Commissioner of State Taxation v Perpetual Corporate Trust Limited - [2022] SASCA 117

Supreme Court of South Australia
(Court of Appeal: Civil)
COMMISSIONER OF STATE TAXATION v PERPETUAL CORPORATE TRUST LIMITED
[2022] SASCA 117
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
10 November 2022
TAXES AND DUTIES - STAMP DUTIES - APPEAL, CASE STATED ETC - SOUTH AUSTRALIA
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - OTHER MATTERS
TAXES AND DUTIES - STAMP DUTIES
TAXES AND DUTIES - STAMP DUTIES - EXEMPTIONS - CONVEYANCE OR TRANSFER ON SALE OF REAL PROPERTY
Appeal against the decision of a judge of the Supreme Court.

On 30 September 2019, land situated at 231 Waymouth Street Adelaide was transferred to the respondent. The premises on the land comprised purpose-built student accommodation facilities. The appellant assessed stamp duty on the conveyance on sale, based on a consideration of $55,000,000, of $3,018,830 primary stamp duty pursuant to s 4 and sch 2 of the Stamp Duties Act 1923 (SA), and $3,850,000 foreign ownership surcharge pursuant to s 72 (together, ‘the Assessment’).
On 18 November 2019, the respondent objected to the Assessment pursuant to s 82 of the Taxation Administration Act 1996 (SA) (TAA). On 7 June 2020, the Treasurer of South Australia confirmed the Assessment and disallowed the objection.
The respondent appealed successfully to a single judge of this Court. The Court revoked the Assessment and made an assessment in its place to the effect that no stamp duty or foreign ownership surcharge was payable on the transfer.
By operation of s 105A(3) and (5) of the SDA, no liability to duty arises in relation to a conveyance or transfer of an interest in ‘qualifying land’ executed on or after 1 July 2018. Land that is taken to be used for residential purposes in accordance with sub-s 105A(2)(a) is excluded from the definition of ‘qualifying land’.
The Commissioner contended on appeal that the judge erred in concluding that ‘residential’ implies a permanent or long-term commitment to living in a particular place and in finding that the land was ‘qualifying land’ within the meaning of s 105A(1) and (2) of the SDA. She contended that the judge should have found that the land was being predominantly used for residential purposes.
Identical issues arose regarding the imposition of a foreign ownership surcharge in respect of the transaction by operation of s 72 of the SDA. The respondent is a ‘foreign person’ within the meaning of the Act.
Held (by the Court), dismissing the appeal:
1.Whether land fits within the exception in s 105A(2)(a) will require a characterisation, on all the facts, of the purposes for which the land is taken to be used. The business incentivisation purpose of the abolition of stamp duty and the foreign ownership surcharge contributes an important dimension to the interpretation of the ‘residential purposes’ exception. The primary judge was correct to conclude that the word ‘residential’ in these exceptions implies a permanent or long-term commitment to living in a particular place.
2.The matters relied on by the appellant, to show the land was being used for residential purposes, do not detract from the conclusion of the primary judge. They confirm that the property was occupied by (mainly) students as intended, that is, as a short-term place to live.
3.The property was designed and deployed as a form of accommodation that does not lend itself easily to the characterisation of long-term or permanent residence that is connoted by the term ‘residential purposes’ in s 105A.
4.The nature and purpose of the business transaction do not form part of the factual matrix relevant to determining whether the property was, at the date of transfer, taken to be used for residential purposes.
5.On the complaint of inadequacy of reasons, the judge’s use of occupancy statistics was directed to the nature of the commitment made by students by reference to semester periods. The matters said to inform whether the land should be taken to be used for ‘residential purposes’ do not warrant a different conclusion from that reached by the primary judge.

A New Tax System (Goods and Services) Tax Act 1999 (Cth) s 195-1; Development Act 1993 (SA) (ceased); Legislation Interpretation Act 2021 (SA) s 16; Stamp Duties Act 1923 (SA) ss 3E, 4, 72, 105A(3), sch 2; Stamp Duties (Foreign Ownership Surcharge) Amendment Act 2017 (SA); Statutes Amendment (Budget 2015) Bill 2015 (SA); Taxation Administration Act 1996 (SA) ss 82, 92, 98, referred to.
Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7; Lee v Lee (2019) 266 CLR 129; Warren v Coombes (1979) 142 CLR 531; RSAYS Ltd v Commissioner of State Taxation (2007) 100 SASR 448; Diethelm Manufacturing Pty Ltd v Federal Commissioner of Taxation (1993) 44 FCR 450; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Marana Holdings Pty Ltd v Federal Commissioner of Taxation (2004) 141 FCR 299; GrainCorp Operations Ltd v Liverpool Plains Shire Council (2013) 194 LGERA 83; South Steyne Hotel Pty Ltd v Federal Commissioner of Taxation (2009) 71 ATR 228; ECC Southbank Pty Ltd v Commissioner of Taxation (2012) 205 FCR 505; GrainCorp Operations Ltd v Liverpool Plains Shire Council (2013) 194 LGERA 83; North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532; City of Swan v West Australian Shalom Group Inc [2017] WASC 217; Corporation of the City of Marion v WC Projects Pty Ltd [2017] SASC 74, considered.

COMMISSIONER OF STATE TAXATION v PERPETUAL CORPORATE TRUST LIMITED
[2022] SASCA 117
Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA

THE COURT: By operation of s 105A(3) and (5) of the Stamp Duties Act 1923 (SA) (SDA), no liability to duty arises in relation to a conveyance or transfer of an interest in ‘qualifying land’ executed on or after 1 July 2018. This appeal concerns whether land comprised in Certificate of Title Volume 6224 Folio 722, situated at 231 Waymouth Street Adelaide (‘the Land’), was ‘qualifying land’ within the meaning of s 105A(1) and (2) of the SDA, as at 30 September 2019, the date of its conveyance on sale. The premises on the Land comprise purpose-built student accommodation facilities.
The primary issues arising on the appeal are:
·how the term ‘residential purposes’ as used in s 105A of the SDA is to be interpreted, and in particular, whether that term connotes a permanent or long-term commitment to living in a particular place (Ground 1); and
·whether the primary judge erred in finding the Land was ‘qualifying land’ and instead should have found that the land was being predominantly used for residential purposes (Ground 2).
Identical issues arise with respect to the imposition of a ‘foreign ownership surcharge’ in respect of the transaction by operation of s 72 of the SDA. The respondent is a ‘foreign person’ within the meaning of the Act. Section 72 imposes a foreign ownership surcharge on an instrument effecting a transaction whereby an interest in residential land is acquired by a foreign person, in addition to the duty payable.
We will address the issues in terms of the interpretation and application of s 105A of the SDA, noting that the consequence for the interpretation and application of s 72 will be the same.
Background
On 30 September 2019, the Land was transferred to the respondent. On 17 October 2019, the appellant assessed stamp duty on the conveyance on sale, based on a consideration of $55,000,000, of $3,018,830 primary stamp duty pursuant to s 4 and sch 2 of the SDA, and $3,850,000 foreign ownership surcharge pursuant to s 72 (together, ‘the Assessment’).
On 18 November 2019, the respondent objected to the Assessment pursuant to s 82 of the Taxation Administration Act 1996 (SA) (TAA). On 7 June 2020, the Treasurer of South Australia confirmed the Assessment and disallowed the objection pursuant to s 82 of the TAA. The Treasurer’s reasons included the following:
Residential land used for the commercial purpose of providing long-term accommodation does not constitute qualifying land and is ineligible for a stamp duty reduction (and can therefore be subject to the FOS [foreign ownership surcharge], if applicable). Examples include retirement villages, aged care facilities, student accommodation and other residential premises where the accommodation can best be described as ‘long-term accommodation’.
