De Marco v Chief Commissioner of State Revenue

In *De Marco v Chief Commissioner of State Revenue*, the New South Wales Court of Appeal considered an appeal by the taxpayers against a decision of the Administrative Decisions Tribunal Appeal Panel concerning their liability for land tax. The dispute centred on whether the taxpayers were entitled to an exemption from land tax under clause 8(1)(a) of Schedule 1A to the *Land Tax Management Act 1956* (NSW), which provides an exemption where a person owns land used and occupied by them as their principal place of residence. The taxpayers had resided on the land in a mobile home or caravan without obtaining the necessary council approval.

The primary legal issue before the Court of Appeal was whether the "use and occupation" of land as a principal place of residence, for the purposes of the land tax exemption, must be lawful. The taxpayers argued that their de facto residence on the land satisfied the exemption, while the Chief Commissioner contended that the lack of lawful approval for their occupation rendered it invalid for the exemption. The court also considered the application of the legal maxim that legislation is not intended to permit a person to take advantage of their own wrong.

The Court of Appeal allowed the appeal, finding that the exemption under clause 8(1)(a) of Schedule 1A did not require the use and occupation to be lawful. The court reasoned that the wording of the exemption focused on the factual use and occupation of the land as a principal place of residence, rather than the legality of that occupation. The maxim concerning taking advantage of one's own wrong was held not to be applicable in this context, as the exemption was not intended to be conditional on the owner's compliance with all other statutory requirements, such as obtaining council approval for their dwelling. The court set aside the previous orders and remitted the case to the Administrative Decisions Tribunal for determination of whether the taxpayers' use and occupation satisfied the definition of residential land for the relevant tax years, allowing for the adduction of further evidence.