Pro-Campo Limited v. Commissioner of Land Tax (N.S.W.).

Lee J

Supreme Court of New South Wales

Judgment date: Judgment handed down 27 May 1981.

Lee J.

This is an appeal by the plaintiff (hereinafter called the Company) against assessments of land tax under the Land Tax Management Act 1956 (as amended) in respect of land owned by it at Wedderburn. The assessments cover the years 1975 to 1979 inclusive and relate to an area of land owned by the plaintiff, being the whole of the land comprised in Certificate of Title Vol. 603, Fol. 171, and known as ``Morning Glory'', Menerva Road, Wedderburn. The Commissioner assessed tax upon the whole of the land. The notice of objection lodged by the company pursuant to sec. 35(1) of the Act claimed the benefit of the exemptions set out in sec. 10(1)(d) and 10(1)(g)(iii) of the Act.

The land comprises an area of 136 acres and erected upon the land are buildings which make it suitable for use as a camp. There is an amenities building, a dining and recreation hall, sleeping cabin - all furnished - and, since 1979, an in-ground pool. There is also an old cottage which has always been on the property and another building which was at one stage used as an amenities block. An area has been set aside for car parking and there are two marked out grassed areas used for sporting activities. A roadway in and around the property leads off to the main road. The evidence is that what might be called the ``settled'' part of the entire area, that is the area where the

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buildings and car park are, is, in all, about five acres. The balance of the property has been described as ``fairly rugged''. There is also an area (undefined) where Christmas trees have been planted, with a view to sale as a means of fund-raising.

The company is a company incorporated under the Companies Act of 1961 as amended. It has approximately 300 shareholders, most of whom are members of the Reformed Churches of New South Wales. The Reformed Church had its origin in Holland and its founders in this country came from Holland. The management of the company is in the hands of a board of directors. The Memorandum of Association provides (memo. 21) that a person cannot become a director unless he is either a full member of one of the Reformed Churches in New South Wales or there will, after he is appointed, be a majority of directors who are full members of the Reformed Churches. The provisions of the memorandum (22 and 23) have the result that the company is a company not carried on for the pecuniary profit of its members or any other person. Members of the company contribute to the income of the company by payment of an annual subscription, without which the company could not carry on.

The evidence shows that over the years in question, indeed for many years before, the company has used the land by making it available, particularly on weekends, to youth groups and organisations which avowedly espouse the Christian faith. These groups and organisations comprise church, school, and university groups. Groups comprising members of the Reformed Churches also regularly use the premises. The youths, and their parents in some cases, are accommodated on the property and religious studies are pursued both communally and individually. Most of the activities of the groups take place outside in the open air - and it has been found that the quiet bushland of the property creates an atmosphere of peace conducive to prayer and an appreciation of spiritual values and the teaching of religion. Conventions or conferences are held and conducted, designed to promote the spiritual welfare of the participants. Groups from the Reformed Churches hold services at which hymns are sung and scriptures read. Lectures are given. Participants live in the dormitories in the cabin or in some cases in pitched tents. The evidence is that a small charge is made by the company to groups making use of the property and the money collected in this way goes towards the general maintenance and improvement of the property. In an affidavit filed in the proceedings, the Chairman of the Board of Directors of the company states:

``The company was originally formed and the property purchased to fill a need which it was felt existed for the provision of facilities as they are now defined in the objects of the company. The Reformed Churches of New South Wales has no general property trust and it was therefore necessary for individual members of the Church to take steps to provide the required facilities. Although groups from the Reformed Churches of New South Wales are given preference in booking the facilities of the property any group or association which complies with the intentions of the company will be granted the use of the property. The use of the property in the manner aforesaid commenced in the year 1961 and has been carried on in that manner since that time.''

It can be said by way of summary of the evidence that the property is used as a bushland camp where young people following the Christian religion - sometimes whole families - clergy and members of the Reformed Churches may enjoy outdoor living and at the same time be instructed in and discuss the tenets of their faith and means of spiritual advancement.

