Repatriation Commission v Harrison
[1997] FCA 956
•17 SEPTEMBER 1997
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - appeal from decision of Administrative Appeals Tribunal (“AAT”) setting aside a decision of the Repatriation Commission to reduce the rate of service pension payable to the respondents - application of assets test - valuation of shares owned by respondents - where respondents sole shareholders in companies - where assets of companies were debts owed by respondents to the companies - whether appropriate to lift the corporate veil - whether assets test requires the net value of assets to be determined - where AAT attributed a nil valuation to respondents’ shares - whether error of law in valuation exercise
CORPORATIONS - where respondents sole shareholders in companies - where assets of companies were debts owed by respondents to the companies - whether appropriate to lift the corporate veil
Veterans’ Entitlements Act 1986 (Cth), ss 5L, 41-F1,52, 52C, 52CA
Re King and Repatriation Commission (1990) 12 AAR 375, cited
Salomon v Salomon & Co [1897] AC 22, applied
Walker v Wimborne (1976) 137 CLR 1, cited
Industrial Equity Ltd v Blackburn (1977) 137 CLR 567, cited
Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549, cited
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1995) 185 CLR 259, cited
Secretary, Department of Social Security v Garvey (1989) 22 FCR 132, considered
Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426, cited
Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, cited
REPATRIATION COMMISSION v
ALBERT LAURENCE HARRISON and EVA LILIAN HARRISON
NG 722 OF 1996
TAMBERLIN J
SYDNEY
17 SEPTEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 722 of 1996 ) GENERAL DIVISION )
ON APPEAL FROM THE ADMINISTRATIVE
APPEALS TRIBUNAL CONSTITUTED BY
MR BARBOUR (SENIOR MEMBER)
BETWEEN: REPATRIATION COMMISSION
ApplicantAND: ALBERT LAURENCE HARRISON
First RespondentEVA LILIAN HARRISON
Second Respondent
JUDGE: TAMBERLIN J PLACE: SYDNEY DATED: 17 SEPTEMBER 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be allowed.
The decision of the Administrative Appeals Tribunal be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination in accordance with law.
Further evidence may be admitted and considered at the discretion of the decision-maker hearing the matter on remittal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 722 of 1996 ) GENERAL DIVISION )
ON APPEAL FROM THE ADMINISTRATIVE
APPEALS TRIBUNAL CONSTITUTED BY
MR BARBOUR (SENIOR MEMBER)
BETWEEN: REPATRIATION COMMISSION
ApplicantAND: ALBERT LAURENCE HARRISON
First RespondentEVA LILIAN HARRISON
Second Respondent
JUDGE: TAMBERLIN J PLACE: SYDNEY DATED: 17 SEPTEMBER 1997
REASONS FOR JUDGMENT
This is an appeal from a decision (“the decision”) of the Administrative Appeals Tribunal (“the AAT”) constituted by Mr B A Barbour (Senior Member) given on 7 August 1996.
The decision set aside a decision by the Repatriation Commission (“the Commission”) of 31 August 1995 reducing the rate of service pension payable to the respondents, Mr and Mrs Harrison, from 16 April 1992 up to and including 11 May 1994.
The AAT decision noted that it was agreed between the parties that the facts were not in dispute and the only issue for determination was how to treat the value of certain shares owned at material times by the respondents. The relevant circumstances were summarised by the AAT as follows.
Service pensions are payable under the Veterans’ Entitlements Act1986 (Cth) (“the Act”) subject to an income and assets test. Assessments are made as prescribed by the Act and the lower amount assessed is the one which is payable. The relevant provisions as to assessment are set out below.
On 8 April 1992 the Department received an application from the respondents for a service pension. This application was accepted. From 13 May 1992 the service pension was paid to Mr and Mrs Harrison. However, their 1992 application did not disclose certain assets relating to their interests in two private companies. In August 1994 the Commission was informed of the respondents’ involvement and holdings in the two companies, namely Alby Harrison Pty Limited and A & E Roof Tilers Pty Limited.
