ABBOTTS EXPLORATION PTY LTD and COMMISSIONER OF STATE REVENUE
[2013] WASAT 39
•19 MARCH 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TAXATION ADMINISTRATION ACT 2003 (WA)
CITATION: ABBOTTS EXPLORATION PTY LTD and COMMISSIONER OF STATE REVENUE [2013] WASAT 39
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: 20 NOVEMBER 2012
WRITTEN SUBMISSIONS
4 DECEMBER 2012
12 DECEMBER 2012
DELIVERED : 19 MARCH 2013
FILE NO/S: DR 260 of 2012
BETWEEN: ABBOTTS EXPLORATION PTY LTD
Applicant
AND
COMMISSIONER OF STATE REVENUE
Respondent
Catchwords:
Duties - Transfer of shares in company - Landholder - Meaning of land - Meaning of estate or interest in mining tenement - Legal or equitable interest - Authority to carry out mining Transfer of mining tenements
Legislation:
Duties Act 2008 (WA), s 3, s 151, s 155(2), s 163, s 180
Interpretation Act 1984 (WA), s 3(1), s 5
Mining Act 1978 (WA), s 8, s 64(1), s 103C(8), s 118A, s 118A(2)
Taxation Administration Act 2003 (WA), s 34(1)(b), s 40(1)
Result:
The respondent's decision is upheld in respect of Exploration Licences EL51/1340, 1341 and 1342.
In respect of Exploration Licence EL51/1367, the respondent's decision is set aside.
Summary of Tribunal's decision:
In 2011, the applicant became the holder of a controlling interest in a company named Anuman Holdings Pty Ltd. Anuman at that time held certain rights in respect of four exploration licences under the Mining Act 1978 (WA). The applicant sought a determination from the Commissioner of State Revenue as to whether those rights amounted to 'land' as that expression is defined in the Duties Act 2008 (WA). The Commissioner decided that the rights were 'land' and the applicant asked the Tribunal to review that decision.
The Tribunal considered the terms of the document under which Anuman acquired those rights, and also the other relevant documents. The Tribunal concluded that Anuman had an equitable interest in three of the exploration licences, but had only a personal right in respect of the fourth. Accordingly, three of the exploration licences were land within the meaning of the Duties Act, but not the fourth. The Tribunal upheld the Commissioner's decision in respect of three exploration licences, but set it aside in respect of the fourth.
Category: B
Representation:
Counsel:
Applicant: Mr M Bruce
Respondent: Mr SG Wright
Solicitors:
Applicant: Bennett & Co
Respondent: State Solicitor for Western Australia
Case(s) referred to in decision(s):
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216 and (2012) 294 ALR 550
National Provincial Bank Ltd v Ainsworth [1965] AC 1175
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
REASONS FOR DECISION OF THE TRIBUNAL:
Background
On 18 July 2011 the applicant sought a determination under s 180 of Duties Act 2008 (WA) (Duties Act), from the respondent (Commissioner) as to whether any liability has arisen under chapter 3 of the Duties Act in respect of an acquisition of shares by the applicant.
The Commissioner gave its determination and on 21 October 2011 the applicant objected to that determination. That objection was disallowed by the Commissioner by notice to the applicant dated 23 May 2012.
On 20 July 2012, the applicant applied to the Tribunal under s 40(1) of the Taxation Administration Act 2003 (WA) for a review of the Commissioner's decision to disallow the applicant's objection.
The material before the Tribunal
At the hearing of this matter on 20 November 2012, the parties tendered two exhibits. Exhibit 1 was the Commissioner's bundle of documents (Respondent’s Bundle) and Exhibit 2 was a statement of agreed facts dated 12 October 2012 (Agreed Statement).
Prior to filing the Agreed Statement, both parties filed statements of issues, facts and contentions with the Tribunal. The Commissioner's statement was received on 27 August 2012 and the applicant’s statement was dated 17 September 2012. The Commissioner filed submissions on 16 October 2012 (Respondent’s Submissions) and the applicant filed submissions on 6 November 2012 (Applicant's Submissions).
At the hearing on 20 November 2012, both parties sought and were given leave to file further submissions arising from the then recent decision in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216 and (2012) 294 ALR 550. The Commissioner's further submissions were filed with the Tribunal on 4 December 2012 (Respondents's Further Submissions) and the applicant’s further submissions were filed on 12 December 2012 (Applicants's Further Submissions).