The company employs a permanent caretaker who resides on the property. He supervises the general maintenance of the property and the use made thereof by the various groups and associations who come there. The caretakers who have been employed have been members of the Christian church. Although the caretaker exercises supervisory functions, he plays no part at all in the arrangement of any of the activities in which the groups participate.

The first ground upon which exemption is claimed is that set out in sec. 10(1)(d) which exempts from land tax, ``land owned by or in trust for a charitable or educational institution if the institution, however formed

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or constituted, is carried on solely for charitable or educational purposes and not for pecuniary profit''. There is no dispute that the plaintiff company is not carried on for pecuniary profit within the paragraph (
Theosophical Foundation Pty. Ltd. v. Commr. of Land Tax (1966) 67 S.R. 70) and the substantial matter which has been debated before me is whether it is ``a charitable institution'' within the meaning of the section.

I point out that no argument has been addressed to me as to whether the plaintiff can be regarded as an ``institution'', (
Christian Enterprises Ltd. v. Commr. of Land Tax (1968) N.S.W.R. 99 at p. 104;
Stratton v. Simpson (1970-71) 125 C.L.R. 138;
Joyce v. Commr. of Land Tax (1973) 1 N.S.W.L.R. 402 at pp. 410, 413; (1973-74) 132 C.L.R. 22 at pp. 32-33), but as the question whether the exemption applies can be resolved without deciding this particular point, I refrain from dealing with it, the more so as memo. (3) in the Memorandum of Association was substantially amended in the latter half of 1979. There appears to be some reason to doubt whether the objects stated in the Memorandum of Association as it was originally framed really reflected adequately the objects and purposes of the company. Be that as it may, the objects of the company as set out in the Memorandum of Association since the amendment are entirely different from what they originally were and any consideration of the application of the Act after 1979 to the lands of the company must take this into account.

Both counsel have addressed me upon the footing that the word ``charitable'', where used in the Act is used in its technical legal sense and I am of the opinion that this is the correct interpretation of the word. ``In construing Acts of Parliament, it is a general rule... that words must be taken in their legal sense unless a contrary intention appears.''
Commrs. for Special Purposes of Income Tax v. Pemsel (1891) A.C. 531 per Lord MacNaghten at p. 583;
Chesterman v. F.C. of T. (1926) A.C. 128. I adopt, with respect, the observations of Herron J. in
Joyce v. Ashfield Municipal Council (1959) 4 L.G.R.A. 1951at p. 204 when his Honour, in considering whether the exemption from rates given by sec. 132(1)(d) of the Local Government Act 1919 to land belonging to a public charity was available to a religious group known as the Plymouth Brethren, said:

``The first task which confronts this court is to define the word `charity' and in particular `public charity' as used in the sub-section. Before attempting this task it must be observed that the word `charity' in this Act is used in its strict legal sense and not in its popular sense. It has been well settled that in such an Act the word `charity' should be read in its technical legal sense unless, from the context a contrary intention appears;
Adamson v. Melbourne & Metropolitan Public Works (1929) A.C. 142, a decision of the Judicial Committee. In the High Court, four of the members who constituted a majority held that the word `charitable' must be understood in its technical legal sense.
Salvation Army (Vic.) Property Trust v. Shire of Ferntree Gully (1952) 85 C.L.R. 159.

The question under consideration there was whether lands were used `exclusively for charitable purposes' within the meaning of the Local Government Act 1946 (Vic.) sec. 249(1)(b)(ix). To the same effect is the decision of Street J. (as he then was) in
Wallinga S.C. v. Salvation Army (N.S.W.) Property Trust (1943) 15 L.G.R. (N.S.W.) 91, the matter received close attention from Sugerman J. in
Young Men's Christian Association v. Sydney City (1954) 20 L.G.R. (N.S.W.) 35. I am in entire agreement with both the foregoing decisions and with the reasons given in each case. It is clear that `charity' in sec. 132(1)(b) of the Local Government Act is to be read in its legal or technical sense and is not limited to its popular or eleemosynary.''

