The Manor Foundation Ltd. v. Commissioner of Land Tax (N.S.W.).

Judges:
Yeldham J

Court:
Supreme Court of New South Wales

Judgment date: Judgment handed down 18 October 1983.

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Yeldham J.

The plaintiff, The Manor Foundation Limited, is the legal owner of land at Iluka Road, Mosman, upon which is erected a property known as ``The Manor''. That property it holds upon trust, the terms of the trust being contained in a deed made 9th February 1925 and amended on 17th August 1951. On the latter day also the appointment of the plaintiff as trustee was made. To the terms of the various deeds it will be necessary to refer in due course. The premises in question were at the relevant time and are still used as a Spiritual Centre and as an educational community based upon Theosophical ideals. In other words they were and are used for the purposes of and in connection with the advancement of the religion of Theosophy. For the purposes of the present appeal the respondent has admitted that the Theosophical Society is a religious society and that Theosophy is religious.

The respondent, the Commissioner of Land Tax for New South Wales, assessed the plaintiff as being liable to pay land tax upon the unimproved value of the land at Mosman in respect of the year 1969. The original assessment is dated 13th October 1981 and an objection, dated 25th November 1981, was lodged by the plaintiff against such assessment. An amended assessment was issued on 29th April 1982, but the details are not material. It should, however, be mentioned that each assessment imposed a penalty upon the plaintiff, but during the course of the hearing of the present appeal the Commissioner, very properly in my view, agreed to wholly remit such penalty pursuant to sec. 72 of the Land Tax Amendment Act, 1956, in the event that the appeal was unsuccessful.

By the summons in the present action the plaintiff claims an order upholding its objection to the assessment. Although, as I have said, the particular year is 1969, the fate of the present appeal will determine the liability or otherwise of the plaintiff to pay land tax upon the premises at Mosman in all succeeding years.

Section 7 of the Land Tax Management Act, 1956, provides that, subject to the provisions of such Act, land tax at such rates as may be fixed shall be levied and paid upon the unimproved value of all land situated in New South Wales which are owned by taxpayers and which are not exempt from taxation. The plaintiff here claims to be

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exempt under a number of provisions to be found in sec. 10. That section, so far as is presently relevant, provides:

``10.(1) Except where otherwise expressly provided in this Act the following lands shall, subject to sections 10B, 10C, 10D and 10E, be exempt from taxation under this Act: -

• ...
• (d) land owned by or in trust for a charitable or educational institution if the institution, however formed or constituted, is carried on solely for charitable or educational purposes and not for pecuniary profit;
• (e) land owned by or in trust for a religious society, where the land is held solely for, or the proceeds of the land are devoted solely to, religious, charitable or educational purposes, including the support of the aged or infirm clergy or ministers of the society, or their wives or widows or children;
• ...
• (g) 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 -
  • (i) a place of worship for a religious society, or a place of residence for any clergy or ministers or order of a religious society;
  • (ii) a place licensed under Part VII of the Child Welfare Act, 1939, as amended by subsequent Acts, or a school registered under section 10 of the Public Instruction (Amendment) Act, 1916, as amended by subsequent Acts;
  • (iii) a building owned and solely occupied by a society, club or association not carried on for pecuniary profit;
  • (iv) a charitable institution not carried on for pecuniary profit;
  • (v) a public cemetery or crematorium;
  • (vi) a public garden, public recreation ground or public reserve;
  • (vii) a fire brigade, ambulance or mines rescue station;
  • ...''

The plaintiff claims that it is entitled to exemption alternatively (and in descending order of importance) under sec. 10(1)(e), 10(1)(g)(iii), 10(1)(d), 10(1)(g)(iv) and 10(1)(g)(i).

In order to understand the competing submissions it is necessary to refer in a little detail to the facts revealed by the evidence, which was not the subject of dispute.

