Bristrol Custodians Ltd v Chief Commissioner of State Revenue (No 2) [2013] NSWADT 128

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Bristrol Custodians Ltd v Chief Commissioner of State Revenue (No 2) [2013] NSWADT 128 Hearing dates: 30 May 2013 Decision date: 06 June 2013 Jurisdiction: Revenue Division Before: Professor G.D. Walker, Judicial Member Decision: Dismissal application adjourned to 22 July 2013. Catchwords: Dismissal application - want of prosecution - frivolous or vexatious Legislation Cited: Administrative Decisions Tribunal Act 1997 Duties Cases Cited: Beard v Telstra Corporation Ltd (1999) 57 ALD 376; Re Christ Circle Oriona Community and DCT (1995) 31 ATR 1001; EP v Commissioner for Children and Young People [2003] NSWADT 227; General Steel Industries Inc. v Commissioner of Railways (NSW) (1964) 112 CLR 125; Guse v Comcare (1997) 49 ALD 288; State Electricity Commission of Victoria v Rabel [1998] 1 VR 102; Re Williams and Australian Electoral Commission (1995) 38 ALD 366. Category: Interlocutory applications Parties: Bristrol Custodians Ltd (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel B Nolan (Applicant) A Rider (Respondent) Coopers Corporate Lawyers Pty Ltd (Applicant) State Crown Solicitor (Respondent) File Number(s): 116094

reasons for decision

Background 1The present matter concerns an application by the respondent for dismissal of substantive application 116094 under s 73(5)(g)(ii) and (iv) of the Administrative Decisions Tribunal Act 1997 (ADT Act) on the ground that the matter is frivolous or vexatious or otherwise misconceived or lacking in substance, or that there has been a want of prosecution of the proceedings. 2The dismissal application was initiated at a prior hearing on 19 April 2013 at which I adjourned it to 22 June 2013, with liberty reserved to both parties to restore the matter to the list. A timetable was also established, which directed the applicant to file submissions and evidence in the substantive matter by 20 May 2013. 3The applicant failed to comply with that direction and the respondent had the dismissal application relisted for 30 May. At the start of the hearing the respondent's counsel said that no documents had been filed and that the respondent had heard nothing from the applicant. Consequently he pressed the dismissal application, relying on his written submissions of 28 March 2013 and on the affidavit of Paul Rankins (exhibit R1). 4At 10:10 a.m. the applicant's counsel arrived with documentary evidence and written submissions in the substantive matter, which were duly filed. 5The prior procedural history of the substantive application is set out in exhibit R1 and in the respondent's written submissions. The application arises from the Chief Commissioner's reassessment to stamp duty of transfers of land at Yennora and Bankstown, New South Wales. Bristrol , pursuant to s 96 of the Taxation Administration Act 1996 (TA Act) applied to the tribunal for a review of the decision to reassess. Originally, when the land was transferred, the Chief Commissioner accepted that the transfer was dutiable at the nominal rate as a transfer from an outgoing trustee to a new trustee, under s 54 of the Duties Act 1997. Subsequently, the new trustee went into liquidation and the liquidator passed on to the Chief Commissioner certain information which led him to reassess the transaction. The Chief Commissioner issued a reassessment on 23 March 2011 requiring payment of duty at ad valorem rates and imposing penalty and interest. Bristrol objected and the Chief Commissioner disallowed the objection by a notice issued on 21 November 2011. 6The transaction concerned a trust known as the LSW Group Property Trust which was established by a trust deed settled on 30 October 2000. The original trustee was LSW Group Pty Ltd. Following certain counterchangings and commutations of legal entities, trusts and powers, there emerged a separate trust, the LSW Group Property Trust as the product of what the applicant called splitting, mirroring or "cloning" of the original LSW Property Trust. The existing trust fund was split to create the LSW Group Property Trust as a splinter from the LSW Property Trust. The applicant maintains that it did not extinguish the original trust or bring about a resettlement. 7On the retirement of the former trustee LSW Group Pty Ltd from the splinter trust, a new trustee, Bristrol, was appointed to the splinter trust, with LSW Group Pty Ltd remaining as trustee for the remainder of the LSW Property Trust. LSW Group Pty Ltd held the remaining trust property, namely the books and records of the trust and the interest in the original trust fund. The applicant's position is that the transfer of the split trust property to the new trustee was the transfer of property from one part of a pre-existing trust to another part of the same trust, such that s 54(3) of the Duties Act would apply so as to make the transfer liable only to nominal duty.