In Christian Enterprises v. Commr. of Land Tax (1968) 88 W.N.Pt. 2 112, it was asserted by both parties that the word ``charitable'' in para. (d) of sec. 10(1) of the Land Tax Management Act, was to be given its legal meaning. The point was not contested in Joyce & Ors. v. Commr. of Land Tax (1973) 1 N.S.W.L.R. 402.

Ashfield Municipal Council v. Joyce (1978) A.C. 122, in the judgment of the Privy Council, the following appears at p. 133:

``First, as to the word `charitable' or

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`charity' appearing in a statute. After some vacillation, there has emerged a judicial opinion which their Lordships firmly endorse, that a strong presumption exists in favour of their interpretation in a legal sense.''

In Joyce v. Ashfield Municipal Council (supra), Herron J. went on to explain the legal or technical meaning of the word ``charitable'':

``The legal meaning of the word was of course discussed and `charity' in its legal sense classified in four principal divisions by Lord MacNaghten in Commrs. for Special Purposes of Income Tax v. Pemsel (1891) A.C. 531 at p. 583 (adopted from the argument of Sir Samuel Romill in
Morice v. Bishop of Durham (1805) 10 Ves. 522 at p. 526. His Lordship said `Charity in its legal sense comprises four principal divisions; trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community not falling under any of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law because incidentally they benefit the rich as well as the poor, as indeed, every charity that deserves the name must do either directly or indirectly'. Salvation Army (Vic.) Property Trust v. Ferntree Gully Corporation (1951-1952) 85 C.L.R. 159 at p. 173.''

I should mention here that although the plaintiff company has, since 1965, been registered under the Charitable Collections Act 1934, as amended, this has no bearing upon the question which falls to be considered here, as registration under that Act is not limited to institutions which are charitable in the strict legal sense.

Let me now turn to the objects of the company as set out in the memorandum in order to determine whether those objects can be regarded as charitable.

The Memorandum of Association provides that the objects for which the company is established are (inter alia):

  • (2) to acquire from Mr. John Edward Hodgkins the property known as ``Morning Glory'' at Wedderburn near Campbelltown being lot 6/7 and the whole of the land in certificate of title Vol. 6033 Fol. 171 and such other freehold or leasehold properties as the company may require to carry out its objects;
  • (3) to carry on upon the said property or any other property the company may acquire, youth camps, holiday camps and activities of a similar nature and to provide for meeting places, rest houses, old age homes, school buildings and matters of similar nature;
  • (4) to make available the company's premises to persons or organisations whether incorporated or unincorporated for any of the abovementioned purposes or for any other purposes whatsoever and in connection therewith to enter into contracts, licence agreements and other arrangements and to give leases upon such terms and conditions as may seem fit.

This memorandum was amended in December 1977 to delete the words ``or for any other purpose whatsoever''.

It can be said that the other objects expressed in the memorandum can all be regarded as merely incidental to the objects set out in (3) and (4).

One may acknowledge that the provision of ``old age homes'' in memo. (3) could be regarded as charitable purpose (
Trustees of Church Property of Diocese of Newcastle v. Lake Macquarie Shire Council (1975) 1 N.S.W.L.R. 521) and also the provision of school buildings but beyond this I am quite unable to see anything in the objects which would qualify as charitable. There is nothing to indicate objects directed to the relief of poverty, the advancement of education or the advancement of religion and accordingly the objects must, if they are to be charitable, be regarded as within the fourth category referred to by Lord MacNaghten. The object must then be one which is beneficial to the public and there is the additional requirement that the particular purpose must benefit or be available to benefit a sufficient section of the community. There is nothing in the way the objects are expressed to indicate how the facilities mentioned are to be conducted and whom they are intended to benefit. All one has are rather vague and

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general descriptions of various activities and it is impossible to determine whether those activities could be regarded as beneficial to the public or not. The expressions ``activities of a similar nature'' and ``matters of similar nature'' are of the widest kind in the context in which they are used and could embrace activities of all sorts. There is nothing to indicate the terms and conditions under which the facilities mentioned are to be available and whether a charge will be made or not and as the objects stand it is left to the board of directors, appointed in accordance with the articles, to choose those who shall or shall not be entitled to benefit in respect of the matters set out in (3) or use the company's premises as set out in (4). Until December 1977, when the memorandum was altered, memo. (4) permitted the company's premises not only to be used for the purposes set out in memo. (3) but it allowed them to be used ``for any other purposes whatsoever.''.

