Wu v Chief Commissioner of State Revenue - [2018] NSWCATAD 292

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Wu v Chief Commissioner of State Revenue [2018] NSWCATAD 292
Hearing dates: 31 May, 1, 2 June, 10 July and 1, 4 and 5 September 2017. Final submissions 22 December 2017.
Date of orders: 17 December 2018
Decision date: 17 December 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: NS Isenberg RFD, Senior Member
Decision:
1 The decisions of the Chief Commissioner under review are affirmed.

2 If the Chief Commissioner wishes to pursue an application for costs of this matter:

(a) The Chief Commissioner is to give to the Tribunal and to Mr Wu his submissions, not exceeding 5 pages in length, on the costs of this matter and on why the Tribunal should not determine the question of costs without an oral hearing, on or before 10 January 2019 The Chief Commissioner is to have regard to the provisions of ss 50 and 60 of the CAT Act;

(b) Mr Wu is to give to the Tribunal and to the Chief Commissioner his submissions, not exceeding 5 pages in length, on the costs of this matter and on why the Tribunal should not determine the question of costs without an oral hearing, on or before 17 January 2019 Mr Wu is to have regard to the provisions of ss 50 and 60 of the CAT Act;
(c) The Chief Commissioner is to give to the Tribunal and to Mr Wu any submissions, not exceeding 3 pages in length, in reply on or before 24 January 2019.
Catchwords: REVENUE LAW – merits review - land tax – onus - principal place of residence exemption – concession for absence from former residence – credibility of witnesses – conflicting evidence.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Land Tax Management Act 1956 (NSW)
Real Property Act 1900 (NSW)
State Revenue Legislation Further Amendment Act 2005 No 111 (NSW)
Taxation Administration Act 1996 (NSW)
Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481
Chief Commissioner of State Revenue -v- Incise Technologies Pty Ltd & Anor (RD) [2004] NSWADTAP 19
Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) (2013) NSWADTAP 25
Haddad v Chief Commissioner of State Revenue (No 2) [2017] NSWCATAD 23
Lane Cove Council v Wu [2011] NSWLEC 43
Macat Pty Ltd v Warringah Council Appeal No 10987 of 2002 Land and Environment Court 4 June 2003
Trust Co. of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21
Yen-Cheng Chuang & Anor v Chief Commissioner of State Revenue [2009] NSWADT 160
Category: Principal judgment
Parties: Pei Long We (Applicant)
Chief Commissioner of State Revenue (Respondent)
Representation:
Counsel:
AH Rider (Respondent)
Solicitors:
Applicant (self-represented)
Crown Solicitor’s Office (Respondent)

File Number(s): 2015/383474; 1510590

REASONS FOR DECISION

Background

Mr Wu applied to the Tribunal to review a decision by the Respondent (sometimes called the Chief Commissioner in these reasons) to assess Mr Wu for land tax in respect of a particular property during the 2006 to 2015 land tax years (referred to collectively as “the Tax Years” or “the Relevant Period”). The property (referred to variously as “2506”, “Lot 2506” or “the Land”) is situated at Belrose in New South Wales and was owned by Mr Wu at all relevant times.
Mr Wu claims that he has the benefit of a statutory exemption from land tax throughout the Relevant Period because the Land was his principal place of residence. Mr Wu substantially relies on his credit and the credit of his witnesses. He claims that the Chief Commissioner cannot go behind a re-assessment made in his favour in 2005, that the Chief Commissioner intentionally destroyed old documents on which Mr Wu relied, and the Chief Commissioner’s witnesses are variously weak and insufficient to disprove his residence at the Land. Mr Wu also claims that the Chief Commissioner has a burden of proof which he has not satisfied.
The Chief Commissioner claims that no such exemption applies because Mr Wu did not reside at the Land, the evidence of Mr Wu and his witnesses was not reliable, documents produced by Mr Wu were not relevant, the onus of proof lies on Mr Wu not the Chief Commissioner and the Chief Commissioner’s substantial documentary evidence and witnesses were objective and reliable.
At the start of the hearing the parties agreed that:

for the period 2006 to 2009 Mr Wu claims exemption under cl 2 of Schedule 1A (referred to as “Sch 1A” or “the Schedule”) of the Land Tax Management Act 1956 (NSW) (the LTM Act) on the basis that he lived at the Land as his principal place of residence;

for the period 2010 to 2012 Mr Wu claims exemption under cl 8 which provides a conditional concession during a period of absence from someone’s principal place of residence; and

for 2015, Mr Wu claims exemption under cl 2 because he again lived at the Land.

After the hearing Mr Wu, in written submissions which are dealt with below, sought to broaden the basis of his claim beyond that dealt with during the hearing.
I deal below with those additional claims to an extent having regard to the guiding principle concerning proceedings in the Tribunal, namely to facilitate the “just ... resolution of the real issues in the proceedings”, s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) which established the Tribunal.
Unless the context otherwise requires, all references to clauses are to clauses of the Schedule and all references to legislative provisions are to the LTM Act.

Issues

The issue for determination by the Tribunal is whether the Land was Mr Wu’s principal place of residence for any Tax Year and if so whether Mr Wu is entitled to the principal place of residence exemption from land tax for each such year. Unless the context otherwise requires, references to “years” are to land tax years.
The dispute in relation to the 2015 Tax Year substantially relates to whether what the Chief Commissioner and Mr Rider refer to as a “steel container” and Mr Wu and his witnesses often refer to as a “steel house” was Mr Wu’s principal place of residence on the Land at any relevant date or period.
During these reasons I have generally referred to the structure as a “steel structure” although I have used descriptions used by the parties from time to time. When I use the description “steel house”, “Mr Wu’s house” or similar phrases, without expressly stating that the structure is Mr Wu's principal residence, I am not making a finding that the structure is to be taken as Mr Wu's principal place of residence at any relevant date.

Overview of the legislative scheme

Part 3 of the LTM Act provides that land tax is payable by the owner of all land in New South Wales other than land which is exempt from taxation under the LTM Act. The tax year is each period of 12 months commencing on the first day of January and land tax is charged on land owned as at midnight on 31 December immediately preceding the tax year (ss 7-9).
The LTM Act provides that land used for certain defined purposes, including certain residential purposes, is exempt from taxation. Section 10(1)(r) provides that land is “exempt from taxation under the principal place of residence exemption, as provided for by Schedule 1A”. The “principal place of residence” of a person is defined somewhat circularly in s 3(1) of the LTM Act to mean “the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person”.
Clause 1 of the Schedule headed “Definitions”, states that the” principal place of residence exemption” is referred to in cl 2 and “residential land” is in cl 3. Relevant excerpts from those clauses are at [293] and [294] below.
Concessions in the application of the principal place of residence exemption are in Part 3 of the Schedule, cll 4 to 10. Excerpts of relevant clauses are set out below.

Material before the Tribunal

Mr Wu’s material

Documents and oral evidence provided by Mr Wu to the Tribunal comprised:

His undated objection filed 19 October 2015.

His affidavit made 17 February 2017, marked Exhibit A1. Mr Wu also gave oral evidence.

Affidavit of To Hung made 11 May 2017, marked Exhibit A2. Mr Hung also gave oral evidence.

Affidavit of Li Mei Yi made 6 February 2017, marked Exhibit A3. Ms Ye also gave oral evidence.

Affidavit of Antony Coster made 11 May 2017, marked Exhibit A4. Mr Coster also gave oral evidence.

Affidavit of Hu Qing Pan made 3 February 2017, marked Exhibit A5. Mr Pan also gave oral evidence.

Statement of George Murray Pickworth made 11 May 2017, marked Exhibit A6.

A bundle of 223 pages of documents including unwitnessed statements, Mr Wu’s “living history”, photographs, submissions, Land and Property Information title searches, certificates of title, correspondence between Mr Wu and the Australian Taxation Office and documents registered under the Real Property Act 1900 (NSW), marked MFI A1.

Letter dated 27 February 2005 from the Chief Commissioner to Mr Wu, which appears at page 50 in MFI A1, marked Exhibit A7.

Mr Wu provided written submissions to the Tribunal. Those submissions were his opening submissions dated 6 February 2017, filed 7 February 2017 (AS); his submissions dated and filed 12 May 2017 (ASR); his closing submissions dated and filed 31 October 2017 (ACS) and his closing submissions in reply dated and filed 22 December 2017 (ACSR).
Mr Wu also made oral submissions during the hearing.
Except where the context otherwise requires all references to submissions by Mr Wu containing a paragraph number are from ACS. Similarly, except where the context otherwise requires all references to evidence or statements by Mr Wu (other than submissions) which contain a paragraph number are references to his affidavit.

