William J Padget Pty Limited v Chief Commissioner of State Revenue (No 2)
[2005] NSWADT 110
•05/18/2005
CITATION: William J Padget Pty Limited v Chief Commissioner of State Revenue (No 2) [2005] NSWADT 110 DIVISION: Revenue Division PARTIES: APPLICANT
William J Padget Pty Limited
RESPONDENT
Chief Commissioner of State RevenueFILE NUMBER: 036034 HEARING DATES: 12/05/2005 SUBMISSIONS CLOSED: 05/12/2005 DATE OF DECISION:
05/18/2005BEFORE: Block J - ADCJ (Judicial Member) APPLICATION: Land tax exemption - land subject to an agreement for sale MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Land Tax Management Act 1956
State Revenue Legislation Further Amendment (No 2) Act 2001CASES CITED: Adele Grace Pty Ltd v Commissioner of Land Tax (N.S.W.) 78 ATC 4075
Cam & Sons Pty Limited v Commissioner of Land Tax (1964) 112 CLR 139
Chief Commissioner of Land Tax v Macary Manufacturing Pty Limited (1999) 48 NSWLR 299
Commissioner for Land Tax v Cam & Sons Pty Limited [1964-1965] NSWR 589
Goodwin v Phillips (1908) 7 CLR 1
New South Wales Aboriginal Land Council v Chief Commissioner of State Revenue [2004] ADT 58
Refrigerator Express Lines (A’sia) Pty Ltd v Australia Meat and Livestock Corp & Ors (1980) 29 ALR 333
Reseck v FC of T 75 ATC 4213
Union Trustee Company of Australia and the Federal Commissioner of Land Tax 20 CLR. 526
Yule v Commissioner of Taxes [1918] NZLR 890REPRESENTATION: APPLICANT
J Hmelnitsky, barrister
RESPONDENT
I Mescher, barristerORDERS: In respect of all relevant land tax years the assessments are set aside in relation to Lot 11 only and not in respect of the remainder of the property (Lot 12) and in relation to which they are affirmed; there is no order as to costs
1 The objection decision under review is the disallowance of an objection against land tax assessed in respect of 2 Tobruk Ave, Cremorne (“the Property”) in respect of the land tax years 1999 to 2004 (both years inclusive). Particular land tax years are distinguished in this decision by a reference to the actual year; all of them are collectively referred to as the “relevant years”. The original application for review related to the disallowance of an objection in respect of the relevant years other than the 2004 year. After the application for review was filed, an assessment was issued in respect of the 2004 year; that objection was disallowed and that objection decision formed part of these proceedings. There are thus in reality two objection decisions but it is convenient to refer to them collectively as “the objection decision.”
2 After a hearing on 1 April 2004 Mr A. Verick, a judicial member of this Tribunal, issued a decision, provisional in nature, as to jurisdiction. Mr Verick was of the view that this Tribunal does not have jurisdiction; clause 28 of his decision (“the jurisdiction decision”) reads as follows:
- 28 The Tribunal has, in my opinion, no jurisdiction to consider an application, which relates to an objection decision not properly made by the Respondent under the provisions of the TA Act. It is most unfortunate that the parties at hearing did not bring my attention to the jurisdiction issue. Before I make any final order in this matter, I will offer the parties an opportunity to address on the jurisdiction issue. I will accordingly fix this matter for further directions hearing on 22 July 2004 at 10 am.
3 Following the jurisdiction decision a number of directions hearings took place. At the most recent of those directions hearings, a different judicial member directed that a final decision in respect of jurisdiction be issued. On 13 April 2005 the President of the Tribunal directed, in the absence of Mr.Verick, and with the consent of the parties, that the matter be dealt with by me.
4 The Tribunal has before it the documents lodged pursuant to section 58 of the Administrative Decisions Tribunal Act 1997. The Tribunal received lengthy written submissions and being the Applicant's submissions dated 10 March 2004 (“AS”), the Respondent's written submissions dated 30 March 2004 (“RS”) and the Applicant's submissions in reply dated 1 April 2004 (“ASR”). All of those submissions were before the Tribunal prior to the issue of the jurisdiction decision. Since the jurisdiction decision, the Applicant has filed further submissions; dated 20 July 2004 (“ASJ”) entitled "Outline of Applicant's submissions in relation to jurisdiction". I found all of the written submissions helpful.