In contrast and as outlined in RevenueSA’s Information Circular No: 103, “Stamp Duty on Conveyance or Transfers of Non-residential, Non-primary Production Real Property (Qualifying Land)” ... the provision of short-term accommodation on a commercial basis in hostels, hotels, motels, serviced apartments and other short-term unit accommodation is considered to be qualifying land for stamp duty purposes, and is therefore eligible for a stamp duty reduction (and exclusion from the FOS).
The Treasurer determined that the Land was used for residential purposes, rather than for commercial purposes, and was consequently subject to both stamp duty and foreign ownership surcharge.
By a Notice of Appeal filed on 6 August 2020, the respondent instituted an appeal against the Treasurer’s decision, pursuant to s 92 of the TAA.
On 25 January 2022, a judge of this Court allowed the respondent’s appeal.[1] On 15 February 2022, the Court made consequential orders pursuant to s 98 of the TAA revoking the Assessment and making an assessment in its place to the effect that no stamp duty or foreign ownership surcharge was payable on the transfer.
[1] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7.
This appeal is by way of rehearing. The first issue raises a question of interpretation of the SDA. As to the second, this Court is to conduct a real review of the evidence and of the primary judge’s reasons for judgment to determine whether she erred in fact or law.[2] As the appellant submitted, the majority of the evidence having been undisputed, this Court is in as good a position as the primary judge to decide on the proper inferences to be drawn from the facts.[3]
[2] Lee v Lee (2019) 266 CLR 129 at [55].
[3] Lee v Lee (2019) 266 CLR 129 at [55]; Warren v Coombes (1979) 142 CLR 531 at 551.
Relevant legislative provisions
On the abolition of stamp duty on real property transfers, s 105A of the SDA provides:
105A—Abolition of duty on designated real property transfers
(1)     In this section—
qualifying land means land that is being used for any purpose other than—
(a)     land that is taken to be used for residential purposes in accordance with subsection (2)(a), other than land of a classification excluded by the regulations; or
(b)     land that is taken to be used for primary production in accordance with subsection (2)(b), other than land of a classification excluded by the regulations.
(2)     For the purposes of the definition of qualifying land—
(a)     land will be taken to be used for residential purposes if—
(i)the Commissioner, after taking into account information provided by the Valuer‑General, determines that it is being predominantly used for that purpose; or
(ii)the Commissioner, after taking into account information provided by the Valuer‑General, determines that although the land is not being used for any particular purpose at the relevant time the land should be taken to be used for residential purposes due to improvements that are residential in character having been made to the land; or
(iii)the Commissioner, after taking into account information provided by the Valuer‑General, determines that the land is vacant, or vacant with only minor improvements, that the land is within a zone established by a Development Plan under the Development Act 1993 that envisages the use, or potential use, of the land as residential, and that the land should be taken to be used for residential purposes due to that zoning (subject to the qualification that if the zoning of the land indicates that the land could, in a manner consistent with the Development Plan, be used for some other purpose (other than for primary production) then the vacant land will not be taken to be used for residential purposes); and
(b)     land will be taken to be used for primary production if—
(i)the Commissioner, after taking into account information provided by the Valuer‑General, determines that it is being predominantly used for primary production purposes; or
(ii)the Commissioner, after taking into account information provided by the Valuer‑General, determines that although the land is not being used at the relevant time the land should be taken to be used for primary production purposes due to a classification that has been assigned to the land by the Valuer‑General.
(3)Subject to subsection (4), this section applies to the conveyance or transfer of an interest in qualifying land executed on or after 1 July 2018.
(4)This section does not apply to a conveyance or transfer of an interest that arises from a contract of sale or other transaction entered into before 1 July 2018 (and the duty chargeable in relation to such a conveyance or transfer will be calculated according to the rates in force as at the date on which the contract of sale or other transaction was entered into as if the conveyance or transfer had been executed on that date and, if relevant, according to the provisions of section 71DC).
(5)No liability to duty arises in relation to a conveyance or transfer of property to which this section applies (to the extent to which it provides for the conveyance or transfer of an interest in qualifying land).
(6)Despite section 16, the duty chargeable in relation to a conveyance or transfer to which this section applies executed before 1 July 2018 but produced to the Commissioner for the purposes of being stamped on or after that date will be calculated according to the rates in force as at the date on which the conveyance or transfer was executed (and, if relevant, according to the provisions of section 71DC).
On the imposition of foreign ownership surcharge for foreign purchasers of residential land, s 72(2) provides:
(2)If an instrument to which this section applies effects, acknowledges, evidences or records a transaction whereby an interest in residential land is acquired by a foreign person or a person who takes the interest as trustee for a foreign trust, the person is liable to pay a surcharge (a foreign ownership surcharge) to the Commissioner in addition to the duty payable on the instrument.
Sub-sections 72(8)(a)-(c) then provide when land will be taken to be residential land for the purposes of s 72, in terms identical to s 105A(2)(a)(i)-(iii). That is, whether land is ‘residential land’ for the purpose of s 72 depends on whether it is used for ‘residential purposes’ in the same way as contemplated by s 105A(2)(a).
Materials extrinsic to the legislation
The meaning of the term ‘residential purposes’ as it is used in ss 72 and 105A is critical to the disposition of this appeal. The parties invoked the following various materials extrinsic to the legislation as an aid to construction of the legislation, relying generally on s 16 of the Legislation Interpretation Act 2021 (SA).
On 18 June 2015, in the 2015-16 Budget Speech, the Treasurer announced the abolition of stamp duty on transfers of various commercial assets, including non-residential, non-primary production real property. The Treasurer said:[4]
Our aim is to create an efficient tax system that rewards effort, minimises the harm to the economy and incentivises investment decision making by businesses by removing destructive transactional taxes.
[4] South Australia, Parliamentary Debates, House of Assembly, 18 June 2015, 1771 (Anastasios Koutsantonis).
The Treasurer introduced the Statutes Amendment (Budget 2015) Bill 2015 (SA). When passed, that Bill inserted a new Division 6 into the SDA, including s 105A, headed ‘Abolition of duty on designated real property transfers’. The Second Reading speech emphasised the purpose behind the abolition of stamp duty in respect of transfers of non-residential land:[5]
The changes that the Government is making in this bill will remove significant cost barriers to business investment and expansion, encourage the creation of new businesses in the State, and provide lasting improvement to the South Australian economy.
These changes will reduce the harmful impact inefficient taxes have on the economy and are consistent with the views expressed by South Australians during the State Tax Review.
…
In addition by 1 July 2018 stamp duty will be abolished on non-residential real property transfers.
[5] South Australia, Parliamentary Debates, House of Assembly, 18 June 2015, 1778 (Anastasios Koutsantonis).
Further, the budget papers included the Government’s Response to the State Tax Review, in which the Treasurer said:
… transactional taxes present extra costs for those seeking to create new businesses or expand existing ones.
By abolishing business stamp duties, the Government is removing a significant cost barrier to business investment and expansion. This will provide a lasting improvement to the South Australian economy and will encourage the creation of new businesses and more jobs for South Australians.
This publication also said:
Most economists agree that stamp duty on business transfers is a disincentive to business investment. This is because stamp duty on business transfers imposes extra costs on those that want to create new businesses or expand existing ones and often stops these investments from occurring.
Further, on 18 June 2015, the appellant published Information Circular 75 (‘IC75’). In a section headed ‘Abolition of conveyance duty on the transfer of non‑residential, non-primary production real property’, IC75 recited the test in s 105A and then stated:
A further exception is in relation to land which although coded as residential by the Valuer-General will nevertheless be considered by the Commissioner to be commercial in nature.