The Chief Commissioner’s material

Documents and oral evidence provided by the Chief Commissioner to the Tribunal comprised:

Affidavit of Kathleen Margaret Kerr made 20 April 2017, marked Exhibit R1.

Section 58 documents filed 24 February 2016 marked Exhibit R2.

Section 58 documents filed 19 September 2016 marked Exhibit R3.

Documents stated to be Supplementary s 58 documents filed 13 April 2017 marked Exhibit R4.

The Chief Commissioner’s Tender Bundle of two volumes of documents filed 21 April 2017, respectively marked Exhibit R5 vol 1 and Exhibit R5 vol 2.

Affidavit of Kiri George Armstrong made 20 April 2017, marked Exhibit R6. Ms Armstrong also gave oral evidence.

Affidavit of Cornelia Donata Eva Johanna Harris made 19 April 2017, marked Exhibit R7. Dr Harris also gave oral evidence.

Affidavit of Peter Alexander Juniper made 7 April 2017, marked Exhibit R8. Mr Juniper also gave oral evidence.

Affidavit of Andrew O’Connor made 26 June 2017, marked Exhibit R9.

Three hard copy documents produced from a CD, itself produced under summons by Northern Beaches Council, collectively marked Exhibit R10, including documents from Sydney Water in respect of a wastewater connection application for the Land.

Letter dated 17 May 2017 from the Chief Commissioner to Mr Wu filed 10 July 2017, marked Exhibit R11.

Letter dated 22 May 2017 from Mr Wu to the Crown Solicitor’s Office filed 10 July 2017, marked Exhibit R12.

Affidavit of Maria Roots made 24 August 2017, marked Exhibit R13.

Affidavit of Marianne Dakhoul made 28 August 2017, marked Exhibit R14.

Affidavit of Marianne Dakhoul made 5 September 2017, marked Exhibit R15.

Photograph of four vehicles marked MFI1.

Photograph showing a Porsche and showing Mr Wu in a blue and white shirt, marked MFI2.

Page showing two photographs marked MFI 3.

Letter dated 6 July 2017 from the Crown Solicitor’s office to Mr Wu marked MFI4.

Google Earth aerial photograph of Lot 2506 with imagery date 20 December 2015 marked MFI 5.

Photograph of Lot 2818 with imagery date 20 January 2007 marked MFI 6.

Photograph of Lot 2818 with a yellow arrow pointing to a white rectangular object with imagery date 20 January 2007 marked MFI 7.

Aerial photograph of Lot 2818, showing Linden Avenue, Crozier Road and a yellow arrow, with imagery date 17 February 2006 marked MFI 8.

The Chief Commissioner provided written submissions to the Tribunal. Those submissions were his opening submissions dated and filed 21 April 2017 (RS) and his closing submissions dated and filed 8 December 2017 (RCS).
Mr Rider made oral submissions during the hearing.
Except where the context otherwise requires all references to submissions from Mr Rider or the Chief Commissioner containing a paragraph number, are from RCS.

Additional material

In making my findings I had regard to the above material to the extent that it was referred to in closing submissions and I had available to me and considered, substantial parts of the hearing transcript.

Initial consideration

It is not disputed that:

Mr Wu owned the Land from settlement of his purchase in about November 2003 until at least the start of the hearing.

the only claims for exemption from land tax by Mr Wu are pursuant to the principal place of residence exemption in accordance with the Schedule. Accordingly, unless the principal place of residence exemption applies in accordance with the Schedule, Mr Wu is liable for land tax for each of the Tax Years.

Onus

Section 100(3) of the Taxation Administration Act 1996 (NSW) (TA Act) relevantly states “The applicant has the onus of proving the applicant's case in an application for review.”
During the hearing Mr Wu conceded on several occasions that he carries the onus of proving his case. However, after the hearing ended, Mr Wu claimed in ACS that:

the burden of proof in relation to any claim that the Land was not his principal place of residence in both 2004 and 2005 lies on the Chief Commissioner, and

“…the onus to prove that the evidence I furnished to the Chief Commissioner in 2005 was "not fully and truly disclosed" will be with the Chief Commissioner. In that case, the Chief Commissioner will need to defer this hearing and start a new court case for 2004 and 2005 for reassessment.”

The parties also engaged in a dispute in relation to whether Mr Wu was obliged to keep copies of documents he said he had provided to the Chief Commissioner in respect of the 2004 and 2005 years and which had been intentionally destroyed by the Chief Commissioner. As will be seen from my reasoning below in respect of cl 8, this particular dispute is not relevant to my resolution of the issues.
Mr Wu provided no relevant authority to override the clear wording of s 100(3) of the TA Act. I prefer to rely on that legislation rather than Mr Wu’s unsupported submission to the contrary.

Standard of proof

The standard of proof in reviews by the Tribunal is the “balance of probabilities”. Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) (2013) NSWADTAP 25 at [31] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 per Allsop P at [104] (Giles and Basten JJA agreeing).

Overview of Mr Wu's case

Mr Wu's claims, and what he described as his “living history”, are outlined in his affidavit as follows:

...
8   04/2002-07/2003, I lived in a caravan and an old fibro dwelling in Lot 2506.
…
10   07/2003, I built a new fibro dwelling in the south part of Lot 2506 closing to Lot 2818.
11   26/11/2003-02/2009, Lot 2506 was settled on 26/11/2003 and I lived in the new fibro dwelling built previously and sometimes in my caravan since then.
12   2006, I purchased 3 McMahons Road, Longueville [This property is at times referred to as 17 Northwood Road, Northwood. For ease of reference it is usually referred to in these reasons as “McMahons Rd” or “3 McMahons Rd”.]
13    02/2009-03/2012, I lived in Lot 2818 Linden Avenue, Belrose
14    03/2012 - 08/2012, I lived in 3 McMahons Road, Longueville
15    08/2012-11/2014, I lived in 8 Kullah Parade, Lane Cove North [For ease of reference this property is usually referred to in these reasons as “Kullah Pde”]
16   11/2014-current, I live in Lot 2506 Bundaleer Street, Belrose
…
24   … I did live [at Lot 2506] ever since I became the land owner until 2009
…
41   During the time between 2003 and 2009, I lived in my caravan and two fibro dwellings in Lot 2506 ... the new fibro dwelling I built in 2003 was under thick trees and bushes, so that the council would not observe it from the satellite.
42   The reason why I did so was that I knew the council would do inspection through aerial photos from time to time and I was worried that they were able to see the dwelling if I constructed it without application in open space. I knew it because during the construction of the other projects which I was in charge of, council penalty notices were issued for illegal tree cutting and not removing temporary construction material (one container) due to the aerial photos they saw.
…
44   … I still built it under tree cover because I did not want to be involved in any trouble with council …
…
52   I did not live in there [3 McMahons Rd] until 2012.

While giving oral evidence on 31 May 2017 Mr Wu said he had checked all documents and had made a mistake at [14] in his affidavit. Instead of living at McMahons Rd from March 2012 he had lived there from 18 February 2012 to 30 August 2012. Mr Wu said he did not wish to make any other changes to his affidavit.
As a result of several witnesses being interposed during Mr Wu's cross-examination and re-examination, he gave evidence intermittently throughout the hearing.

Mr Wu's witnesses

Mr Pickworth’s evidence

Mr Pickworth’s unsworn unwitnessed statement of 11 May 17 was relied on by Mr Wu. Mr Pickworth was not called for cross-examination, accordingly his evidence was unchallenged. Mr Wu submitted at [91] in ACS that Mr Pickworth “… inspected the Belrose Property from Linden Avenue and did not walk the entire site as thick vegetation did not permit easy access”.
The Chief Commissioner responded in RCS to the effect that Mr Pickworth’s report stated, amongst other matters, there was no dwelling on the Land which was visible from Linden Ave and he did not inspect all the Land. This did not advance Mr Wu’s case of seeking to prove that there was a dwelling on the Land and there was no need to cross-examine Mr Pickworth “consistent with the Tribunal's overriding principle of the just, cheap and quick conduct of proceedings”.
Both submissions are correct as far as they go. However, Mr Pickworth’s evidence is that at some unstated date after the lodgement of a development application for the Land in 2004, he carried out a partial site visit for the purpose of completing a Statement of Environmental Effects; there was thick vegetation on part of the Land at the time of inspection; and no dwelling was visible from Linden Ave.
I find Mr Pickworth’s statement is of no particular assistance in satisfying Mr Wu's onus to prove his case.