5 I do not think that I need dwell on the jurisdiction issue. For the reasons set out in clauses 11 to 28 (inclusive) of ASJ (and which need not be included in this decision, there is no doubt in my mind that the Tribunal does have jurisdiction. No issue of jurisdiction was raised by the Respondent at the hearing on 1 April 2004; the jurisdiction decision indicates that the learned judicial member came to the view that there was such an issue only after the hearing. ASJ (correctly) contains a clause 2 to the effect that there was no issue as between the parties as to jurisdiction.
6 After the matter was transferred to me by the President, and having considered all of the documentation and in particular the submissions by the parties, I convened a directions hearing at 9:30 a.m. on 12th of May 2005. As set out in clause 3, the most recent direction might have caused the parties to consider that at this stage it was necessary first to deal with and dispose of the jurisdiction issue. Having considered the submissions referred to in clause 4, it did not seem to me that there is any such issue. Moreover I had come to the conclusion that I could issue a decision on the papers before the Tribunal; however I thought it desirable before doing so to consult the parties as to whether such a course would be acceptable. The directions hearing was attended by Ms Konstantinidis on behalf of the Applicant and Mr. Bulbulia on behalf of the Respondent. The Respondent had intended to ask for a postponement to allow counsel to argue the jurisdiction question. The Applicant in turn had doubts as to whether in the light of the jurisdiction decision, that aspect could be resolved by me; Mr. Bulbulia too intended to seek an adjournment in order to present argument. Suffice it to say that after discussion, and after instructions had been obtained by Mr. Bulbulia, I was informed that it would be in order to prepare and issue the Tribunal’s final decision.
7 It is perhaps relevant to note, but in passing only, that following the jurisdiction decision, the Applicant, on 25 August 2004, filed a second objection which was disallowed on 1 March 2005. At the directions hearing referred to in the preceding clause, the parties agreed that the jurisdiction question having been resolved, it would not be necessary for me deal this aspect further.
8 A consideration of the other submissions referred to in clause 4 indicates in clear terms that there is now only one issue between the parties. That issue relates to the interpretation of section 26 of the Land Tax Management Act 1956 (the “Act”) in the form in which it appeared before its amendment in 2001.
9 Although the facts are in many respects somewhat more complex than those set out in this decision, it is sufficient to refer only the facts, in simplified form (which are common cause between the parties) and which are relevant to the only outstanding issue.
10 The Applicant was, during the relevant years, the owner of the property. Mr William J. Padget (“Padget”) was a director of and a shareholder in the Applicant, (which is sometimes in this decision referred to as "the Company").
11 The Applicant was, as I have said, the registered proprietor of the Property; prior to the commencement of the relevant years, the Property was subdivided into two lots, and being Lots 11 and 12 in deposited plan 808770. Lot 11 in the deposited plan is separately referred to as "Lot 11" and similarly Lot 12 in the deposited plan is referred to as "Lot 12 ".
12 In 1998 the Applicant entered into a contract of sale ("the Contract") for the sale of Lot 11 to Padget; the purchase consideration set out in the Contract was $110,000. Paget paid $20,000 on entry into the Contract; $20,000 is equivalent to 18% of the purchase consideration. The Contract was duly stamped with ad valorem duty. Paget was entitled to possession from the date of the Contract. At some time thereafter he built his family home on Lot 11, and he and his family lived in it during the relevant years.
13 For reasons which are not relevant, the Applicant during the relevant years remained the registered owner of the Property (and including Lot 11). In late 2001 (and again for reasons which are not relevant) the Applicant granted a mortgage over the Property (and again including Lot 11) in favour of a bank
14 Prior to 31st December 2002 section 26 of the Act read as follows:
- (1) Where, before or after the commencement of this Act, an agreement has been made for the sale of land, whether the agreement has been completed by conveyance or not, and an instrument that embodies all or any of the terms of the agreement, or a conveyance that gives effect to the agreement, has been duly stamped under the Stamp Duties Act 1920 in respect of the sale:
(a) the purchaser shall be deemed to be the owner of the land (though not to the exclusion of the liability of any other person) so soon as the purchaser has obtained possession of the land,
(b) the vendor shall be deemed to remain the owner of the land (though not to the exclusion of the liability of any other person) until possession of the land has been delivered to the purchaser and at least fifteen per centum of the purchase money has been paid,
(c) the vendor shall be deemed to be the owner of the land (though not to the exclusion of the liability of any other person) where:
- (i) under the provisions of the agreement for sale the vendor resumes possession of the land without rescinding the agreement or appoints a receiver of the rents and profits of the land, or
(ii) under the provisions of the agreement for sale or under any arrangement with the purchaser the vendor secures the use of the land, or receives the rents and profits of the land or the income from any business carried on on the land:
Provided that the Chief Commissioner may exempt the vendor from the operation of paragraph (b) if the Chief Commissioner is satisfied that the agreement for sale was made in good faith, and not for the purpose of evading the payment of land tax, that the purchaser has obtained possession of the land and still remains in possession thereof, and that the agreement for sale is still in force; as to all which matters the decision of the Chief Commissioner shall be final and conclusive.
