De Marco v Chief Commissioner of State Revenue [2013] NSWCA 86

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: De Marco v Chief Commissioner of State Revenue [2013] NSWCA 86 Hearing dates: 31 January 2013 Decision date: 18 April 2013 Before: McColl JA at [1]; Basten JA at [67]; Gzell J at [84] Decision: (1) Appeal allowed. (2) Orders 3 and 4 of the Administrative Decisions Tribunal Appeal Panel made on 15 April 2011 set aside. (3) Decision of the Chief Commissioner of State Revenue of 12 November 2008 set aside. (4) Case remitted to the Revenue Division of the Administrative Decisions Tribunal for determination of the question whether the Appellants' use and occupation of the land for the land tax years 2004 to 2008 satisfied the definition of residential land in clause 3 of Schedule 1A to the Land Tax Management Act 1956. (5) Direct that the parties, if they wish, may adduce further evidence subject to due objection. (6) Respondent to pay the Appellants' costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TAXATION AND REVENUE - land tax - Land Tax Management Act 1956 (NSW), cl 8(1)(a) of Schedule 1A - exemption from land tax where person owns land "used and occupied by the person as his or her principal place of residence" - whether use and occupation must be lawful - where appellants resided on land in a mobile home or caravan - where council approval required - where council approval not obtained