Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cessnock Tyres Pty Ltd v Chief Commissioner of State Revenue [2018] NSWCATAP 147 Hearing dates: 4 May 2018 Date of orders: 08 June 2018 Decision date: 08 June 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member J Currie, Senior Member Decision: 1. Leave to appeal is refused and the appeal is otherwise dismissed. 2. If any party seeks a costs order, such application (including submissions and evidence) must be made within 7 days from the date of these orders. The respondent to the costs application is to file and serve submissions and evidence in reply within 14 days from the date of these orders. The applicant for cost may file and serve submissions in response 7 days thereafter. Submissions must include submissions about whether an order should be made dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013. Catchwords: PAYROLL TAX- s 79 Payroll Tax Act, 2007- order for de-grouping- independence. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Payroll Tax Act 2007 (NSW) Taxation Administration Act 1996 (NSW) Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181 Collins v Urban [2014] NSWCATAP 17 Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Texts Cited: Maxwell J: "The Statutory Implication of Reasonableness and the Scope of Wednesbury Unreasonableness, ANU Public Law Weekend", Canberra, 28 October 2016 Category: Principal judgment Parties: Appellant: Cessnock Tyres Pty Ltd Respondent: Chief Commissioner of State Revenue Representation: Appellant: M Pesman SC (Counsel) Respondent: A Rider (Counsel) Solicitors: Appellant: Beazley Boorman Lawyers Respondent: Lea Armstrong File Number(s): AP 18/00216 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Administrative and Equal Opportunity Division Citation: [2017] NSWCATAD 368 Date of Decision: 15 December 2017 Before: R Hamilton SC, Senior Member File Number(s): 20016 00378456 reasons for decision Introduction 1. On 15 December 2017 the Tribunal confirmed a decision of the respondent to refuse an application made by the appellant pursuant to s 79 of the Payroll Tax Act 2007 (NSW) (PT Act) that it be de-grouped from a group of companies known as O'Neills Tyres (Group). 2. The appellant's application concerned de-grouping was for the period from 1 July 2013. The appellant had applied to the Tribunal for review of the respondent's decision pursuant to s 96 of the Taxation Administration Act 1996 (NSW) (TA Act). 3. In addition to the appellant, the members of the Group are Cessnock Truck Tyre Centre Pty Ltd (CTTC), O'Neill Tyres Gateshead Pty Ltd (Gateshead) and Bayrond Pty Ltd (Bayrond). The appellant had initially said that it should not have been grouped with these companies or, alternatively should have been excluded as a member of the group. 4. The history of the businesses to which this dispute relates is set out in the Tribunal's decision. In short, the Group was founded by Mr O'Neill (senior) in the 1950s. The businesses are located in the Hunter Valley and have expanded to various outlets in both Newcastle and the Hunter Valley. In time, the businesses constituting the group were taken over by the sons of Mr O'Neill senior, Mark, Bernard and Stephen. For convenience, we will refer to the sons by their first names. 5. Mark and his wife Elizabeth are the directors of the appellant who carries on the business as trustee for the Mark O'Neill Family Trust (Trust). 6. CTTC is the trustee of Bernard's family trust. Its directors are Mark and Bernard. The shareholders are Mark and the appellant as trustee for the Trust. 7. CTTC sold its business to Gateshead. The directors of Gateshead are Bernard and Mr Leggett and the shareholders are CTTC and Mr Leggett. 8. The directors and shareholders of Bayrond are Mark and Stephen. Notice of Appeal and submissions 1. The appellant filed a notice of appeal dated 2 January 2018. The appeal was filed in time. The appellant raised 5 grounds of appeal. However, at the hearing of the appeal the appellant sought and was granted leave to amend the notice of grounds of appeal in terms of a document which became MFI 1 in the appeal proceedings. The grounds were as follows: 1. The Tribunal erred in concluding (at [57]) that a "holding out" or public perception was a relevant consideration in determining whether the O'Neills companies were relevantly connected. 2. The Tribunal erred in concluding (at [59]) that the "intragroup" loans were a "substantial connecting factor" leading to "financial interdependence" (at [66]) in circumstances where that finding was directly contrary to the uncontested evidence. 3. The Tribunal erred in concluding (at [64]) that Mark O'Neill's "ability to exert control" was a relevant factor in circumstances where the Tribunal also concluded "as a practical matter he did not exercise it". 4. The Tribunal erred in its conclusion not too de-grouped the appellant. 1. The appellant contended that each of these grounds reflected an error of law, being the taking into account of irrelevant considerations (grounds 1 and 3) and the "no evidence" ground (ground 2). If any of these were not errors of law, the appellant sought leave to appeal pursuant to section 80(2)(b) 2. The appellant filed written submissions in accordance with directions made by the Appeal Panel. In addition, Mr Pesman SC appeared for the appellant at the hearing of the appeal and made oral submissions. 