Facts
The facts in this matter are not in dispute between the parties.
On 18 May 2011 (relevant date), the applicant acquired shares in a company named Anuman Holdings Pty Ltd (Anuman). The result was that, because the applicant already held shares in Anuman, the applicant now held 53.4% of the shares in Anuman. This is a 'relevant acquisition' under the Duties Act.
At the relevant date, Anuman's assets included certain rights in relation to four exploration licenses (Tenements) under the Mining Act 1978 (WA) (MiningAct).
The Tenements comprise:
a)EL51/1340;
b)EL51/1341;
c)EL51/1342; and
d)EL51/1367.
Sacculus Pty Ltd (Sacculus) was the applicant for and on the relevant date was the registered holder of the Tenements.
Earlier, on 26 February 2010, Sacculus and Mooloogool Limited (Mooloogool) had entered into a document entitled 'Deed of Co-operation' (Deed of Cooperation). (Respondent’s Bundle page 151) The Deed of Co-operation was entered into to record the manner in which Mooloogool would coown the rights under the Tenements.
Details of the terms of the Deed of Cooperation are set out later in these reasons. At this point, it is sufficient to note that the Deed of Cooperation provides that, as each Tenement is granted, Sacculus will be the registered holder of that Tenement. However, Sacculus will hold the right to explore for and extract manganese and iron 'in relation to the [applications for the Tenements] on trust for Mooloogool' (Respondent's Bundle page 14).
Then on 8 March 2010, Sacculus and Anuman entered into a document entitled 'Option Deed' (Option Deed) (Respondent's Bundle pages 52 60).
Again, details of the terms of the Option Deed are also set out later in these reasons. However, in brief, the Option Deed is an agreement under which Sacculus grants to Anuman an option to acquire from Sacculus the 'Interest'. The Interest is the right to explore for and mine all minerals on the 'Mining Interests', except iron and manganese. 'Mining Interests' is defined in the Option Deed to include the applications for the Tenements.
To exercise the option, Anuman is required to give notice to Sacculus and then, within five business days after that notice, to pay to Sacculus the purchase price of $50,000.
On 9 March 2010 Anuman exercised the option under the Option Deed.
Three of the Tenements, being Exploration Licences 51/1340, 1341 and 1342 (Earlier Tenements) were granted on 25 March 2010. The fourth Tenement, being Exploration Licence 51/1367 (Fourth Tenement), was granted on 14 July 2010.
Sometime later in 2010, in accordance with a condition of exercising the option granted under the Option Deed, Sacculus entered into a 'Deed of Assignment' with Anuman. Under this deed, Sacculus 'assigns to Anuman, which assignment Amuman accepts, all of the rights, interests and obligations conferred upon Sacculus by the Deed of Cooperation' (Respondent's Bundle page 63).
On 18 July 2011 the applicant sought a determination from the Commissioner as to whether a liability for duty existed in respect of the acquisition of shares in Anuman that took place on the relevant date.
By letter dated 22 September 2011, the Commissioner advised the applicant that 'it is considered that Anuman is beneficially entitled to the [Tenements] and is therefore, a landholder assuming that the value of WA land is $2,000,000 or more'.
A Notice of Objection was lodged by the solicitors for the applicant under covering letter dated 21 October 2011. The applicant’s grounds for objection were in the following terms:
The Option Deed did not grant Anuman the option to acquire from Sacculus any mining tenements. The Option Deed granted Anuman the option to acquire certain contractual rights in relation to certain minerals only regarding mining tenements owned by Sacculus.
It is clear from the statutory definitions set out above that contractual rights in relation to mining tenements are not 'land', as opposed to the mining tenements themselves which are specifically included in the statutory definition of 'land'.
Anuman is not beneficially entitled to the Sacculus mining tenements and therefore is not beneficially entitled to land in Western Australia for the purposes of the Duties Act. As such Anuman is not a landholder for the purposes of the Duties Act.
