Lo v Chief Commissioner of State Revenue [2013] NSWCA 180

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 Hearing dates: 18 April 2013 Decision date: 18 June 2013 Before: Beazley P at [1] Basten JA at [6] Macfarlan JA at [24] Decision: Appeal dismissed with costs. [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: TAXES AND DUTIES - land tax - exemptions - principal place of residence - s 10(1)(r) Land Tax Management Act 1956 - decision of Commissioner not to grant exemption reviewed by Administrative Decisions Tribunal - whether ADT treated limited physical presence at the property as determinative factor - whether ADT failed to take into account relevant considerations

APPEAL AND ADMINISTRATIVE LAW - appeal on a question of law from Administrative Decisions Tribunal - whether ADT failed to take into account relevant considerations - whether statute mandated that they be taken into account - analogy to approach in judicial review proceedings - consideration of concept of "taking into account" relevant factors - consideration of Minister for Immigration and Citizenship v Li [2013] HCA 18 Legislation Cited: Administrative Decisions Tribunal Act 1997 Land Tax Management Act 1956 Cases Cited: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSWLR 481 Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41 Chief Commissioner of Tax Revenue v Mesiti [2003] NSWADTAP 57 Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; 87 ALRJ 618 Minister for Immigration and Citizenship v Xiujuan Li [2012] FCAFC 74; 202 FCR 387 Osland v Secretary Department of Justice (No 2) [2010] HCA 24; 241 CLR 320 Project Blue Sky v Australian Broadcasting Authority [1988] HCA 28; 194 CLR 355 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 Category: Principal judgment Parties: Patrick Pak Kit Lo (Appellant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: I Mescher (Appellant) R Hamilton SC/A Gerard (Respondent) Solicitors: Peter M Lau & Co Solicitors Crown Solicitor's Office File Number(s): CA 2012/16264 Decision under appeal Date of Decision: 2012-03-19 00:00:00 Before: M Chesterman, Deputy President; S Frost, Judicial Member; J Schwager, Non-Judicial Member File Number(s): 119049