Li Mei Ye’s evidence

Ms Ye’s evidence relates to the period from 2002 to May 2006.

Ms Ye’s affidavit

Ms Ye stated she owned a property in Belrose (referred to in these reasons as “2818” or “Lot 2818”) from 2002 to 2006. During that period Mr Wu was her neighbour, living at the Land in a caravan and “two simple dwellings in the front yard and backyard respectively”. There was no electricity or water supply to the Land and she “let him borrow electricity and water” from Lot 2818 throughout the period she owned Lot 2818.
Ms Ye said she understood “most” spoken English. When asked if she could read and write English she said “some – just say some, not really.” She said her statement was prepared by her boy-friend after she told him how to write it. She read and understood her statement after it was typed. She read the first paragraph aloud during the hearing and said she understood it.

Ms Ye’s oral evidence

Ms Ye said she lived at Lot 2818 for four years, then three years, then four years, then two years from April or May 2004 until the property was sold in May 2006.
Ms Ye said that in 2002 when she bought Lot 2818 as vacant land, she had a part time job doing accounts for a couple of days a week. She was married.
Ms Ye said her husband gave her money and handled all the money. She did not pay any bills, her husband dealt with that. She and her husband obtained some money from China and some from a bank for the purchase. They borrowed money from a bank to build a five bedroom house. She did not know whether they made any money when the property was sold. Her husband informed her that they “nearly broke even”. Mr Wu's company built the house for them and when the property was sold “they” still owed some money for the construction. Ms Ye was not certain as to the cost of the property, how much they borrowed, the cost of the construction, the sale price when she sold the property nor how much she still owed Mr Wu's company more than 10 years after she sold Lot 2818.
Ms Ye said Mr Wu introduced her to the person who bought the property from her. She could not remember whether that person was a friend of Mr Wu or a friend of her husband.
Ms Ye said the house was big because she and her husband wanted their respective parents to live with them and she and her husband were planning to have babies.
Ms Ye’s driver’s licence documents showed her residential address was in Artarmon from April 2004 until July 2005 and in Hornsby from July 2005 until June 2007. She said those locations were her parents’ home addresses. She did not live there but she entered into leases because otherwise her parents could not rent somewhere to live. She had signed the lease for each property.
Ms Ye also said she had not lived with her parents since she was a teenager because of arguments with her parents. When reminded that she had said she was building a large house on Lot 2818 so that her parents and her husband’s parents could live with them. Ms Ye responded that her dream was that her parents would stay with her.
I find Ms Ye’s above response somewhat at odds with her definitive answer as to why she no longer lived with her parents. I also note that despite having said that she had not lived in either of the properties she leased for her parents, Ms Ye also said she lived at the Artarmon address until April or May 2004 when she moved to Lot 2818.
Ms Ye conceded she had written the Artarmon address she had leased for her parents as her intended address in Australia on an incoming passenger card dated March 2005.
In the middle of Mr Rider’s questions on this point, Mr Wu interrupted the cross-examination and claimed that the question did not ask for a residential address. Up to that time Mr Rider had not mentioned the word “residential” in his cross-examination concerning the incoming passenger card. I am concerned that Mr Wu’s interruption, and the wording he used, were intended to signal to the witness a possible answer to Mr Rider’s questions. In the event, Ms Ye denied that the Artarmon address was her residential address and said the reason she used that address was she understood that she had to follow her driver’s licence in completing the incoming passenger card. She said everything which showed her address was placed under the address on her driver’s licence.
Ms Ye conceded that she had written April 2006 on another incoming passenger card which stated her intended address in Australia was also the Artarmon address. Ms Ye said she was still living at Lot 2818 at that date, not Artarmon.
After confirming that she had said that she used her driver’s license details on incoming passenger cards so they would be the same, Ms Ye was shown a driver’s license document showing her residential address from July 2005 until 21 June 2007 was the Hornsby address she had said she leased for her parents.
Ms Ye initially said the driver’s licence address must be a mistake. Subsequently she agreed that in July 2005 she had changed the residential address on her driver’s licence to the Hornsby address.
Mr Wu then interrupted with irrelevant comments which I regard as an attempt to stop the continuity of Mr Rider’s questions. When Mr Rider resumed his questions Ms Ye then denied that she had written the Artarmon address on the incoming passenger card in April 2006.
Ms Ye then conceded that she had written the Artarmon address on the incoming passenger card. It was a mistake and she did not know why she wrote it.

Caravan at Lot 2506

Ms Ye gave vague details of the distance between a caravan she said she saw on Lot 2506 and each of Linden Ave and Bundaleer St.
Ms Ye saw Mr Wu drive to the caravan from Linden Ave but could not remember the distance between the caravan and Linden Ave nor whether Mr Wu drove in a straight line from Linden Ave to the caravan. Ms Ye said when she visited caravan, she walked about 10 m to it from the car which parked in Linden Ave. She also said she did not visit the caravan and did not see any taps or water being used in it. The caravan may have been under branches or leaves which covered part of it.
Ms Ye said she did not visit the caravan from Lot 2818 because it was moved off the Land before her house was built. The caravan was moved off Lot 2506, not moved to another location on the Land.

Early house

Ms Ye said when the caravan was on the Land there was also a small dwelling on the Land which was very close to the caravan, perhaps 2 or 3 metres away. Ms Ye then said she did not know how far 3 metres was.
Ms Ye said she had no idea how many rooms were in the building near the caravan and then said she thought she met Mr Wu in the building. She then remembered there was a kitchen she could see from the building door. However, she did not know how many bedrooms were in the building as she did not go inside. Ms Ye saw lights in the building but did not see electrical connections to the building.
I find Ms Ye’s inconsistent evidence that she did and did not enter the building confusing and that she saw Mr Wu washing his car on a driveway in front of the small building inconsistent with her evidence that she did not know whether the building was under trees because she went there at night after she finished work. Her evidence as to visiting and not visiting the caravan was also confusing.

Mr Wu's new house

In re-examination Ms Ye said that when she was living in Lot 2818 from May or June 2004 until she sold Lot 2818 in 2006 she went to Mr Wu’s “home” at Lot 2506 several times.

Consideration of Ms Ye’s evidence

Ms Ye’s evidence of seeing Mr Wu drive from Linden Ave to the caravan and her recollection of walking at night some 10 m from Linden Ave to the caravan, which was some 2 to 3 m from the small building, conflicts with Mr Pickworth’s evidence of thick vegetation along Linden Ave which impliedly stopped him entering the Land.
At times, after Ms Ye gave answers which were pointed out to her as being inconsistent with her earlier testimony, Ms Ye complained about difficulties with the English language. I gained the impression that Ms Ye was not as forthright as she could have been in her evidence.
I found Ms Ye’s evidence to be vague, internally inconsistent, in some respects highly implausible. She appeared forgetful, uncertain and frequently reversed her evidence.
From her own evidence as to a debt she has owed to Mr Wu’s building company for over 10 years, I find that Ms Ye is not a witness who is independent of Mr Wu.
Having regard to my above findings, I place little weight on Ms Ye’s evidence in respect of the existence, location, structure, use and supply of electricity and water to any caravan or improvements on the Land between 2002 and 25 May 2006, when the Real Property Act transfer of Lot 2818 from Ms Ye was registered.

Hu Qing Pan’s evidence

Mr Pan’s evidence relates to the period from 2002 to 2006.

Mr Pan’s affidavit evidence

Mr Pan’s affidavit was relatively brief, consisting of four paragraphs. In the first two paragraphs Mr Pan stated he worked as the handrail and glass installer in construction work at Lot 2818 from 2002 to 2006. During that period Mr Wu was the project manager who oversaw all construction details.
Mr Pan’s third and fourth paragraphs deal with what he called Mr Wu’s home in Lot 2506 as follows:

3 Mr Wu lived in Lot 2506 Bundaleer Street, Belrose NSW 2095, which is adjoining to the single house under construction in Lot 2818 Linden Avenue. He lived in a simple dwelling under dense growth of trees
4 During the construction time, Mr Wu sometimes invited me to have meals at his home. I used to discuss construction issues during and after work with Mr Wu at his home.