An institution cannot be a charitable institution unless its purposes are exclusively charitable. Here the objects of providing ``old age homes'' or ``school buildings'' could as I have said be regarded as charitable but the other objects referred to in (3) and (4) cannot be and they cannot be regarded as subsidiary to any charitable object expressed.

``It is established that `an institution is a charitable institution if its main purpose is charitable although it may have other purposes which are merely concomitant and incidental to that purpose' or in other words if each of its objects is either charitable in itself or should be construed as ancillary to other objects which themselves are charitable:
Congregational Union of New South Wales v. Thistlethwaite (1952) 87 C.L.R. 375 at pp. 442 and 450. If however the non-charitable purpose is not merely incidental or ancillary to the main charitable purpose, the institution will not be charitable:
Oxford Group v. I.R. Commr. (1949) 2 All E.R. 537 and In
re Harpur's Will Trusts (1962) 1 Ch. 78 at p. 87.''

(Per Gibbs J. in Stratton v. Simpson (1970) 125 C.L.R. 138 at pp. 159-160.)

It has been pressed upon me by counsel for the plaintiff that in considering whether the objects of the company are charitable or not, it is important to bear in mind that the company is not carried on for the pecuniary profit of its members or officers (
Council of Law Reporting v. A.-G. (1972) 1 Ch. 73 per Russell L.J. at p. 86). This factor must be borne in mind but, in the present case, the company cannot be regarded as a charitable institution because its purposes are not exclusively charitable. Nor does it qualify as a charitable institution from the fact that it happens that in the relevant years it has conducted youth camps with an emphasis on religious purposes. Its objects define its purposes and, as I have pointed out, those objects are not exclusively charitable and accordingly it does not qualify as a charitable institution. Of course, notwithstanding that an institution is constituted with objects which are exclusively charitable, it will not attract the exemption offered by the paragraph unless it is also carried on solely for charitable purposes.

It is perhaps appropriate to mention here that in September 1979 the company amended its objects by deleting (3) and substituting ``To use the said property for the advancement of the Christian faith and in furtherance thereof the provision of accommodation for Bible study, religious instruction and the teaching of the Christian religion''. Counsel for the Commissioner acknowledges that the amended objects accord, if not entirely, certainly almost entirely, with the activities carried on by the company on the land and that the company's claim for exemption in years subsequent to 1979 must be viewed in an entirely different light compared to the prior years. However, the amendment has no bearing upon the entitlement of the company to the exemption during the years in which memo. (3) was in its original form. In the circumstances then, as the plaintiff cannot be regarded as a ``charitable'' institution within sec. 10(1)(d), its claim for exemption on that ground fails.

It was next contended on behalf of the plaintiff that at least part of the land was exempt from land tax pursuant to sec. 10(1)(g)(iii) which exempts land -

``... owned by or in trust for any person or society and used or occupied by that person or society solely as a site for -


(iii) a building owned and solely occupied

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by a society, club or association not carried on for pecuniary profit;...''

Under sec. 3 ``person'' includes a company. It is accepted by both parties that if this paragraph applies to the facts of this case, then the area of land which will be exempt will be five acres, being the ``settled area'' earlier referred to.

The first question is whether the land is ``used or occupied solely as a site for a building...'' on the land. The word ``building'' includes the plural ``buildings'', as there is nothing in the context to indicate that this should not be so - Interpretation Act, sec. 21(b). The exemption can relate to that part only of a larger area of land of the owner which can be regarded as the site for the building or buildings on it. (
Royal Sydney Golf Club v. F.C. of T. (1940-43) 6 A.T.D. 235 at p. 240;
F.C. of T. v. Royal Sydney Golf Club (1943) 67 C.L.R. 599 per Rich and McTiernan JJ.; Royal Sydney Golf Club v. F.C. of T. (1955) 91 C.L.R. 610;
Commr. of Land Tax (N.S.W.) v. Joyce & Ors. (1973-74) 132 C.L.R. 22.) The earlier part of the paragraph is satisfied in virtually all cases where land has a building on it, for the land on which the building stands will in fact be the site for the building, and that area of land will thus be capable of being regarded as at least used by the owner solely as a site for the building.