3. At the hearing of the appeal, Counsel for the appellant confirmed the following: 1. the only challenge on appeal related to the Tribunal failing to make a decision to de-group the appellant by exercising a discretion under s 79 of the PT Act; 2. in respect of that decision, the appellant contended that the Tribunal had fallen into legal error and that it had a right to appeal on a question of law; 3. alternatively, the appellant sought leave to appeal. In this regard the appellant accepted that the relevant principles for the grant of leave were set out at [78] of the respondent's submissions dated 19 April 2018 filed in this appeal; 4. there was no challenge to the principles set out in the decision of Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 (Lombard Farms) 5. in relation to the grounds of appeal the appellant said: 1. regarding ground 1, the appellant conceded that "holding out" was a relevant consideration but said "public perception" was not. 2. regarding ground 3, the appellant accepted that the theoretical ability to exert control was a relevant consideration but that the Tribunal's determination on this aspect failed to have regard to the evidence that Mark did not in fact exercise a power which he had. 1. The appellant's primary contention was that the Tribunal should have been satisfied that the business of the appellant was not substantially connected to the businesses of the other entities in the Group. 2. The appellant focused upon the Tribunal's reasons at [63]-[66] and the two factors which were identified in the Tribunal's reasons as underlying its decision that de-grouping was not appropriate. These factors were Mark's legal position, which gave him the ability to exert control over the businesses of other groups in the entities (at [64]) and the intragroup loans, their size and terms. 3. The appellant submitted that if the Tribunal was in error in respect of one or other of these factors, then its decision was vitiated. 4. In relation to the loans, the appellant said they were not significant and that they were unrelated to the business operations of the various companies. Counsel referred to the table of loans in the respondents submissions at [89] and to the financial accounts of the Trust found that the Appeal Book 328 (AB) and following. By way of example, the appellant explained that the unsecured loan recorded in note 9 of the accounts (AB 339) entitled "O'Neills Tyres Gateshead" in the amount of $92,647 was a loan provided by Gateshead to the appellant which the appellant used to purchase land on which the business of Gateshead is now conducted. Of this loan, the appellants said that the funds were borrowed for the purpose of purchasing land, and were not monies borrowed in the context of the appellant operating its tyre business. 5. The appellant said that there was unchallenged evidence that there was no funding from one entity to the other in respect of business operations. The appellant also referred to the profit and loss statement (AB 333) and the trading statement (AB 334) and said that the loans in question were not significant having regard to the fact that the appellant had gross income of approximately $2.4 million and annual profit before tax of between $176,000 and $223,000. 6. Having referred to the decision in Lombard Farms, the appellant said that the Tribunal was in error in failing to consider the effect and purpose of the intragroup loans which the appellant described as a "quasi-mandatory considerations". 7. The appellant submitted that there were three independent businesses, whose existence was not dependent one upon the other. 8. Secondly, the appellant said that the Tribunal was in error in its consideration of the theoretical possibility of control by Mark. While the appellant accepted this was a relevant consideration (see Lombard Farms at [64]), the appellant said the Tribunal found Mark did not in fact exercise that control. Consequently, the Tribunal's conclusion about the lack of independent was wrong in fact. 9. In making these submissions, the appellant referred to various aspects of the evidence of Mr Davidson, the accountant for the appellant and for other members in the Group. His evidence included evidence as to the purpose for which the intercompany loans were made: tcpt p 28 (14). 10. The appellant identified various findings of the Tribunal at [17], [32] and [33] and said that these matters establish the fact of independence. The appellant noted the Tribunal recorded at [7] that there had been family disagreements and that "Mark in particular has actively sought to "go his own way'". In addition, the appellant contended that the Tribunal's findings concerning the website were wrong and that there was no basis for its conclusion that the business of the appellant was not substantially independent from that of others in the group. 11. Consequently, in the appellant's submission, the discretion of the Tribunal had miscarried. 12. In reply, the respondent provided written submissions and Mr Rider of Counsel provided oral submissions at the hearing of the appeal. 