Uechtritz v Chief Commissioner of State Revenue
[2013] NSWADT 111
•22 May 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Uechtritz v Chief Commissioner of State Revenue [2013] NSWADT 111 Hearing dates: 14 May 2013 Decision date: 22 May 2013 Jurisdiction: Revenue Division Before: Professor G.D. Walker, Judicial Member Decision: Application 126020: decision under review set aside
Application 136005:settled, dismissed
Catchwords: Land tax-principal place of residence-relevant period--days spent at property-passenger card-official records not altered-unusual circumstances Legislation Cited: Land Tax Management Act 1956 Cases Cited: Aldridge v Chief Commissioner of State Revenue [2003] NSWADTAP 50; Black v CCSR [2011] NSWADT 66; Flaracos v CCSR [2003] NSWSC 68 (revised); Leda Manorstead Pty Ltd v CCSR [2010]NSWSC 867; CCSR v McIlroy [2009] NSWADTAP 21. Category: Principal judgment Parties: Richard A. Uechtritz, (Applicant)
Chief Commissioner of State Revenue, (Respondent)Representation: Counsel
B L Jones (Applicant)
D Mitchell (Respondent)
Sekel Oshry Lawyers (Applicant)
Crown Solicitors Office (Respondent)
File Number(s): 126020 136005
reasons for decision
Background
These two matters were listed for hearing together on 14 May 2013. Shortly before the hearing, however, the respondent withdrew his opposition to application number 136005, which accordingly did not proceed. Part of the evidence filed before the hearing is thus no longer relevant.
In matter number 126020, the applicant Richard Anders Uechtritz seeks review of a decision of the respondent Chief Commissioner of State Revenue to assess him as liable to pay land tax for the 2011 tax year in respect of his property at 7 Brownell Drive, Byron Bay, New South Wales. The applicant claims to be entitled to an exemption in respect of that property under s 10(1)(r) of the Land Tax Management Act 1956 (LTM Act). He maintains that the Byron Bay property is his principal place of residence (PPR) within the meaning of clause 2 (2)(b) of schedule 1A of the LTM Act because it was used and occupied by him as his PPR on 31 December 2010.
The respondent contends that the applicant's PPR was in fact another property owned by him, 17 Ebsworth Road, Rose Bay, New South Wales.
The initial decision was made on 4 November 2011. An objection to the decision was lodged on 15 November 2012 under cover of a letter from the applicant's accountants. The objection was disallowed on 11 January 2012 on the basis that the respondent considered that the applicant's principal place of residence was the Rose Bay property. The review application was filed on 9 March 2012.
The facts and the applicable law are generally not disputed. The controversy revolves around the interpretation of those facts and the relative weight to be given to them.
As the photographs and ground plan (exhibit R5) show, the Rose Bay house is a substantial modern property and occupies approximately 585 square metres of land. It had an unimproved value of $1,670,000 for the 2011 land tax year. Even during the 2011 land tax year, after the applicant states that he moved to Byron Bay, Rose Bay remained fully furnished and the applicant did not move any of the furniture from it to the Byron Bay residence, which was already well furnished as he had agreed to buy the furniture from the outgoing vendor. The applicant and his wife also continued to maintain separate wardrobes at Rose Bay.
It is not disputed that the Rose Bay house was the PPR of the applicant's son, a university student at the time, and his daughter who was at high school and preparing for the Higher School Certificate during the year in dispute.
As the photographs (Exhibit A5) show, the Byron Bay property is also a more than commodious residence having in addition an office and a stand-alone self-contained apartment at the front which the applicant rented out for vacation rentals until 23 November 2011. The property stands on approximately 700 square metres of land and had an unimproved value of $4,400,000 for the 2011 tax year. The applicant concedes that he used it as a holiday home until October 2010.
