Perizon Nominees Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 84

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Perizon Nominees Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 84 Hearing dates: 28 April 2016, then on the papers. Date of orders: 05 May 2016 Decision date: 05 May 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Professor G Walker, Senior Member Decision: Decision under review affirmed. Catchwords: Duties – dutiable transaction – concession for non-conforming transfer – whether power to proceed ex parte in absence of applicant. Legislation Cited: Civil and Administrative Tribunal Act 2013; Duties Act 1997; Taxation Administration Act 1996; Victorian Civil and Administrative Tribunal Act 1998 (Vic). Cases Cited: Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184; Cerebos Pty Ltd v City of Port Phillip [1998] VCAT 143; Zhuang v Chief Commissioner of State Revenue [2013] NSWADT 103. Texts Cited: Pizer's Annotated VCAT Act, 4th edn. 2012. Category: Principal judgment Parties: Perizon Nominees Pty Ltd (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: Mr R Clark (Respondent)

Solicitors: A Perry (for the Applicant by leave) Crown Solicitor's Officer (Respondent) File Number(s): 1510508

reasons for decision 1. The applicant Perizon Nominees Pty Ltd applied to this tribunal on 27 August 2015 for review of a decision of the respondent dated 13 May 2015 under s 96 of the Taxation Administration Act 1996 [TA Act]. That was an objection decision, not a notice of assessment, which raises a preliminary issue as to whether the application relates to the correct decision, a point that will be further discussed below. The actual assessment was dated 27 June 2013, for duty and interest in the amount of $121,102.23 in relation to the undated transfer of folio 1/2/6601, the property known as the Vaucluse property, New South Wales, from Simon Horauf and Lisa Rebecca Dabscheck to the applicant. 2. Initially, 26 April 2012 a contract for sale of the land named Angela Perry as purchaser and Alexander Perry as guarantor, with a completion date of 8 August 2012. The purchase price was $2,310,000 and duty of $112,540 was assessed on 24 July 2012 and duly paid. 3. Subsequently, on 6 July 2012 the purchaser's solicitors wrote to the vendors' solicitors asking that the purchase name be changed to Perizon Nominees Pty Ltd. The change was agreed to on the basis that the applicant would lodge a non-conforming transfer in accordance with s 18 of the Duties Act 1997 in order to obtain an exemption from additional stamp duty. The transfer was stamped with nominal duty of $10, purportedly pursuant to s 18(3), and registered on 5 September 2012. Following a review of the transfer, the notice of assessment was issued in relation to the transfer on the basis that the exemption in s 18(3) did not apply. 4. At a directions hearing held on 9 February 2016, Mr Alexander Perry appeared for the applicant, having obtained leave to do so. Wass PM set the matter down for hearing on 28 April 2016 that 2 pm. At the time fixed, there was no appearance for the applicant and Mr Perry was not answering his telephone. The hearing was adjourned for twenty minutes in order to give him time to appear in case he had been delayed, but there was still no appearance. In that situation one possible course of action would have been to dismiss the proceedings under s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (CAT Ac) for failure to appear, but the respondent preferred to have the matter dealt with on the merits. I decided that as a matter of procedural fairness it might be imprudent to proceed ex parte, as the respondent would have the opportunity of presenting oral submissions but the applicant would not, albeit that Mr Perry was clearly aware of the time and date of the hearing and had failed to appear. I therefore decided to proceed to determine the matter on the papers and adjourned the hearing sine die accordingly. On that basis the respondent indicated that he was withdrawing his application for costs.