13. Having provided a history of the proceedings, various table setting out the shareholdings, directorships, intercompany loans and guarantors, the respondent made reference to the requirements of s 79 and also relied on the decision in Lombard Farms. At [18] of the written submissions, the respondent set out the factors which the Tribunal considered relevant and took account of and the weight which the Tribunal ascribed to each of those factors. 14. In oral submissions, the respondent referred to the three criteria specified in s 79 of the PT Act to which the Tribunal was required to have regard, namely the nature and degree of ownership and control, the nature of the business and any other matter which the Tribunal considered relevant. 15. The respondent said that the appellant's submissions inappropriately suggested that the Tribunal's reasons at [66] exclusively formed the factual basis for the ultimate conclusion of the Tribunal that the appellant was not independent. 16. The respondent did not accept the appellant's submission that "public perception" was not a relevant consideration in determining independence. In this regard, reference was made to advertising, including through websites. 17. The respondent said that there was a very wide discretion, as made clear by the third criteria in s 79 as to what matters might be relevant to determine whether the appellant was, relevantly, independent. 18. The respondent relied on the complexity of the business structure, the lack of transparency in the accounts, and the informality of various relationships between the companies to support the respondent's contention that the appellant was not independent of the Group. In making these submissions, the respondent accepted that the question was whether the businesses were independent. 19. In respect of the intercompany loans, the respondent pointed to the fact that there was a lack of repayment arrangement, the loans were not interested and they were unsecured. The respondent said that the Tribunal was correct to conclude that the fact the loans were not on commercial terms was a significant connecting factor. In relation to the loan to purchase the property on which Gateshead carries on business, the respondent referred to the evidence concerning this purchase at tcpt p 36 (21). 20. The respondent also noted there was a loan in relation to a tax payment. However, it appears to the Appeal Panel that this payment was made in error from a wrong bank account, the only significance being that it needed to be recorded in the accounts of the relevant company as it was still outstanding the end of the relevant financial year. 21. On the question of control, the effect of the respondent's submission was that the finding of fact that control could be exerted, whether or not this had occurred, was a matter which the Tribunal was entitled to take account of as a basis to conclude the businesses were not independent. 22. In addition to the matters to which the appellant referred and which the Tribunal identified in its reasons, the respondent contended that: 1. more weight should have been given to the fact of personal guarantees; 2. there was shared goodwill, in the sense of the use of a common business name and brand maintenance, a matter dealt with by the Tribunal at [57]-[58] and [67]. 1. In summary, the respondent said that the matters about which the appellant complained were not errors of law and were not matters for which leave to appeal was required. 2. In response, on the question of leave, the appellant did not suggest there was an issue of principle, question of public importance or that the Tribunal had gone about its fact finding process in an unorthodox manner or in such a way that was likely to produce an unfair result. Rather, the appellant submitted that there was an injustice which was reasonably clear or that a factual error was unreasonably arrived at and clearly mistaken. In this regard the appellant said the ultimate conclusion that the businesses were not, to the required degree, independent was obviously incorrect. Consideration 1. The appellant says the Tribunal was in error in failing to determine that the correct and preferable decision was that an order should be made under s 79 of the PT Act to de-group the appellant from the Group. 2. The appellant has a right of appeal on a question of law or otherwise with leave: see s 80(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). 3. There is no dispute concerning the principles applicable to whether or not leave should be granted, being those referred to in Collins v Urban [2014] NSWCATAP 17, conveniently summarised in the respondent's written submissions at [78]. 4. Section 79(2) of the PT Act provides: (1) The Chief Commissioner may, by order in writing, determine that a person who would, but for the determination, be a member of a group is not a member of the group. (2) The Chief Commissioner may only make such a determination if satisfied, having regard to the nature and degree of ownership and control of the businesses, the nature of the businesses and any other matters the Chief Commissioner considers relevant, that a business carried on by the person, is carried on independently of, and is not connected with the carrying on of, a business carried on by any other member of that group. 