The applicant is a successful businessman who before retiring in May 2010 was chief executive officer, and later a director of, JB HiFi Ltd, a large retail chain based in Melbourne. During the relevant tax year he was a board member of Seven Group Holdings Ltd, which has its head office in Sydney. The applicant also has a charitable foundation, L and R Uechtritz Foundation, which patronizes the arts, that requires him to travel to Sydney and Melbourne. The applicant was also a director, together with his wife, and secretary of Uechtritz Nominees Pty Ltd and Uechtritz Foundation Pty Ltd, both of which had the Rose Bay property as their principal place of business. During the 2011 tax year Mr Uechtritz travelled extensively for work, family, medical and recreational purposes.
In November 2010, he purchased a house in Glenview Street, Paddington and began making preparations for renovating it as a new "Sydney base" following the intended sale of Rose Bay. This commitment also required him to travel to Sydney to attend planning meetings and for similar purposes.
The evidence
At the hearing Mr Uechtritz adopted his two affidavits, exhibits A1 and A4, the former being the more important one. In it the applicant declared inter alia that he acquired the Byron Bay property in September 2007 as a house to retire to, and in the meantime to be a holiday house for his immediate family. On receiving a number of requests from his extended family to use the house, he sent to them the e-mail dated 29 April 2008 explaining that he and his wife intended to make the new property their home. It was furnished and decorated it as such, not as a simple beach house. Accordingly he preferred not to make it available to the whole family as a holiday destination (exhibit A1, exhibit RAU-2, tab 2). Shortly after buying the property, Mr Uechtritz and his wife were married, on 17 November 2007.
Throughout 2010 and before he retired, the applicant began seeking an alternative residence in Sydney that would be more suitable for a mainly absentee owner. He purchased a Paddington terrace house for that purpose and had begun substantially renovating it, and intends to use it when in Sydney as soon as it is completed.
At the start of his retirement his sister had moved into the Rose Bay property in order to, among other things, act as caretaker and take care of the applicant's daughter Nicola. His sister is his personal assistant and undertakes his personal bookkeeping and the administration of the affairs of his various investment entities. She later moved into her own recently renovated house nearby at Waverley in June 2011, but as part of her regular duties goes almost daily to the Rose Bay house to collect the mail and process it.
Although he had relocated to Byron Bay, he elected to leave his mail addressed to Rose Bay as the vast bulk of his mail relates to investment, business and bills and requires prompt attention. His sister's role in relation to these matters is an essential one. With the renovations to Paddington completed, the applicant is making preparations to sell the Rose Bay property
In order to prepare Byron Bay as their permanent home, the applicant undertook renovations to it, acquired a new car to be used there and made other related arrangements.
In September and October 2010 he had discussions with his accountant and on 12 October 2010 e-mailed him asking that he inform the Office of State Revenue (OSR) of the change of residence. He also requested advice on the formal steps he should take to effect the change (RAU-2, tab 14). As at that time he had just returned from seven weeks overseas and had many matters requiring his attention, in addition to his normal workload, he overlooked the fact that he had received from his accountants no response to his request. He did not receive any advice from his accountants about the formal steps he should take to notify the authorities of the change of address until 2011.
The applicant and his wife were travelling regularly and extensively for business, charitable, family and recreation purposes and maintained residences in both Sydney and Melbourne.
He joined the Byron Bay Rotary Club and became an office bearer in it (exhibit A4) with a view to their Foundation becoming involved in supporting the local community. They thus funded an NGO through Rotary called "Brave Hearts" dealing with child protection and supported an alcohol and drug rehabilitation centre in the area. They also supported "Goodwill Bicycles", which provides recycled bicycles to Third World countries.
When travelling internationally he usually departs from and returns to Sydney or Melbourne, flying to the city from which he is departing a couple of days before departure. On returning he normally stays in the city to which he returns so as to recover from the flight and visit friends and family, and attend to other business. He explained citing Rose Bay as his intended address in Australia on his incoming passenger card on 23 January 2011 as based on his understanding that the information was required in case an authority needed to contact him in the event of an emergency, such as an outbreak of a communicable disease. He considered Rose Bay the most reliable contact address as he was intending to remain in Sydney for several days to see family and friends. As he has no mailbox at the Byron Bay house, any correspondence sent there would have been returned to sender.