(3) When by virtue of this section the purchaser and vendor of any land are both liable for land tax in respect thereof, the purchaser shall be deemed to be the primary taxpayer and the vendor to be the secondary taxpayer; and there shall be deducted from the land tax payable by the vendor in respect of the land such amount (if any) as is necessary to prevent double taxation: Provided that where by operation of paragraph (c) of subsection (1) the vendor is deemed to be the owner of the land, the vendor shall, if the purchaser makes default in payment of land tax in respect of the land, be responsible for the payment of the land tax due by the purchaser, which payment shall be deemed to be made by the vendor on behalf of the purchaser.
15 Section 26 of the Act was amended in accordance with the State Revenue Legislation Further Amendment (No.2) Act 2001 (the “Amending Act”) which introduced a new section 26 of the Act with effect from the 2003 land tax year. There is no dispute as to the fact that it did not have retrospective effect. Section 26 in its amended form reads as follows:
- (1) If land under the provisions of the Real Property Act 1900 is the subject of an agreement for sale that has not been completed by transfer of the land, the person who is registered as the proprietor of the land under the Real Property Act 1900 is taken, for the purposes of this Act, to be the owner of the land, to the exclusion of the liability of the purchaser.
(2) If land, not being land under the provisions of the Real Property Act 1900, is the subject of an agreement for sale that has not been completed by conveyance of the land, the vendor of the land is taken, for the purposes of this Act, to be the owner of the land, to the exclusion of the liability of the purchaser.
(3) Despite subsections (1) and (2), the purchaser under the agreement for sale is taken, for the purposes of this Act, to be the owner of the land (to the exclusion of the liability of the registered proprietor or vendor) if:
- (a) under the terms of the agreement for sale the purchaser is entitled to exclusive possession of the land and is entitled to receive, if the land is let to a tenant, any rents and profits derived from the tenancy, and
(b) the purchaser has taken possession of the land.
"agreement for sale" means an agreement for sale of land that is in force.
16 Section 26 of the Act (in its current form) is referred to simply as “section 26”. That section in its form prior to its amendment in 2001 in accordance with the Amending Act, is referred to as "old section 26".
17 It will be noted that in accordance with the Act as amended section 26 takes priority over other relevant sub- sections; that this is so is borne out by the opening words of subsection (3), and reading “Despite subsections (1) and (2)…” This being so, be there can be no doubt that in respect of vendor-purchaser agreements and where the relevant conditions are satisfied, section 26 now operates as a code. In these circumstances the Respondent (correctly and properly) conceded that he could not press the assessments for the 2003 and 2004 years.
18 Before dealing with the main issue as to the proper construction of the old section 26, it is relevant to note that the Respondent (again properly and correctly in my view) conceded that the Applicant did not "secure the use of the land". The Respondent made this concession in clause 56 of RS reading as follows:
- 56. However, section 26(1) (c) provided that the vendor shall be deemed to be the owner of the land where, relevantly, under section 26(1) (c) (ii) under the provisions of the agreement, or any arrangement with the purchaser, the vendor secures the use of the land or, alternatively, receives the rents and profits of the land. Under the terms of the agreement, as referred to above, it is Mr Padget and not the Company (the vendor) that receives the rents and profits of the land post exchange. Accordingly this aspect of s 26(1) (c) (ii) LTMA is inapplicable. Alternatively, the vendor under the terms of the agreement can “secure the use of the land”. “Secure” is not defined in the LTMA. It means, relevantly, to make “safe against attack”, “fortify’ and “guarantee, make safe against loss”: Shorter Oxford English Dictionary. Given that Mr Padget has resided on the land since, at least, 1996, it is submitted that the Company has not “secured the use of the land”. “Arrangement” within the meaning of section 26(1)(c)(ii) LTMA has been held to be a word of wide meaning to encompass agreements informally entered into (including a lease): G J Coles and Co Pty Limited v Commissioner of Land Tax (NSW) (1974) 4 ATR 664 at 666. Even in this wide sense there cannot be said to be a relevant arrangement to the effect of that stated in section 26(l) (c) (ii) LTMA.