On the basis that Anuman is not a landholder, the 18 May 2011 acquisition is not a relevant acquisition for the purposes of the Duties Act and accordingly, the acquisition does not attract landholder duty … . (Respondent’s Bundle page 224)
The applicant’s objection was disallowed by letter dated 23 May 2012. In disallowing the objection, the Commissioner said the following:
The language of the arrangements described above, is not merely that of authorising or granting contractual rights to Anuman to conduct certain exploration activities on the Mining Tenements. Instead, the material at hand evidences that what has taken place is the acquisition by Anuman of Sacculus’ interest in what are now the Mining Tenements, which acquisition was effected pursuant to the Option Deed and the Deed of Assignment, along with Anuman’s acceptance of the assignment of Sacculus’ rights and obligations arising from the Deed of Cooperation.
In consequence, I have formed the view that the entitlement of Anuman in the Mining Tenements constitutes an equitable interest and falls within the scope of an estate or interest in land for the purposes of the Duties Act. (Respondent’s Bundle page 231)
The Statutory Framework
Section 151 of the Duties Act provides that duty is imposed in respect of any relevant acquisition of an interest in an entity that is a landholder. A relevant acquisition, in the case of an unlisted landholder, is a 50% or greater interest in that landholder; s 163 of the Duties Act.
Under s 155(2) of the Duties Act, a corporation is a landholder if immediately before the acquisition it is entitled to land in Western Australia and the total value of the entitlement is $2,000,000 or more. 'Entitled' means beneficially entitled; s 3 of the Duties Act.
Section 3 of the Duties Act defines ‘land’ as relevantly including:
i)in paragraph (a) of the definition, 'any estate or interest in land';
ii)in paragraph (b) of the definition, a 'mining tenement'; and
iii)in paragraph (ca) of the definition, 'an estate or interest in a mining tenement'.
That section also relevantly defines a 'mining tenement' to include a mining tenement held under the Mining Act.
A 'mining tenement' is defined in s 8 of the Mining Act to mean ‘a prospecting licence, exploration licence, retention licence, mining lease, general purpose lease or a miscellaneous licence granted or acquired under this Act … and includes a specified piece of land in respect of which the mining tenement is so granted and acquired'.
Section 64(1) of the Mining Act provides that during the first year of the term for which an exploration licence is granted, 'a legal or equitable interest in or affecting the exploration licence shall not be transferred or otherwise dealt with' unless, relevantly, prior written consent is given by the Minister or an authorised officer of the Department.
Section 118A(2) of the Mining Act provides:
The holder of a prospecting licence, exploration licence or mining lease (the relevant tenement) may, by instrument in writing, authorise another person to carry out mining of a kind authorised by the relevant tenement on the land the subject of the relevant tenement.
Section 5 of the Interpretation Act 1984 (WA) (Interpretation Act) provides that land 'includes … any estate, interest, easement, servitude or right in or over land'. The word 'estate' in relation to land 'includes any legal or equitable estate or interest, easement, right, title, claim, demand, charge, lien, or encumbrance in, over, to, or in respect of the land'.
Section 3(1) of the Interpretation Act provides that these definitions apply to every Act unless express provision is made to the contrary or 'the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application.'
The Agreed Issue
The parties agree that the issue to be determined by the Tribunal is whether as at 18 May2011 the rights held by Anuman in relation to the Tenements are 'land' as defined in section 3 of the DutiesAct, being a mining tenement or an estate or interest in a mining tenement.
The Option Deed
Both parties have suggested, and I agree, that in determining the agreed issue, the starting point is to consider the wording of the Option Deed and determine objectively what it intended to achieve (Respondent’s Submissions at para 13 and Applicant’s Submissions at para 3).
One of the Recitals in the Option Deed states:
[Sacculus] has agreed to grant to [Anuman] an option whereby [Anuman] may, on exercise of the Option set forth in this Deed, require [Sacculus] to transfer the Interest to [Anuman] on the terms and conditions set out in this Deed.
The Option Deed defines the terms 'Interest' and 'MiningInterests' respectively as follows:
'Interest' means the right and entitlement to prospect, explore, mine and develop for all minerals excluding manganese and iron on the Mining Interests and the benefit of all receipts and income from any of those activities;
'Mining Interests' means the mining tenement applications made by [Sacculus] referred to in Annexure B and any other mining tenement applications or tenements relating to those applications or the area covered by those applications that are made or acquired by [Sacculus].
The mining tenement applications set out in Annexure B of the Option Deed are the four applications for the Tenements.