The Theosophical Society, which is a world-wide organisation, was formed in New York in 1875. Its headquarters are at Adyar, Madras, in India. Since 1905 it has been an association registered under Act XXI of 1860 of the Viceroy and Governor-General of India in Council, being termed ``an Act for the Registration of Literary Scientific and Charitable Societies''. Section 14 provides that upon a dissolution of any society registered under the Act, no member shall receive any surplus property or profit. A copy of that Act, of the memorandum of association of the Society in India, and of the Society's rules in Australia, were tendered before me. The Australian Section of the Society is not incorporated, but a body called the Australian Section Theosophical Trust was incorporated in 1926 to act as Trustees for that Section. The principal objects of the Theosophical Society, as set out in its memorandum of association, are:

``I. To form a nucleus of the Universal Brotherhood of Humanity without distinction of race, creed, sex, caste or colour.

II. To encourage the study of Comparative Religion, Philosophy and Science.

III. To investigate unexplained laws of Nature and the powers latent in man.''

On 1st January 1895 the Australasian Section of the Society was formed. The Society in Australia has been involved in radio broadcasting (between 1925 and 1980) and in publishing in order to present to its members and the public its objects and teachings. It is involved, through the Theosophical Order of Service, in various projects to help the needy, such as Austcare.

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The rules of the Theosophical Society in Australia (which is called the National Society) set out (in r. 4) that the Society's purpose is ``essentially spiritual in aim and content, consisting, as it does, in the pursuit and dissemination of the Divine or Spiritual Wisdom known as Theosophy''.

Rule 24, which deals with the holding and administration of property, provides (in subr. (6)) that the income and property of the National Society, from wherever derived, shall be applied solely towards the promotion of the objects of that Society as set forth in the rules and no portion shall be transferred, whether directly or indirectly, by way of dividends, bonus or otherwise to any persons who are or have been members of the National Society.

The Esoteric School of Theosophy, which is a distinct entity from the Society, was founded in 1888. It was registered under the Indian Act XXI of 1860 in 1945. Various documents which indicate the purpose for which the School was formed and maintained are in evidence. It is made up of members of the Society who have completed not less than two years of active devoted membership. The objects of the School are:

``1. To enable the President of the School (who shall be styled the Outer Head) to give instructions to its members in Philosophy, Science and the means of self-training to the highest spiritual ends.

2. To promote and organise under the direction of the President of the School such activities as will conduce to human progress.

3. To do all that is necessary and incidental to the above including the holding, management and disposal of funds and property of every description.''

The School was formed to further the movement towards universal brotherhood. In para: 12 of his affidavit, Mr. Patterson, who is a member of the Board of Directors of the plaintiff, a member of the Theosophical Society and, since 1979, the Australian Representative of the Outer Head of the Esoteric School of Theosophy, said:

``It is a gathering of the elect of the Society whose work is to help the future growth of the Society as a whole in the true direction by promoting brotherly union. In order that students of the School may receive as much benefit as possible, it is essential that the superficial and inattentive habits of thought, engendered by western civilisation, be given up and the mind concentrated upon instruction. To this end, students are required to practise the habit of careful and constant concentration of mind upon every duty and act in life they may have to do and to reserve their efforts in that direction for the consideration of these teachings only. The student must make all his desires lean to and centre upon the requirement of spiritual knowledge, so that the natural tendency of his thoughts may be in that direction. He must, therefore, in every moment of leisure revert to these subjects, as well as have a special time set apart for these considerations.''

Paragraph 13 states:

``As is indicated in Exhibit `O' the purpose for which the School exists is to help its members live the right kind of life, which is the basis for all endeavours; to qualify themselves to be of service to the Masters of the Wisdom in Their plans for the advancement of humanity; equally to bring those who are in earnest and fulfil the necessary conditions into touch with Them. The methods suggested in the School are, first, the development of a spirit of altruism in all one's relations; meditation along certain lines; study of such books as will give the necessary illumination and guidance; and service to one's fellow men according to one's capacity and opportunities. As the Society exists to promote the progress of humanity every member of the School has the obligation to help the Society to function as efficiently as possible. As an instrument for this purpose he must be active in its work in a spirit of harmony and co-operation with his fellow members. Members of the School must be strictly vegetarian, abstain from alcohol, tobacco and narcotics, and may not indulge in promiscuous sexual relationships.''