Before dealing with the question whether the buildings on the land are occupied by a ``society, club or association'' let me consider whether, on the footing that the plaintiff is a body within that description, it can be said to ``occupy'' the buildings. Much of the confusion and uncertainty arising from the use of the word ``occupied'' or ``occupier'' arises because the word is required to apply to circumstances or contexts which can be significantly different from each other. In some cases rating or taxation is the context, in others franchise, in others relations between landlords and tenants, whilst in others still the context relates to the legal liabilities arising from the physical state of land or premises. But provided one remains conscious of the fact that it is a land tax case under consideration, much of the difficulty in my view disappears. It is instructive, in my view, to observe the different meanings (or some of them) which can be given to the word ``occupy''.

In Madrassa Anjuman Islamia of Kholwad v. Johannesburg Municipal Council (1922) 1 A.C. 500 at p. 504, Viscount Cave said:

``The word `occupy' is a word of uncertain meaning. Sometimes it denotes legal possession in the technical sense, as when occupation is made the test of rateability; and it is in this sense that it is said in the rating cases that the occupation of premises by a servant, if such occupation is subservient and necessary to the service, is the occupation of his master:
Reg. v. Spurrell (1865) L.R. 1 Q.B. 72. At other times `occupation' denotes nothing more than physical presence in a place for a substantial period of time, as where a person is said to occupy a seat or pew, or where a person who allows his horses or cattle to be in a field or to pass along a highway, is said to be the occupier of the field or highway for the purpose of s. 68 of the Railway Clauses Act 1845.
Dawson v. Midland Ry. Co. (1872) L.R. 8 Exch. 8;
Luscombe v. Great Western Ry. Co. (1899) 2 Q.B. 313. Its precise meaning in any particular statute or document must depend on the purpose for which, and the context in which, it is used. In the present case it appears reasonably clear that the word is used in the second or more popular sense above described.''

Wheat v. E. Lacon & Co. Ltd. (1966) A.C. 552, the House of Lords considered the Occupier's Liability Act 1957, and the meaning of the word ``occupation'' and ``occupier''. At p. 573 Viscount Dilhorne said:

``Although it is possible to draw distinctions between occupation for the purposes of taxation and rating and occupation for the purposes of the Occupier's Liability Act 1957, in all these cases the same question has to be determined, namely, who was the occupier at the relevant time. In some cases occupation of a temporary character, e.g. in relation to a contractor's liability under the Occupier's Liability Act 1957, will suffice. In others it will not.''

At p. 583 Lord Morris after pointing out that the Act had not altered the rules of common

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law which determined who is an occupier said:

``In his speech in
Glassgow Corporation v. Muir (1943) A.C. 448 Lord Wright said (at p. 462) `Before dealing with the facts, I may observe that in cases of `invitation' the duty has most commonly reference to the structural condition of the premises, but it may clearly apply to the use which the occupier (or whoever has control so far as material) of the premises permits a third party to make of the premises'. This illustrates that there may be someone who would ordinarily be regarded as the occupier of premises while at the same time there may be another occupier who has `control so far as material'.


Questions of fact may arise as to the nature and extent of occupation and control.''

At p. 589 Lord Pearson referred to sections of the Occupier's Liability Act 1957, and said:

``The puzzle is created by the references in three places to `an occupier' and in one place to `occupation or control'. I think the solution is to be found in the cases decided at common law in which occupier's liability has been attributed or envisaged as attributable to persons, such as building or shipping repairing or roadworking contractors who were or might have been in temporary control and therefore for this purpose `in occupation' of premises or parts of premises or ships or roadways or road verges, although they would not be held to be `in occupation' for the purposes of rating or tax law. See
Canter v. J. Gardner and Co. Ltd. (1940) 1 All E.R. 325, 329;
Duncan v. Cammell Laird (1943) 2 All E.R. 621, 627;
Hartwell v. Grayson, Rollo and Clover Docks Ltd. (1947) K.B. 901;
Creed v. McGeoch (1955) 1 W.L.R. 1005, 1008-1009. The foundation of occupier's liability is occupational control i.e. control associated with and arising from presence in and use of or activity in the premises.''