Mr Pan’s oral evidence

Mr Pan was asked several questions as to how much time he actually spent at Lot 2818 between 2002 and 2006. He sought to evade the questions by speaking about other matters. From Mr Pan’s answers I formed the opinion that in the two-year period from the time the occupation certificate for Lot 2818 was granted in December 2003 until sometime in 2006, Mr Pan would have been on site for no more than six weeks. Mr Wu agreed with my estimate. Because of Mr Pan’s failure to provide clear answers it was not possible for me to make an accurate estimate of the time he spent at Lot 2818 between his first attendance at that site in 2002 and late 2003.
Mr Pan provided clear details of certain of the work he said he carried out at Lot 2818 including installing glass balustrades and a safety fence. He said he did a lot of work for the house.
Mr Pan said he ran his own business when he was working at Lot 2818. He met with Mr Wu at various locations on site and Mr Wu showed him plans and drawings in order for him to provide a quote. Mr Pan did not know where Mr Wu kept his plans and drawings but there were a lot of them.
Mr Pan was asked several questions concerning Mr Wu’s site office and was non-responsive and evasive. His answers included “I don’t know site office”; “no site office”; “what is the site office, I don’t know”; “I don’t know, I didn’t go there because I was just doing the work … I don’t know where it is”; and “I was never interested about that. I don’t know.”;
When asked about a shipping container or a portable office on the site, Mr Pan’s answers included “I didn’t pay attention to that, I was just doing my work … Never see, I don’t know” and “I was never interested about that. I don’t know”.
Mr Pan was shown several aerial photographs of Lot 2818. He recognised the house and swimming pool on the property. When asked questions concerning something described as a white rectangular object in the photograph marked MFI 7, Mr Pan responded “I don't know. It is really far from where I used to work, why did I need to come here?”
Mr Pan said Mr Wu's little cottage was 50 to 60 m away from the swimming pool on Lot 2818. He also said the cottage was about 3 to 4 m from the boundary between Lot 2818 and Lot 2506. He said there was not really a path from the cottage to 2818 “it is just a muddy road” on which vehicles could travel.
When asked whether the land where the cottage was situated was flat, Mr Pan responded by answering a question he had not been asked. He said “There are lots of trees above.” After being asked the question again he said he was not sure if the land was flat. When asked if it was a level site he said “you can walk on it” and it was not very steep. He did not remember if it was level.
When asked about the gradient of the Land at the site of Mr Wu’s cottage, Mr Pan said he did not measure it, he did not know if it was level and he did not know what a “10 degree gradient” meant. However, Mr Pan said he is familiar with working at angles to the horizontal when preparing balustrades for steps and measuring degrees.
I find it highly implausible that Mr Pan, who on his own evidence, was very experienced in building fences of various components and preparing and installing balustrades on steps, did not know the meaning of “10 degree gradient”.
I have difficulty reconciling Mr Pan’s description of “a muddy road” on which vehicles could travel, with site surveys and oral evidence which describe the area on Lot 2506 near the boundary between Lot 2818 and Lot 2506 as “very rocky area” and on a rocky crest.
Mr Pan said he and his workers went inside Mr Wu’s cottage for lunch and he discussed work matters with Mr Wu at night at the cottage. He said the cottage had two rooms, one on the left, one on the right and there was a flush toilet in the middle which worked. Mr Pan did not know if there was a shower in the cottage. He said there was electricity inside the cottage and “they” boiled water. He did not see any air-conditioning.
It seemed to me that Mr Pan was more focused on talking about trees overshadowing Mr Wu’s cottage and the contents of Mr Wu's cottage than answering questions asked of him concerning other matters.
It also seemed that Mr Pan was at least partly dependent on Mr Wu for work and had been for several years.
Mr Pan’s clarity concerning aspects of Mr Wu's cottage on Lot 2506 were at odds with his recollection of other matters on which it appeared he did not expect to be asked questions such as how long he actually worked on Lot 2818; the location of Mr Wu's site office; and the existence and location of a container on Lot 2818.
I found Mr Pan’s answers to questions concerning a site office, a steel container (which Ms Ye recalled being on site) and certain aspects of Mr Wu's cottage and its surrounds were highly implausible for a subcontractor who worked on a relatively small site over a 4 year period in comparison to his clear recollection of other details of Mr Wu's cottage.
Mr Pan’s evidence was that he worked at Lot 2818 from 2002 until 2006. His evidence regarding Mr Wu’s “dwelling” on Lot 2506, related solely to the dwelling which Mr Wu said he constructed in about July 2003, near Lot 2818. Mr Pan’s evidence contrasts with Mr Wu’s evidence that he lived for some years until about April 2003 in, initially, a caravan and an old fibro dwelling on Lot 2506 near Linden Ave, then a refurbished fibro dwelling near Linden Ave, prior to moving into his “new dwelling” near Lot 2818 after he built it in about July 2003. This unexplained discrepancy in Mr Pan’s evidence, and what appears to be a direct contradiction of paragraph 3 of Mr Pan’s affidavit, is in addition to other discrepancies referred to above.
Having regard to my findings regarding Mr Pan’s evidence, I place limited weight on its accuracy as to the existence, location, design, use or contents of what he described as Mr Wu’s “simple dwelling under dense growth of trees” on Lot 2506.

To Hung’s evidence

Mr Hung’s evidence relates to the existence, location, contents and use of a steel structure on the Land from late November to mid December 2014 and his involvement with Vigor Master from mid-2011 to 2015.

Mr Hung’s affidavit evidence

Mr Hung’s affidavit stated he had known Mr Wu for more than 10 years; in 2014 Mr Wu informed him that he was making “adaptions” to his steel home at Lot 2506 and was planning to move there. In late November 2014 Mr Hung helped Mr Wu moved into “his home” at Lot 2506. The “home” was “very comfortable” with “necessary” living facilities including bathroom, cooktop, installed air conditioner, bed, desk, chair and refrigerator. Before Christmas 2014 Mr Hung was invited to a housewarming party and another party for Mr Wu’s friends.

Mr Hung’s oral evidence

Mr Hung and Vigor Master

In his initial cross-examination, Mr Hung said he had never worked for Mr Wu or Vigor Master, nor had he ever worked on any building site that Vigor Master worked on. On further cross-examination when recalled, Mr Hung confirmed his evidence in the previous sentence.
An insurance proposal for Vigor Master for 2012 (the 2012 proposal), signed by Mr Wu on 20 July 2011 as the sole director of Vigor Master, states Mr Wu’s personal address was McMahons Rd.
Mr Hung acknowledged writing on the 2012 proposal his name as contact person for Vigor Master with the insurer. Mr Hung initially said he did not know if the proposal was on behalf of Vigor Master or Mr Wu “because I put down the name, this registered company name of director Pei Long Wu …”
Mr Hung then denied that he filled the 2012 proposal in, in relation to Vigor Master. He said Mr Wu was his friend, Mr Wu’s English was no good, he only had a few employees and they did not know insurance. Mr Hung said he had worked for an insurance company, so if Mr Wu did not understand insurance, sometimes Mr Wu asked him for help. Mr Hung said he filled out the 2012 proposal for Mr Wu and he was representing Mr Wu, not representing Vigor Master.
Mr Hung confirmed that the mobile phone number in his handwriting under the heading “Contact person” in the 2012 proposal was his personal mobile telephone number at the relevant time. Mr Hung wrote Vigor Master’s email address on the 2012 proposal as the Contact person’s (his) email address.
Mr Hung said the insurance company would contact him if it had any questions about Vigor Master. He then changed his evidence and said communications would be sent by the insurer to Vigor Master’s email address and Vigor Master could call him. He also said that he did not have any access to Vigor Master’s emails and he only helped his friend [Mr Wu] once.
Mr Hung’s name appears as the Contact person for Vigor Master in Small Employer Declarations of Actual Wages forms for the 2013 and 2015 financial years. Mr Hung denied involvement with Vigor Master’s insurance in those years. He agreed his name had been inserted as the Contact person and someone had printed his name on the Declarationsforms.
It seems to me that if Mr Hung had the experience in insurance he said he had, and if he completed an insurance proposal form for a company to the effect that he was the company’s contact person, then he would be well aware that he was holding himself out to the insurer as the contact person of, and agent for, the company, rather than merely helping a friend who happened to be an officer of that company.
Mr Hung seemed somewhat anxious regarding multiple appearances of his name as an insurance contact person for Vigor Master.
Either Mr Hung agreed to be contact person for Vigor Master’s insurance for 2013 and 2015 or he did not. If Mr Hung did agree, then he is not being candid with the Tribunal. If he did not agree, then the reason for his name appearing in the Declarations is a matter which should be within Mr Wu’s knowledge as the sole director of Vigor Master who signed the Declarations. Mr Wu would also be aware if Mr Hung did agree to be contact person for more than one year.
For reasons best known to himself, Mr Wu did not inform the Tribunal as to the extent of Mr Hung’s involvement with Vigor Master’s insurance other than to say Mr Hung was not an employee or contractor of Vigor Master, and provided no clarification as to the reason Mr Hung’s name appeared on the 2013 and 2015 documents.