This treatment will be consistent with the Local Government zoning of the land. Examples of land that fall into this category include Hotels, Motels, Serviced Apartments and short term unit accommodation.
On 7 December 2015, following the Government’s decision to accelerate the commencement date, the appellant published Information Circular 86 (‘IC86’), which restated the passage from IC75 set out above, but inserted ‘Hostels’ before ‘Hotels, Motels, Serviced Apartments and short term unit accommodation’.
On 12 December 2017, the SDA was amended to impose a foreign ownership surcharge on transfers of residential land.[6] For these purposes, ‘residential land’ was defined in terms substantially identical to s 105A(2)(a).[7] The rationale for the introduction of the foreign ownership surcharge, as expressed in the 2017-2018 Budget Speech, was to ease affordability pressure on the housing market created by an influx of foreign investment, in circumstances where similar levies had been applied interstate.
[6] Stamp Duties (Foreign Ownership Surcharge) Amendment Act 2017 (SA).
[7] Stamp Duties Act 1923 (SA) s 72(8).
On 7 September 2018, the Commissioner published Information Circular 103 (‘IC103’), which exactly reproduced the passage from IC75 as amended by IC86. In discussing the operation of s 105A, IC103 says, inter alia:
Land will be taken to be used for residential purposes where the Commissioner, after taking into account information provided by the Valuer-General, determines that:
·it is being predominantly used for that purpose;
·although the land is not being used for any particular purpose at the relevant time the land should be taken to be used for residential purposes due to improvements that are residential in character having been made to the land; or
·the land is vacant, or vacant with only minor improvements, and the land is within a zone established by a Development Plan under the Development Act 1993 that does not envisage the use, or potential use, of the land as non-residential and non-primary production.
A further exception is in relation to land which although coded as residential by the Valuer-General will nevertheless be considered by the Commissioner to be commercial in nature.
This treatment will be consistent with the Local Government zoning of the land. Land uses that fall into this category are Hostels, Hotels, Motels, Serviced Apartments and short-term unit accommodation.

Aspects of the Information Circulars are not necessarily consistent with the position adopted by the appellant in this case. However, whatever might be said of those inconsistencies, we doubt that these documents fall within the contemplation of s 16 of the Legislation Interpretation Act, such that they can be deployed meaningfully against the appellant’s interpretation. They appear to be statements of interpretation of legislation by the executive branch of government, rather than material capable of assisting in its interpretation. They do not appear to fall within any of the (admittedly inclusive) categories contemplated by s 16(2) of that Act.
The Waymouth Property
On 9 October 2017, the City of Adelaide granted development approval to Excel RE Pty Ltd (‘Excel RE’) as trustee of the Waymouth Street Property Trust to construct a ‘17 level mixed use development comprising retail, café and student accommodation’ on the Land (the ‘Waymouth Property’). On 15 March 2018, MasterPlan SA Pty Ltd applied on behalf of Excel RE to vary the development approval, to include short-stay accommodation for the general public in addition to the originally granted use. The variation was granted on 8 May 2018.
The Land is zoned by the Adelaide City Council as part of the Capital City Zone. The Land Use Code is ‘1720 – College and University residential accommodation’. The Land Use Code 1720 is given a Local Government Code of ‘9 – Other’, which comprises ‘any other use of land not referred to in another category’. Notably, in the context of Local Government Codes, residential properties are given the Local Government Code ‘1’, and are described as:
Residential comprising the use of land for a detached dwelling, group dwelling, multiple dwelling, residential flat building, row dwelling or semi-detached dwelling within the meaning of the Development Regulations.
All apartments and common areas of the Waymouth Property are situated on the same Certificate of Title. The Waymouth Property contains 289 apartments and 448 beds. The apartments comprise studio apartments, twin rooms and bedroom clusters (ranging from two-bedroom to seven-bedroom clusters), being a shared accommodation where each person has a private bedroom but with communal facilities such as kitchens and bathrooms.
The Waymouth Property also incorporates several amenities, including communal kitchens, paid laundry facilities, and study, activity and living areas, in addition to outdoor basketball courts, a gym, and security 24 hours per day, seven days per week. It also offers a residential life program that includes health and fitness programs and social events. The Waymouth Property is located in close proximity to higher educational institutions such as the University of South Australia, the University of Adelaide, Flinders University and Torrens University.
The Waymouth Property was completed in February 2018 and leased by Excel RE to a related entity, Excel Leasing Pty Ltd. From February 2018, it was operated as student accommodation under the brand name ‘Atira’.
Acquisition of the Waymouth Property and imposition of stamp duty
On 6 September 2019, the respondent entered into a Share and Asset Sale Agreement (‘SASA’) to purchase the property leases, business IP, pre-existing contracts, retail leases, stock and student agreements that related to a number of student accommodation properties, including the Waymouth Property. The sale and purchase of land relating to the Waymouth Property is comprised in Annexure 1 of the SASA. Relevantly, the parties to the SASA include:
·Excel RE, described as a Property Seller;
·Excel Leasing Pty Ltd as trustee for the Waymouth Street Tenant Trust (‘Excel Leasing’), described as a Tenant Seller;
·The respondent, described as a Property Purchaser; and
·Scape Waymouth Operator Pty Ltd (‘Scape Operator’), described as an Operating Company Purchaser.
Pursuant to clause 11 of the SASA, on completion:
·Excel RE assigned all its rights and benefits in the Waymouth Property to the respondent, including its rights as lessor under the lease of the Waymouth Property to Excel Leasing (the ‘Waymouth Lease’); and
·Excel Leasing assigned all its rights and benefits in the Waymouth Property to Scape Operator, including the Waymouth Lease and the accommodation agreements (and their receivables) in place at the time of completion.
On 30 September 2019, the Waymouth Property was transferred to the respondent (the ‘Transfer Date’). On the Transfer Date, the appellant issued the respondent with a Certificate of Stamp Duty pursuant to s 3E of the SDA for $3,018,830 of stamp duty. The respondent paid the stamp duty on that date. On 17 October 2019, the appellant issued the respondent with the Assessment. The respondent paid the foreign ownership surcharge on that date.
Operation and management of the Waymouth Property since acquisition
In accordance with clause 11.1 of the SASA, on the Transfer Date, the respondent assumed the role as lessor and Scope Operator assumed the role of lessee under the Waymouth Lease. Pursuant to item 12 of sch 1 to the Waymouth Lease, the ‘permitted use’ of the Waymouth Property is a student accommodation facility, together with any ancillary or additional use permitted by law. Pursuant to clause 3.1 of the Waymouth Lease, the lease commenced on 1 February 2018 and is to expire on 31 January 2028.
In exchange for the lease of the Waymouth Property, Scape Operator is required to pay rent to the respondent as calculated in clause 4 of the Waymouth Lease. Pursuant to clauses 4.3, 4.4 and 4.5, of the Waymouth Lease, Scape Operator is entitled to a rebate where it meets pre-determined revenue targets and occupancy rates. Pursuant to clause 7.8 of the Waymouth Lease, Scape Operator may appoint an operator to carry out the operation and management of the student accommodation facility.
On 1 October 2019, Scape Operator entered into agreements with Scape Management Pty Ltd (‘Scape Management’) to operate and manage the Waymouth Property under a separate Operator Agreement and Property Management Agreement. Pursuant to clause 5 of the Operator Agreement, Scape Management is responsible for the management, operation and the maintenance of the Waymouth Property. Pursuant to clause 7 of the Operator Agreement, Scape Management and Scape Operator determine together, amongst other things, the fees payable by the room occupants. Pursuant to sch 2 of the Property Management Agreement, Scape Management is required to manage the Waymouth Property, including managing revenue (e.g., collecting rent review and identifying opportunities for additional income).