At or about the time of lodging the objection to the 2011 assessment, he received advice from his accountant as to the formal steps needing to be taken to reflect his relocation to Byron Bay. Following that advice he notified the authorities such as ASIC, the electoral commission and RTA.
In oral evidence the applicant said that he had paid $6,500,000 for Byron Bay and $4,200,000 for Rose Bay. He personally considered that Byron Bay had become his PPR in May 2010 when he had retired, not in October 2010. His extensive collection of tribal art was housed at Rose Bay, with some kept in Melbourne, rather than at Byron Bay, as Rose Bay was a substantial brick building and hence more secure, while Byron Bay, with large windows and much open space had less room to hang paintings. When the renovations at Paddington were completed, the entire collection would be moved there. He kept a more expensive wardrobe at Rose Bay than at Byron Bay, as he had no need for suits at Byron Bay. As regards motor vehicles, he kept a Porsche and a Golf in Melbourne and a Golf and a Vespa at Rose Bay. At Byron Bay he had a VW SUV and a Vespa, but ordered a new Tiguan in October 2010. He rented cars until the Tiguan was delivered .
All his documents, including registration papers for all motor vehicles, were at kept in Sydney where his business office remained. He conceded that when renewing his driver's licence in 2010 he had not changed the address on it, as there was no mailbox at the Byron Bay house and he had been told that he could not use a post office box number on a licence. Further, he used Rose Bay for all business purposes. He also acknowledged that he had not changed his address for electoral purposes at the time of the 2011 state election and had voted as at Rose Bay. He admitted that he had been "slack" in changing his address for ASIC records, but had left the matter to his accountants who had not changed the address until a year after he had moved to Byron Bay.
In the earlier stages his wife accompanied him on his trips, but after a period remained at home in Byron Bay when they were not overseas. He was adamant that it was his PPR, pointing out that he had spent only 12 days in Sydney in the first six months of living at Byron Bay, except for business purposes.
The applicant's sister, Ms Rita Uechtritz, at the hearing adopted her affidavit dated 19 December 2012 (exhibit A3) in which she recounted how she had moved into the Rose Bay house in February 2010 while her terrace in Waverley was being renovated and to take care of the applicant's daughter Nicola who was living there during her later stages at high school. "Richard had previously informed me and other family members of his intentions to move to the Byron Bay property when he retired", she deposed. He had also said that Nicola had told him that she would like her mother, Ms Sandra Cottee, who lived in the Blue Mountains, to stay with her as much as possible, and that he was happy with that arrangement as long as he and his wife would not be there at the time.
After the applicant and his wife returned from their long overseas trip in 2010, he would regularly come to Sydney for business and family matters, but apart from brief stopovers the couple did not live in the Rose Bay property and Ms Uechtritz only saw them there for brief periods. Meanwhile, she was processing all of her brother's mail as he continued to have it directed to the Rose Bay property. She continued to administer his affairs.
At the end of 2010 she had a conversation with him to the following effect. She asked, "How do you like living in Byron?" He replied, "It is a spectacular location, very relaxing. Lorena and I are really enjoying being out of the city".
In oral evidence Ms Uechtritz said that the applicant's ex-de facto Sandra had stayed over often to be with her daughter Nicola, sometimes during the week but often at weekends, probably about once a fortnight. She could not recall the applicant and Lorena ever staying there for a period of weeks while she was there. On the whole it was for brief periods of between one and three nights.
While she was living at Rose Bay, Ms Uechtritz considered the house to be her place. She had guests there and held many functions in the house.
The applicant's wife Gemma Lorena Garcia Sabater, who is a Spanish citizen with Australian permanent residency, adopted her affidavit dated 14 December 2012 (exhibit A2). She recalled that before their wedding in November 2007 when they were inspecting the Byron Bay property, the applicant had said to her, "We can buy this place and use it as a holiday house until I retire and then we can move up here to live", a suggestion to which she agreed. Since their marriage they have spent every Christmas and New Year at Byron Bay, except for one year when she was in Spain with her family.