19 The Tribunal here notes, if only for the sake of completeness, and although not directly relevant to this decision, that it does not consider that the grant of mortgage "secure(d) the use of the land" within section 26 (1) (c) (ii) of the old section 26.
20 At the end of the day there is one issue only between the parties. The Respondent contends that although during the remaining relevant years (and being the relevant years other than the 2003 year and 2004 year) Padget was an owner of the land, the Applicant was also an owner of the land and that in consequence the assessments were correctly made. I take the reference to the “land” in clause 57 of RS to be a reference to Lot 11 and not the whole of the Property, simply because Padget purchased Lot 11 only. The Respondent's contentions are contained in clauses 58 to 61 of RS reading as follows:
- 58. However, this does not mean that Mr. Padget is the “owner” of the land for all purposes under the LTMA. In particular, the old section 26 when read with the definition of “owner” in section 3(1) LTMA does not suggest that there can only be one taxable owner of land at any point in time. Indeed, there are overwhelming indications in the LTMA to the contrary because of, inter alia, the words “every person... whether at law or in equity” and because of the group of persons deemed to be owners by virtue of paragraph (d) of the definition of “owner” in s. 3 LTMA: Chief Commissioner of Land Tax v Macary Manufacturing Pty Limited (1999) 48 NSWLR 299 (“Macary “) at 311. Furthermore, the words “not to the exclusion of the liability of any other person” are contained in the old section 26(1) LTMA thereby strongly indicating a legislative intention that simply because Mr. Padget is deemed to be an owner under the old section 26(1), does not mean that no other person can be characterised as the relevant “owner”. The provisions of the LTMA contemplate multiple taxable “owners” in respect of the same land at the same time. Pursuant to the old s. 26(3) LTMA. double taxation is avoided through recognition of “primary” and “secondary” taxpayers with the secondary taxpayer being entitled to a reduction for such amount as is necessary to prevent double taxation: Macary at 312.
59. Under the old section 26(3), the purchaser, Mr Padget, shall be deemed to be the primary taxpayer and the vendor to be the secondary taxpayer.
60. In light of the above, the old section 26(1) LTMA combined with the definition of “owner” in section 3 does not constitute a code for the purpose of deeming just one person to be the relevant “owner”. The Commissioner is at liberty to levy either Mr. Padget or the Company in respect of land tax for 1999 - 2002 land tax years. There will be no double taxation in respect of such years as, in accordance with the old section 26(3) LTMA, if the Company pays any land tax in respect of such years, then these payments shall be credited in respect of any subsequent assessments to be levied against Mr. Padget for the 1999 - 2002 land tax years.
61. It is within the Commissioner’s power to levy such assessments as against the Company and not Mr. Padget for these tax years. He has done so.
21 The only substantive issue then is as to the contentions set out in clauses 58 to 61 of RS. The Applicant responded, in particular, in clauses 5 to 13 of ASR, as follows:
- 5. The respondent’s submission, which is entirely novel, should be rejected for the following four reasons:
(a) The same submission was expressly rejected by Walsh J in his dissenting opinion in the Full Court of the New South Wales Supreme Court in Commissioner for Land Tax v Cam & Sons Pty Limited [1964-1965] NSWR 589 at 595-596. Walsh J’s dissenting opinion was later upheld on appeal to the High Court;
(b) The construction of the Act for which the respondent contends would render section 26 meaningless, since a vendor under a contract would always be an owner within the broad definition of that term in section 3 notwithstanding the various deeming provisions in section 26;
(c) If the respondent’s submission is correct, Cam & Sons Pty Limited v Commissioner of Land Tax (1964) 112 CLR 139, Commissioner of Land Tax v Manors of Mosman Pty Limited (1994) 34 NSWLR 94 and Webster and anor v Commissioner of Land Tax (1985) 85 ATC 4614 were all wrongly decided, since they all proceed upon the assumption that a vendor is not otherwise an owner once the purchaser is deemed to be the owner by section 26(1)(a); and
(d) The submission now made by the respondent was expressly rejected in Yule v Commissioner of Taxes [1918] NZLR 890 at 899-900. That case considered relevantly identical legislation and has been followed by the High Court.