1. The appellant first says the errors of the Tribunal are properly categorised as errors of law. In making this submission, the appellant relied on the decision of Lombard Farms at [23]. In that case, having reviewed the authorities about what constitutes a question of law, the Appeal Panel of the Administrative Decisions Tribunal (ADT) said: 23 From the authorities we have just cited we distil the following propositions particularly relevant to this matter: (1)The question whether a word or phrase is to be given its ordinary meaning is a question of law; (2)The question whether a word is used in a sense other than that in which it is used in ordinary speech is a question of law; (3)Where, objectively, there is uncertainty as to the meaning of a word, the process of construction raises a question of law; (4)The process of construing and the construction of an expression raise questions of law; and (5)Whether facts as found are capable of falling within a statutory provision, must necessarily fall within the statutory provision or must necessarily fall outside the statutory provision are questions of law. 1. In relation to the grounds of appeal filed, the appellant accepted that other than the "public perception" point in ground one, there was no dispute in this appeal concerning what were the relevant factors to be considered by the Tribunal in determining the question of independence under s 79 of the PT Act. 2. Applying the principles in Lombard Farms, about which there is no dispute, it seems to us that the issue of whether "public perception" is a relevant consideration is a question of law as is the question of whether or not the facts as found are capable of sustaining the conclusion that the appellant was in fact independent in the sense used in s 79. In making this last observation, we note that the onus of proof is on a taxpayer: s 100(3) TT Act. 3. Otherwise, it seems that the grounds of appeal seek to challenge both the individual findings of fact and the ultimate finding of fact that the business of the appellant is not independent of the Group as that expression is used in s 79 of the PT Act. This is because once factors are determined to be relevant having regard to the legal criteria specified, the weighing or balancing of those factors and the their significance in determining the degree of independence the person's business from that of the group is a question of fact. 4. In this regard, it is useful to set out the test in Lombard Farms, again a matter not in dispute, which the trier of fact is required to apply in order to be satisfied that an order to de-group a person should be made under s 79(1). At [50]-[51] the ADT said 50 Section 79(2) requires the trier of fact to determine whether, having regard to the nature of the connections between group businesses, it can nevertheless be said that the businesses are independent and not connected. Ultimately, this will be a question of judgment based on facts objectively determined. It is not the case that any connection between businesses will disentitle an applicant from de-grouping. The connection must be material and not insignificant or inconsequential. This is the approach that was adopted in the Victorian authorities referred to above: see Triline at [19], [22] and [30] and GTS Industries at [38]. We agree with this approach because it directs the focus to the "carrying on" of the business: to be relevant, the connection must affect the business in some real or practical sense. 51 To say that there can be absolutely no connection between the businesses sets the bar too high. The question is one of fact and degree: Network Clothing Company v Commissioner of State Revenue [2007] VCAT 2492 at [34]. To disentitle an applicant to de-grouping, the connection must be meaningful in a commercial sense and not immaterial or inconsequential to the carrying on of the businesses. Adopting the words of GT Pagone, Presiding Member (as his Honour then was) in Triline at [25] there must be a finding of substantial absence of connection and substantial independence between the businesses, to warrant the exercise of the discretion. 1. True it is that principles of reasonableness might apply, whether in the sense of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury) or Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li), so that a particular error might be an error of law. However, when considered in the context of the statutory requirements of s 79 of the PT Act in evaluating the factual criteria to establish independence and in the context of the TA Act which casts the onus upon the taxpayer to prove any relevant facts, an error requiring correction on appeal would ordinarily be manifest, particularly where judgement is to be exercised in the manner explained in Lombard Farms. As said by Maxwell J in his article "The Statutory Implication of Reasonableness and the Scope of Wednesbury Unreasonableness", ANU Public Law Weekend, Canberra, 28 October 2016: All of the judgments in Li affirm the cardinal notion that, within the parameters defined by the statute (as to relevant and irrelevant considerations and as to the purpose for which the power is conferred), there is "an area of decisional freedom within [which] reasonable minds may reach different conclusions about the correct or preferable decision". Any decision made within that area of decisional freedom will satisfy the statutory implication of reasonableness. 