In 1925, Jacobus Johannes Van der Leeuw, who was an active member and benefactor of the School and of the Society during the early part of the twentieth

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century, transferred by Deed of Settlement the land upon which The Manor is erected to the Right Reverend Charles Webster Leadbeater, Corresponding Secretary for Australia of the Esoteric School of Theosophy, as trustee. The Deed, which is dated 9th February 1925, recites:

``WHEREAS the Settlor is desirous of providing for (1) The establishment of a Spiritual Centre or Spiritual Centres where persons may be trained in religious matters and from which they may be sent forth to serve humanity and (2) The establishment of an educational Community or educational Communities based on Theosophical ideals and with those objects has purchased in the name of the Trustee... the Lands more fully described in the Schedule hereto...''

By cl. 2 ``educational Community'' is said to mean ``a Community which aims at educating its members in the widest sense of the word''.

Clause 3, which Mr. Sheller, senior counsel for the plaintiff, described as central to the Deed, and which gives it its charitable object, is in these terms:

``3. THE Trustee shall establish carry on and conduct on the said lands and may establish carry on and conduct elsewhere a Spiritual Centre for the training of persons in religious matters from which they be sent forth for the service of humanity and also an educational Community based on Theosophical Ideals.''

Other relevant clauses are as follows:

``4. THE Management conduct and control of the said Centre and Community shall be in the absolute discretion of the Trustee who in addition to the powers authorities and discretions by these presents or otherwise expressly conferred upon him may exercise all such powers and do all such acts and things as he may consider necessary or useful in the management conduct and control of the said Centre and Community and for the furtherance of the hereinbefore recited objects.

5. WITHOUT prejudice to the general powers conferred by the last preceding clause and the other powers conferred by these presents it is hereby declared that the Trustee shall have the following powers authorities and discretions in regard to the management of the said Centre and Community that is to say:

• (a)...
• (b)...
• (c)...
• (d) The Trustee may organise manage and expand the Community may promulgate principles and rules for its economic life and government may establish churches schools and societies in connection with the Community as also organisations for the production and distribution of goods and may also organise the life of the members of the Community control its official and domestic management and appoint employ and dismiss assistants officials or servants and may make any rules for the Community as to him may seem meet.

...

16. IT IS HEREBY AGREED AND DECLARED that it shall be lawful for the Outer Head for the time being of the Esoteric School of Theosophy from time to time by deed to revoke vary add to amend or alter all or any of the provisions of these presents including the objects thereof provided that such objects as altered shall remain of a charitable nature and any such revocation variation addition or alteration shall be as binding as if it had been originally set forth in these presents.''

By a Deed Poll made on 17th August 1951 the Outer Head of the Esoteric School of Theosophy varied certain provisions of the original deed and stipulated that a company may be appointed to be a trustee under such deed. On 17th August 1951, also, a deed was executed between the Outer Head and the then trustees of The Manor and the plaintiff and the latter was appointed as a trustee in accordance with the earlier deed of settlement dated 9th February 1925. The plaintiff company, which was incorporated on 15th August 1951, had as its objects the following.

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``(1) To act as a permanent Trustee of the property at present the subject of a Deed of Trust made on the 9th day of February 1925 between JACOBUS JOHANNES VAN DER LEEUW (Settler) and the Right Reverend CHARLES WEBSTER LEADBEATER (Trustee) Registered Number 277 Book 1379 in the Registry of Deeds at Sydney.

(2) To carry out the Trusts of the said Deed and to further and extend its objects by all lawful means.

(3) To receive any property to be added to the Trust whether by gift inter vivos or by will, purchase compensation or otherwise howsoever.