Clause 2 of the OptionDeed provides that, in exchange for a payment of $1, Anuman is granted 'the Option'. The Option is defined as the option of Anuman to purchase from Sacculus the Interest.
Anuman may exercise the Option on or before 30June2010 by giving notice in writing to Sacculus in the form set out in the OptionDeed.
If Anuman exercises theOption, the effect is that a contract is formed between Sacculus and Anuman for the transfer of the Interest to Anuman. The purchase price is $50,000, with settlement to take place within five business days after exercise of theOption. The date of the contract is the date when the notice is received by Sacculus.
The contract is conditional upon Anuman entering into 'the agreements' specified in cl 4.2 of the Option Deed as follows:
4.2[Anuman] agrees to enter into deeds of assignment to assume the rights and obligations of [Sacculus] with respect to [the Deed of Co-operation] … .
Although the Option Deed refers to an 'assignment to assume the rights and obligations' of Sacculus under the Deed of Cooperation, and although the document which gives effect to this agreement refers to an 'assignment', I believe that the intention of this document is one of novation rather than assignment.
The Option Deed then relevantly provides:
4.3On Settlement [Sacculus] will transfer to [Anuman] the Interest and provide and sign all documents necessary to ensure [Anuman] becomes the registered holder of the Interest, provided that if on Settlement any part of the Interest is not a granted tenement or ministerial consent is required to transfer any part of the Interest [Sacculus] will hold that part of the Interest on trust for [Anuman] until such time as the tenement is granted and any necessary ministerial consent is obtained.
…
4.5The Parties agree and covenant that from Settlement:
(a)[Anuman's] rights for the Mining Interest include the right to explore for, prospect, mine and commercially develop all minerals comprising the Mining Interest excluding manganese and iron;
4.6In order to give effect to the interests of the Parties following Settlement, the Parties agree as follows:
(a)[Anuman] will be entitled in all respects to be registered as the holder of any mining tenement comprising part of or issued for the Mining Interest;
(b)[Anuman] shall have the sole and exclusive right in relation to the Mining Interest to explore, prospect for, mine and commercially develop all minerals excluding manganese and iron.
Deed of Co-operation
The Deed of Cooperation has been referred to earlier in these reasons. Because of the terms of cl 4.2 of the Option Deed, it is appropriate that I provide some further details of the Deed of Cooperation.
The Deed of Cooperation was entered into between Sacculus and Mooloogool on 26 February 2010, a few days before the date of the Option Deed. Unlike the Option Deed, it is a very detailed document.
The Deed of Co-operation provides that Sacculus is the beneficial holder of the 'Applications', being the applications for the Tenements. It also provides that Mooloogool is the holder of the 'Other Mineral Rights', being the full, free and exclusive right to exercise mining rights in relation to each Tenement in respect of manganese and iron (Respondent's Bundle pages 5 and 11).
It is not apparent from this document how Mooloogool came to be the holder of the Other Mineral Rights.
As mentioned earlier, the Deed of Cooperation sets out that Sacculus is the registered applicant in relation to the Applications. The document contains an acknowledgement that as each Tenement is granted Sacculus will be the registered holder of that Tenement. Sacculus holds the OtherMineralRights in relation to the Applications on trust for Mooloogool.
There is provision within the Deed of Cooperation for joint mining if Sacculus and Mooloogool so agree. There is also provision for separate mining. The document provides that each party must give the other notice prior to commencing any mining activities and that each must give the other notice in the event that one or other of them discovers any mineral relating to the other party's interest.
Sacculus also agrees to make application for 'other appropriate forms of mining tenement' requested by Mooloogool or required by Sacculus as the case may be (Respondent's Bundle page 29).
The document contains indemnity provisions from Mooloogool to Sacculus and obligations on the part of Sacculus to Mooloogool in respect of the provision of surveys and other documents. Sacculus is required under the document to pay all rents, licences, rates and fees payable in relation to the Tenements.
Mooloogool is obliged to contribute 50% of the 'tenementexpenses', although Sacculus is responsible for ensuring that the tenement expenses are in fact paid.
Tenement expenses include rent, fees and other outgoings in respect of the Tenements.