The Waymouth Property business
Rooms at the Waymouth Property are available only to students, their families and visiting staff from educational institutions. The students are typically university students, TAFE students or language school students. A large portion of the students who stay at the Waymouth Property are international students on temporary student visas.
Scape Operator has differentiated the Waymouth Property from its competitors by offering short term rental arrangements. The Waymouth Property accommodation can be booked by students through education agents, accommodation websites, or directly through the Waymouth Property. Rooms can be booked on a nightly or weekly basis, although it is common for rooms to be rented for three- to twelve-month terms, depending on the duration of study undertaken by the student.
Students are charged either on a daily or weekly basis, depending on the length of the stay. The rates are reviewed on a weekly basis and are adjusted depending on vacancy and demand. Gas, water, electricity, and internet use are not charged to the student separately. They are incorporated into the daily or weekly rate.
It is common that the students return home periodically during holidays. The Waymouth Property has slightly lower levels of occupation during university breaks. The majority of students or visiting staff do not extend their stay beyond their initial term.
The Waymouth Property is operated by a team on site, supported by central management from the Scape Management head office. The reception desk is staffed every day, and a staff member is available 24 hours per day, 7 days per week. The Waymouth Property provides, through its operators, printing and scanning for students, airport shuttles, compulsory orientation sessions and group social activities. Scape Management employs senior residential assistants to provide pastoral care and to deal with incidents and concerns raised by students. Students must comply with house rules, and there are curfews for visitors and students under 18.
The website of the Waymouth Property describes accommodation as ‘apartments’ and its tenants as ‘residents’. The website outlines options for a 48 to 52- or 36 to 47-week lease, and notes incentives for long term leases of six or 12 months by way of a gift card. The website further describes payment for accommodation as ‘rent’ in respect of a signed Residential Tenancy Agreement for a fixed term, the form of which can be found in a ‘Sample Contracting Pack’ on the website. The respondent provides its residents with an ‘Atira Resident Handbook’, which is entitled ‘Welcome Home’. Further, they use slogans such as ‘Don’t stay here, live here’ in their marketing materials.
The approach of the primary judge
Witnesses
Lauren Storey, the General Manager – Operations for Atira (the Waymouth Property), gave evidence by affidavit and supplementary oral evidence. Ms Storey has been employed by Scape Management in a number of roles since 2018, prior to which she worked in a similar role with another organisation which provides purpose-built student accommodation. She previously worked for a number of years as a duty manager at a five-star hotel in Sydney. Ms Storey gave evidence in relation to the activities at the property, including the weekly pricing adjustments. In particular, she gave evidence in respect of occupancy rates, student demographics and average length of stay. She also gave evidence of the booking system used at the Waymouth Property.
The primary judge summarised Ms Storey’s evidence as follows:[8]
Ms Storey’s evidence was that the booking system used by Atira is similar to a hotel booking system. While there are a number of different ways in which a student can book accommodation at the property, accommodation was typically booked through a third-party agent based in the student’s home country. These agents are commonly referred to as agents, consultants, education agents, aggregators and student accommodation websites. Bookings are managed through a bookings platform called StarRez, which manages all aspects of a booking, including personal information, room type, check in and out information, educational institution information, room allocation and billing information.
Bookings are typically based on a university semester, with a booking for one semester usually being for up to 26 weeks, and for 2 semesters, up to 48 weeks. Generally, students prefer to book for shorter periods of six months or less, rather than for a full academic year. Atira seeks to incentivise longer stays, by having a sliding scale of room rates based on length of stay. In addition, Atira offers incentives for students to renew their booking at the end of the booking period. Despite these incentives, most students do not intend, and do not stay at the property long term. It is not uncommon for students to leave before their scheduled end of stay.
At the end of their stay, most students either return home or move to the private rental market.
In 2018, 89% of students stayed for fewer than 52 weeks (two semesters), and 72% stayed for fewer than 35 weeks. 14% of students stayed for fewer than 4 weeks. 31% stayed for between 5 and 20 weeks. 18% stayed for between 21 and 26 weeks. 37% of students stayed for between 27 and 52 weeks. Thus, 63% of students stay for 26 weeks (or one semester) or fewer. The average length of stay was 175 days or 25 weeks, and the median stay was 150 days or 21 weeks. 65% of students did not extend their stay beyond the initial booking period.
In 2019, 86% of students stayed for fewer than 52 weeks and 58% stayed for fewer than 35 weeks. 12% of students stayed for fewer than 4 weeks, 19% stayed for between 5 and 20 weeks, and 18% stayed for between 21 and 26 weeks. Thus, 49% of students stayed for 26 weeks or fewer. The average length of stay was 206.77 days (29 weeks) and the median stay was 184 days (26 weeks). 83% of students did not extend their stay beyond the initial booking period.
Across both years, the majority of students was aged 25 years or younger. In 2018, 94% of students were from overseas. In 2019, 95% of students were from overseas, mainly from China, Malaysia and India.
Atira also offers short stay hotel style accommodation to the general public. Stays of up to 28 days are regarded as short stays and are charged on a daily basis. Stays of longer than 28 days are charged on a weekly basis. For stays of longer than 28 days, students sign a residential tenancies agreement, although the terms differ somewhat, depending on whether the stay is longer or shorter than 90 days. Bonds are not taken for arrangements of less than 90 days.
[8] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 [34]-[40].
The judge accepted Ms Storey’s evidence.
The respondent also relied on the evidence of Gregory Vincent, a planner whose company assisted in preparing the Development Application for the property. The judge accepted Mr Vincent’s evidence. Mr Vincent discussed the objectives set out in the Adelaide (City) Development Plan, which the judge summarised as follows:[9]
In respect of Objective 22, Mr Vincent’s evidence is that it deals with medium to high scale residential and serviced apartment developments, including student accommodation. While Objective 22 includes student accommodation, Objective 9, which deals specifically with student accommodation, recognises that student accommodation, as a separate and distinct land use can be distinct in-built form and functionality, from other high scale residential developments. The Principles of Development Control which relate to Objective 9 allow specific features of student accommodation that can be approved in accordance with the Development Plan. The Principles provide a discretion to allow lesser amenity and floor space, private open space and storage space, as compared to other types of residential development. Where the Principles relating to Objective 9 refer to reduced internal floor areas, car parking and storage space, and private open space, the areas that are referenced are those that are found in the Principles under Objective 22. For example, Principle 70 refers to the minimum internal floor areas of studio, 1 bedroom, 2 bedroom and 3 bedroom apartments; Principle 10 under Objective 9 allows for smaller areas for student accommodation. Mr Vincent’s evidence is that Principle 10 specifically acknowledges that student accommodation is for a different demographic than other residential developments, which may have different needs and requirements. His evidence is that the development would not have obtained development approval if it was for general residential use; approval was obtained on the basis that it was specifically for short-term occupation by students, and therefore came under Objective 9 of the Development Plan…
[9] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 at [46].
Mr Vincent’s ultimate conclusion was that:
… [the student accommodation] would be a short-term accommodation on the basis that the type and nature of the amenity of the rooms being provided expressly contemplated as being, for want of a better phrase, providing a lesser amenity than what would normally be considered appropriate in higher density residential development. Under those circumstances being able to tolerate a lesser amenity for a particular period of time might be acceptable compared to if you were living there for a longer term.