Mr Hung and Lot 2506

Mr Hung said that when he used the word “adaption” it was what Mr Wu had said to him. It meant a renovation because a shipping container did not have a cut for windows or doors and Mr Wu told him the structure was a “steel house”. There was a toilet, a shower and a bed.
Mr Hung said he moved a bed, desk, chair and small fridge for Mr Wu from Mr Wu’s house at Lane Cove because his (Mr Hung’s) car was bigger than Mr Wu's car.
Despite Mr Hung’s affidavit stating that Mr Wu’s “home” was “very comfortable” with “necessary” living facilities including bathroom, cooktop, installed air conditioner, bed, desk, chair and refrigerator, Mr Hung’s oral evidence included that he did not know if the bathroom, in which he said he saw a shower and toilet, was connected to water; he did not know if the cooktop or air conditioner which he said he saw, were working, nor did he know if any electrical power was connected to the steel container.

Mr Hung was shown several photographs during cross-examination. He changed his evidence on several occasions as inconsistencies between details shown in photographs and his previous evidence were brought to his attention.
Changes by Mr Hung to his evidence include:

whether there was a partly constructed boarding house on the Land in November 2014;

whether Mr Wu's steel house was under any trees in late November 2014;

saying the steel structure was at the front of the Land near Linden Ave opposite a school, then denying it was at the front of the Land, and then again saying it was at the front of the Land.

Photographs shown to Mr Hung were attachments to affidavits. Those affidavits were admitted into evidence and read without objection. The deponents of the affidavits were not called for cross-examination. The affidavits provide details concerning each photograph’s provenance including its creation, the date on which it was taken, the locations shown in the photograph and the direction the camera which took the photograph was pointing. I accept the accuracy of the information in the affidavits concerning the photographs.
Mr Hung insisted that certain photographs were not taken on the dates stated in the relevant affidavits. To the extent that there is any discrepancy between details of the provenance of any photographs in a relevant affidavit and Mr Hung’s evidence, I prefer the details in the affidavit.
Mr Hung was asked what he meant by the date “before Christmas 2014” in his affidavit in relation to being invited to the steel structure for a housewarming party and another party for Mr Wu’s friends. Mr Hung said somewhere between late November and mid-December.
I have considered the photographs in evidence as well as verbal evidence of witnesses. I am not satisfied that any steel structure, having the dimensions given in evidence by Mr Wu, was situated on the Land, near Linden Avenue whether in the open or under trees on 11 October 2014, 21 December 2014 or 14 July 2015, being the dates of photographs in evidence.
Having considered discrepancies between Mr Hung’s evidence and the photographs in evidence, Mr Hung’s changes to much of his evidence, and vagueness of many of Mr Hung’s answers to questions, I formed the opinion that Mr Hung was very forgetful or less than frank in answering a number of questions put to him.
Mr Hung did not state that the steel structure was on the same location on the Land on each of the three occasions which he said he visited the Land nor did he state that the steel structure had been moved from one part of the Land to another part. This seems to conflict with evidence given by Mr Wu later during the hearing to the effect that the steel structure was moved across the Land.
I find there is no compelling evidence before me, to the relevant standard of proof, that the steel structure was in one location on the Land on the dates in November and December 2014 when Mr Hung says he delivered some of Mr Wu’s items and attended two social events, and was removed from the Land prior to 21 December 2014, the date on which a relevant photograph was taken (the December 2014 photograph).
I cannot give any great weight to Mr Hung’s evidence in relation to the existence use location or functioning contents of the steel structure except to the extent that it is consistent with the photographs shown to him during the hearing.
I note that Mr Wu made several interjections and objections during parts of Mr Hung’s cross-examination. Mr Wu’s interjections and objections delayed the proceedings unnecessarily and seemed at times to have been made with the object of interfering with Mr Hung’s cross-examination. In re-examination, Mr Wu asked leading questions, questions concerning matters which did not relate to the cross-examination, objected to affidavits which had previously been admitted without objection and attempted to give evidence himself.

Antony Coster’s evidence

Mr Coster’s evidence relates to the period from December 2011 until the hearing in September 2017 and the existence, location, contents and use of the steel structure from late November 2014.

Mr Coster’s affidavit evidence

Mr Coster stated in his affidavit dated May 2017 that he had resided at Lot 2818 for more than five years; he met Mr Wu while walking after dinner in November 2014; Mr Wu said he had moved into a dwelling at Lot 2506 and invited him to visit; Mr Coster noticed a toilet, shower facilities and a cooktop; Mr Wu invited him to a Christmas barbecue at Lot 2506 in early December 2014 attended by several of Mr Wu’s friends; he had visited “Mr Wu's home” every few months since December 2014 and would see Mr Wu occasionally while walking about the neighbourhood in evenings.

Mr Coster’s oral evidence

Mr Coster confirmed he had lived at Lot 2818 since December 2011. When asked, Mr Coster said he was sure Mr Wu had not lived at Lot 2818 during that time. Mr Rider then informed Mr Coster that Mr Wu said he lived at Lot 2818 until March 2012 whereupon Mr Coster immediately changed his evidence and said he moved to Lot 2818 in December 2012, not December 2011.
Mr Coster was asked several times when he first saw the steel structure appear at Lot 2506 and he seemed to try to avoid answering the question. Mr Rider reminded him that he had referred to “Mr Wu’s dwelling at Lot 2506” and said “by dwelling do you mean a shipping container?” Mr Coster’s response was “I mean that he had like a site office type thing there, yes.”
Mr Coster was then asked when he first noticed the site office appear on Lot 2506. His answers included “it would have been around that time”, “like it had been there a long time” and “I can’t recall to be honest”. Mr Coster agreed that the site office could have appeared on Lot 2506 before November 2014, however it was difficult for him to remember. Mr Coster agreed that he first met Mr Wu in November 2014 and it was quite possible that that was a few months after the site office first appeared on Lot 2506.
Mr Coster agreed that he had visited Lot 2506 and was familiar with the Land.
Mr Rider showed Mr Coster several photographs which Mr Coster agreed were of Lot 2506. Initially Mr Coster said the site office might be among certain trees shown in the photographs. However, he subsequently agreed that he could not see the site office in any of the photographs. I have found that all the photographs were taken on 17 November 2014
Mr Coster confirmed an aerial photograph incorporated Lot 2506 and he recognised a white rectangle in the photograph as the site office and said that is “roundabout” the area where it used to be. I note the rectangular structure is clearly visible in an open area of the photograph, near, but not under, a group of trees. The structure is closer to Linden Avenue than to Bundaleer Street. The photograph bears the imagery date 20 December 2015 and I find that it was taken on that date.
Mr Coster was then shown the December 2014 photograph. He agreed that he could see the school, Linden Ave and Lot 2506. He said he could not see the site office on Lot 2506 and denied that the photograph was taken in 2014. I reject Mr Coster’s evidence in relation to the date of the December 2014 photograph.
In ACSR Mr Wu submitted that Mr Coster confirmed the toilet in his “steel house is a working toilet”. Mr Coster initially said he thought the toilet was being used while he was at the barbecue although he did not use it himself. He thought people closed the door of the site office in order to use the toilet but could not remember whether the toilet was in a separate cubicle. He did not hear anyone flush the toilet.
Mr Coster said the steel structure had “pretty much one area”. Later he said he thought there were internal partitions.
Mr Coster said Mr Wu told him he was living at the steel structure as his home and “I could see that he was living there”. He also said the site office was being used like a dwelling. Mr Coster’s affidavit stated there were “shower facilities as well as a cooktop” in the steel structure.
However, in his oral evidence, Mr Coster said he did not see either the shower or the cooktop being used, nor did he see a refrigerator in the steel structure being used, he did not know if there was any running water, he saw some clothes hanging up but did not know if there was a wardrobe, he could not remember whether a toilet in the structure was in a separate cubicle and did not hear anyone flush the toilet he said he had seen. He also understood that people were using the toilet without it being connected to the sewer.
Mr Coster said that Mr Wu was living in the steel structure at the date of his affidavit but he did not know if Mr Wu was still living there during the hearing.
Mr Coster said it would have been two or three months since he last saw Mr Wu and his last visit to the site office would have been four or five months ago. Mr Coster said that sometimes he would see Mr Wu three or four times a week and sometimes he would not see him for three or four months. Mr Coster would usually see Mr Wu when he [Mr Coster] was walking his dog.
At [45] in ACSR Mr Wu submitted that Mr Coster visited him regularly. Having regard to Mr Coster’s evidence in the preceding paragraph, I reject Mr Wu’s submission.
I find that Mr Coster’s evidence was vague in relation to much of its detail. Mr Coster was not responsive to many of the questions asked and changed his evidence in relation to various matters including the date he moved into Lot 2818, whether there were internal partitions in the steel structure, how frequently he saw Mr Wu, whether a toilet in the steel structure was functional, the location of the steel structure on Lot 2506, and identifying that location in photographs.
I am satisfied that Mr Coster was aware of the existence of a steel structure on lot 2506 and may have visited same. I am also satisfied that Mr Coster may have seen at least part of the interior of the steel structure at some time. I am not satisfied that Mr Coster gave an accurate account of the contents or usage of the steel structure nor am I satisfied that Mr Coster saw the steel structure at Lot 2506 in or about November or December 2014.

