Hoffmann v Chief Commissioner of State Revenue (Rd)

[2003] NSWADTAP 26

Appeal Panel - Internal

CITATION:	Hoffmann v Chief Commissioner of State Revenue (RD) [2003] NSWADTAP 26
PARTIES:	APPLICANTS Franz Hoffmann and Rosemary Hoffmann RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	029047
HEARING DATES:	21/05/2003 15/07/2003
SUBMISSIONS CLOSED:	05/21/2003
DATE OF DECISION:	07/15/2003
DECISION UNDER APPEAL:	Hoffmann v Chief Commissioner of State Revenue [2002] NSWADT 194
BEFORE:	O'Connor K - DCJ (President); Verick A - Judicial Member; Bennett C - Member
CATCHWORDS:	Appeal settled
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	026001
DATE OF DECISION UNDER APPEAL:	10/01/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Duties Act 1997
CASES CITED:
REPRESENTATION:	APPLICANT M Condon, counsel RESPONDENT I Mascher, counsel
ORDERS:	1. Appeal dismissed.; 2. No order as to costs.

REASONS FOR DECISION

1 The appeal in this matter was fully argued on 21 May 2003.

2 On 17 June 2003, when the Appeal Panel had finalised its detailed reasons in draft, it was advised by the parties that terms of settlement had been agreed.

3 The Tribunal may make orders to give effect to any agreed settlement, having regard to the provisions of s 86 of the Administrative Decisions Tribunal Act 1997. Section 86 provides:


‘ 86. Powers when proceedings settled


(1) The Tribunal may, at any stage of proceedings before it, make such orders (including an order dismissing the application that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties to the proceedings if:

(a) the terms of the agreed settlement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal, and

(b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement, and

(c) the Tribunal is satisfied that the agreed settlement is in the best interests of the person whose interests are considered by the Tribunal to be paramount.

(2) The Tribunal may dismiss the application that is the subject of the proceedings if it is not satisfied that:

(a) it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement, or

(b) the agreed settlement is in the best interests of the person whose interests it considers paramount.

(3) Nothing in this section affects:

(a) the power of the Tribunal, a member or an assessor to make a determination under section 74 to which the parties to the proceedings concerned agree, or

(b) the power of the Tribunal to make any order under section 105 giving effect to any agreement or arrangement arising out of a mediation session under Part 4.’

4 This outcome should not be seen as an endorsement by the Appeal Panel of the approach taken in the decision under appeal (Hoffmann v Chief Commissioner of State Revenue [2002] NSWADT 194) to the interpretation of s 119(3) of the Duties Act 1997, and its application to the facts in this case. As indicated during the course of argument the Appeal Panel had considerable doubts as to the conclusions reached in the decision under appeal, in particular on the question of the respondent’s submissions as to circumstances to which the s 119(3) discretion was directed (it was said none). We do not think that the decision under appeal should be regarded as a precedent.

5 Nonetheless, the Appeal Panel is satisfied that the terms of settlement as reflected in the following Consent Orders are as desired by the parties, in particular the appellant who has received legal advice.

ORDERS

1. By consent, appeal dismissed.

2. No order as to costs.