The appellant relied on the evidence of Andrew Weinmann, who provided a report dated 23 December 2020 and a supplementary report dated 6 April 2021 and gave oral evidence. Mr Weinmann was a Senior Audit Valuer with the Office of the Valuer-General. The judge considered that Mr Weinmann had no expertise beyond his undoubted qualifications and experience as a valuer. She described the evidence of Mr Weinmann as ‘both confused and confusing’, and noted that at times, he appeared to have difficulty understanding the questions asked. The judge further found that Mr Weinmann was at times, ‘obstructive and unhelpful’.
The judge characterised Mr Weinmann’s conclusion that the Waymouth Property was residential in character as being based on the fact that people slept there. The judge placed little weight on Mr Weinmann’s reports or his oral evidence, concluding that his evidence was of little assistance, as it appeared to be based on his own personal view of the matter, without being informed by any particular expertise.
The judge concluded that the Waymouth Property was not used for residential purposes within the ordinary, dictionary definition of the word ‘residential’. She found that the students could be properly regarded as short-term occupants, with the majority staying for no more than one university semester, before departing to find accommodation in the ordinary rental market. She found that the evidence of Ms Storey and Mr Vincent supported a finding that the property was a purpose-built student accommodation facility, which provided accommodation on a short-term and transitory basis.
The judge’s approach to s 105A
The judge adopted the approach set out by French J in Diethelm Manufacturing Pty Ltd v Federal Commissioner of Taxation,[10] and applied by Layton J in RSAYS Ltd v Commissioner of State Taxation,[11] in interpreting s 105A. French J said:[12]
As a general proposition the taxpayer claiming the benefit of an exemption from the imposition of tax has the burden of proving the facts necessary to fall within the exemption…On the other hand an exemption which exists for the purpose of encouraging, rewarding or protecting some class of activity is not to be given a narrow application.
[10] (1993) 44 FCR 450.
[11] (2007) 100 SASR 448.
[12] Diethelm Manufacturing Pty Ltd v Federal Commissioner of Taxation (1993) 44 FCR 450 at 457.
The judge held, accordingly, that s 105A should not be given a narrow interpretation, given that it protects certain transactions from attracting stamp duty by providing an exemption from stamp duty for the transfer or conveyance of land, other than land used for residential or primary production purposes.
The judge’s interpretation of the phrase ‘residential purposes’
The judge noted that the phrase ‘residential purposes’ is not defined elsewhere in the SDA. She paid express regard to the explication of the purpose of incentivisation of business investment, as described in the Second Reading Speech regarding the introduction of s 105A, set out above.
The judge further said:[13]
It is clear that the intention behind the introduction of s 105A was to benefit business, and in particular, to encourage business transactions. The purpose of the removal of “the harmful impact [of] inefficient taxes”, such as stamp duty, was “to remove significant cost barriers to business investment and expansion”. The focus of the amendment is on the entity or entities undertaking the transaction. It is businesses who are the intended beneficiaries of the stamp duty exemption. It is in this light that the property must be characterised, to determine whether it is qualifying land, or whether it is used predominantly for residential purposes. The character of the premises is to be determined in light of the character of the transaction.
I consider that, as “residential purposes” has not been defined by the Act, save to say that land is used for residential purposes if predominantly used for that purpose, it is appropriate to interpret the word “residential” according to its ordinary usage. In this regard, I reject the submission of the respondent, that “residence” and “residential” have a common law meaning. They do not. They have a common or ordinary meaning, but not a common law meaning. Given the careful and considered analysis of the dictionary definitions of “residence” and “residential” in Marana, I consider that it is appropriate to adopt the meaning distilled by the Court in that case. I consider that “residence”, “reside” and “residential” imply a permanent or long-term commitment to living in a particular place.
(Emphasis added)
[13] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 at [111]-[112].
The judge’s findings regarding whether the Waymouth Property was qualifying land

The judge concluded that students living at the property did not make a long‑term or permanent commitment to live there:[14]
In my view they do not. The statistics produced by Ms Storey show that, in 2018, 63% of students stayed for one semester or less, with the average length of stay being 25 weeks. In 2019, 49% of students stayed one semester or less, with the average length of stay being 29 weeks. The only occupants of the property who were not students were people utilizing the property as short-term, tourist accommodation. It is clear that the majority of students did not envisage living at the property for an extended period of time.
[14] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 at [113].
The judge placed little weight on the fact that students who stayed longer than four weeks were required to provide their own bed linen, towels and utensils. These matters did not detract from the lack of commitment to long-term residency. Neither did she place weight on the fact that students who stayed for longer than four weeks signed a Residential Tenancy Agreement, as that did not change the nature of their commitment to living at the property. Similarly, she placed no weight on the advertising material generated by the business, as this could not change the actual nature of the purpose of the use of the property.
The judge considered that the property was not analogous to a retirement village or an aged care facility. The primary difference lay in the average length of stay, being seven years for a retirement village and two years and seven months for residential aged care, departure from which was usually occasioned by the death of the resident.
The judge further noted that the Development Application in respect of the property was made on the basis that it complied with Objective 9 and Principles 10 to 13 of the Adelaide (City) Development Plan, which concern purpose-built student accommodation, as distinct from other types of accommodation.[15] As the judge observed, these principles:[16]
… recognize that students have different requirements in respect of amenity as compared to residents who are contemplating a long-term or permanent commitment to living in a particular place of accommodation. They allow for reduced private living areas, amongst other things, on the basis that there is a trade off in sufficient common or shared facilities, adequate natural light, and the easy adaptation of the accommodation for an alternative use.
[15] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 at [119].
[16] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 at [118].
The judge gave little weight to IC103 on the basis that ‘[a]s a statement of policy, it provides little assistance in determining the correct characterisation of premises that are not specifically referred to in it’.[17] Similarly, she gave little weight to the method of valuation adopted by the Valuer-General, observing that a property might be both qualifying land for the purposes of the SDA and properly characterised as residential for other purposes. The most obvious example is a hotel.[18]
The appeal
[17] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 at [120].
[18] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 at [120].
Interpretation of the term ‘residential purposes’ in s 105A
It is not necessary for this Court to undertake a critical analysis of the primary judge’s interpretation of the phrase ‘residential purposes’, for the purpose of this appeal. The question raised is purely one of interpretation. Nevertheless, the appellant’s complaints about the primary judge’s approach provide a convenient framework for distilling the essentials of the construction for which it contends.
Interpretation of any statutory provision begins with a consideration of the text.[19] Then, as the High Court said in Project Blue Sky Inc v Australian Broadcasting Authority:[20]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.
(Footnotes omitted)
[19] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47].
[20] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ).
Both parties accepted that dictionary definitions of ‘residential’ included connotations extending to both permanent or long-term occupation of a place and merely staying at a place for any period of time. The respondent emphasised that the dictionaries pointed first to meanings that indicated permanent or usual dwelling.
As observed above, the primary judge adopted the meaning distilled by the Full Federal Court in Marana Holdings Pty Ltd v Federal Commissioner of Taxation.[21] The appellant submitted that she erred in doing so, as this adoption came at the expense of the contextual and purposive analysis of the section, and in circumstances where the term ‘residential premises’ in Marana had a different legislative foundation. For its part, the respondent commended the review of the dictionary definitions that the Court in Marana undertook.
[21] (2004) 141 FCR 299.
The phrase in issue in Marana was ‘residential premises’, as defined in s 195‑1 of the A New Tax System (Goods and Services) Tax Act 1999 (Cth) (‘GST Act’) as:[22]
land or a building that:
(a) is occupied as a residence; or
(b) is intended to be occupied, and is capable of being occupied, as a residence;
and includes a *floating home.
[22] See Marana Holdings Pty Ltd v Federal Commissioner of Taxation (2004) 141 FCR 299 at [10].