Mr Wu's evidence

I referred above, under the heading “Overview of Mr Wu's case”, to excerpts from Mr Wu's affidavit. Some of Mr Wu's other evidence has also been outlined above. Set out below, and categorised under specific issues, is some of Mr Wu’s evidence together with submissions which he frequently mixed with his evidence.

Old fibro dwelling on Lot 2506

Until part-way through the last day of the hearing Mr Wu strongly argued that from 2002 until July 2003 he lived on the Land in a caravan and an old fibro dwelling. These arguments appeared at par 8 in his affidavit where he said “04/2002-07/2003, I lived in a caravan and an old fibro dwelling in Lot 2506”, in ASR at [29], and in the Objection where he wrote:

… I had bought this property on year 2003, and there was an house on the land, which can be verified by the Land and Property Information Office. I can also provide the contract for the sale of the land that shows there was a house on the land when I bought. I had been living in that house until I decided to demolish it and build a new one on the land ...

In cross-examination on 31 May 2017, Mr Wu said in 1999 the foundation and timbers of an old house were on the Land. He said he rebuilt the old house and he lived in the caravan and the old house for a period.
During the hearing several documents, including some prepared by or for Mr Wu’s company, stated the Land was undeveloped or there were no improvements on the Land at relevant dates.
Mr Wu was shown a document which refers to a dwelling having been constructed on the Land and having been demolished some years ago. The English wording was translated into Chinese for Mr Wu by the official interpreter. Mr Wu said he could not see that wording in the document. Eventually Mr Wu conceded that he understood the wording. He was asked whether it was his recollection that in 2001 there was no dwelling on the Land. His response was “I don’t know”. I find Mr Wu's response less than candid.
The Chief Commissioner submitted at [14]:

On 4 June 2003, the Land and Environment Court handed down its decision in Macat Pty Ltd v Warringah Council which granted consent to the above development application and stated "The site is undeveloped... The portion of the site closest to Linden Rd has previously been developed for a dwelling that is now demolished…

I have confirmed the accuracy of the above extract from the judgment of Commissioner A Tuour in Appeal No 10987 of 2002.
Mr Wu said he did not recall litigation by Macat against Warringah Council in 2003. He also did not know if Macat was his company at that time. Mr Wu said he could not recall whether there was a development application to build a single house on the Land.
Mr Wu agreed that he understood that the judgment said there is bushland cover and there is no house there any-more.
Mr Wu was asked if he agreed that what the court said was correct, in that the site was undeveloped and did not have a dwelling on it in 2003. Mr Wu was asked the same question on several occasions. He tried to avoid answering the question by seeking to engage in a discussion concerning bushland and building a new home. Mr Wu said the judgment may be right, he did not know, he could not remember, he could not understand the question.
There is undisputed evidence that Mr Wu entered into a contract to buy the Land on 26 May 2003, some eight days before the Court’s decision was handed down. The purchase was settled on 26 November 2003. Having regard to the issues involved in this matter, and other evidence given by Mr Wu as to his activities on the Land before, during and after 2003, I find Mr Wu's apparent lack of recollection and inability to answer questions in respect of the existence or non-existence of an old dwelling on the Land in 2003, the year he bought the Land, highly implausible.
Mr Wu informed the Tribunal on numerous occasions that the old fibro dwelling was connected to a septic system. Later Mr Wu said in about April 2003, he demolished that dwelling, and built a new fibro dwelling under trees near Lot 2818 into which he moved in July 2003. He remained in that dwelling until 2009 and demolished it in 2010.
On 5 September 2017 in response to my questions, Mr Wu said there was a survey inside his purchase contract for Lot 2506. I informed him that I had not seen a survey plan showing a house. He said there was a fibro dwelling house in the contract. When I reminded Mr Wu that he had said that the contract was in evidence and it showed a house, he said the contract was in evidence but then changed his answer to say that only the first page was in evidence and agreed that the description of the Land on the first page was “vacant land”.
Later on 5 September 20017, the last hearing day, Mr Wu re-examined himself and reversed his evidence in relation to the existence of the old fibro house when he bought the Land and in which he said he had lived. Mr Wu W conceded that the old fibro house had ceased to be on the Land for some 20 or 30 years before he bought the Land.
Mr Wu said the small fibro dwelling he had referred to was referred to by Ms Armstrong as a small shack in which her parents lived while they built their home at Lot 2410. He agreed it had been demolished some years earlier and then said “the people living there have the water and a septic tank”.
I asked Mr Wu whether there was any evidence before me of either a water connection or a septic tank in relation to the former Armstrong family shack. Mr Wu said they should have had water and a tank. He then conceded that there was no evidence of either a water connection or a septic tank in relation to that building.
I am aware that Mr Wu's purchase of the Land did not settle until November 2003, several months after he said he had demolished the old fibro dwelling.
I find it highly likely that Mr Wu reversed his evidence when it had become clear to him that his earlier evidence, that he had lived in an old fibro dwelling which existed on the Land in 2003, did not stand up against multiple documents in evidence, including some prepared by or for his company. Those documents stated that in 2003 there were no improvements on the Land and an old galvanised iron and fibro dwelling, which had previously been on the Land, had been demolished some decades earlier.
Having regard to my findings elsewhere in these reasons regarding Mr Wu’s unsubstantiated submissions, which were contrary to objective documented evidence, it is my opinion that it is more likely than not that Mr Wu's reference to the old Armstrong shack’s water connection and functioning septic tank, without corroborating evidence, is merely another unsubstantiated submission made to support his claim that he resided on Lot 2506 at the location of the demolished Armstrong shack from before he bought the Land until what he said was the completion of his new fibro dwelling near Lot 2818 in July 2003. My opinion is consistent with the Chief Commissioner’s submission that Mr Wu has a history of making up ‘facts’ from time to time in order to support his story.
Notwithstanding Mr Wu’s concessions on the last day of the hearing that the old fibro house he had previously said he lived in had been demolished several decades before he bought the Land, there was no evidence of any water connection or functional septic wastewater system, and his concession that other than in respect of its first page, the contract pursuant to which he purchased the Land was not in evidence in the proceedings, after the hearing Mr Wu submitted in ACS [11]:

… . There used to be a fibro house (Old Fibro House) on the land before I bought the Belrose Property. The Old Fibro House was located near Linden Avenue as shown on the survey plan attached to the purchase contract. I once lived in the Old Fibro House before purchasing the Belrose Property. A water tap and a septic tank were connected to the Old Fibro House. The Old Fibro House was demolished before May 2003 without the removal of the water tap and septic tank …

Mr Wu submitted in ACS:

at [11] that he lived in the Old Fibro House before purchasing the Land, the contract he used to purchase the Land included a survey plan showing the house, and the house was demolished before May 2003 “without the removal of the water tap and septic tank”.

at [12] “The waste water was connected to the septic tank built for the Old Fibro House.”

at [15] “Water was connected to the water pipe within the Belrose Property. I received the invoice from Sydney Water for unmetered water use in October 2016. Sewer was connected to the septic tank built for the Old Fibro House.”

