commencement of this Act". The Commissioner ruled that the land was not exempted by this provision and issued amended assessments. The company objected to these assessments but its objections were disallowed. It successfully appealed to the Supreme Court, obtaining a declaration that it was not liable for land tax in the relevant years. The Commissioner appealed arguing that the Land Tax Management Act 1956 contained its own code of exemptions which exclude the operation of s 651(1). HELD, Allowing the appeal: (1) Section 651(1) of the 1919 Act cannot detract from the operation of a later enactment evidencing a contrary intention. Rose v Hvric (1963) 108 CLR 353 applied. (2) The proper approach is to examine the scheme of the Act which is later in time and consider whether it is inconsistent with the earlier. Sections 7(1) and 9(1) of the 1956 Act impose tax on all land in the State "which is not exempt from taxation under this Act". These express provisions exclude exemptions from taxation under some other Act such as the 1919 Act. (3) The only relevant exemptions in the 1956 Act are those contained in s 10(1)(a) for the 1990 and 1991 years, and in s 21C(1) for the 1992 and 1993 years. The subject land was not within these exemptions because it was owned by the company at the material times and the exemptions only apply to land owned by the Council. The appeal therefore should be allowed. ORDERS