Wright ATF IB Quadrant Trust v Commissioner of State Revenue
[2025] QCAT 301
•12 August 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Wright ATF IB Quadrant Trust v Commissioner of State Revenue [2025] QCAT 301
PARTIES:
ANDREW GORDON WRIGHT – ATF IB QUADRANT TRUST (applicant)
v
COMMISSIONER OF STATE REVENUE (respondent)
APPLICATION NO/S:
GAR369-24
MATTER TYPE:
General administrative review matters
DELIVERED ON:
12 August 2025
HEARING DATE:
19 June 2025
HEARD AT:
Brisbane
DECISION OF:
Senior Member Traves and Member Wilson
ORDERS:
1. The respondent’s decision of 24 March 2024, that the applicant’s objection be dismissed, is confirmed.
2. The application to review is dismissed.
3. Each party is to bear their own costs.
CATCHWORDS:
ADMINISTRATIVE REVIEW – LAND TAX – Exemption – where discretionary trust – whether home exemption in s 41 applied – whether company was a beneficiary of the trust within the meaning of the Land Tax Act 2010 (Qld)
Acts Interpretation Act 1954 (Qld), s 14A, s 14B
Land Tax Act 2010 (Qld), s 6, s 7, s 8, s 9, s 24, s 35, s 36, s 41, Schedule 4
Taxation Administration Act 2001 (Qld), s 69, s 71
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Applicant:
B. Ledger of Barron & Allen Lawyers
Respondent:
G. Hartridge of Counsel instructed by Commissioner of State Revenue
REASONS FOR DECISION
The applicant has applied pursuant to s 69 of the Taxation Administration Act 2001 (Qld) (‘TAA’) to review the respondent’s decision of 27 March 2024 to disallow the applicant’s objection to land tax assessments for the years 2021–2022 and 2022-2023 (‘the relevant years’). The land tax assessments were issued pursuant to the Land Tax Act 2010 (Qld) (‘LTA’).
It is not in dispute that, during the relevant years, the applicant was the owner as trustee for the IB Quadrant Trust of a property at Paradise Point (‘the Property’). The applicant and his two children lived at the Property during the relevant years. In both of the relevant years the applicant, as trustee of the Trust, made distributions to a beneficiary company, Naka Chan Investments Pty Ltd (‘the Company’). The respondent issued land tax assessments for the relevant years in respect of the Property having determined the Property was not exempt from land tax because ‘all the beneficiaries of the trust’ did not use it as a home as required by s 41 of the LTA. The applicant lodged an objection dated 14 February 2024 which was disallowed by the respondent’s decision of 27 March 2024.
The Tribunal has review jurisdiction conferred on it by enabling Acts.[1] Section 69(2)(b) of the TAA gives a taxpayer the right to apply to QCAT for a review of an objection decision. Section 3(3) of the TAA provides that each revenue law must be read together with the TAA as if they formed a single Act. Accordingly, the objection decision of 27 March 2024 is a ‘reviewable decision’ for the purposes of the QCAT Act.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9 (‘QCAT Act’).
[2]Ibid, s 17.
Pursuant to s 71 of the TAA the grounds on which the application for review is made are limited to the grounds of the relevant objection, unless QCAT orders otherwise. Section 71(3) provides that, in conducting the review, QCAT must:
(a) hear and decide the review of the decision by way of a reconsideration of the evidence before the commissioner when the decision was made, unless QCAT considers it necessary in the interests of justice to allow new evidence; and
(b) decide the review of the decision in accordance with the same law that applied to the making of the original decision.
The reviewable decision
The decision to disallow the objection was made because the respondent was not satisfied that all the beneficiaries of the Trust used the Property as their principal place of residence for the relevant years. The respondent said this was primarily because distributions from the Trust were made to the Company in the relevant years as a beneficiary of the Trust and a company cannot use the property as its home. Accordingly, the Trustee was not entitled to a land tax home exemption on part or all of the property under ss 36(1)(a) and 41 of the LTA.
Grounds of objection
The following is a summary of the applicant’s position as outlined in the objection:
(a) The order in which the respondent applied the relevant provisions of the LTA was incorrect. The proper approach is to determine first whether the land is ‘taxable land’ under s 9 and then whether the land is exempt land under Part 6 of the LTA.