Having regard to the lack of evidence in support of the above submissions and Mr Wu’s concessions during the hearing I reject each of these submissions.
Mr Wu’s repetition, in ACS and ACSR after the hearing, of submissions based on facts which he conceded during the hearing were not true and which were not supported by evidence produced during the hearing, does not assist him, does him no credit and does not enhance his credibility as a witness.

The steel structure from 2014

Mr Wu agreed that the white box in a photograph in Exhibit R3 is the “steel house” structure he said he lived in on Lot 2506. Mr Wu said the location shown in the photograph was at “the end of 2015 or maybe in, you know, the 2015 sometime”. He said the steel structure was initially positioned “under the tree”. I accept that the photograph was taken in October 2015.
In cross-examination Mr Wu initially denied that the steel structure had ever been used as a shipping container. Later he conceded that it had been previously used as a shipping container.

Mr Wu stated at [15] in his affidavit that he lived at Kullah Pde from August 2012 until November 2014. This conflicts with Mr Wu’s driver’s licence address history which states Mr Wu’s residence was at Kullah Pde from 29-02-2014 until 14-11-2015. I note that an incoming passenger card, related to Mr Wu’s return to Australia and signed by Mr Wu on 1 January 2015, shows his intended address on that date was at Kullah Pde.
Mr Wu said he could not have lived at Kullah Pde beyond November 2014 because demolition started at that location in November 2014. No evidence corroborating Mr Wu's claimed start date for was brought to my attention and I am not satisfied that his claimed date is accurate.
Mr Hung and Mr Coster corroborated Mr Wu's evidence that he lived at Lot 2506 from November 2014. However, this evidence contradicts Mr Wu's driver’s licence history, details on an incoming passenger card Mr Wu signed and aerial photographic evidence that the steel structure in which Mr Wu said he lived was not on the Land as late as 21 December 2014. Mr Wu has provided no documentary evidence in support of his claim.
Mr Juniper’s and Dr Harris’ evidence is provided in some detail below. I note that Mr Juniper said he lived on Lot 2410 from May 2013 to December 2016, the steel structure was not on the Land during 2014 but definitely there for some months before he left in 2016. Dr Harris said she discussed the steel structure with Mary Armstrong, who died in May 2015. The photographic evidence is that the steel structure was not on the Land on 20 December 2014 but was there on 14 July 2015.
I have had regard to verbal evidence from Mr Wu, Mr Hung, Mr Coster, Dr Harris and Mr Juniper. Where there is a conflict between documentary and verbal evidence, I prefer documentary evidence including photographs and Mr Wu’s incoming passenger card dated 1 January 2015 and his driver’s licence history to verbal evidence.
Having regard to the material before me I find that the steel structure arrived on the Land after the 20 December 2014 photograph was taken and before Mary Armstrong’s death. I am not satisfied that Mr Wu resided on the Land in a building which accorded with the requirements of cl 3(1) between 20 and 31 December 2014 nor am I satisfied that Mr Wu’s used and occupied the Land as his principal place of residence on 31 December 2014.

Utilities on the Land generally

Mr Wu submitted:

28. During the period when I live on the Land, there are always utility services available in my home including water, electricity and sewer, etc – ASR.

An architectural statement, supporting a development application at the Land for Vigor Master, dated 19 January 2004 stated “There are no improvements on the site.” In respect of available utilities the statement said, among other matters:

Water Supply. The site is serviced with town water located in Bundaleer Street.
Sewerage. No sewerage service is available to the site.
Electricity. Electricity supply is available in Linden Avenue and Bundaleer Street.

Mr Wu agreed that the architectural statement had been commissioned by his company Vigor Master. However, he also said he did not write the report and even if Vigor Master was his company, the project manager or the town planner may have had something to do with it. He did not think they were correct when they wrote it.
Mr Wu said it was very clear that before November 2003 he had already built a new fibro dwelling in the south part of Lot 2506 close to Lot 2818. This was consistent with paragraph 10 of his affidavit.
He said the old building was demolished in July 2003 and all the material moved from the old fibro house to a new one he built close to the south boundary. He said the new building was demolished in 2009.

Electricity supply to the Land

There is a dispute as to the availability of electricity on the Land before August 2015.
Prior to the hearing Mr Wu submitted at [28] in ASR “During the period when I live on the Land, there are always utility services available in my home including … electricity … ”
Documents in evidence disclose:

an enquiry in July 2015 by Vigor Master for a quote for a “temporary electrical supply” to a “temporary building” at the Land.

A certificate of compliance for testing electrical work and an invoice to Vigor Master for supplying and installing power, both dated August 2015.

An email dated 8 December 2015 at 13:47 hours to OSR from Vigor Master over Mr Wu’s printed signature referring to misunderstandings on gas and electricity bills, stating

… Lot 2506 where I live is located at rural residential zoning. Thus, there is no gas available around this area and I used to have storage battery for electricity.
In 2014, I moved back to Lot 2506 and one of my stuff (sic)… helped me get quotations from different companies over the electrical work. Around August 2015, I finally got electricity …

In oral evidence Mr Wu said he “couldn’t recall” whether electricity was connected to the Land in 2014.
Both Mr Wu and Ms Ye said Mr Wu obtained electricity for Lot 2506 from Lot 2818 when Ms Ye owned Lot 2818 [from 2002 to about May 2006].
After the hearing, Mr Wu submitted at [15] and repeated at [66]:

The electricity connection application was started at the end of 2014 and connection was done in August 2015. Prior to August 2015, electricity was supplied by a generator and its battery. That electricity was supplied to the Land by a generator and its battery.

Despite the ongoing dispute regarding the availability of electricity to the Land generally and to Mr Wu's alleged dwellings on the Land prior to August 2015, I have found no reference to any generator on the Land in Mr Wu’s affidavit, in his oral evidence, nor any evidence given by any other witness. The word “generator” does not appear in the transcript of the proceedings.
In the circumstances I am not satisfied that at any relevant time any generator supplied any electricity to the Land in general or to any relevant structure on the Land.
Nor am I satisfied, without supporting evidence, that Mr Wu’s submissions, that for an indeterminate period prior to August 2015, electricity was supplied to the Land by a generator and a battery, are anything more than unsubstantiated submissions. I reject them.
The Chief Commissioner relied at RS [93] on the decision of Boxall SM in Haddad v Chief Commissioner of State Revenue (No 2) [2017] NSWCATAD 23 who said at [15].

…
(4) In urban Australia … in the 21st century, a house would not in my view be considered adapted for use for habitation by a family if it was neither:
(a) supplied with electricity (whether from mains supply or domestic generation), nor
…

With respect, I concur with Boxall SM and find that his opinion applies to any dwelling on the Land during the period relevant to these proceedings.
Without evidence as to the supply of electricity to the Land, and more particularly to any structure which Mr Wu claims was his residence on the Land, it seems to me that such structure was not "designed, constructed or adapted for residential purposes". Accordingly, the structure is not a building in accordance with cl 3(1). Therefore the Land is not a parcel of residential land as defined in that clause, the Land is not land used and occupied for residential purposes pursuant to cl 2, and the exemption does not apply.
It seems to me that Vigor Master’s action in July 2015 in seeking to obtain a temporary electrical supply for a temporary building on the Land is consistent with obtaining electricity for a site office to be used for the construction of the multistorey boarding house as much as it may be consistent with obtaining an electrical supply for a residence for Mr Wu in the steel structure. The onus lies on Mr Wu to prove that relevant utilities, including an electricity supply, a water supply, and sewerage services were available and functional at all relevant times to what he described as his residence. To my mind Mr Wu has not satisfied that onus.
I also observe that cl 2(1) provides that the land tax exemption is available only when the relevant land which is used and occupied as the principal place of residence is not used or occupied for any other purpose. Mr Wu has not satisfied me that, whether or not he actually resided for a period in the steel structure, it was not also used as a site office for construction on the Land consistent with the various development applications throughout the Relevant Period which are in evidence..