Finally, at cl 16, the Deed of Cooperation provides that Sacculus may not dispose of the whole or any part of its registered interest in any Tenement or its rights or obligations under the Deed of Cooperation, without the consent of Mooloogool. As a condition of the disposal, the transferee must enter into 'a deed whereby the transferee agrees to be bound by, and assumes that the obligations of Assigning Party under this Deed … to the extent of the interest to be disposed of'.
The parties' submissions and the Tribunal's findings
On the date when Anuman exercised the option granted by the Option Deed, the Tenements had not been granted but merely applied for. However, it will be remembered that, by and on the relevant date, when the applicant acquired a relevant interest in Anuman, all the Tenements had by then been granted to and registered in the name of Sacculus. The Earlier Tenements had on the relevant date been granted for over a year, but the Fourth Tenement was still within the first year of its term.
Because of the provisions of s 64(1) of the Mining Act, I will deal with the Earlier Tenements and the Fourth Tenement separately.
Earlier Tenements
The applicant submits that, when all of the provisions of the Option Deed are considered, it is clear that what the parties were intending to achieve if the option was exercised was a transfer of contractual rights to certain minerals in relation to certain exploration tenements. It was not a transfer of the Tenements themselves. The applicant says that if this had not been the intention no distinction would have been made between the defined terms 'Interest' and 'Mining Interests'.
The applicant says that the position is directly analogous to the position in Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101 (Anaconda) at [102] [105]. Anaconda concerned the grant of a right to enter land the subject of an exploration licence and explore for and earn an interest in particular minerals. In that decision, it was held that this right did not give the grantee an estate or interest in the exploration licence itself. Ipp J at [10] found that the relevant contractual terms allowed the grantee a right to earn a 100% interest in certain minerals discovered, but not an interest in any of the tenements concerned. At [20] and at [63], his Honour considered that the Mining Act allowed the holder of a mining tenement to confer rights upon another person without transferring the tenement to that person.
Of course, s 118A has since been inserted into the Mining Act expressly authorising the holder of an exploration licence to enter into an instrument in writing which authorises another person to carry out mining of a kind authorised by the tenement.
It is clear that the decision in Anaconda turned on the specific wording of the agreement concerned and I do not accept that the agreement in that case was similar in operation and effect to the Option Deed .
In my opinion, the agreement created when Anuman exercised the option under the Option Deed is not limited to a transfer of the right to carry out mining of a kind authorised by the Tenements. The agreement also provides that Sacculus will transfer the Tenements to Anuman.
My reasons for coming to this conclusion are found within the terms of the Option Deed and the terms of the agreement which came into force when the option was exercised.
The applicant says in this regard that it is clear from the wording of the Option Deed that the document was prepared from some form of precedent and contains some 'boilerplate provisions'. The applicant points out by way of example that cl 4.3 and cl 4.6 of the Option Deed refer to Anuman becoming the 'registered holder' of the 'Interest'. The applicant submits that it is not possible for a party to become a 'registered holder' of a right to certain minerals only in relation to a mining tenement. Therefore, the applicant submits that where some of the clauses of the Option Deed refer to 'registration' they do not reflect the true intention of the parties in entering the Option Deed. Instead, the applicant says, they reflect a failure on behalf of whoever drafted the document to correctly update the 'precedent'.
While I consider that it is appropriate to interpret the Option Deed in a way which reflects the intention of the parties, it is not open to me to simply ignore certain provisions of the document or to in some way correct them. I accept that it is difficult to give any meaning to cl 4.3 and that it would be tempting to read that clause as if the word 'Interest' was replaced with the words 'Mining Interest' throughout that clause. The clause would then better contemplate the fact that the Tenements at the date of the Option Deed had merely been applied for and not granted. It would also better reflect the obvious possibility that the option could be exercised before the Tenements were granted.
Nonetheless, cl 4.3 as it is drafted does not cause me to come to any different conclusion than the one I have reached.
Clause 4.6, on the other hand, is very clear and in my opinion was included because the Tenements themselves had not yet been granted. Subclause (a) of cl 4.6 provides that Anuman is entitled to be registered as the holder of any mining tenement included in the Mining Interests. Subclause (b) provides that Anuman has the right to explore, prospect for, mine and commercially develop all minerals excluding manganese and iron.