They had often discussed the timing of his retirement, and he would say words to the effect that, "It would be nice to retire in 2010, that will be the 10th anniversary of taking the job with JB. We can then move to the beach house at Byron Bay". They agreed at the beginning of 2010 that they would move to Byron Bay following his retirement later that year. On returning from their overseas trip in May-June 2010, they began the move to Byron Bay, taking some of their clothing and other personal items over several trips. As the house was already fully furnished and they were not selling Sydney or Melbourne, they were able to leave other clothes and personal effects at those properties. Since that time she has considered the Byron Bay property to be her home.
During the early stages of their time at Byron Bay she travelled with Mr Uechtritz on a number of his business trips to Sydney and Melbourne and also took the opportunity to see medical specialists. Since about mid 2011 the frequency of her visits to Sydney and Melbourne had diminished and she had remained at Byron Bay more often when Richard travelled to Sydney and Melbourne. Since moving to Byron Bay she had established relationships with local doctors. Following the birth of their child, she and her husband intended to raise him at Byron Bay and then enrol him at the Steiner School in Byron Bay. She has made friends in Byron Bay and undertaken many short educational courses there.
In cross-examination, Ms Garcia (I understand that in Spain the penultimate name is usually the surname) said she had a larger wardrobe at Byron Bay than at Rose Bay, keeping most of her clothes at Byron Bay because it was from there that she took off when travelling. She did not often visit friends in Sydney, as she has only one there, most of the others being her husband's friends. She did have some friends in Melbourne, however, but could not recall when she had visited them.
The respondent called no oral evidence but relied on the s 58 documents (exhibit R1) and other documentary material.
Respondent's submissions
In his oral argument, supplementing the respondent's written submissions, Mr Mitchell noted that the legal issues were not disputed and that the applicant bears the onus of proof. He pointed to an inconsistency between the applicant's original exemption application, which had given October 2010 as the date of the move to Byron Bay, whereas at the hearing Mr Uechtritz had said it was in May 2010, while the written submissions nominated October 2010. This had created uncertainty in the applicant's case, but also indicated that the PPR was at Rose Bay.
The applicant's intention was relevant but it was only one factor and had to be gauged objectively. In the e-mails to his family in 2008 and his accountants in October 2010 he had expressed an intention, but the facts did not bear out the realization of that decision.
During the relevant period, that is from 1 July 2010 to 30 June 2011, he had spent more time in Sydney. Excluding travel time, during the first six months of the relevant period, he had spent 33 days in Sydney and 45 or 47 in Byron Bay. But during that period came Christmas and he had spent all of December in Byron Bay. Thus the first six months notably included the holiday periods. During the second six months, from 1 January to 30 June 2011, he had spent 81 days at Rose Bay and only 21 days at Byron Bay, 80 percent of his time thus being in Sydney, a large variation. After the hearing the respondent pursuant to leave lodged a supplementary submission contending that the applicant 's accounting had not factored in two further days spent in Sydney, 2 February and 13 May 2011.
As regards where his family was located, Ms Garcia travelled with him frequently and did not always stay at home in Byron Bay. His children were at Rose Bay and his daughter was not at that time legally an adult. His sister was taking care of her but he conceded that part of his reason for visiting Sydney was to see his family.
It was not disputed that he had many ties in Sydney, such as his membership of the Seven Network board, other work commitments, banking, accountants, lawyers, theatre subscriptions and his art collection. That collection was an important factor as it was the main item among his personal effects. During the relevant period any art that he purchased went to Sydney.
Contemporaneous records showed that he had not changed his address to Byron Bay and had remained enrolled at Rose Bay until after voting in the State election. The effective date of his changes to ASIC records was June 2011. His arrival cards both gave Rose Bay as his intended address.
The 2008 e-mail to his family about making Byron Bay their home was a statement of intention for the future and aimed to deter other family members from seeking to use the property as a holiday house. The October 2010 e-mail to his accountants was of little assistance, and as it asked the accountants for advice it was not relevant to reality, though it might have a bearing on intention.
The applicant's sister had a poor recollection of events at the time, and despite her account of very brief stays by the couple in Sydney, it was not disputed that they had actually stayed there longer on occasion. Her belief that Byron Bay was their PPR was thus based on a false recollection and her opinion was irrelevant.