6. These will be considered in turn.
Commissioner for Land Tax v Cam & Sons Pty Limited
7. In Cam & Sons, the taxpayer was the vendor of property under a contract which entitled it to receive rents and profits. The Commissioner submitted that the purchaser was not entitled to possession and so the vendor taxpayer was deemed to be the owner under section 26(1) (b).
8. The majority (Sugarman and Wallace JJ) held in favour of the Commissioner on the basis of their findings concerning the meaning of ‘possession’.
9. Walsh J dissented, on a basis later upheld by the High Court: see Cam & Sons Pty Limited v Commissioner of Land Tax (1964) 112 CLR 139.
10. In the course of giving his reasons, Walsh J noted at pages 595-596:
- “In the circumstances to which I have referred, the question for decision is whether, within the terms of s.26 (1), the purchaser should be deemed to be the owner in accordance with paragraph (a) or the vendor should be deemed to remain the owner in accordance with the paragraph (b). In my opinion the decision on this question must turn upon s.26, in these cases in which there have been agreements for the sale of the land, and not upon a general inquiry as to whether the respondent was at the relevant dates the “owner” within the meaning of the definition of that term in s.3. B y this I mean that if the Court considers that the vendor was not deemed to remain the owner or to be the owner in terms of paragraphs (b) or ( c) of s.26(1) it cannot be held liable upon the footing that nevertheless it was the owner as defined in s.3. In the special case for which s.26 provides, that is where there has been an agreement for sale, it is the intention of the Act that liability should he determined in accordance with that section and not otherwise. ” (My emphasis)
- “...s.26 provides a code applicable to agreements for the sale of land and whether completed by conveyance or not.”
13. These observations are conclusive of the argument advanced by the respondent at paragraph 58-61 of his submissions. In particular, the submission at paragraph 60 that ‘section 26 does not constitute a code’ must be flatly rejected.
22 It will be noted then that the applicant contends that the High Court in Cam & Son, in reversing the judgment of the Appeal Court of New South Wales, unanimously upheld the dissenting judgment of Walsh J. In the High Court, separate judgments were given by Kitto, Taylor and Owen JJ, Menzies J. and Windeyer J. It is not clear to me that the judgment of the High Court in Cam can be said, as the applicant contends, to have unanimously upheld the dissenting judgment of Walsh J. (although it must be said that the passage from the judgment of Walsh J set out in clause 10 of ASR does indeed support the Applicant.) The High Court judgments appear to be to have turned, in the main, on the concept of possession. The joint judgment of Kitto, Taylor and Owen JJ referred to the dissenting judgment of Walsh J in the following terms.
- “Walsh J, the dissenting member of the Court, agreed with the passage from the judgment of Sugerman J which we have quoted earlier, but took the view that cl 11 when read with Special Condition 2 was intended to confer upon the purchaser a right to assume immediate possession of the land. S 26(1)(c)(ii) had, he thought, no application because what was described in Special Condition 2 as rent was in reality part of the purchase price. The purchaser was therefore to be deemed to be the owner under s 26(1) (a)”.
23 Menzies J. in his judgment also referred to the dissenting judgment of Walsh J, but the following terms.
- Because the appeal before us has taken a very different course from that which it took before the Full Court, where s 26(1) (c) loomed large, I have refrained from a close analysis of the judgments of the Full Court. Upon the isolated question argued before us, it seems to me, however, that the conclusion I have formed accords with that of Walsh J and is not inconsistent with the judgment of Wallace J. Furthermore, although Sugerman J did conclude that “the taxpayer must be deemed at relevant times to have remained the ‘owner’ of the subject land pursuant to s 26(1)(b) of the Act or to have been its ‘owner’ pursuant to s 26(1)(c)(ii)”, this conclusion was greatly influenced by the application of s 26(1)(c)(ii) and it was because of this provision that his Honour distinguished Yule v Commissioner of Taxes [1918] NZLR 890, which supports the view that commends itself to me.
24 The judgment of Windeyer J does not refer to dissenting judgment of Walsh J.
25 The Applicant contends, inter alia, that if the Respondent is correct, certain judgments as referred to in clause 5 (a) of ASR were all wrongly decided. I do not think that it is necessary for me to deal with those contentions in detail, if only because I have come to the conclusion that for all of the reasons contained in this decision the Applicant is entitled to succeed. I should note however that it does appear to me that the New Zealand decision in Yule (Yule v Commissioner of Taxation [1918] NZLR 890, (which as a judgment of the court so another country and in relation to different legislation, must be persuasive only), does appear to favour the applicant.