1. In the present case, as the respondent submitted at [18] of his written submissions, the Tribunal made the following findings: 1. there were personal guarantees under the franchisee/dealer agreements that dated back to a "time of greater family solidarity" (reasons at [52])-not much weight; 2. there was a lack of competition between the businesses due to their geographical locations (reasons at [53]-no weight; 3. there were group rebates and cooperative marketing arrangements with Goodyear, of themselves not indicative of a lack of independence. However, there is a business incentive to maintain a connection so that the rebates and volume discounts can be accessed and maximised through common buying power (reasons at [54])-some weight; 4. there was intra-group sourcing of tyres when out of stock, although this was not part of the usual course of business and was transacted on commercial terms (reasons at [55]-[56])-some weight; 5. the O'Neills Tyres "Group" was being held out to the public by the website and advertising as being a group. While this was not, of itself, suggestive of a lack of independence, there was a clear connection between the businesses through the coordination in the same retail field of their advertising and website development and maintenance. There was a holding out as being part of the O'Neills Tyres Group (reasons at [57]-[58] and [67])-more important; 6. there were intragroup loans, the size of the loan were significant and were outstanding through the relevant period for which de-grouping was sought. They were not short-term debts (eg for stock transfers), there was no formal documentation of the debts before the Tribunal and the debts were, apparently, non-interest-bearing. While the loans were "genuine", the terms of the loan "indicate a family or related party understanding, as compared to loans on commercial terms between unrelated parties" (reasons at [59]-[61] and [65]-[66])-substantial connecting factor; 7. the companies had the same accountant and same registered office (reasons at [62])-does not count for much. 1. The Tribunal ascribed those factual matters weight (which we have noted above) to explain how their significant was evaluated in the context of s 79 of the PT Act. 2. The Tribunal also found that Mark's legal position gave him the ability to exert control over the businesses of other group entities. However, "the day-to-day operations of each of the businesses had been ceded by the 'non-active' brothers to the relevant brother to control 'his' business". These businesses are of a similar nature, selling "similar products under a common banner (O'Neills Tyres)". (reasons at [49]-[51]). 3. Under the heading "Conclusion", the Tribunal said at [63] and following: Conclusion 63 In the end result, it is tolerably clear that Mark tried to distance the taxpayer's business from the businesses of his brothers. However, there were still a number of ties that bound them together which make it difficult to say that the businesses were not materially connected and that the connections were insignificant. It is also difficult to say, in the light of the legal position concerning ownership and control that the businesses were independent from each other in a legal sense. 64 I pay particular attention to Mark's legal position so far as ownership and directorship which gave him an ability to exert control (taking account of his relevant brother as an associated person) over the businesses of the other group entities, even though the evidence indicates, as a practical matter he did not exercise it. 65 I also take into particular account the intragroup loan position and the size and terms of those loans. 66 In my view, the above two factors support the ownership and potential for control vested in Mark, and the financial interdependence of the businesses, and detract from the submission that the businesses are independent and not connected. 67 Further, I note that the businesses are all of a similar nature and are held out to the public as being part of the O'Neills Tyres group. 68 The application to the Tribunal was lodged slightly out of time. Leave was sought to lodge late, which was not opposed. Pursuant to s41 of the Civil and Administrative Tribunal Act 2013, I will extend the time for lodgement to the date of lodgement of the application. 1. The appellant, by its submissions, says that the Tribunal's ultimate finding that the appellant was not relevantly independent for the purpose of s 79 was limited to the matters in the Conclusion, particularly at [66], and that the Tribunal otherwise disregarded evidence that provided contrary indications to support the contention of actual independence. 2. We disagree. 3. The findings which we have referred above, and the reasons taken as a whole, indicate that the Tribunal embarked on a fact finding process which it was required to undertake by reference to the criteria specified in s 79 of the PT Act. It identified particular criteria which it was required to consider. It reviewed a number of factors to which it gave varying weight. It then determined by exercising judgement in relation to those matters that it could not be satisfied the taxpayer had established the relevant grounds of independence. 