The Court in that case started with the meaning of ‘residence’:[23]
[23] Marana Holdings Pty Ltd v Federal Commissioner of Taxation (2004) 141 FCR 299 at [20]-[26].
In commencing this discussion we will first consider the word “reside”. OED defines the word to mean:
·To settle; to take up one’s abode or station.
·To dwell permanently or for a considerable time, to have one’s settled or usual abode, to live, in or at a particular place.
·Of persons having some special status or position. Hence to live (at a place) for the discharge of official duties; to be “in residence”.
As to the word “residence” OED offers the following meanings:
·To have one’s usual dwelling place or abode; to reside.
·To take-up one’s residence, to establish oneself; to settle.
·So to have (etc.) residence.
·The circumstance or fact of having one’s permanent or usual abode in or at a certain place.
·The fact of residing or being resident.
·The fact of living or staying regularly at or in some place for the discharge of special duties, or to comply with some regulation; also, the period during which such stay is required of one.
·The place where one resides one’s dwelling place; the abode of a person (especially one of some rank or distinction).
·A dwelling, abode, house, especially one of a superior kind; a mansion.
Shorter Oxford defines the term “reside” relevantly as:
·Settle; take up one’s station.
·Of a person holding an official position: occupy a specified place for the performance of official duties; be in residence.
·Dwell permanently or for a considerable time, have one’s regular home in or at a particular place.
The expression “residence” is said to mean:
·The circumstance or fact of having one’s permanent or usual abode in or at a certain place; the fact of residing or being resident.
·The fact of living or staying regularly at or in a specified place for the performance of official duties or for work; a period of time required for this.
·The action of remaining in a place for a limited period of time; lingering; procrastination (said to be obsolete).
·The place where a person resides; the abode of a person.
·A dwelling, a house, especially an impressive, official or superior one; a mansion.
Macquarie defines the word “reside” as:
·To dwell permanently or for a considerable time; have one’s abode for a time.
Of the word “residence” it says:
·The place, especially the house, in which one resides; dwelling place; dwelling.
·A large house and
·Living or staying in a place of official or other duty.
Clearly, both “reside” and “residence” have the connotation of permanent, or at least long‑term commitment to dwelling in a particular place. We note also the usage which associates dwelling in a particular place with the performance of duties at that place.
From this base, the Court then turned to definitions of ‘residential’, which tended to refer back to the concept of ‘residence’:[24]
All three references stress the relationship between the word “residential” and the word “residence”, suggesting the aspect of permanent or long-term occupation to which we have previously referred. They recognize use of the expression in connection with hotels but generally suggest that such usage describes an [sic] hotel that caters for long-term residents. We accept that it is not uncommon to speak of long-term residents in an [sic] hotel, but when one speaks of persons who stay for shorter terms, the more common usage is to describe them as “guests”.
[24] Marana Holdings Pty Ltd v Federal Commissioner of Taxation (2004) 141 FCR 299 at [31].
The appellant’s first complaint was that the SDA does not ground the phrase ‘residential purposes’ in the noun ‘residence’ as did the GST Act in Marana. This may be a complaint more of form than of substance: the dictionary analysis of the adjective undertaken by the Full Federal Court in Marana directed attention in any event to the noun ‘residence’ that the Court concluded carried the long-term connotation on which it relied.
The appellant submitted that the exercise still depended on the specific legislative context. Thus in GrainCorp Operations Ltd v Liverpool Plains Shire Council,[25] the New South Wales Court of Appeal, when interpreting the phrase ‘residential buildings’ in the context of the relevant Local Environment Plan, had regard to the dictionary definitions and concluded:[26]
What can be drawn from the above is that the appellation “residential” may in some contexts connote a degree of permanence but can also connote an habitual or usual abode, or even a place where one lives for a time or while performing a particular purpose or function, in which respect it would not be inapt to refer to the occupation of workers during the period that they are fulfilling work functions at the mines.
Moreover, reliance on a connotation of “permanence” begs the question of what degree of permanence is sufficient to bring a development within the connotation “residential building”. As Sackville AJA pointed out in the course of argument on the appeal, permanence does not necessarily connote continuity of use.
[25] (2013) 194 LGERA 83.
[26] GrainCorp Operations Ltd v Liverpool Plains Shire Council (2013) 194 LGERA 83 at [83]-[84] (Ward JA, Beazley P and Sackville AJA agreeing).
The appellant submitted that the primary judge failed to consider the analysis in GrainCorp of dictionary definitions of ‘residential’, and thereby failed to consider the alternate construction of ‘residential’. That criticism cannot be maintained. The judge had regard to a number of cases, arising in both the taxation and planning contexts (including Marana and GrainCorp), in which it was necessary to construe and apply the term ‘residential’.[27] In doing so, she manifestly had regard to meanings of the term ‘residential’ that indicated less than permanent or long-term occupation. Ultimately, she concluded that while the taxation cases were, in part, instructive as to the ordinary and natural meaning of the words, they did not operate as direct authority on the interpretation of s 105A.[28] She concluded that the planning cases were even less analogous.[29]
[27] Marana Holdings Pty Ltd v Federal Commissioner of Taxation (2004) 141 FCR 299, South Steyne Hotel Pty Ltd v Federal Commissioner of Taxation (2009) 71 ATR 228, ECC Southbank Pty Ltd v Commissioner of Taxation (2012) 205 FCR 505, GrainCorp Operations Ltd v Liverpool Plains Shire Council (2013) 194 LGERA 83, North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532, City of Swan v West Australian Shalom Group Inc [2017] WASC 217, Corporation of the City of Marion v WC Projects Pty Ltd [2017] SASC 74.
[28] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 at [92]-[93].
[29] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 at [103]-[104].
In any event, on the pure question of law raised by Ground 1, the task of this Court is not to consider whether the primary judge’s analysis was tainted by a process error, but to interpret the section. As a matter of context, the appellant placed considerable weight on the circumstances set out in s 105(2)(a)(i)-(iii) describing when land will be taken to be used for residential purposes. To this end, she emphasised s 105A(2)(a)(iii), which addresses the situation where the Commissioner determines that the land is vacant and:
is within a zone established by a Development Plan under the Development Act 1993 that envisages the use, or potential use, of the land as residential…
The appellant submitted that Parliament here expressly adopted ‘residential’ plan zoning as indicative of when vacant land is to be used for a residential purpose. It followed, in her submission, that a consistent reading of the word ‘residential’ required the balance of s 105A(2)(a) to be read by adopting the meaning of ‘residential’ as used in the Development Act 1993 (SA) (ceased) planning context. While not defined in that Act or the Regulations, in planning law, ‘residential’ is used to denote places where people live, even for a short period of time.
We do not accept this reasoning. Sub-section 105A(2)(a)(i) requires an inquiry into use. Sub-section 105A(2)(a)(ii) looks to the character of the improvements when the land is not in use. Sub-section 105A(2)(a)(iii) then addresses the situation when neither a use nor improvements exist. All that it looks to is the zone established by a Development Plan that may only envisage the potential use of the land as residential. This sub-section provides nothing more than a descriptive backstop when an actual use, or an imputed use, cannot be ascertained by reference to the land itself.
To infer that the reference in s 105A(2)(a)(iii) to zoning under a Development Plan in the case of vacant land somehow dictates the meaning of ‘residential purposes’ in the whole of the rest of the section, on account of a need to read the word ‘residential’ consistently, is to mistake the exercise. Sub-section 105A(2)(a) offers three deeming provisions as to when the land will be taken to be used for residential purposes. Each addresses a differently described situation of land. Most starkly, s 105A(2)(a)(iii) applies when s 105A(2)(a)(i) cannot, that is, when it cannot be said that the land is in fact being used for residential purposes. It therefore inserts a quite different concept for the purpose of regulatory comprehensiveness. The argument of the Commissioner attempts to have a deeming tail in the section wag the definitional dog. It is not necessary to explore the content of the term ‘residential’ in the ‘planning context’ to reject this argument.