Occupation of land or a building for the purposes of rating or taxation requires, however, a degree of permanency and this was made clear in the well-known explanation of the word ``occupier'' by Lush J. in
The Queen v. Assessment Committee of St. Pancras 46 Law Journal N.S. Common Law 243. His Lordship said:

``The question we have to decide is whether the appellant was an `occupier of land' within the meaning of the statute of Elizabeth.

It is not easy to give an accurate and exhaustive definition of the word occupier. Occupation includes possession as its primary element, but it also includes something more. Legal possession does not of itself constitute occupation. An owner of a vacant house is in possession, and may maintain trespass against anyone who invades it, but so long as he leaves it vacant, he is not rateable for it as an occupier. If, however, he furnishes it, and keeps it ready for habitation whenever he pleases to go to it, he is an occupier though he may not reside in it one day in a year.

On the other hand a person who, without having any title, takes actual possession of a house or piece of land, whether by leave of the owner or against his will, is the occupier of it.

Another element, however, besides actual possession of the land, is necessary to constitute the kind of occupation which the Act contemplates, and that is permanence. An itinerant showman who erects a temporary structure for his purposes may be in exclusive actual possession, and may, with strict grammatical propriety, be said to occupy the ground on which his structure is placed, but it is clear that he is not such an occupier as the statute intends. As the poor rate is not made day by day or week by week, but for months in advance, it would be absurd to hold that a person who comes into a parish with intention to remain there a few days or a week only incurs a liability to maintain the poor for the next six months.

Thus a transient temporary holding of the land is not enough to make the holding rateable. It must be an occupation which has in it the character of permanency; a holding as a settler not as a wayfarer.''

The element of permanency referred to by

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Lush J. (supra) is an important factor when considering what is the meaning of ``occupied'' within the meaning of the paragraph, for the Act fixes 31 December immediately preceding the year for which the land tax is levied as the critical point in time for the exemption to apply or not apply and one might fairly conclude that the exemption was intended to attach realistically to the occupancy of the building and not just fortuitously to any transient state of affairs. One is entitled, indeed required, to look back from the mere moment of time selected by the Act in order to determine who the real occupant is (Joyce & Ors. v. Commr. of Land Tax (1973) 1 N.S.W.L.R. 402 at p. 415.)

Council of City of Newcastle v. Royal Newcastle Hospital (1957) 96 C.L.R. 493, Kitto J. in considering the use of the word ``occupied'' in The Local Government Act 1919, sec. 132(1)(a) (a section dealing with rating) said at p. 507:

``The three elements, legal possession, conduct amounting to actual possession, and some degree of permanence, seem to me to be involved in the word `occupy' as used in the Local Government Act (N.S.W.)...''

When that case went to the Privy Council, their Lordships made plain that control was an additional factor in the meaning of the word:

``But legal possession is not the same as occupation. Occupation is a matter of fact and only exists where there is a sufficient measure of control to prevent strangers from interfering: see Pollock and Wright on Possession, pp. 12, 13. There must be something actually done on the land, not necessarily on the whole but on part in respect of the whole.''

There has thus been arrived at a definition of ``occupation'' requiring possession and control. This was applied by Bowen J.A. in
Commr. of Land Tax v. Christie (1973) 2 N.S.W.L.R. 526 at p. 533 to the word ``occupied'' in the phrase ``used and occupied by that person solely as the site of a single dwelling'' in sec. 93(3) of the Land Tax Management Act 1956. In most instances control will be demonstrated by visible evidence of possession. The occupier himself need not be personally on the land or premises: he may employ a caretaker or agent. Nor is ``occupation'' displaced by mere evidence that another is on the land or in the building and apparently using the premises. Evidence going to legal possession, evidence showing or suggestive of physical presence, evidence of permanency and evidence pointing to control, are all matters for consideration when considering ``occupation'' within sec. 10(1)(g)(iii) of the Act, but the ultimate conclusion that land or a building is ``occupied'' in the relevant sense must remain a question of fact in each case.