As regards his ties in Byron Bay, there was no evidence of when his membership of the golf club or Rotary had begun and in any event the Rotary membership fell outside the relevant period. His stays at Rose Bay were not transient as his family, and his art collection, were there. The renovations on the Byron Bay house and the purchase of a new car only signified that he was planning to spend more time at Byron Bay because he was retired. Nor did the greater value of the Byron Bay property and the applicant's donations to various charities in the area have any probative value.
Applicable legislation
Section 10 (1)(r) of the LTM Act exempts from land tax land falling within the principal place of residence exemption as provided for by schedule 1A. Clause 2 (2) of schedule 1A defines as PPR either (a) land continuously used solely for residential purposes since 1 July in the year preceding the relevant tax year or (b) in any other case, land as to which the Chief Commissioner "is satisfied that the land is used and occupied by the person as the person's principal place of residence". As the applicant's case was presented on the basis that Byron Bay became his PPR in October 2010, he relies on clause 2(2) (b).
It is thus necessary for the applicant to establish that he used and occupied Byron Bay as his PPR as at midnight on 31 December 2010: Aldridge v Chief Commissioner of State Revenue [2003] NSWADTAP 50 at [12]. The legislation acknowledges that a person may reside at more than one place during the relevant land tax year. It provides that only one of those places can constitute the "principal" place of residence: Black v Chief Commissioner of State Revenue [2011] NSWADT 66, [81].
In Chief Commissioner of State Revenue v McIlroy [2009] NSWADTAP 21 the Appeal Panel thought it relevant for the tribunal to bear in mind "the more usual state of affairs, namely, that a person's principal place of residence is where he or she spends the most time, and which is shared (where applicable) with his or her spouse and children" (at [40]). After noting that the question is to be assessed objectively in light of the circumstances relating to the actual occupation of the dwelling, the Appeal Panel highlighted several other relevant factors:
- The intention of the person concerned, gauged objectively, is relevant but not determinative.
- The person's occupation must have a degree of permanence to it: a transient, temporary contingent or passing connection is insufficient, as is occupation for some other purpose.
- The short length of a person's residence, while relevant, is not determinative.
- The reasons for a person's departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances.
The inquiry does not focus solely on the situation on 31 December. As Gzell J. pointed out in Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2010] NSWSC 867 at [4]: "It extends to a consideration of its use during a reasonable period preceding and following the relevant date...." In that case, his Honour thought that six months before and after 31 December would be a reasonable period in the circumstances of that case.
In the present case the parties proceeded on the assumption that 1 July 2010 to 30 June 2011 was "the relevant period" for the purposes of the present issue. It should be noted, however, that the 1 July to 30 June interval has no statutory significance in this context , nor did Gzell J. suggest that it would be a reasonable period in all cases. For the reasons given below I do not consider the full 12-month period reasonable in this case.
When did Byron Bay become the applicant's PPR?
It is not disputed that Byron Bay was a residence of Mr Uechtritz during the relevant period. Further, the respondent concedes that it was his PPR for the 2012 land tax year. The question is whether it was his PPR for the 2011 land tax year.
The primary matters on which the Chief Commissioner relied in support of his submission that the Rose Bay house was the applicant's PPR at the relevant date were, first, that during the relevant period the applicant spent a significant period of time in residence at Rose Bay, indeed more time than he spent at Byron Bay. The applicant, on the other hand, submits that during the six months from 1 July 2010 to 31 December 2010 he spent 151 days in Byron Bay and only 33 in Sydney. In reaching those totals he treats his time travelling overseas and interstate while he was living at Byron Bay as being time spent at Byron Bay itself. The respondent submits that a fair presentation would exclude travelling times.