(4) To do all things authorised and required of the Trustee by the said Deed in furtherance of its purposes and in conservation of its property.

(5) To act as a Trustee of any other organisation, fund, movement, society or body of persons having charitable, religious, humanitarian or philanthropic objects and is of otherwise of such a nature as to lend itself to convenient administration by the association in the opinion of its Directors.

(6) To combine with others to carry out any of these objects and to act as cotrustee or agent of any organisation herein mentioned.

(7) To act as the Agent, Trustee or representative of The Esoteric School of Theosophy registered at Adyar, Madras on the 21st May 1945 or of any other body or organisation which in the opinion of the Directors has objects similar to those of the Manor Foundation.

(8) The Foundation being a religious and educational body aims to fit its members and others to serve humanity along altruistic lines by the dissemination of the instructions and teachings of Theosophy and to put the same into practice by organising activities conducive to human progress with particular emphasis upon personal unselfish service by members.

(9) To encourage members to go out and impart their knowledge by direct approach to the public by lecturing and working in other practical ways such as by their supporting worthy charitable religious and philanthropic works and to that end to do all that is necessary or incidental to the above including the raising by loan, public appeal or otherwise of funds and property of all kinds and the holding and management of the same, the establishing and operating of schools, hospitals, homes and shelters for all in need and of the means of raising funds for the establishing and carrying on of the same or any other objects of the Foundation.''

Clause 3 of the memorandum is as follows:

``3. The income and profits (if any) of the Foundation shall be applied in promoting its objects and no portion thereof shall be paid or transferred directly or indirectly by way of dividend or distribution of profits to its members provided that nothing herein contained shall prevent the payment in good faith of reasonable remuneration to any employee or servant of the Foundation or to any member for professional services nor prevent the payment of reasonable interest on moneys lent or reasonable rent for premises used.''

Article 3 provides that the subscribers to the memorandum and such other persons as the directors shall admit to membership shall be members of the Foundation. By art. 4 it is provided that a candidate for membership other than a subscriber shall sign an application form and his admission shall be subject to the approval of the Outer Head for the time being of the Esoteric School of Theosophy of India or his duly appointed delegate for that purpose. Article 40 precludes any director from receiving remuneration other than out-of-pocket expenses. By art. 42 it is provided that in the event of the company being wound up no part of any surplus of assets over liability shall be distributable to its members and the same shall be disposed of as may be directed by the Outer Head or, if there is no Outer Head in office, then in such manner as the governing body of the Esoteric School of Theosophy shall direct.

So far as The Manor itself is concerned, its use in 1969 and indeed at all other times was and is as described in affidavits of Mr. Patterson and of Ruth Beringer, who has resided at the premises for about thirty years and who was, in 1969, general secretary of

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the Society in Australia. She had been a member of the Esoteric School of Theosophy for about thirty years. In her affidavit sworn on 27th July 1983 she says, inter alia:

``In the year ended 31st October 1969 there were twenty-seven permanent residents of The Manor, all of whom were members of the Esoteric School with the exception of four young persons and during that year there were a number of visitors to The Manor, most of whom were also members of the School. During their visit the latter `became part both of the Spiritual Centre and the educational Community maintained at The Manor.''

Paragraph 5 of the affidavit is in these terms:

``5. Of the 27 permanent residents at the Manor during the year ended 31st October 1969 only nine were engaged in full time occupations outside the Manor or the various organs of the Society (of whom three held official positions with the Blavatsky Lodge) and six were engaged in full time work for the Society or one of its organs. Of the remaining 12 residents of the Manor, four were the young persons mentioned in para. 4 hereof. The other eight residents included four residents who worked full time or part time at the Manor itself on house work and gardening and four residents of whom one was the mother of young children, two were elderly and one spent most of her spare time preparing for and giving talks at the Blavatsky Lodge. Members of the Manor were and are required to respect the Manor as a Spiritual Centre and to dedicate themselves to the ideals of the School. Those who were engaged in occupations outside the Manor or the Society itself were and are required to protect the Spiritual Centre from exterior influences and disturbances, although it was and is regarded as important that members of the Community at the Manor should be in touch with the `outside world' and be able to spread the knowledge gained by them as members of the Society. In addition to the general admonition to the Community of residents at the Manor to devote their lives to the ideals of the School and of the Society, there was also a number of specific spiritual and educational disciplines to which they were expected to subject themselves. These involved attendance at a service of the Holy Eucharist which was a religious ceremony of the Liberal Catholic Church, somewhat similar to a communion service in the Anglican Church. This was held in the Manor Chapel each morning. There was also held each morning in the temple a short service of the Egyptian rite, which is the Theosophical ceremony of invocation and dedication referred to in para. 22 of the said affidavit of Jack Gibson Patterson. A solemn benediction service, also a service of the Liberal Catholic Church, took place every Monday night in the Chapel. Also on Monday nights a further Egyptian rite service was held in the Temple. This is the service referred to in para. 21 of the said affidavit of Jack Gibson Patterson and involved ceremonies exchanges of questions and responses by participants.''

And para. 7 said:

``7. In addition to attending the services mentioned in para. 5 hereof, a resident was then and is now expected to engage in personal morning meditation on spiritual subjects, to spend a period in personal study of Theosophical subjects each day and to spend time in preparation for either speaking at or assisting in the local Lodge, a branch of the Society. There were personal meditative periods at noon and in the evening before residents retired. In addition to personal study on Theosophical principles, religious instruction was also given each Monday evening by Dr. Van den Broek, the Head of the Manor and representative of the Outer Head of the School during the year ended 31st October 1969 both for a period prior to the solemn benediction on Monday nights, which period was usually devoted to how Theosophical principles should be applied in daily life and conduct, and during the Egyptian rite service on Monday nights referred to in para. 5 hereof.''

In a subsequent affidavit sworn on 2nd August 1983 the same deponent said:

``2. I am able to state from my own knowledge that the sole activity of the plaintiff company since its incorporation

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has been and is to carry out the trusts of the Deed referred to in para. 2 of my said Affidavit. For this purpose the Directors of the Plaintiff Company have held meetings at least every two (2) months since the Company was appointed to carry out the trusts of the said Deed at which matters both of general business, relating to the administration of `The Manor' property and the operation of the Spiritual Centre and the educational Community referred to in the said Deed were considered and appropriate actions resolved upon.

3. Since the date when the Plaintiff Company was incorporated its sole income has been derived by it in carrying out the trusts of the said Deed from the making of nominal charges to residents of `The Manor' for accommodation and from investments held pursuant to the terms of the Deed. Such income has been applied by the Plaintiff Company solely towards the maintenance and upkeep of `The Manor' or set aside to a fund styled `Accumulated Funds Account' to be devoted in the future to the maintenance and upkeep of `The Manor' property or otherwise to the carrying out of the trusts contained in the said Deed.''

A history of the work of ``The Manor'' (which is Ex. Q) and a copy of the Rules for Residence were in evidence but I need not refer to these, nor to the statements of account for the relevant period.

The first basis upon which exemption from land tax is claimed by the plaintiff is pursuant to sec. 10(1)(e), the terms of which have earlier been set out.

On behalf of the Commissioner it was argued that the plaintiff was not a religious society, nor did it hold the land in trust for such a society. Members of the Community who reside in The Manor and who are members of the Esoteric School could not be described as ``a religious society'' because the parameters of their beliefs are so vague and uncertain that, in the absence of a formal constitution, they should not be characterised as a society. Counsel argued that theirs was essentially an individualistic religion and there was so little formality and organisation in the Centre that those who reside there were not to be characterised as a society. It was submitted that the case is distinguishable in a number of respects from
Christian Enterprises Ltd. v. Commr. of Land Tax 72 S.R. 90, where the plaintiff, a company limited by guarantee, whose primary object was to raise funds to promote specified religious purposes, was held to be exempt from payment of land tax in respect of realty which it owned, under sec. 10(1)(e) of the Act.