(b) Section 35 is the starting point in determining whether land is ‘exempt land’ and relevantly provides that land is exempt if it is used as a home of, if the owner is a trustee, all the beneficiaries of the trust. Section 41, which is in similar terms, is also met.
(c) The definition of ‘beneficiary’ in Schedule 4 applies to both ss 35 and 41 and provides that the ‘beneficiary’ of a trust means a person entitled to a beneficial interest in land or income derived from land that is the subject of the trust.
(d) The Deed of Variation of Trust dated 5 August 2017 had the effect that no company or trust can have a legal or beneficial interest in the Property, nor receive any income or capital from the trust derived from the Property. Accordingly, the only beneficiaries of the trust were AW and his children for the purposes of Part 6 of the LTA and the Property was exempt land and therefore not ‘taxable land’.
(f) Section 24 does not arise because it only applies ‘when a liability for land tax arises’, in other words, the land must first be determined as ‘taxable land’ so that a ‘liability for land tax arises’ before s 24(1) is applied. Section 24 was not intended to alter the definition of ‘beneficiary’ in Schedule 4 but rather to define a ‘discretionary trust’.
(g) The case Voss v Securus Pty Ltd v Commissioner of Land Tax (NSW)[3] as referred to in Public Ruling LTA041.1 is distinguishable, and the ruling is the Commissioner’s view of the law, not the law.
[3](1973) 3 ATR 712.
Overview of statutory provisions
The LTA imposes land tax on all ‘taxable land’ in Queensland.[4] The owner of taxable land is liable to pay land tax on the land.[5] The owner of land includes a person who owns land as a trustee.[6] A liability for land tax for a financial year arises at midnight on 30 June immediately preceding the financial year.[7] The term ‘taxable land’ is defined to mean all land that is not ‘exempt land’.[8]
[4]LTA, s 6.
[5]Ibid, s 8.
[6]Ibid, s 10, s 20.
[7]Ibid, s 7.
[8]Ibid, s 9.
Part 6 of the LTA is concerned with exempt land. The relevant provisions of Part 6 are set out below.
Section 35 Explanation of operation of home provisions
(1) The purpose of this section is to explain generally how this division provides for land that is used as a home to be exempt land.
(2) Land is exempt under subdivision 3, if it is used as the home of:
(a) the owner; or
(b) if the owner is a trustee and is not an absentee – all beneficiaries of the trust
(3) Under subdivision 2, land is used as person’s home if:
(a) the 6-month residency test in section 36(1)(a) is satisfied; or
…
Section 36(1)(a) provides that land is used as a home of a person for a financial year only if that land has been continuously used by the person for residential purposes for the 6 month period ending when a liability for land tax arises for the financial year.
Part 6, Subdivision 3 headed ‘Exemptions' contains s 41 which provides:
41 Exemption for land used as home
(1) This section applies to land that is:
(a) comprised in 1 parcel; and
(b) either -
(i) owned by a person, other than a trustee or the manager of a time-sharing scheme, and used as the person’s home; or
(ii) owned by a trustee of a trust, other than an absentee, and used as the home of all beneficiaries of the trust; and
(c) Not used for a non-exempt purpose.
(2) The land is exempt land.
…
Schedule 4 defines ‘beneficiary’ as follows:
beneficiary, of a trust, means a person entitled to a beneficial interest in land or income derived from that land that is subject of the trust.
Note -
See also section 24 for deciding who is a beneficiary of a discretionary trust when a liability for land tax arises.
Part 4 is headed ‘Assessment of Land Tax’. Division 3 is headed ‘Trust Land’ and provides in s 24:
24 Beneficiaries of discretionary trusts
(1) The beneficiaries of a discretionary trust when a liability for land tax arises are the persons in whose favour a power of appointment has been exercised during the 12 month period ending when the liability arises.
Note –
See also schedule 4, definition beneficiary
(2) In this section –
discretionary trust means a trust over property for which a person has a power of appointment.
Relevant facts
The deed of trust establishing the IB Quadrant Trust, dated 1 July 2004, defines three (3) classes of beneficiaries: primary beneficiary, secondary beneficiary, and tertiary beneficiary. The class of tertiary beneficiaries may include entities of which a primary or secondary beneficiary are a director, shareholder or beneficiary, any company who has as a shareholder or director any of the primary or secondary beneficiaries, and, relevantly, any other company that the trustee may determine.
It is not in dispute that the Company was a beneficiary of the IB Quadrant Trust in the relevant years. It is also not contested that the Company did not use the Property as a home (nor could it have) during the relevant years.