In Flaracos v Chief Commissioner of State Revenue [2003] NSWSC 68 (revised) at [29], Gzell J said: "In my opinion continuous physical presence on the land is not required to constitute continuous occupation. If a person leaves his or her premises for a holiday, it would defeat the purpose of the Act to conclude that the occupation had ceased to be continuous". Thus, if the applicant were residing at Byron Bay, absences, even frequent absences, for business or other purposes would not prevent Byron Bay from being his PPR if the other criteria justified it. Gzell J's remarks, with respect, accord with everyday experience. If one is visiting Tasmania and is asked "Where do you live?", one would nominate the town or suburb in New South Wales, not the Hobart hotel where one was staying.
In any event, taking account of absences from Byron Bay before October 2010 would not be reasonable in the circumstances in accordance with Gzell J.'s understanding in Leda. Although in oral evidence Mr Uechtritz said he considered that he had made Byron Bay his home in May 2010 on retiring, that was a largely subjective perception. His case was presented on the basis that the move was in October 2010, and that was the month in which more objective factors supporting that conclusion existed.
In oral evidence Mr Uechtritz asserted that during the first six months after the move to Byron Bay (i.e. the 6 months from October 2010) he had spent only 12 days in Sydney otherwise than on business. That proposition was not challenged in cross-examination, but after the hearing the respondent submitted that one further day, 2 February, should be added to that total. It appears that it may have concerned a business trip, however, in which case it would be consistent with the applicant's 12 day estimate. In any event the addition of 2 February and 13 May does not, in my view, make a material difference. The applicant's statement that he returned to Byron Bay after each overseas or interstate trip (Exhibit A2, para.5(iv)) was challenged but not substantially refuted. On the other hand, Mr Uechtritz did not dispute Mr Mitchell's suggestion that during the period 1 January 2011 to 30 June 2011 he had spent more time in Sydney. While the applicant's travel for business and other purposes (including the renovation of Paddington as a new Sydney pied-a-terre) could account for that, prima facie this factor tends to favour the respondent's case.
Next, the respondent pointed out that two of the applicant's children, one of whom was still in high school, lived at Rose Bay during the relevant period, which in the "usual state of affairs" would tend to make Rose Bay the applicant's PPR. Although the applicant's sister was living at Rose Bay and taking care of Nicola, she had actually moved in in about February 2010 as her own house was being renovated, and only remained there until mid June 2011. As against that, Nicola had been in boarding school before moving into Rose Bay and was thus presumably accustomed to living away from home. She was in the care of an aunt who had raised children of her own and who returned to the house daily after the renovations to her terrace were completed in order to attend to the applicant's administrative work and to cook for Nicola. Nicola also had her elder brother with her. Further, her mother came down from the Blue Mountains to stay with her at the house every two weeks on average.
In the circumstances, that aspect of the arrangements does not seem so unusual. In addition, the fact that the applicant's ex-de facto Sandra was welcome to stay at Rose Bay, except when the applicant and his wife were present, tends to favour the inference that Rose Bay was not the applicant's PPR.
The respondent then relies on the applicant's listing of Rose Bay as his "intended address in Australia" on his January 2011 incoming passenger card. Arrival cards are normally a telling piece of evidence in such cases, but the applicant explained that in his understanding the address was required for short term emergency purposes, such as when there is an infectious disease outbreak. In those circumstances the Byron Bay address would be useless as there was no mailbox at the premises, and Rose Bay was his contact point for all business matters. In any case the applicant intended to stay at Rose Bay for several days, in accordance with his usual practice. While such a rationale would not occur to every traveller, it is not implausible in the case of a man who travels a great deal.
The respondent then pointed out that the applicant maintained the Rose Bay address with the Electoral Commission until December 2011, with RTA until May 2011 and with ASIC until June 2011. He admitted that he had been "slack" in that regard. While that is a less than impressive justification, his e-mail to his accountants dated 12 October 2010 is of more assistance to his case. In it he states that he and his wife will be living at Byron Bay from then on, asks the accountants to inform SRO and enquires as to whether there is anything else he would need to know in respect of Byron Bay being his PPR (RAU-2, p 18). Not only is that e-mail unequivocal but, importantly, it antedates the original assessment (20 January 2011) making Byron Bay subject to land tax. It was thus made before the applicant had, from his point of view, a land tax problem.