As to the purpose of s 105A(2)(a), the appellant submitted that it was apparent from the Second Reading Speech that the structure of the sub-paragraphs of that sub-section reflected an intention of certainty of delineation. She relied on the following passage in the Second Reading speech:[30]
There are detailed provisions which set out what will be considered to be residential land. The Commissioner of State Taxation will rely on information provided by the Valuer General in relation to the use of the land and in some cases the zoning of the land. Taxpayers will be able to readily ascertain the classification of the land that they are purchasing.
[30] South Australia, Parliamentary Debates, House of Assembly, 18 June 2015, 1778 (Anastasios Koutsantonis).
In the appellant’s submission, the definition of residential purposes adopted by the trial judge failed to serve this purpose of certainty. First, a requirement of a permanent or long-term commitment to living in a particular place does not identify whose commitment was required to be considered at the time of sale. It would invoke a subjective criterion of intention of an owner or tenant. Secondly, the judge’s conclusion offers no guidance as to what constitutes ‘long-term’. There is no textual basis for determining the necessary length of time.
By contrast, in the appellant’s submission, a construction of ‘residential purposes’, as meaning that the place is being used for human habitation at the relevant time, would meet this purpose of certainty (and is consistent with the concept of ‘residential’ as used in the Development Act ‘planning context’).
The difficulty with this submission is that it does not undertake a sufficient analysis of the purpose of the legislative provision. It may be accepted that the legislature sought to achieve certainty in the dispatch of the abolition of stamp duty in respect of qualifying land and the demarcation of the ‘residential purposes’ exception to that abolition. However, that offers no purposive analysis of why the abolition was enacted and an exception included at all. Mere certainty would be served best by an abolition without exception, or no abolition at all.
The passages in the Second Reading speech and the Government’s Response to the State Tax Review, extracted above, assist with the underlying purpose of s 105A and the ‘residential purposes’ exception to it.[31]
[31] Legislation Interpretation Act 2021 (SA), s 16.
Both the Second Reading speech and the Government’s Response to the State Tax Review make it clear that the stamp duty abolition effected by s 105A was intended to serve a purpose of business incentivisation, described in those materials variously as ‘incentivis[ing] investment decision-making by businesses’, ‘remov[ing] significant cost barriers to business investment and expansion’ and ‘encourag[ing] the creation of new businesses in the State’.
We pause to note here that, as observed above, the primary judge concluded that what was transferred was ‘a commercial entity, rather than a residential property’, having regard to the various incidents of the commercial enterprise that were transferred together with the land.[32] We would not endorse that approach, as it detracts from the analysis required by the section of the purposes for which the land is to be taken to be used. The fact that there were other incidents of a business sold at the same time does not answer the question whether the land was used for residential purposes.
[32] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 at [121].

A description of land as being used for ‘commercial purposes’ may assist as a descriptor in contradistinction to the term ‘residential’. However, the SDA does not pose a test of ‘commercial purposes’. In any event, the judge’s conclusion here was only employed to support the conclusion already reached.
How, then, does an analysis of legislative purpose assist in the interpretation of ‘residential purposes’? In the words of French J in Diethelm,[33] s 105A manifestly ‘exists for the purpose of encouraging, rewarding or protecting’ a class of activity, namely, business investment. It should not be given a narrow application.
[33] (1993) 44 FCR 450.
This purpose of business incentivisation assists in understanding the exemption of ‘qualifying land’ that is ‘taken to be used for residential purposes’: the legislature has determined that to abolish stamp duty on transfers of land meeting that description does not, or does not sufficiently, serve the identified purpose of business incentivisation. The term ‘residential purposes’ is to be interpreted having regard to Parliament’s regard for that term as not supporting that broad purpose.
The corollary of this is to prefer a reading of the phrase ‘residential purposes’ that, in the operation of the exception, gives effect to that broad purpose of business incentivisation. Sub-section 105A(2)(a) describes the categories of land that are excepted from the abolition of stamp duty on transfer. A purposive analysis supports interpreting ‘residential purposes’ as purposes that do not, or tend not to, support business incentivisation, insofar as such a reading may be available.
The appellant and the respondent have both proffered credible natural meanings of the phrase ‘residential purposes’. However, to apply a meaning of permanent or long-term accommodation, rather than short-term or transitory accommodation, in exception to the general abolition that exists for the purpose of business incentivisation, tends to serve the purpose of the provision.
Further, and as the respondent submitted, the use of the same language in s 72 to define residential land for the purpose of the foreign ownership surcharge provides an additional significant contextual indicator to this end, having regard to the manifest purpose of the provisions. As identified above, the 2017-2018 Budget Speech indicated that the surcharge was intended to alleviate pressure on housing affordability in South Australia, given the introduction of similar measures interstate. A purposive reading of the section offers less apparent reason to exempt foreign owners from the surcharge when competing purely for permanent or long‑term residential accommodation.
That is not to say that a bright line can be drawn. Ultimately, whether land fits within the exception in s 105A(2)(a) will always require a characterisation, on all the facts, of the purposes for which the land is taken to be used. The business incentivisation purpose of the abolition of stamp duty and the foreign ownership surcharge contributes an important dimension to the interpretation of the ‘residential purposes’ exception. In our view, the primary judge was correct to conclude that the word ‘residential’ in these exceptions implies a permanent or long-term commitment to living in a particular place.
We dismiss Ground 1 of the appeal.
Whether the primary judge erred in finding the land was ‘qualifying land’ and instead should have found that the land was being predominantly used for residential purposes
The judge’s reasons for concluding that the Land was qualifying land are summarised above. The appellant did not quarrel with the findings of fact. The complaints under the heading of this ground were mostly that the judge placed insufficient or too much weight on one or other factor.
In circumstances where the facts were not in dispute, the question is whether the primary judge was correct to draw the conclusion that the Land was ‘qualifying land’ for the purpose of s 105A, applying the correct statutory test. That turned on whether the land was taken to be used for residential purposes within the meaning of s 105A(2)(a)(i). Complaints of insufficient or too much weight are difficult to engage with in this context. The facts not being in dispute, the role of this Court on an appeal by way of rehearing is as expressed by the plurality in Warren v Coombes:[34]
Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.
[34] (1979) 142 CLR at 531 at 551.
The appellant’s complaints of weight are best seen as complaints that when proper regard is had to the matters identified, the conclusion must follow that the land was predominantly used for residential purposes at the relevant time. For ease of reference, we will address each of these considerations using the framework of complaint used by the appellant.
Insufficient weight on the use of the facility for people to live there
It was undisputed that people were living at the Waymouth Property as at the Transfer Date. The appellant pointed to evidence, already canvassed above, that occupants who stayed more than four weeks entered into a Residential Tenancy Agreement. Occupants had a right to quiet enjoyment and were entitled to notice periods prior to periodic inspections. They were responsible for cleaning their living spaces, disposing of garbage and providing their own linen, towels and cooking implements. The Waymouth Property provided a form of community living, with facilities deployed as an alternative to the private rental market.
This complaint overlapped with the first ground of appeal, in that it tended to rely on the broader interpretation of the phrase ‘residential purposes’. In any event, the respondent pointed to features of the Waymouth Property that indicated that the amenity was not such as would be expected in premises designed for longer-term occupation. It pointed to the following:
·rooms were designed to allow minimum personal belongings to be brought in, with only small amounts of storage space;
·kitchen facilities were basic in twin rooms and studio apartments. They were a little better in shared ‘cluster’ apartments and supplemented by a communal kitchen on the ground floor; and
·private living areas were very small.