4. In ground 1 of its amended grounds of appeal, the appellant focused on the expression "public perception" to suggest that the Tribunal had regard to an irrelevant consideration. However, the Tribunal did not make any finding adverse to the appellant in relation to any public perception issue dealt with in its reasons. To the contrary, at [57] the Tribunal said in connection with the members of the Group being franchisees of Goodyear: … The more informed public would be likely to be able to discern there was a difference between the O'Neill Tyres group (even though their website says they are separately run) and the Good year Auto Service Centre group. 1. Consequently, the Tribunal found at [58] that that fact of itself did not suggest a lack of independence. 2. However, the Tribunal went on to find as a matter of fact there was "clearly a connection between the businesses through their coordination in the same retail field of their advertising and website development and maintenance." That is, the Tribunal found there was a common business activity being undertaken in concert between the members of the Group. 3. The appellant relied on the decision of the Court of Appeal in Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181 and sought to draw a distinction between vertically integrated and horizontally integrated businesses. The appellant said the businesses were not, relevantly, dependent upon each other. 4. In making this submission, there was no challenge to the finding concerning advertising and website development. Further, it seems to us that the manner in which members of the group go about marketing, both in the sense of using shared platforms and technology and in the sense of the branding of the Group and its members are matters the Tribunal was able to consider under s 79 in determining whether the appellant was independent within the meaning of that section. 5. It follows that we do not think there was an error of law in the approach taken by the Tribunal. 6. In relation to ground 2, the appellant sought to draw a distinction between a loan which provided what might be described as "working capital" for the day-to-day operations of the businesses and those which had a different purpose. In this case, there was a loan provided to Gateshead to the appellant for the purchase of land, which land was made available to Gateshead to conduct its business which was of a type common to the Group. Consequently, the appellant said that the Tribunal was in error in finding "financial interdependence". 7. In our view there are at least two problems with this submission. 8. At [66], the Tribunal referred to the factors of ownership, potential control and the intragroup loans which the Tribunal said supported "the financial interdependence of the businesses, and detracted from the submission that the businesses are independent and not connected". This was a judgement, reached on the facts, in determining whether or not the appellant was relevantly independent from the Group. 9. Once one accepts that it was for the appellant to establish the fact of independence within the meaning of s 79 of the PT Act, the Tribunal's conclusion is nothing more than an assessment of all the evidence which it was entitled to make. Without a finding of independence, the respondent was not able to make a de-grouping order under s 79. It follows that, subject to the issue of reasonableness, no error of law is established. 10. Secondly, we do not accept the submission that interdependence is not shown to exist where the appellant makes available to Gateshead land on which Gateshead can carry on a tyre-selling business, being land purchased with some of the intragroup loans. Rather, it is necessary to look at the common business activities which the Tribunal found were located in the same geographic region, the Hunter Valley and that there were common marketing activities using shared technology to promote a common brand in the region. This common branding provided a reason why each company had an interest to ensure other members in the Group maintained their respective businesses throughout the region. These matters, coupled with the findings the intragroup loans were not on commercial terms and that the loans were "significant" provides a proper basis for concluding a lack of independence and no relevant legal error is shown. 11. The appellant suggested that the loan of $92,647 was not significant when regard is had to the turnover of the appellant and other accounting information to which it referred. However, significance in the context of determining whether the businesses are independent, must also have regard to the use and purpose to which any loan is put, the commonality of business activities, location of those activities and the holding out of the businesses, the last factor being one accepted by the appellant as relevant. When findings on these matters are considered as a whole, it seems to us that the finding of significance is not shown to be in error. 