CHIEF COMMR OF STATE REVENUE v CITIVALE PTY LIMITED

Judges: Handley JA
Sheller JA

Davies AJA

Court:
New South Wales Court of Appeal

MEDIA NEUTRAL CITATION: [2000] NSWCA 111

Judgment date: Judgment given on 4 May 2000

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Davies AJA

20. I have had an opportunity to read the reasons for judgment prepared by Handley JA. I concur generally with the views expressed by his Honour. However, I have been influenced not only by the terms of ss 7 and 9 of the Land Tax Management Act 1956 (``the Act'') and those provisions of the Act which have dealt specifically with land owned by a council, s 10(1)(a) and its replacement s 21C, but also by s 32 of the Act which provides:

``(1) Where land is occupied, controlled, or used by a person who is not the owner and there is no lease or agreement for a lease for a definite term in respect of the occupancy, control, or user of the land, the person occupying, controlling, or using the land shall be deemed (though not to the exclusion of the liability of any other person) to be the owner of the land:

Provided that the Chief Commissioner may exempt the person occupying, controlling, or using the land from the provisions of this section, if he is satisfied that the

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ATC 4332

arrangement is of a temporary nature, as to which matter the decision of the Chief Commissioner shall be final and conclusive.

(2) The owner of the land shall be deemed to be the primary taxpayer and the person so occupying, controlling, or using such land to be the secondary taxpayer; and from the land tax payable by the latter there shall be deducted such amount (if any) as is necessary to prevent double taxation.''

21. The effect of the totality of the provisions is that the Act deals with the circumstance where land is owned by a council and with the circumstance where land is occupied, controlled or used by a person who is not the owner. The Act therefore covers most of the ambit of the exemption provided by s 651 of the Local Government Act 1919 and does so in a way which is inconsistent with that section. The provisions of s 21C(2) impose a liability upon, inter alia, a lessee of land from a council and s 32 stipulates a liability upon the owner of land notwithstanding that it is used, occupied or controlled by someone else.

22. The Act thus expresses an intention contrary to the exemption under s 651 of the Local Government Act . Therefore, s 651 neither applies nor purports to apply.

23. I agree with the orders proposed by Handley JA.