Evatt v Chief Commissioner of Land Tax [1999] NSWSC 1317

New South Wales Supreme Court CITATION : Evatt v Chief Commissioner of Land Tax [1999] NSWSC 1317 CURRENT JURISDICTION : Administrative Law Division FILE NUMBER(S) : 30069/98 HEARING DATE(S) : 7/6/99, 2/7/99 JUDGMENT DATE : 9 February 2000

PARTIES : Victor Evatt (Plaintiff) Chief Commissioner of Land Tax (Defendant) JUDGMENT OF : Dunford J

COUNSEL : C Robinson (Plaintiff) HR Sorensen (Defendant) SOLICITORS : Ward Maxwell & Co (Plaintiff) IV Knight, Crown Solicitor (Defendant) CATCHWORDS : TAXES AND DUTIES - land tax - exemption - whether land used "solely" as a "site" for a "public garden" - used also for other purposes - WORDS & PHRASES - public garden - public reserve - site. Land Tax Management Act 1956, ss 9, 10; ACTS CITED : Taxation Administration Act 1996; Evidence Act 1995, s 54. JAW & S Property Management Nominees Pty Ltd v Commissioner of Stamp Duties [1989] 1 Qd R 530; Council of the Municipality of Randwick v Rutledge & Ors (1959) 102 CLR 54; McMillan v Commissioner of Land Tax [1972] 1 NSWLR 545; CASES CITED : Commissioner of Land Tax v Christie [1973] 2 NSWLR 526; Stephen v Federal Commissioner for Land Tax (1930) 45 CLR 122; Federal Commissioner of Taxation v Royal Sydney Golf Club (1943) 67 CLR 599; Penrith Rugby League Club Ltd v Commissioner of Land Tax (1983) 2 NSWLR 616; St George Leagues Club Ltd v Commissioner for Land Tax (1983) 83 ATC 4736 . DECISION : Summons dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION DUNFORD J 9 FEBRUARY, 2000 30069/98 - Victor EVATT -v- Chief Commissioner of Land Tax HEADNOTE The plaintiff sought an exemption from land tax under the provisions of s 10(1)(g)(vi) of the Land Tax Management Act 1956 ("the Act"). The section provides that certain lands shall be exempted from taxation under the Act, including: "(g) land owned by or in trust for any person or society and used or occupied by that person or society solely as a site for . . . (vi) a public garden, public recreation ground or public reserve." The plaintiff was the registered proprietor of the land described in three Certificates of Title consisting of eleven lots. There was a single fence around the perimeter of the entire eleven contiguous lots, which included a large house part of which was used as a private residence, whilst the balance and adjoining building were used to house a toy and railway museum, and there were extensive gardens on parts of the remaining land. A common admission fee was charged to gain entry to the house, gardens and museum, which were open to the public between 10 am and 5 pm daily. The plaintiff received no financial profit from this revenue which was spent on maintenance of the gardens. Held: (i) Parts of the property satisfied the requirements of a "public garden": Council of the Municipality of Randwick v Rutledge & Ors (1959) 102 CLR 54 considered and followed. (ii) To come within the exemption, the land must have been used or occupied "solely" as a "site" for the specified purpose: McMillan v Commissioner of Land Tax [1972] 1 NSWLR 545 referred to. (iii) The concept of "site" is not the same as ownership, title deed, lot or enclosed area, but depends on there being a unity in the land, both in its topography and in its use and occupation: Commissioner of Land Tax v Christie [1973] 2 NSWLR 526 applied. (iv) Because a common admission fee was charged to the public for access to the whole of the property, no part of it could be said to have an independent or separate use, and therefore, the plaintiff's land constituted a single site which was not used or occupied solely for the relevant purpose (i.e. a public garden), and therefore such land was not exempt from tax under the Act: Commissioner of Land Tax v Christie [1973] 2 NSWLR 526 applied. Stephen v Federal Commissioner for Land Tax (1930) 45 CLR 122; Federal Commissioner of Taxation v Royal Sydney Golf Club (1943) 67 CLR 599; St George Leagues Club Ltd v Commissioner for Land Tax (1983) 83 ATC 4736 considered. THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION DUNFORD J 9 FEBRUARY, 2000 30069/98 - Victor EVATT -v- Chief Commissioner of Land Tax JUDGMENT 1 HIS HONOUR: By his Summons, as amended during the hearing on 7 June 1999, the plaintiff claims the following: "1. An order setting aside the assessments for the Land Tax Years 1991 to 1995 issued by and on behalf of the Commissioner of Land Tax in respect of the Plaintiff's property "Leurella" at 41 Balmoral Road Leura.