26 The CCH reporter after commentary on the current position in respect of section 26 then, and in relation to the 2002 and earlier land tax years, states that "the provisions are not as clear…" I refer in particular to page 6403 of CCH and from which I include the following passage:
- Although it may be possible with some ingenuity to construct sec 24, former sec 25 and former sec 31 so that they do not overlap with sec 26, perhaps the easiest and in the circumstances the most sensible way to resolve any possible conflict is to regard sec 26 as a special provision governing the liability of vendors and purchasers under contracts for the sale of land whether completed by conveyance or not, which applies to the exclusion of the more general provisions. This construction is, of course, an application of the maxim generalia specialibus non derogant: cf Refrigerator Express Lines (A’sia) Pty Ltd v Australia Meat and Livestock Corp & Ors (1980) 29 ALR 333; Reseck v FCof T 75 ATC 4213..
27 The explanatory notes in respect of the Amending Act provided that:
- The objects of this Bill are as follows:
(b) to amend the Land Tax Management Act 1956 as follows:
(vi) to simplify the arrangements relating to liability for land tax when land is the subject of an agreement for sale,
Schedule 2
Liability for land tax when land is subject to an agreement for sale:
At present, liability for land tax on land that is the subject of an agreement for sale is determined on the basis of who has possession of the land and the percentage of the purchase price that has been paid.
Under the new arrangements, if land that is subject to the provisions of the Real Property Act 1900 is subject to an agreement for sale that has not been completed, the registered proprietor of the land will be taken to be the owner of the land for land tax purposes, and will be liable for land tax in respect of the land, to the exclusion of the liability of the purchaser.
However, the purchaser will be taken to be the owner of the land, and liable for land tax, if the purchaser obtains the right to exclusive possession of the land and takes possession of the land. Similar arrangements will apply to land that is not subject to the provisions of the Real Property Act 1900.
28 The definition of “owner” (an inclusive definition contained in section 3 of the Act does not state in specific terms that the registered owner is an owner; however that this is so is established having regard to New South Wales Aboriginal Land Council v Chief Commissioner of State Revenue [2004] ADT 58; Union Trustee Company of Australia and the Federal Commissioner of Land Tax 20 C.L.R. 526; Adele Grace Pty Ltd v Commissioner of Land Tax (N.S.W.) 78 ATC 4075;
29 It will be noted then that the Amending Act was designed according to the explanatory notes to simplify the law; it was not apparently intended to bring about a change in the law for which the Respondent (implicitly) contends, and so that as from the effective date of the Amending Act the vendor did not in the relevant circumstances remain liable whereas prior to that date he did.
30 As to the legal maxim generalia specialibus non derogant, Pearce & Geddes (Statutory Interpretation in Australia) state that a general provision does not impliedly repeal a general provision; they cite Goodwin v Phillips (1908) 7 CLR 1 where O’Connor J said at 14: "The conflict between the two sections is one of the kind to which Sir George Jessel M.R., refers in Taylor v. Oldham Corporation [4 Ch. D., 395, at p.410]. Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply."
31 It is my view moreover in relation to the old section 26, that it must be arguable that the wording of section 26 (1) (b) supports the Applicant. It commences with the words "the vendor shall be deemed to remain the owner of the land…"; it then goes on to qualify those words by the words in brackets “(though not to the exclusion of the liability of any other person)” which follow, and then concludes with the words "until possession of the land has been delivered to the purchaser…". Put in other words, the words in brackets can be said to qualify the opening words, but not the closing words, and so that when the relevant conditions are satisfied, the purchaser alone is the owner. (Tribunal emphasis of “until”)
32 For all of these reasons, I agree with the Applicant’s contention that old section 26 was indeed a code and so that once the relevant conditions were satisfied (as they were in this case) the purchaser was the only owner. It is not, in my view only the sensible solution; it is in my view the correct solution.
33 The parties are agreed that the Contract related only to Lot 11. Accordingly, and in respect of all of the relevant years the Applicant should succeed, but only in relation to Lot 11, and not in respect of the whole Property and thus not in respect of Lot 12; accordingly the objection decision is set aside in relation to all of the relevant years, but only in relation to Lot 11, and the Respondent is directed to the extent necessary and appropriate to amend his assessments.
34 The Applicant seeks an order costs upon grounds which need not be specified. Suffice it to say that in my view this is not case in which a costs order would be appropriate.
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