12. In relation to ground 3, the appellant accepted that the possibility of Mark exerting control was a relevant factor. So much seems clear from Lombard Farms at [63]. However, in effect, the appellant asserted that if there was unchallenged evidence that Mark did not in fact exert control, the potential to do so became irrelevant in determining whether the businesses were independent. Consequently, the appellant said there was an error of law in taking into account the possibility of control in determining the question of independence. 13. In our view this submission must be rejected. 14. In Lombard Farms, at [50], the ADT said the test to be applied was whether the connection was "material and not insignificant or inconsequential". In the present case, it could not be said that the fact Mark was in a position to exert control was an irrelevant consideration. Rather, it was a matter to be accounted and weighed against other factors. 15. The Tribunal examined the common shareholding and directorships of the members of the Group and the possibility of control and found these matters demonstrated a lack all relevant independence. The Tribunal did so having recognised at [34] that "the day-to-day running of the various entities' businesses was in the hands of the relevant brother". However, the Tribunal concluded at [63] that "there was still a number of ties that bound (the members of the Group) together which make it difficult to say the businesses were not materially connected and that the connections were insignificant". 16. Again, subject to a consideration of the reasonableness of the decision that the appellant's business was not shown to be independent within the meaning of s 79 of the PT Act, we are not satisfied that any legal error is demonstrated by the Tribunal reaching the above conclusion. 17. Ground 4 essentially raises a contention that the decision of the Tribunal was unreasonable and not available on the evidence. 18. In order to make good this ground, as stated above, the appellant seeks to focus upon the Tribunal's reasons under the heading "Conclusion". 19. While it is true that the Tribunal, under the heading Conclusion, refers to particular factors, it seems clear to us that the Tribunal was attempting to summarise its findings made in earlier paragraphs of its reasons, to which we have referred. In this regard, while the Tribunal accepted at [63] "Mark tried to distance the taxpayer's business from the businesses of his brothers", the Tribunal also had regard to the business activities of the appellant and the Group, the financial arrangements between members of the Group and the legal position concerning ownership and control of the businesses. 20. The Tribunal found these connecting factors to be material and not insignificant or inconsequential. 21. As confirmed in Lombard Farms, this was a judgement the Tribunal was required to make in determining the ultimate fact of whether the businesses were independent. The Tribunal resolve this matter adversely to the taxpayer who carried the onus of proof. 22. It could not be said that the judgement of the Tribunal, based upon the facts found by the Tribunal, was erroneous or unreasonable. The Tribunal referred to the relevant evidence, including evidence indicative of independence, identified the relevant test and reached a conclusion available to it on the evidence. 23. It follows that this ground of appeal fails. 24. Finally, the appellant seeks leave to appeal. The appellant says there is an injustice that was reasonably clear, or there was a factual error that was unreasonably arrived at and clearly mistaken. The appellant says there is a significant amount in dispute. The tax difference was identified at between $120,000 and $200,000. 25. In our view, we do not discern any relevant injustice, let alone one that is reasonably clear. As we have said above, the factual findings were open to the Tribunal, including the ultimate findings about whether the appellant was independent of the Group as that term is used in Lombard Farms. 26. There is no issue of principle or question of public importance raised by this appeal. The Tribunal has not gone about the fact finding process in a manner which is unorthodox or likely to produce an unfair result. 27. In these circumstances, we are not satisfied that the appellant should be granted leave to appeal. Orders 1. The appellant has failed to establish any legal or other error. The appeal should be dismissed. 2. Any party contending that a costs order should be made in its favour can make an application within 7 days from the date of this decision. If the parties agree to any costs order, they may file a proposed consent order. 3. Accordingly, the Appeal Panel makes the following orders: 1. Leave to appeal is refused and the appeal is otherwise dismissed. 2. If any party seeks a costs order, such application (including submissions and evidence) must be made within 7 days from the date of these orders. The respondent to the costs application is to file and serve submissions and evidence in reply within 14 days from the date of these orders. The applicant for cost may file and serve submissions in response 7 days thereafter. Submissions must include submissions about whether an order should be made dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2018