Mr and Mrs Harrison were at material times the holders of all the shares in each of the two companies mentioned above. They were also directors of the companies. The only “substantive” assets of those companies were debts owed to the companies by the respondents. A finding of fact made by the AAT was that, as at 30 June 1994, the sums owed by Mr and Mrs Harrison amounted to $34,652.97 to Alby Harrison Pty Limited and $64,676.80 to A & E Roof Tilers Pty Limited. The AAT decision noted that each of the companies were separate legal entities to Mr and Mrs Harrison and described the debts owing to each of the companies as “technical” assets of those companies.
The question posed to the AAT for decision was whether the service pension of the respondents should have been reduced as a result of their shares in these companies being included as part of their assets for the purpose of the Act.
Legislation
The relevant sections of the Act are ss 41-F1, 52, 52C, and 5L, which appears in the definition section.
Module F, s 41-F1 of the Act reads as follows:
“MODULE F - ASSETS TEST
Effect of assets on maximum payment rate
41-F1. This is how to work out the effect of a person’s assets on the person’s maximum payment rate:
Method statement
Step 1. Work out the value of the person’s assets.
Note 1: for the treatment of the assets of members of a couple see point
41-F2.
Note 2: for the assets that are to be disregarded in valuing a person’s assets see section 52.
Note 3: for the valuation of an asset that is subject to a charge or encumbrance see section 52C.
Step 2. Work out the person’s assets value limit (see point 41-F3 below)
Note: a person’s assets value limit is the maximum value of assets the person can have without affecting the person’s pension rate.
Step 3. Work out whether the value of the person’s assets exceeds the person’s assets value limit.
Step 4. If the value of the person’s assets does not exceed the person’s assets value limit, the person’s assets excess is nil.
Step 5. If the value of the person’s assets exceeds the person’s assets value limit, the person’s assets excess is the value of the person’s assets less the person’s assets value limit.
Step 6. Use the person’s assets excess to work out the person’s reduction for assets using points 41-F4 to 41-F6 below.”
Section 52 of the Act provides that in calculating the value of a person’s assets for the purposes of the Act the value of certain assets is to be disregarded. These include assets such as, for example, the person’s principal home, or an interest therein; the value of a superannuation pension; the value of inheritance assets, which have not been and are not able to be received; and the value of an amount invested in an exempt funeral investment.
Section 52C provides:
“52C. (1) Where there is a charge or encumbrance over particular assets of the person, the value of the assets, for the purposes of calculating the value of the person’s assets for the purposes of this Act (other than sections 52G and 52H), is to be reduced by the value of that charge or encumbrance.
Note: this section does not apply to an asset to which section 52CA (primary production assets) applies.
(2) Subsection (1) does not apply to a charge or encumbrance over an asset of a person to the extent that:
(a) the charge or encumbrance is a collateral security; or
(b)the charge or encumbrance was given for the benefit of a person other than the person or the person’s partner.
(3) Subsection 1 does not apply to a charge or encumbrance over assets that are to be disregarded under section 52.”
Section 52CA is concerned with the effect of certain liabilities on the value of assets used in primary production. It reads as follows:
“52CA. (1) For the purposes of working out the value of a person’s assets under this Act; if:
(a)the persons is:
(i) a primary producer; or
(ii) a family member of a primary producer; and
(b)the person has assets (including real property) that are, in the Commission’s opinion, used for the purposes of carrying on that primary production; and
(c)the person also has liabilities that are, in the Commission’s opinion, related to the carrying on of the primary production;
then:
(d)section 52C does not apply in relation to the assets referred to in paragraph (b); and
(e)those assets are taken to be a single asset (the “primary production asset”); and
(f)the value of that single asset is worked out under subsection (2).
Note: for “family member” see subsection 5L(1).
(2) The value of a person’s primary production asset is worked out in the following way:
Method statement
Step 1. Add together the value of the assets referred to in paragraph (1)(b): the result is called the unencumbered value.
Step 2. Add together the value of the liabilities referred to in paragraph (1)(c): the result is called the total liability.
Step 3. Take the total liability away from the unencumbered value: the result is the value of the person’s primary production asset.
(3) If the result under Step 3 of the Method statement is less than nil, the value of the primary production asset is taken to be nil.”
Section 5L assigns definitions to the assets test and includes the following:
“asset” means property (including property outside Australia);
“unrealisable asset” has the meaning given by subsections (11) and (12);
(11)An asset of a person is an unrealisable asset if:
(a) the person cannot sell or realise the asset; and
(b) the person cannot use the asset as a security for borrowing.