As identified above, these compromised standards were in line with the provision in Objective 9 of the Development Plan for purpose-built student accommodation, because of the intended short-term accommodation. Then, while those who occupied the Waymouth Property for more than four weeks entered into a Residential Tenancies Agreement, their rights of use and enjoyment were still significantly curtailed. The respondent pointed to the following:
·the exclusive right of occupation was limited to the bedroom or studio. All rights of occupation of a twin share apartment were non-exclusive. Rights in respect of common areas were non-exclusive;
·the operator allocated apartments to occupants;
·occupants were required to attend an induction on commencement;
·occupants could borrow cleaning equipment from reception;
·occupants were required to comply with ‘House Rules’ of conduct, behaviour, alcohol consumption and substance use, noise, social gatherings, time limits on guests and visitors, safety, maintenance and the use of common areas;
·international students under 18 were required to register their presence so as to adhere to a curfew;
·visitors were limited in number and required to leave by 10:00pm unless management gave permission;
·occupants were required to inform the operator if they were to be absent for over 48 hours;
·occupants could not remove or modify furnishings without prior written approval and required permission to bring on certain appliances;
·occupants were not permitted to undertake any maintenance, even changing a light globe. They were required to log maintenance requests in writing;
·utilities were all included;
·a staff member was contactable 24 hours a day, seven days a week to attend to occupants’ needs. Resident Assistance provided pastoral care.
Not all of these matters amount to restrictions. Many of them were clearly intended to make the occupants feel at home and potentially extend their stay. However, the statistics presented by Ms Storey demonstrated the relatively short-term nature of stays at the property.
In our view, the matters relied on by the appellant do not detract from the conclusion of the primary judge. They confirm that the property was occupied by (mainly) students as intended, that is, as a short-term place to live.
Insufficient weight on the characterisation of the development as residential under the Development Plan
The appellant’s complaint in this regard was that the Adelaide City Development Plan, pursuant to which construction of the Waymouth Property was approved, contained the overall heading ‘City Living’, under which Objective 6 envisaged various types of housing to suit different needs. One housing option under this heading was ‘student accommodation’, as a subset of ‘medium to high scale residential/serviced apartments’. That is, ‘student accommodation’ appeared as a subset of ‘residential’. The appellant submitted:
In this case, the nature of student accommodation, although designed for short term occupation, provided sufficient amenity for the average stay to be approximately one semester of study. That can be readily distinguished from that provided in hotel or motel accommodation, in which the amenity is designed for a stay of a few nights. In the context of the trial judge’s interpretation of residential, although the student accommodation was designed for short term occupation as distinct from other residential types of development, it nevertheless retained its residential character albeit with reduced amenity.
There is a sense in which the kind of student accommodation currently under consideration operates at a mid-point of length of stay and amenity between, for example, retirement and aged-care homes on the one hand, and hotels on the other. There is an impressionistic quality to the necessary analysis. However, we are not persuaded that the sufficiency of the amenity to a semester’s occupation, coupled as that is under the broad classification of ‘residential’ in the Development Plan, is sufficient to bring the Waymouth Property within the concept of ‘residential purposes’ as contemplated in the SDA. It remains the case that this property is designed and deployed as a form of accommodation that does not lend itself easily to the characterisation of long-term or permanent residence that we have held is connoted by term ‘residential purposes’ in s 105A.
Too much weight on the purpose of the transaction as opposed to the use of the land
This is a complaint about the following paragraph in the judgment of the primary judge, already identified above:[35]
The fact that all of the business agreements and other commercial aspects of the property were transferred to Atira at the time that the sale agreement in respect of the property was entered into supports the conclusion that the property is qualifying land for the purpose of the Act. It was not just the land (with the facility) that was the subject of the transfer to the applicant; all of the related business interests and contracts were also transferred to Atira, a related entity, to enable the commercial aspects of the property to continue to operate seamlessly. This indicates that the subject of the transfer was a commercial entity, rather than a residential property.
[35] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 at [121].
As indicated above, we do not think that this paragraph employs the correct approach. It appears to build on an earlier statement by the judge that ‘the character of the premises is to be determined in light of the transaction’.[36] We accept the appellant’s contention that, to the contrary, the statutory character here is to be determined by reference to the occupancy arrangements.[37]
[36] Perpetual Corporate Trust Limited v Commissioner of State Taxation [2022] SASC 7 at [111].
[37] See North Sydney Municipal Council v Sydney Serviced Apartments (1999) 21 NSWLR 532 at 535-537.
Ultimately, the judge appears to have used this consideration to support the conclusion she had reached by reference to the considerations of occupancy already identified. In any event, the function of this Court on appeal is to determine the appropriate inference to be drawn from the facts as found. In our view, the nature and purpose of the business transaction do not form part of the factual matrix relevant to determining whether the Waymouth Property was, at the date of transfer, taken to be used for residential purposes. In undertaking the required appellate function, we consider these matters to be irrelevant.
Too much weight on the average length of stay of residents using the facility and inadequate explanation of conclusion
The appellant submitted that the primary judge’s reasons in answering the question, ‘[d]o students living at the property make a long-term or permanent commitment to live there?’ were inadequate. The paragraph by which the judge reached this conclusion, drawing on the evidence of Ms Storey, is set out above, together with her treatment of other matters relied on by the appellant.
The appellant contended that the judge gave no explanation for that conclusion, other than by reference to the statistics regarding lengths of stay. The judge did not explain what she meant by an ‘extended period of time’. The effect of the reasons, in the appellant’s submission, was that all that was left was the ‘bare selection’ of a period of time that was insufficient, begging the question of what would be sufficient to demonstrate the requisite level of commitment.
The appellant submitted that, by contrast, a period of 28 days offered a logical distinction between short-term accommodation and long-term residential purposes. This was the point at which the students signed a Residential Tenancies Agreement and the rates changed.
We do not accept the complaint of inadequacy of reasons. The judge’s use of occupancy statistics was not directed merely at the average lengths of stay, but to the nature of the commitment made by students by reference to semester periods. Commitments to occupancy largely did not extend beyond a semester. That is to say, the judge’s assessment was not simply a subjective assessment of the nature of a commitment of 25 or 29 weeks. It was made by reference to the purpose for which students required accommodation at all. The balance of the accommodation provision was for short-term tourists.
There is necessarily an impressionistic aspect to the assessment of the commitment to occupancy. The judge treated with the balance of the matters said to inform the question of purpose, such as the nature of the accommodation and amenity. Her approach, grounded in a purposive assessment, was sound. In any event, in exercising the appellate function of this Court, we have examined, above, the matters said to inform whether the land should be taken to be used for ‘residential purposes’. We have concluded that, as a whole, these matters do not warrant a different conclusion from that reached by the primary judge.
To posit a hard line, in the circumstances of this property, by reference to the change in arrangements at the 28-day mark, is far more arbitrary. The appellant elsewhere conceded that the change in arrangements at that point does not, without more, inform the nature of the occupancy. Such a demarcation would undermine the relevance of all the circumstances that inform the question, many of which the appellant relied on elsewhere in the appeal.
Conclusion on Ground 2
In our view, the appellant has not shown that the judge erred in concluding that the Land was qualifying land for the purposes of s 105A, and that it was not being used for ‘residential purposes’ within the meaning of ss 105A(2)(a) and 72(8) of the SDA.
Conclusion
We dismiss the appeal.