It is clear from the evidence that the plaintiff company controls at least the ``settled area'' of five acres and the use of the buildings thereon. It maintains a permanent caretaker on the premises. It maintains the buildings and the furniture therein. When groups come to the property, the caretaker remains on the premises and supervises the use of the premises. The presence on the land and in the buildings of groups of persons is of a purely temporary and transient nature, being limited only to weekends: such persons are entitled to nothing more than the right to be on the land and use the facilities for the period granted to them by the company. The mere fact that other persons can come on to the land to use it in the manner indicated in the evidence in no way displaces the plaintiff as the occupier of the land and the buildings for the purposes of the paragraph, for the plaintiff has legal possession, actual possession and control of the land. The buildings are thus, in my opinion, ``occupied'' by the plaintiff. It follows, therefore, that if the plaintiff comes within the expression ``society, club or association'', it will be entitled to exemption of that part of the land comprising the five acres upon which the buildings stand. The plaintiff company is, as I have earlier pointed out, ``not carried on for pecuniary profit'' within the meaning of the paragraph.

The Act does not define ``society, club or association'' and para. (g) does not stipulate that the societies clubs and associations to which it is referring must be established for any particular purposes. The three words ``society, club or association'' are words in frequent use in our community and societies, clubs and associations are well-known entities. One knows that many organisations which give themselves the title society or

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association or club are as often incorporated as they are unincorporated. Small bodies having few members tend perhaps to remain unincorporated whilst the larger groups tend to become incorporated. Incorporation may be achieved under the Companies Act 1961 or some other Act, e.g. the Co-operation Act 1923 as amended.

In Theosophical Foundation Pty. Ltd. v. Commr. of Land Tax (1966-1967) 67 S.R. 70 it was held that a limited company could be a society within the meaning of the expression ``religious society'' in sec. 10(1)(e) of the Act. In that case Sugerman J.A. stated at p. 82:

``A society, in the relevant sense, is `a number of persons associated together by some common interest or purpose, united by a common vow, holding the same belief or opinion, following the same trade or profession, etc.: an association.' (Oxford English Dictionary, `Society', III 8; ef. the shorter description in Else-Mitchell, Challinor and Greenwood Land Tax Practice 36-37.) A society as thus described, in which the common element pertains to areas concerned with religion, may aptly be described as a religious society.''

In that case, it was admitted by the Commissioner that the plaintiff was a society within para. (g)(iii).

The meaning of ``society'' as the Oxford English Dictionary definition shows can be the equivalent of ``association'' and I do not think that any relevant distinction in nature exists between the two. It merely seems to have happened that some organisations are called ``associations'', others are called ``societies'' but no meaningful difference can be detected between the two. It is, I believe, the fact that most organisations which are non-profit making in the sense that the members make no profit from the activities carried on will be found to be called societies, clubs or associations and it seems to me that the specification of the three groups in para. (g)(iii) is explicable on the footing that Parliament was intending really to exempt land upon which were buildings occupied by organisations not carried on for pecuniary profit. Although clubs can in some respects and in some instances be seen to be distinguishable by reason of their purposes from societies or associations, they nevertheless fall squarely within the dictionary definition of ``society'' set out above. In short the three words are describing bodies made up of groups of persons who have come together to implement common purposes and objects and the shades of distinction between the three for present purposes do not seem to me to require any analysis. It is, as I have said, common to find societies and associations and clubs which are incorporated and the only question in the present case is whether the plaintiff is within the expression used in the paragraph. There no doubt can be instances when a company would have so few members that it could not fairly be described as a society or association, let alone a club. But where, as in the present case a substantial number of persons all paying an annual subscription have come together to seek to advance the Christian religion by making land and premises available to their own members and Christian groups and organisations, it seems to me that it is quite impossible not to hold that they are a society or association; and the same result would follow in my opinion even if the members contented themselves with merely carrying out the objects as stated in the memorandum of the company - and in all their generality - without any emphasis at all on the advancement of religion. For it is the fact that those, who make up the membership of the company, have a common interest in the objects expressed in the memorandum, and have associated themselves with each other for the purpose of achieving those objects that bring about the situation that a society or association comes into existence. In my opinion, the plaintiff is within the expression ``society'' in para. (g)(iii) and it follows therefore that the area of five acres upon which the buildings stand is exempt from land tax under the paragraph.