(12)For the purposes of the application of this Act to a service pension, an asset of a person is also an unrealisable asset if:
(a) the person could not reasonably be expected to sell or realise the asset; and
(b) the person could not reasonably be expected to use the asset as a security for borrowing.
“value” has the meaning given by subsections (2), (3) and (3A);
(2)A reference in this Act to the value of a particular asset of a person is, if the asset is owned by the person jointly or in common with another person or persons, a reference to the value of the person’s interest in the asset.
(3)A reference in this Act to the value of a charge or encumbrance on an asset of a person is, if the asset is owned by the person jointly or in common with another person or persons, a reference to the value of that charge or encumbrance in so far as it relates to the person’s interest in the asset.”
Decision below
After briefly summarising the foregoing the AAT observed that the first step was to work out the value of the person’s assets and that in so doing regard should be paid to s 52 which required that certain assets should not be taken into account and also that attention must be given to s 52C.
The decision noted the submission of the respondents that, in order to determine the value of the assets, one must determine the net value of the assets, taking into account the existence and value of any debts owed by the person rather than assigning a gross value to each individual asset and totalling those values. The respondents contended that the source from which the debts might be repaid, in the present case, are their other assets and repayment from their other assets would reduce the total value of assets for pension purposes. As a result of the corresponding diminution in the financial position of the respondents, the net effect was to result in their shareholdings having no value.
The AAT noted the Commission’s contention that it was inappropriate to have regard to anything other than the value of each asset owned by the respondents and that the value of such assets could not be reduced by the amounts lent to the respondents by the companies.
The respondents also argued, before the AAT, that the proper approach to the valuation of the loans was not to take them at face value but rather to look at the amount actually recoverable. They relied on the AAT decision in Re King and Repatriation Commission (1990) 12 AAR 375. They submitted that, in accordance with the principles referred to in that case, their shares in the company must be discounted to a nil valuation. The AAT accepted this submission.
The Commission argued that King was distinguishable because it turned on evidence to the effect that the debt could not be met at face value and therefore its value ought be reduced to take account of the actual amount recoverable. In the present case there was no suggestion that the debts owed by the respondents to the companies could not be met.
The critical passage in the decision of the AAT reads:
“13. It is the view of the Tribunal that for a person’s assets to be valued in a reasonable manner in circumstances not specifically addressed by the Act, it is necessary for the respondent to take into account the particular circumstances of each case. As stated by Senior Member Watson in Re King and Repatriation Commission ‘the proper approach to valuation ... requires a careful examination of the particular circumstances ...’. In this case there are two companies which are separate legal entities to the applicants. Although the companies hold assets in the form of loans, those loans are repayable in effect from Mr and Mrs Harrison to Mr and Mrs Harrison. To attribute a separate value to them would be in effect to double count their asset level and provide a gross asset level which was both unrealistic and unrealisable. In the Tribunal’s view, the determination of the value of a person’s assets for calculation as to the rate of pension is a test which is designed to determine the net worth of a person or a couple in a manner which allows a comparative determination to be made with others who are claiming a similar pension. It would be an unreasonable outcome in the unusual circumstances of this case to simply rely on the fact that the companies are a separate legal entity. It is appropriate to lift the corporate veil and to consider the reality of the situation and the nature of the relationship between the applicants and the companies. The way in which the Department has calculated the assets provides an unfair result and a result which is inconsistent with a beneficial interpretation of the requirement in the legislation to value a person’s assets. This in part, is acknowledged by the delegate in the decision the subject of this review, where the delegate states the decision has ‘... an adverse financial effect on Mr and Mrs Harrison ...’.”
In the following paragraph the AAT proceeded to set aside the Commission’s decision of 31 August 1995 and determine that the asset value of the shareholdings of the respondents in the two companies should, for the purpose of calculating the value of their assets under the Act, be regarded as nil.
The decision-maker observed that the respondents’ shareholdings might come under the terms of the definition of “unrealisable asset” contained in s 5L of the Act. However, it made no decision on this point given that it was not the subject of submission or argument during the course of the hearing.