By a Deed of Amendment of Trust of The IB Quadrant Trust dated 5 August 2017, the deed of trust was amended as follows:
2.1 Clause 3 & 5 of the Trust Deed is varied so that no company or trust as a beneficiary of the trust can receive a share in, or have an interest in (whether legal or beneficial), any rental or any other income derived from the property …, Paradise Point in the State of Queensland.
2.2 Clause 4 & 5 of the Trust Deed is varied so that a company or trust as beneficiary of the trust can never have a beneficial or legal interest in the real property …, Paradise Point in the State of Queensland, whether the trust has vested or not.
3 The variations shall take effect to vary the trust from 5th August 2017.
A Deed of Removal and Appointment of New Trustee and Amendment of Trust was also signed on 4 August 2017. By clause of the Deed, a person was removed as a beneficiary of the Trust. Naka Chan Investments Pty Ltd was not removed as a beneficiary.
It is not disputed that a power of appointment was exercised by the applicant trustee of the IB Quadrant Trust in favour of Naka Chan Investments Pty Ltd during the relevant assessment years, albeit not in respect of the relevant Property but in respect of other trust property at Southport.
Principles of statutory construction
The principles of statutory construction are well established. Fundamentally, the process of statutory interpretation may be summarised as construing the text, in context, where context includes the general purpose and policy of a provision and the mischief it is seeking to remedy.[9]
[9]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, [47] per Hayne, Heydon, Crennan and Kiefel JJ.
In relation to context, the primary object has been said to be to construe the relevant provision so it is consistent with the language and purpose of all of the provisions of the statute.[10] Context is to be considered from the outset and not just when ambiguity is thought to arise.[11] The process must always begin with an examination of the context of the provision that is being construed.[12]
[10]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69].
[11]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362.
[12]Ibid, [69].
In Project Blue Sky Inc v Australian Broadcasting Authority,[13] McHugh, Gummow, Kirby and Hayne JJ said:
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[14]
[13](1998) 194 CLR 355.
[14]Ibid at 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted).
In CIC Insurance Ltd v Bankstown Football Club Ltd, the majority of the High Court said:
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.[15]
[15](1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted).
These principles are consistent with s 14A of the Acts Interpretation Act 1954 (Qld) (‘AIA’), which requires that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.
Consideration
It is common ground that if the Company is a beneficiary for the purposes of s 41(1)(b)(ii), it does not reside at the home.
It is also common ground that the trust is a trust over property for which a person has a power of appointment, that is, a discretionary trust.
The applicant contends that the definition of ‘beneficiary’ contained in Schedule 4 to the LTA, that is, ‘a person entitled to a beneficial interest in land or income derived from land that is the subject of the trust’, should be applied in the present case. The applicant submits that definition, when read together with the Deed of Amendment of Trust of the IB Quadrant Trust, means that the beneficiaries of the trust comprise only natural persons, that is, the trustee and his two children. The apparent rationale is that only the trustee and his children can receive any distributions of income comprising income from the Property, so that the definition of ‘beneficiary’ in Schedule 4 can apply only to them and not to the Company.
However, as noted in the definition of ‘beneficiary’ in Schedule 4 of the LTA, attention is directed to s 24 ‘for deciding who is a beneficiary of a discretionary trust when the liability for land tax arises’. Section 24(1) clearly defines beneficiaries of a discretionary trust as persons in whose favour a power of appointment has been exercised during the (relevant) 12-month period. The applicant contends that section 24 ‘does not in any form or manner expressly negate the definition of the word “beneficiary” as defined in schedule 4 LTA.’ It is difficult to understand the applicant’s submission in this regard. Section 24 and the definition of ‘beneficiary’ in Schedule 4 are clearly to be read together. Section 24 contains a note directing attention to the definition in Schedule 4, and the Schedule 4 definition expressly directs the reader to s 24 for deciding who is a beneficiary of a discretionary trust when a land tax liability arises.
Under a discretionary trust, no named beneficiary has an interest in the trust property until a power of appointment is exercised in its favour. In the circumstances, in our view, it is plain that the definition of beneficiary in Schedule 4 is not intended to apply to the beneficiaries of a discretionary trust. On the other hand, s 24 exists for the particular purpose of defining ‘beneficiary’ for the purposes of a discretionary trust. It is plain that s 24 applies, relevantly, to s 41 where s 41 is applied to a discretionary trust.
