Metricon Qld Pty Limited v Chief Commissioner of State Revenue (No. 2) [2016] NSWSC 332

Supreme Court New South Wales

Medium Neutral Citation: Metricon Qld Pty Limited v Chief Commissioner of State Revenue (No. 2) [2016] NSWSC 332 Hearing dates: 6, 7, 8, 11, 12 and 13 May 2015 Decision date: 31 March 2016 Jurisdiction: Equity - Revenue List Before: White J Decision: Direct counsel for the plaintiff to bring in short minutes of order in accordance with these reasons. Catchwords: TAXES AND DUTIES — land tax — section 10AA(3) of the Land Tax Management Act 1956 — whether the primary production use of the lands is the dominant use of the lands — whether comparison required by s 10AA(3) of a primary production use with other uses is confined to a comparison with other physical uses of the land — held that it is not - section 10AA(3) requires a comparison of the current uses of the land — whether the mere holding of land by a property developer for future residential development and claiming tax deductions for borrowing costs and loss of value is a current use of land — held that it is not – held that to the extent that land is physically used for the carrying out of preliminary activities necessary to obtain approval for the use of land for a particular purpose the land is currently being used for a purpose other than primary production — concession that such physical use does not prevent primary production use from being dominant – whether such preliminary activities mean that use for residential development had commenced – held that it did not - using land for a rental use in respect of the agistment of cattle on the lands is a current use of land — using land for a rental and residential use of the dwellings on the land is a current use of land – held primary production use dominant except for one parcel in one land tax year Legislation Cited: Aboriginal Land Rights Act 1983 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Heritage Act 1977 (NSW) Income Tax Assessment Act 1997 (Cth) Land Acquisition (Just Terms Compensation) Act 1991(NSW) Land Tax Management Act 1956 (NSW) Local Government Act 1919 (NSW) Taxation Administration Act 1996 (NSW) Cases Cited: Assessor of Area # 10-Burnaby/New Westminster v Intracorp Developments Ltd (Assessor of Area # 10) [2000] BCCA 121 Blacktown City Council v Fitzpatrick Investments Pty Ltd [2001] NSWCA 259 Bosa Development Corp v British Columbia (Assessor of Area #12 Coquitlam) (1996) 30 BCLR (3d) 263 Carter v Bradbeer [1975] 3 All ER 158 Commissioner of Income Tax v Hanover Agencies Limited [1967] 1 AC 681 Commissioner of Land Tax (NSW) v Joyce (1974) 132 CLR 22 Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1 at 4; [1959] AC 248 Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 Council of the Town of Gladstone v Gladstone Harbour Board [1964] Qd R 505 Ferella v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 45 Ferella v Chief Commissioner of State Revenue [2013] NSWADT 46 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 Fitzpatrick Investments Pty Ltd v Blacktown City Council (No. 2) [2000] NSWLEC 139; (2000) 108 LGERA 417 Goldsworthy Mining Limited v Commissioner of Taxation (1975) 132 CLR 463 Greenville Pty Ltd v Commissioner for Land Tax (1977) 7 ATR 278 Hope v Bathurst City Council (1980) 144 CLR 1 Kirela Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 (No. 2) [2004] NSWLEC 68; (2004) 132 LGERA 90 Kirela Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 [2005] NSWCA 108; 141 LGERA 40 Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2010] NSWSC 867; (2010) 79 NSWLR 724 Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2011] NSWCA 366; (2011) 85 ATR 775 Longford Investments Pty Ltd v Commissioner of Land Tax (1978) 8 ATR 656 Longreach Capital Pty Ltd v Valuer-General [2007] NSWLEC 721 Macquarie University v Ryde Municipal Council [1977] 1 NSWLR 304 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 Needham v Commissioner of Land Tax [1999] 2 Qd R 611 Re Ashleigh Developments Pty Ltd v Chief Commissioner of State Revenue [2012] NSWADTAP 25; (2012) 88 ATR 200 Re Ashleigh Developments Pty Ltd v Chief Commissioner of State Revenue (2011) 86 ATR 449 Re Molopo Energy v Keybridge Capital Limited [2014] NSWSC 1864 Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 Sandhurst Holdings (Australia) Ltd v Commissioner of State Revenue [2009] VSCA 167; (2009) 25 VR 59 Saville v Commissioner of Land Tax (1980) 12 ATR 7 Shell-Mex and BP Limited v Clayton (Valuation Officer) [1956] 3 All ER 185 Shell-Mex and BP Limited v Clayton [1955] 3 All ER 102 Stephen v Federal Commissioner of Land Tax (1930) 45 CLR 122 Taylor v Owners, Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531 The Council of the City of Parramatta v Brickworks Limited (1972) 128 CLR 1 Thomason v Chief Executive, Department of Lands (1995) 15 QLCR 286 Tourapark Pty Ltd v Federal Commissioner of Taxation (1982) 149 CLR 176 Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 Wentworth Securities Limited v Jones [1980] AC 74 Whitfords Beach Pty Ltd v Federal Commissioner of Taxation (1983) 67 FLR 151 Category: Principal judgment Parties: Metricon Qld Pty Ltd (Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: M Robertson QC with Ms E Bishop (Plaintiff) C Leggat SC with I Young (Defendant)