Lifting the corporate veil
The Commission submits that in deciding that it was appropriate to “lift the corporate veil” and to consider the reality of the situation and the nature of the relationship between the respondents and the companies, the AAT acted contrary to fundamental principle. The Commission referred to Salomon v Salomon & Co [1897] AC 22 at 30-31.
The separate legal existence and identity of corporate entities from that of their shareholders and corporators or directors is well-settled in corporations law and, subject to limited exceptions, it currently represents the law of Australia. See Walker v Wimborne (1976) 137 CLR 1 at 6-7 per Mason J; Industrial Equity Ltd v Blackburn (1977) 137 CLR 567, and Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 577. At the latter reference Rogers A-JA sitting in the New South Wales Court of Appeal, with whom Hope and Meagher JJA agreed, expressed the view that it was not an accurate statement to suggest that the corporate veil may be pierced in all circumstances where one company exercises complete dominion and control over another.
There are some closely limited exceptions to the fundamental principle enunciated in Salomon. These include specific inroads made by legislation or circumstances where there is a use of the separate entity principle to perpetrate fraud: see Ford, Austin and Ramsay, Ford’s Principles of Corporations Law, at pars 4.350 ff.
Counsel for the respondents conceded that there were no circumstances or legislative provisions which would warrant the lifting or piercing of the corporate veil in the present matter.
The submission advanced by Counsel for the respondents was that the reference to piercing the corporate veil was simply an instance of the use of “infelicitous expression” in circumstances where it was quite clear that in substance the decision-maker was looking at the underlying reality of the situation. He referred to the well known observations of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287 and to the remarks of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1995) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ, to the effect that reasons and remarks of administrative bodies should not be dissected in an unduly critical or literal manner in search of error.
It seems to me, however, that the importance of the statement cannot be minimised in this way. The substance of par 13 is that the decision-maker has treated the shareholder directors and the corporate entity as being indistinguishable for the purpose of calculating the value of the shareholders’ assets. This is contrary to settled principle.
Accordingly, I am satisfied that there has been a significant material error of law in relation to this aspect and that the matter therefore should be remitted for further consideration.
Net assets
The Commission also submitted that the AAT erred in concluding that:
“.... the determination of the value of a person’s assets for calculation as to the rate of pension is a test which is designed to determine the net worth of a person or a couple in a manner which allows a comparative determination to be made with others who are claiming a similar pension.”
The Act in setting out the assets test makes no mention of concepts such as net worth, net assets, or personal worth.
Under the definition section 5L “asset” is defined to mean “property”. The expression “value of a particular asset” is a reference to “the value of the person’s interest in the asset”. Likewise, a reference in the Act to the “value of a charge or encumbrance on an asset” is a reference to the value of that charge or encumbrance insofar as it relates to the person’s interest in the asset and a reference to the “value of a liability” is a reference to the value of the person’s share of the liability.
The Method Statement which forms part of s 41-F1 sets out six steps. There is no reference in any of those steps to any deduction of liabilities except for an oblique reference to assets which are subject to a charge or encumbrance under s 52C. Effectively, s 52C provides that where there is a charge or encumbrance over a particular asset the value of the encumbered asset is to be reduced by the value of the charge or encumbrance. In substance, this means that the amount secured by the charge or encumbrance should be deducted. However, the reduction is limited to the value of the asset encumbered or charged. It does not extend to requiring a reduction in the value of assets generally where, for example, the debt due under the encumbrance is greater than the value of the asset.
The respondents submit that the purpose of s 52C is to ensure that only the value of the charges supporting the actual debts of a veteran (in contrast to charges in support of the obligations of third parties) will be taken into account in calculating the veteran’s assets. In my view, this is too narrow an approach. It simply focuses on the provisions of s 52C(2) rather than on the section as a whole. That subsection only serves to delimit the extent of the exception which is provided for in s 52C(1). The general rule in s 41-F1 is that “assets” do not mean “net assets”. Subsection 52C(1) provides for an exception. Subsection 52C(2) defines the limits of the exception.
There is no corresponding provision in s 41-F1 for deducting the total amount owing under any encumbrance or charge in working out the value of a person’s assets.
It should be noted that the Method Statement to s 52CA, which is concerned with the valuation of assets used in primary production, specifically refers to a process of adding together the value of liabilities and then deducting the total liability from the unencumbered value of the assets. If the result contended for by the respondents were correct one might have expected a similar provision in s 41-F1.