This approach is consistent with the Explanatory Memorandum to the Land Tax Bill 2010 which provides under the heading Division 3, Trust Land:
Clause 24 sets out who are the beneficiaries of a discretionary trust for the purposes of the Act. The term “beneficiary” has relevance in two parts of the Act – clause 23 above and in those sections dealing with home exemptions. (emphasis added)[16]
[16]Explanatory Memorandum, Land Tax Bill 2010 at p 16.
The extrinsic material[17] assists in confirming the interpretation conveyed by the ordinary meaning of the provision.[18]
[17]AIA, s 14B(3)(e).
[18]Ibid, s 14B(c).
Accordingly, we do not accept the applicant’s submissions regarding the proper approach to the construction of s 41 and to the LTA more broadly. In our view, for the reasons above, when construing s 41 in the context of a discretionary trust, s 24 should be applied in preference to the definition of ‘beneficiary’ in Schedule 4.[19]
[19]Perpetual Executors and Trustees’ Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1, 29.
We do not accept the submission of the applicant that the words ‘when a liability for land tax arises’ means s 24 cannot apply until a determination is made as to whether, excluding s 24 and based on ss 9, 35 and 41, the land is taxable and, accordingly, a liability for land tax arises. The phrase ‘when a liability for land tax arises’ refers, in our view, to the putative time the liability for land tax is assessed.
We also do not agree that the effect of the Deed of Variation was that the Company was no longer a ‘beneficiary’ for the purposes of the home exemption and therefore that all beneficiaries (namely AW and his two children) resided at the Property. Section 41 applies the exemption to land used as a home by ‘all beneficiaries of the trust’. It does not, for example, require only that the land be used as a home by persons entitled to a beneficial interest in the land or in income derived from the land that is the subject of the land tax assessment.
In short, the distribution of income by the applicant as trustee of the IB Quadrant Trust to the Company in the relevant years, defines the Company as a beneficiary of the IB Quadrant Trust, by application of s 24. The source of that income is irrelevant for the purposes of the LTA. In this regard, the applicant’s submissions regarding the effect of the Deed of Amendment of Trust are misconceived.
In relation to the applicant’s submissions as to the status of the Public Ruling LTA041.1 and the case Voss v Securus Pty Ltd v Commissioner of Land Tax (NSW), we accept that the ruling is the Commissioner’s view of the law, and not the law. However, we accept that the Tribunal on review is entitled to treat government policy as a relevant factor in making its decision, but is not entitled to abdicate its function of independently considering and assessing the propriety of the policy.[20] In Re Drake v Minister for Immigration and Ethnic Affairs (No 2),[21] Brennan J confirmed the freedom of the Administrative Appeals Tribunal to apply or not apply a relevant policy. He noted, however, that departures from government policy would be 'cautious and sparing', occurring only where there were 'cogent reasons'.[22]
[20]Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[21](1979) 2 ALD 634.
[22]Ibid at 644-645.
The decision of Voss was relied upon in the Ruling as authority for whether a company can be considered to be a resident in a land tax context. We agree with the submissions of the respondent that there is no reason to consider whether the Company was resident at the Property for land tax purposes.
Conclusion
The relevant definition of ‘beneficiary’ for the purposes of s 41 is, in the case of a discretionary trust, that contained in s 24.
The Company was not removed as a beneficiary of the trust by the Deed of Variation. The effect of the Deed of Variation was merely to preclude the Company from having a beneficial interest in the Property. This did not prevent the Company from receiving distributions from the trust derived from other trust assets.
The Company received distributions from the trust in the relevant years and, accordingly, was a person in whose favour a power of appointment was exercised in the relevant years.
Having identified that the Company received distributions of income in the relevant years, and was therefore a ‘beneficiary’ of the IB Quadrant Trust, it follows that the home exemption contained in s 41 of the LTA does not apply because the Company did not and could not use the land as a home. The land was therefore not ‘used as the home of all beneficiaries of the trust,’ [23] and therefore was not exempt land.
[23]LTA, s 41.
It follows that the land is taxable and the respondent’s decision to disallow the objection should be confirmed.
Accordingly, we make the following orders:
1.The respondent’s decision of 24 March 2024, that the applicant’s objection is dismissed, is confirmed.
2.The application to review is dismissed.
3.Each party is to bear their own costs.
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