Turning to the factors relied on by the applicant, in answer to the applicant's argument that the Byron Bay house was where the applicant's wife remained when he was away, the respondent submitted that the flight data for Ms Garcia does not bear that out and that the applicant himself said that was only the position since about mid 2011. The applicant did give evidence that his wife accompanied him on his various trips in the earlier stages but tended to stay at Byron Bay later on. That circumstance is perhaps unsurprising in the case of a couple who were relatively recently married, had no children at home, but did have the means to enable Ms Garcia to travel with her husband.
The fact that the couple spent Christmas and New Year at Byron Bay was equivocal, the respondent argued, as that pattern of use would be expected given the nature of Byron Bay as a holiday town. That contention is somewhat weakened, however, by the fact that the applicant also spent most of the time from October to December at the Byron Bay house.
The fact that the applicant's sister regarded Byron Bay as his home at the relevant time was irrelevant, being purely a matter of self-serving subjective opinion, the respondent contended. Of more significance, however, is the conversation with the applicant reported by Ms Rita Uechtritz as happening at the end of 2010, when she asked him "How do you like living in Byron?", and he answered by saying how spectacular, relaxing and enjoyable it was. The accuracy of Ms Uechtritz's recollection of that conversation was not challenged, and it relates to the applicant's then current circumstances, not to matters of intention.
Next, the respondent argued that the applicant's ties to the Byron Bay area, such as membership of the golf club and Rotary, were equivocal given Byron Bay's character as a holiday town and that his Rotary membership may not have begun until after the relevant period. He also had golf club memberships in Sydney and Melbourne. In his oral evidence, however, Mr Uechtritz pointed out that he was a playing member at the Byron Bay golf club, while his Sydney and Melbourne memberships were of the non-playing type. His substantial involvement in a number of Byron Bay charities is in my view a better indication of a person establishing lasting links with a local community, however. Further, as Mr Jones pointed out, the substantially higher cost of the Byron Bay house, even apart from renovation costs, also tends to indicate something more than a holiday house.
Certain aspects of the evidence, notably the arrival cards and the days spent at Byron Bay in the period January to June 2011, do tend to support the Chief Commissioner's case. But the applicant's variegated and peripatetic lifestyle make this an unusual case. In terms of the criteria listed in McIlroy, the applicant's intention, gauged objectively, was clearly to make his home in the Byron Bay residence from about October 2010 onwards. His occupancy was not of a transient, temporary, contingent or passing nature. In the first six months from October 2010 he spent only 12 days in Sydney otherwise than on business. For the remainder of the January to June 2011 period, he spent considerably more time in Sydney, however. Although he failed to change his address on his official records until May 2011 or later, he had given explicit instructions in October 2010 about the matter and his failure to follow up those directions can be explained by his numerous business and other commitments and his extensive travel. Next, however, McIlroy notes that the short length of a person's residence is not decisive. Again, the reasons for the applicant's departure from Rose Bay, namely his retirement from JB Hi-Fi accompanied by his expressed intention to retire to Byron Bay, reasonably and adequately explain the move. And although his children were living at Rose Bay, the arrangements for them were reasonable in the applicant's circumstances, while his wife lived in Byron Bay and regarded it as her home.
Two of the factors mentioned can be viewed as favouring the respondent's position. In light of the whole of the evidence, however, Gzell J's reasoning in Flaracos seems particularly apposite. In that case the property owner was frequently absent from the property, sometimes for long periods, and the house was at times vacant and at other times tenanted, although when the owner was in Sydney he lived in the house on a shared basis. His correspondence was all addressed to his mother's address and his car registration, and for a time his driver's licence, also used her address. But while away he always intended to return and when he did so he resumed physical presence. His Honour concluded that the house was his PPR. In light of the accepted criteria and the entirety of the evidence I thus conclude that the applicant's principal place of residence on 31 December 2010 was his house at Byron Bay, following the realization of his move in October 2010.
As regards application No. 126020, the decision under review is therefore set aside. Application 136005, having been settled, is dismissed.
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Decision last updated: 22 May 2013
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