Counsel referred me to the Full Federal Court decision in Secretary, Department of Social Security v Garvey (1989) 22 FCR 132, which held that the definition of “income” in related legislation (the Social Security Act1947 (Cth)) did not permit losses incurred from one source of income to be off-set against the yield from other income sources. That case was concerned with eligibility for the invalid pension. The claimant for the pension sought to off-set losses incurred on rental properties against his wife’s salary and other income from interest and dividends. His claim was unsuccessful. The Court decided that the definition of “income” required the adoption of a “quarantine” approach. Income was not to be taken to mean net income from all sources. Although not directly on point, the decision and the approach taken by the Court provides some support for the conclusion that the segregation of assets or financial resources from liabilities or losses, is not a foreign concept in this area of welfare legislation.
In my view, it unduly strains and extends the language used in s 41-F1 to treat the reference to assets as in effect “all assets less all liabilities”. Especially where there is reference to the making of specific limited deductions from the value of assets in ss 52C and 52CA.
Counsel for the applicant has referred me to the legislative history and to a collection of extrinsic material largely comprised of Explanatory Memoranda.
The most relevant Explanatory Memorandum is that relating to the insertion of s 52CA into the Act. The Memorandum relates to the Veterans’ Affairs Legislation Amendments Bill 1992 and relevantly reads:
“(b) Assets test changes for primary producers
Background
There are a number of farmers who are ‘asset rich and income poor’. As a result, they may receive reduced payments or no payment of service pension. This may be the case even though they have considerable liabilities.
Section 52C of the Principal Act provides that the value of any charge or encumbrance on an asset, other than an excluded security, is deducted from the value of that asset in assessing its market value.
This effectively means that the value of any debt is exclusively offset against only the asset which provides the primary security for the debt and then only when the owner of the asset and the primary debtor are the same person.
An example of the problem that this causes is where the value of a person’s farm is included in the person’s assets and it precludes the payment of service pension. The person also has farm machinery with a depreciated value of $100,000 which is subject to a mortgage of $150,000.
Effectively the machinery has a negative value of $50,000. However the current legislation does not allow the $50,000 liability to be offset against the value of the farm.”
The effect of the insertion of s 52CA is to permit a primary producer to deduct the total value of liabilities from the unencumbered value of assets which the Commission considers are used for the purpose of carrying on primary production.
The respondents submit that with the insertion of s 52C there was a possibility that primary producers could be adversely affected and that s 52CA was designed to alleviate such effects. The respondents emphasise the importance of s 52CA(3) which prevents a negative value of primary production assets, arising from application of the Method Statement, being offset against the value of other assets. It is said that this would be otiose if the position adopted by the Commission were correct. Whilst there is some force in this submission, in my opinion, the better view is that s 52CA like s 52C is a particular exception to the general position that “assets” means gross assets. The purpose and effect of s 52CA(3) is to allow for the particular circumstances of primary producers and to make it clear, for more abundant caution, that the exception does not extend to affect the gross value of non-primary production assets. In other words, it spells out the limits of the exception in s 52CA(1). The provision of the exception does not control the interpretation of the general rule.
The foregoing lends support for the conclusion that the term “assets”, as used in s 41-F1, was not intended to mean “net assets” or “assets less liabilities”. It also indicates that the valuation of particular assets is to be made and a total value determined without taking into account liabilities. Liabilities can be taken into account but only to the limited extent provided for in ss 52C and 52CA.
Counsel for the respondents also submit that, for the purposes of the assets test, it strains credulity to say that a person with assets of $1 million and debts of $1,000,100 must be treated as having assets worth $1 million. It would, therefore, be unreasonable to deny such a person a pension on the ground of having assets of $1 million. He submits that the legislation being plainly beneficial legislation in character must be read favourably to the respondents where there is ambiguity.
The provisions of this Act and other provisions dealing with matters pertaining to social security, health and pension benefits can frequently be seen to give rise to anomalies in particular cases. No doubt these arise from the wide ranging nature of the differing and conflicting policy considerations which must be taken into account when drafting legislation in these areas.
