L & T (Sales) Pty Ltd v Chief Commissioner of State Revenue [2007] NSWSC 1061

New South Wales Supreme Court

CITATION : L & T (Sales) Pty Ltd v Chief Commissioner of State Revenue [2007] NSWSC 1061

HEARING DATE(S) : 12/09/07

JUDGMENT DATE : 25 September 2007

JUDGMENT OF : Gzell J

DECISION : Summons dismissed with costs.

CATCHWORDS : TAXES AND DUTIES - Land Tax - The Land Tax Management Act 1956, s 21C(2) provides that a lessee of land owned by a local council is deemed to be the owner of the land and the local council is not considered the owner - Section 21C(1) provides that a local council is not liable for land tax - Plaintiff assessed to land tax - Council executed an instrument in the approved form of lease for 99 years under the Real Property Act 1900, s 53(1) and the lease was registered - Under a schedule to the instrument the plaintiff was required to construct a commercial development - Clause 3.1(1) provided that upon the expiration of a notice period in cl 3.1(2) the Lessor should give and the Lessee should take vacant possession - Clause 3.1(2) provided that the Lessee should grant the Lessor care, control and mangement of the land until it provided one month's notice that it required vacant possession to commence construction - Whether a lease and licence back or merely an agreement for a lease - Whether plaintiff fell within the definition of "owner" in the Land Tax Management Act 1956, s 3(1) - Whether plaintiff was granted the right of exclusive possession - Whether the Real Property Act 1900 applied to render the instrument a lease upon registration

Land Tax Management Act 1956 LEGISLATION CITED : Real Property Act 1900 Industrial Arbitration Act 1940 Conveyancing Act 1919

Radaich v Smith (1959) 101 CLR 209 Street v Mountford [1985] 1 AC 809 Wik Peoples v Queensland (1996) 187 CLR 1 Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490 Chief Commissioner of Land Tax v Macary (1999) 48 NSWLR 299 BBLT Pty Ltd v Chief Commissioner of the Office for State Revenue [2003] NSWSC 1003 CASES CITED : Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1972-1973) 128 CLR 199 Spiteri Nominees Pty Ltd v The Chief Commissioner for Franchise Licences (Tobacco), NSWSC, unreported, 25 August 1988, Hunt J Zisti & anor v Ryde Joinery Pty Ltd, NSWSC, unreported, 2 May 1996 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Kogarah Municipal Council v Golden Paradise Corporation [2005] NSWCA 230 PT Ltd v Maradona Pty Ltd (1991) 25 NSWLR 643