I have come to the conclusion that the plaintiff was and is itself a religious society and that the land in question was and is held solely for religious and charitable purposes and for that reason it is entitled to the exemption which it seeks.

The primary objects for which the plaintiff was formed have earlier been set out, but they are in particular to carry out the trusts of the deed of 9th February 1925. That deed required the plaintiff to conduct on the land in question a Spiritual Centre and Community and this it has done and is doing. Furthermore, I am of the view that, whether or not, as I have concluded, the plaintiff is a religious society, the land is and was in any event held by it in trust for a religious society within the meaning of sec. 10(1)(e), that society being the people associated in The Manor by their common faith as members of the Esoteric School.

In my opinion the plaintiff was and is a religious society in the charitable sense and the purpose for which it exists, as described in the deed, is a charitable purpose using that expression in its wide legal meaning - see Tudor on Charities (6th ed.) pp. 2-5 and 38 ff.
Although Salvation Army (Vic.) Property Trust v. Ferntree Gully Corp. (1951-1952) 85 C.L.R. 159 was concerned with the Local Government Act 1946 (Vic.), nonetheless the joint judgment of Dixon, Williams and Webb JJ., in particular at pp. 172-174, supports the view at which I have arrived. In my view the plaintiff, which is charged with the carrying out of the trust which has as its principal object the promotion of spiritual teaching in the wide sense and the maintenance of the doctrine upon which it rests, is engaged wholly in the advancement of religion, and the land which it holds in trust for this purposes is used solely for religious and charitable purposes - see
Keren Kayemeth Le Jisroel Ltd. v. I.R.

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Commrs. (1931) 2 K.B. 465 at p. 477; affirmed (1932) A.C. 650 (see in particular p. 658).

In
Roman Catholic Archbishop of Melbourne v. Lawlor (1934) 51 C.L.R. 1 at p. 32, Dixon J. (as his Honour then was) said:

``In order to be charitable the purposes themselves must be religious; it is not enough that an activity or pursuit in itself secular is actuated or inspired by a religious motive or injunction: the purpose must involve the spread or strengthening of spiritual teaching within a wide sense, the maintenance of the doctrines upon which it rests, the observances that promote and manifest it... A gift made for any particular means of propagating a faith or a religious belief is charitable... But, whether defined widely or narrowly, the purposes must be directly and immediately religious.''

See also
Congregational Union of N.S.W. v. Thistlethwayte & Ors. (1952) 87 C.L.R. 375 at pp. 440-445.

In my view the plaintiff was and is at the present time a religious society (using that word in the charitable sense of being concerned with the advancement and promotion of theosophy) because it is not merely a trustee for the Community or its members but has active duties under the deed and in fact manages and conducts the Centre and the educational Community at The Manor. In this respect it is quite unlike the plaintiff in
Theosophical Foundation Pty. Ltd. v. Commr. of Land Tax (1966) 67 S.R. 70.

As was observed by Stephen J., in
Commr. of Land Tax (N.S.W.) v. Joyce & Ors. (1973-1974) 132 C.L.R. 22 at p. 35, the phrase ``religious society'' in sec. (1) has been said to bear the intended primary use of religious denomination. His Honour there held that the Christian Sect known as the Brethren did answer that description, there being a common belief and common acceptance of recognised doctrine which clearly identified members of that Sect, this being accompanied by the outward manifestation of regular worship together in congregations ``the members of which are very conscious of their membership, which is only conferred upon those thought worthy and which may be forfeited by acts of unworthy conduct''. That judgment supports the view at which I have arrived upon the facts of the present case. The purposes and object for which the plaintiff was established and to which it devotes the land which it holds in trust is essentially the fulfilment of the means of propagating the religious beliefs of theosophy. This is not confined to the Community itself as those who reside therein go forth and propagate their religious belief. The plaintiff is not merely a trustee for the Community or its members but has active duties to perform under the deed in connection with the conduct of the Centre and the educational Community. The plaintiff's membership is entirely composed of members of the Esoteric School, some of whom reside in the Community.