I am of the view that the decision-maker erred in law in deciding, as a matter of interpretation, that the provisions as to the method of determination of the value of assets were designed to ascertain the “net worth” of a person or couple in relation to the calculation of pension rates.
Nil valuation
The Commission further submits that there was no evidence before the AAT to support a reduced valuation of the debts owed to the companies by the respondents and therefore the AAT had no alternative but to value the debts at face value.
The respondents submit that the attribution of a “nil” value must be accepted as correct because if the shares were sold, then, on a winding-up basis, the price received for the shares would be cancelled by the assumed collection of the debt and their financial position would not be advanced.
However, s 41-F1 is concerned with the value of the shares and not with the ultimate financial effect which would result, as a practical matter, if the value of the shares were realised by the respondents.
The legislature has recognised in s 52Y of the Act that the application of the assets test may well result in financial hardship. There is provision for some relief against the consequences of the asset test where severe financial hardship would result from its application. It is possible that the value of the shares could not in practice be realised. In such a case, as the AAT points out, it may be that s 52Y could apply so as to enable the Commission to ignore the value of the shares because there was no market for the purchase of the shares. However, there is no evidence before me, nor was there any before the Tribunal, which would attract the application of that section. The section only applies in circumstances where severe financial hardship might result if s 52Y were not applied.
It does not of course necessarily follow if a hypothetical sale basis of valuation were chosen that, if the shares were able to be sold, they would realise an amount equal to the amount of debts outstanding by the respondents. No doubt a prospective reasonably informed and willing but not anxious purchaser would seek to make some profit from the transaction. This being so, the hypothetical purchaser may not be prepared to pay an amount equivalent to the proper value of the only asset of the companies in order to obtain the amounts owed by the respondents. This circumstance points to the need for further consideration to be given to the questions raised before the AAT.
There is no suggestion in the material that if the shares were to be sold and the debts realised, the respondents, who are the debtors, would not have been in a position to repay those debts. In this important respect the present matter is clearly distinguishable from the authority referred to by the respondents, namely Re King and Repatriation Commission (1990) 12 AAR 375, particularly at 378-379.
In King the AAT assessed the value of a debt at less than its face value because the company owing the debt did not have the necessary sufficient asset backing or capacity to repay the loan at its face value. The amount of the debt was about $225,000. However, the value of the total assets of the debtor was only $66,850. Accordingly, the loan asset was valued, after some adjustments, at $60,750.
That case is different from the present because the exercise in that case was directed to valuing the asset comprised by the debt, whereas in the present case the approach taken by the AAT was in effect to arrive at a net result by offsetting the respondents’ loans from the company against the value of the shares. This is quite a different exercise.
The respondents also submit that the appropriate value to be assigned to the shares is one of fact and not law and that therefore this Court should not review the finding of a “nil” valuation.
While it is correct to say that the attribution of specific value to an asset involves a question of fact, the valuation exercise itself can involve questions of law in circumstances where, for example, there has been a misdirection as to the relevant valuation principles which should apply or where such principles have been ignored: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 at 432; Leichhardt Municipal Council v Seatainer Terminals Pty Limited (1981) 48 LGRA 409 at 434 per Hope JA.
Accordingly, I consider that the AAT reasons disclose an error of law in arriving at the “nil” valuation.
Remittal
This matter should be remitted to the AAT for determination in accordance with law. On remittal it would be appropriate for the decision-maker to consider what, if any, further factual or valuation evidence should be considered. This is a matter appropriate to leave to the decision-maker in the light of observations made in the course of these reasons for judgment.
There will be no order as to costs as they are not sought by the Commission on this appeal.
Orders
The orders which I make are that:
The appeal is allowed.
The decision of the AAT be set aside.
The matter be remitted to the AAT for further consideration in accordance with law.
Further evidence may be admitted and considered at the discretion of the decision-maker hearing the matter on remittal.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin
Associate:
Dated: 17 September 1997
Counsel for the Applicant: Mr P J Hanks Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: Mr I R Sanderson Solicitor for the Respondents: Adrian G Byrne & Co Date of Hearing: 25 June 1997 Applicant’s Further Written Submissions Received: 15 July 1997 Respondents’ Further Written Submissions Received 20 August 1997
Date of Judgment 17 September 1997
8
0
0