Under sec. 37(4) of the Act, the Court may make ``such order as it thinks fit...'' and that permits the Court to remit the assessment to the Commissioner so that the assessment can be amended in accordance with the Court's opinion. (
White v. F.C. of T. (1968) 120 C.L.R. 191 at p. 212.) That is the appropriate course to take in this case.

Finally, I should mention that notwithstanding that the notice of objection

ATC 4280

limited the plaintiff's claim to exemption to sec. 10(1)(d) and 10(1)(g)(iii), counsel for the plaintiff submitted that the Court should also consider whether the plaintiff was entitled to exemption in accordance with sec. 10(1)(e) and 10(1)(g)(iv). Section 37(2) provides:

``A taxpayer shall be limited, on the hearing of the appeal, to the grounds stated in his objection.''

The Act does not give any power to the Court to amend a notice of objection. In
Molloy v. F.C. of T. (1938) 59 C.L.R. 608 the Court considered sec. 44M(3) of the Land Tax Assessment Act, 1910-1934 which is in the same terms as sec. 37(2) of the New South Wales Act. In the judgment of the Court (Latham C.J., Rich J., Starke J.) at p. 610 the following appears:

``Section 44M(3) is a positive statutory provision that upon appeal the taxpayer is limited to the grounds set out in the notice of objection. This we regard as an imperative direction to the court, not as a provision merely for the benefit of the commissioner which he is in a position to waive. The provision is made for the purpose of protecting public revenue, and the court is bound to give effect to it.''

Whether the same view would be taken of the section if the matter came up de novo today might be regarded as doubtful, but I am bound by that decision and must apply it. However, it has been held that grounds of objection should not be construed narrowly or technically (
Heath v. Commr. of Land Tax (1964) 81 W.N. (N.S.W.) (Pt. 1) 409 at pp. 415-6;
S.E. McCutcheon v. Commr. of Land Tax (1974) 4 A.T.R. 628 at p. 635) and the words of Windeyer J. in White v. F.C. of T. (1968) 120 C.L.R. 191 at p. 212 should always, in my view, be borne in mind. His Honour was there considering sec. 190 of the Income Tax Assessment Act, 1936-1966, which is in the same terms as sec. 37(2) of the New South Wales Act, and said:

``If facts fairly given in evidence within the scope of the objection showed that the taxpayer was entitled to an allowable deduction, and that this had not been allowed in making the assessment, I do not think that the Court should confirm the assessment expressly or by implication.''

His Honour went on to point out that if necessary, the assessment could under sec. 199 be remitted to the Commissioner for him to amend the assessment.

The point is academic in the present case because the conclusion that the plaintiff is not a charitable institution within para. (d) of sec. 10(1) precludes any consideration of para. (g)(iv). So far as para. (e) is concerned the memorandum of the company (until its amendment in 1979) disclosed no religious purpose at all such as to permit the conclusion that the plaintiff could be regarded as ``a religious society'' within the paragraph.

The matter of costs remains. The plaintiff has succeeded in part and a small portion of the entire area of land covered by the assessment has been held to be exempt from tax. The plaintiff has, however, failed in its contention that the whole area of the land is exempt. In the circumstances it seems to me that each party should pay its or his own costs.

The appeal is thus allowed in part and the notice of objection so far as it relates to sec. 10(1)(g)(iii) upheld. The assessments Nos. 66682, 50904, 50138, 44431 and 13017 are remitted to the Commissioner to be amended so as to reduce the amount of land tax payable by such amount as allows for five acres of the total area of the land being exempt from land tax. Each party is to pay its or his own costs.

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