Because the land is owned by, and indeed in trust for, a religious society, and is held solely for religious and charitable purposes, it is exempt from the imposition of land tax.

I have come to the conclusion that a claim to be exempt under sec. 10(1)(g)(iii) has also been established. It is conceded on behalf of the Commissioner that the land in question was owned by a ``person'' (which by sec. 3 is defined to include a company) and was used by it, the critical question being whether the building on the land was solely occupied by a society or association not carried on for pecuniary profit. The expression ``used'' in para. (g) is satisfied if the land is applied to the particular purpose (Joyce's case at p. 33).

Section 10(3) of the Act provides as follows:

``(3) For the purposes of the sub-paragraph (iii) of paragraph (g) of subsection (1) of this section, the use or occupation of any building or part of any building by any society, institution, club or association not carried on for pecuniary profit, which is affiliated with the owner of the land on which the building is erected, or with which that owner is affiliated, or which is controlled by or controls that owner, shall not be deemed to be use or occupation by a person other than the owner.''

Although Mr. Tolhurst, counsel for the respondent, did formally submit that the Community and/or the Centre were not societies within the meaning of sec. 10(1)(g)(iii), nonetheless he did concede (and

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properly so, in my view) that they come very close to what is an ``association'' within the meaning of the same paragraph, but he argued that they fell short of fitting this description because of the absence of structure. In my opinion, whether the relevant use is that of the plaintiff itself (as I have held it to be) or of those people who make up the Community, that use is, within the meaning of sec. 10(3), one by a society or association and, in the case of those who make up the Community, it is a society or association affiliated with the plaintiff which is the owner of the land.

Mr. Tolhurst argued that the real question is whether the Centre or the Community, if they be an association or society, occupied The Manor. He argued that the true analysis of the deed and of the factual situation was that the plaintiff allowed individuals to live at the premises, that they occupied the house in their individual capacities, and only became members of any association or society by reason of that residence and their admission there. He submitted that they were admitted to reside in their personal capacity only and that any association or society did not occupy the building or occupy it solely. However, in my opinion, this is not the correct analysis of the situation. That the plaintiff itself, a company, can be an association or society is clear. See Theosophical Foundation Pty. Ltd. v. Commr. of Land Tax (ante) and Smith v. Anderson (1880) 15 Ch. D. 247 at p. 273.

As is pointed out by Sugerman J. in the first mentioned case, the exclusion of pecuniary profit refers to that of individuals and ``the object is to accord exemption to those societies, clubs and associations, and institutions and bodies of various kinds, whose profits, if any, are applied solely to the advancement of their objects and cannot find their way into the pockets of individuals''. The plaintiff in the present case, and indeed the association or society of persons who occupy the Centre, clearly comes within the description of a society or association not carried on for pecuniary profit. Whether it be the plaintiff or the group of residents who are to be considered for the purpose of sec. 10(1)(g)(iii) the result is the same. The occupation is not by individuals but by the society or association and the trust deed makes it plain that this is so. If it be the Community which is an association or society then sec. 10(3) deals with the situation. I do not think it is accurate to submit, as was done by Mr. Tolhurst, that it is the various individuals who are the occupiers in their personal capacities. Plainly they are only there because of their common bond and their deep involvement in the Spiritual Centre and the Community and their dedication to the principles of Theosophy.

Thus I conclude that the plaintiff is entitled to the exemption which it seeks under sec. 10(1)(e) and 10(1)(g)(iii) of the Act. I need not determine its claim to be exempt under any other provisions. I order that the plaintiff's objection to the assessment of land tax in respect of premises known as The Manor, 2 Iluka Road, Mosman, based upon the plaintiff's ownership of such land on 31st October 1969, be upheld, and I order the Commissioner to pay the plaintiff's costs.