My opinion that, following the exercise of the option, Anuman is entitled to become the registered holder of the Tenements is supported by the provisions of cl 4.2 of the Option Deed. This provides that if the option is exercised then Anuman is to enter into 'deeds of assignment' to assume the 'rights and obligations' of Sacculus under the Deed of Cooperation. Clause 16 of the Deed of Cooperation, which is the relevant provision of the Deed of Cooperation, provides that it operates if Sacculus intends to dispose of its registered interest in the Tenements. Anuman did enter into such a deed, which is consistent with my view that Sacculus, while remaining the legal owner of the Tenements, no longer has a beneficial interest in them.
Although the legal interest in the Earlier Tenements on the relevant date belonged to Sacculus, under cl 4.6 of the Option Deed Sacculus was on that date under an obligation to transfer that interest to Anuman. If Sacculus failed to do so, it is open to Anuman to seek an order for specific performance against Sacculus. Accordingly, Anuman in my opinion has an equitable interest in the Earlier Tenements.
Because of that conclusion, it follows that I find that on the relevant date the Earlier Tenements were land within the meaning of the Duties Act.
The Fourth Tenement
On the relevant date, Sacculus was prohibited by s 64(1) of the Mining Act from transferring or otherwise dealing with the Fourth Tenement without the prior written consent of the Minister. The Fourth Tenement was within the first year of its term on the relevant date.
Accordingly, I do not consider, and the Commissioner does not contend, that at the relevant date Anuman had a legal or equitable interest in the Fourth Tenement.
However, the Commissioner argues that Anuman nonetheless had an 'estate' in the Fourth Tenement at the relevant date.
In support of his argument, the Commissioner points out that s 5 of the Interpretation Act defines 'estate' as including 'any legal or equitable estate or interest, easement, right, title, claim, demand, charge, lien, or encumbrance in, over, to, or in respect of the land' (emphasis added). The Commissioner argues that Anuman has a right of some nature under the Option Deed in and to the Fourth Tenement and that therefore it has an estate in that tenement.
I disagree. Section 64(1) of the MiningAct is a clear prohibition on dealing in any way with an exploration licence within the first year of its term. The Interpretation Act provides that the definitions within it apply unless 'the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application'. I believe that applying the Interpretation Act in the way put forward by the Commissioner would produce a result which is contrary to the intention of the Mining Act.
Consistent with this finding, while I believe that Anuman did at the relevant date have a right in respect of the Fourth Tenement, because of s 64(1) of the Mining Act, that right could not have been proprietary, but was only a personal right. As Mason J said in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342, '[t]here is no question that the phrase ''estate or interest" … has, in its ordinary and natural usage, a proprietary connotation'. He went on to say 'No one who has a merely personal right in relation to land can be said to have an "estate or interest" in that land'.
In National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at 1247 1248, Lord Wilberforce said:
Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.
The rights of Anuman in respect of the Fourth Tenement could not be said to have any degree of permanence or stability given the provisions of s 64(1) of the Mining Act.
Accordingly, I find that Anuman did not at the relevant date have an estate or interest in the FourthTenement within the meaning of the Duties Act.
Conclusion
For the reasons set out above, I find that the Commissioner's determination that Anuman has an interest in the Earlier Tenements and therefore the Earlier Tenements are 'land' within the meaning of s 3 of the Duties Act is correct. However, I find that the determination which the Commissioner made about the Fourth Tenement is incorrect and that the Fourth Tenement is not 'land' within the meaning of the Duties Act.
I therefore affirm the Commissioner's determination in respect of the Earlier Tenements and set aside the Commissioner's determination in respect of the Fourth Tenement.
Orders
The Tribunal orders that:
1.The determination dated 22 September 2011 of the Commissioner of State Revenue that exploration licences EL51/1340, 1341 and 1342 under the Mining Act 1978 (WA) fell within the definition of 'land' under the Duties Act 2008 (WA) at 18 May 2011 is affirmed and the applicant's objection to that determination is dismissed.
2.The determination dated 22 September 2011 of the Commissioner of State Revenue that exploration licence EL51/1367 fell within the same definition of 'land' is set aside and there is substituted for it a determination that exploration licence EL51/1367 did not fall within that definition of 'land' at 18 May 2011. The applicant's objection to that determination is therefore upheld.
I certify that this and the preceding [81] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT
0
2
4