Water supply and sewerage connection to the Land

There is a dispute as to the connection at any relevant date of a water supply to the Land, and in particular to any structure on the Land.
There is no reference to the connection of water to any structure on the Land in AS or in Mr Wu’s affidavit.
In cross examination on 2 June 2017 Mr Wu was asked whether he agreed that in 2014 there was no water connected to Lot 2506. His answer was “No there’s water connected.” He said town water was connected when he bought the Land in 2003.
It seems to me that if town water was connected to the Land in general, and more importantly, to any dwelling on the land, there would have been no need for Ms Ye to have supplied (or “loaned”) water to Mr Wu between 2002 and 2006. Mr Wu has provided no explanation for any such need nor has Mr Wu provided any documentary evidence of any relevant connection of town water to any structure on the Land at any relevant time. Mr Wu seems to rely on a connection of town water to Lot 2506 through Lot 2818 until mid-2006 when Ms Ye sold Lot 2818. No evidence is presented of water being connected through Lot 2818 or elsewhere to Mr Wu’s cottage after Ms Ye sold Lot 2818 some three (or four) years before Mr Wu said he dismantled his cottage and left the Land.
Mr Wu claimed that a sewer was connected to the septic tank built for the old fibro house. He did not explain what system he used for sewerage after he said he demolished the reconstructed old fibro house in about April 2003 and built a new house some distance away in which he said he lived from July 2003 until 2009. Mr Wu also said there was a sewerage connection for a septic tank in 2014. However, in cross-examination, Mr Wu conceded that a sewer was not connected. This concession is consistent with Mr Wu's documented application to Warringah Council in 2017 for approval to operate an on-site sewerage system on the Land.
It may well be that there was an old septic tank on the Land near Linden Ave and it had been there since at least the 1960s. However, by itself, that does not evidence that the septic tank was functional and utilised or utilisable by Mr Wu or any other person at any relevant date. Mr Wu's inconsistent statements do not satisfy me that at any relevant time there was a functional septic or other sewerage system on the Land from 2003 until after the 2017 application referred to above.

Electoral roll

Mr Wu submitted at [68] “The [Land] has been my electoral roll address since 2005.”
I accept that information on an electoral roll is a factor to be taken into account in determining whether Mr Wu may have resided at the Land during the Tax Years. However, by itself it is not a determining factor. In this case information on the electoral roll is contrary to information on several other documents referred to in these reasons, including some executed by Mr Wu, which indicate that the Land was not Mr Wu's residence at relevant dates and for relevant periods.

The Chief Commissioner’s case

The Chief Commissioner relied on both documentary evidence and evidence of witnesses.

The Chief Commissioner’s documentary evidence

The Chief Commissioner submitted that Mr Wu recorded, on official government documents, numerous places other than the Land as his home address on dates when he has claimed in both his affidavit and oral evidence that he was residing at the Land.
I have considered a range of documents in evidence including incoming passenger cards, tax documents, driver’s licences, passport application, and development applications in respect of the Land and find that the Chief Commissioner’s submission is correct. I have also considered documents of Vigor Master which contain information refuted by Mr Wu as incorrect, all of which documents were intended to be relied on by third parties including government agencies.
Examples of relevant documents include the following:

Incoming passenger cards

An incoming passenger card signed by Mr Wu dated 20 January 2008 states that his intended address in Australia was Lot 2818. Mr Wu denied he was living at Lot 2818 at that date and said he was living at Lot 2506.
An incoming passenger card dated 6 June 2015 signed by Mr Wu showed an intended address in Australia at Kullah Pde. Mr Wu said he was living at the Land at that date.

Tax documents

PAYG payment summaries signed on 1 July 2007 and 20 July 2008 by Mr Wu for the income tax years ending 30 June 2007 and 30 June 2008 were in evidence.
Mr Wu said he did not know what a PAYG summary was. He also said he did not know that he was required to tell the truth on tax office documents until Mr Rider informed him. When Mr Rider put to Mr Wu that the 2007 and 2008 annual PAYG summaries showed his residential address at the relevant dates was Lot 2818, Mr Wu said that was “not true”.
In so far as Mr Wu said he has been operating businesses in Australia for at least 20 years, I am not satisfied that he was being completely candid when he said he did not know what a PAYG summary was and did not know that he was required to tell the truth on tax office documents.

Driver’s licence

NSW government historical records as at 23 February 2016 in Exhibit R3 relevantly show Mr Wu's residential address to have been:

French’s Forest from 21-06-1999 to 04-11-2003;

Lev 3 4 George PL Artarmon from 05-11-2003 to 21-07-2010;

3 McMahons Rd from 21-07-2010 to 29-02-2012;

Kullah Pde from 29-02-2012 to 14-11-2015; and

Lot 2506 from 14-11-2015.

All these documents, other than item (5) which is equivocal, are inconsistent with Mr Wu's evidence. Mr Wu acknowledged that certain of the dates and addresses in the immediately preceding paragraph correctly represented the information in the records but said the information was not accurate. He also said that evidence of a residential address on a driver’s licence was not reasonable and his driver’s licence should not have been put into evidence.
Although these documents were available to him at all relevant dates, Mr Wu made no submission in relation to his residential or any other address on any licences in any of AS, ASR or ACS.
In ACSR Mr Wu submitted at [12]:

… all RTA Licence Renewal Application form require address but not residential address prior to 2017.

Mr Wu’s authority for this statement is “Tab 18 (88,91,93) R14”. Those pages contain driver’s licence renewal application forms signed by Mr Wu on January 2002, February 2007 and February 2012.
The covering letter sent to Mr Wu for his driver’s license renewal in 2002 clearly requires him to provide proof of his residential address. Accordingly, I reject Mr Wu’s submission at ACSR [12].
Mr Wu confirmed that he made his affidavit in February 2017 and at par 16 said “1/2014-current, I live in Lot 2506 Bundaleer Street, Belrose”.
Mr Rider then showed Mr Wu his “licence renewal application” dated 31 January 2017. Mr Wu said he did not fill in the form but agreed that he had signed it in 2017. When asked if he understood that the contents of the form had to be true he said he was not 100% sure that a lot of the form was okay or not.
Mr Wu then confirmed that he had read a particular part of the form which states that if he did not tell the truth he could be fined. Mr Wu said that when he signed the form he was not sure whether everything was correct and blamed his lack of understanding English.
Mr Rider then showed Mr Wu a part of the form which stated “Suite 201A, 24 Thomas Street, Chatswood NSW 2067” (Thomas St) was shown as Mr Wu’s residential address. Mr Rider put to Mr Wu that when he signed the form he read it. Mr Wu then interrupted Mr Rider and, contrary to his earlier evidence he denied having read the form. Mr Wu also denied that Thomas St was his residential address. He said it was a business address and it was illegal for anyone to live at that address.
I asked Mr Wu whether he was aware when he completed and signed his licence renewal applications that the forms had to be correct Eventually, he said that he was aware that the forms should be correct.

Passport application

Mr Wu's passport application which he signed on 12 October 2015 contains a section which states “Your residential address. This must be your home address, not a PO Box, nor a business address”. What is stated to be Mr Wu's residential address at Roseville has a line through it and was replaced with a “Thomas St Chatswood” address. Mr Wu confirmed that he initialled the change of address. He said he cannot understand the document and does not know where it came from.
The document which Mr Wu signed contains a declaration to the effect that the statements and information he provided in or in connection with the application are true and correct.
Mr Wu agreed that his driver’s licence also states that he was at that date living at the Chatswood address. Mr Wu again said that notwithstanding the forms he was living at the Land in October 2015.
When re-examining himself, Mr Wu said that the address of Thomas Street Chatswood on the passport renewal application was a mistake. Mr Wu confirmed that he had read the form but he had a lot of problems with the English language. Mr Wu said that 20 people in his office knew about the form and he just signed it. It was his mistake.
Mr Wu’s Australian passport renewal application of October 2005 signed by him is in evidence. His residential address is stated to be in George Pl Artarmon.
I note that Mr Wu has claimed on numerous occasions to this Tribunal that his residential address on 31 October 2005 was Lot 2506.
It seems to me highly likely that on multiple occasions Mr Wu has deliberately, recklessly or inadvertently provided incorrect information to either the Commonwealth government or this Tribunal concerning his residential address.

Signing government documents without due consideration as to their accuracy

A development application form signed by Mr Wu on 16 July 2009 requires details of the “current or last use” of the Land. The answer given was “vacant”. The next question on the form is “If vacant when did last use cease?” The answer inserted was “never used“. Mr Wu was reminded that he had said that he lived at the Land for a period of time until February 2009. Mr Wu then said “This writing is wrong” and later said “this answer is mistake”.
Mr Wu then read paragraph 16 from his affidavit which stated “11/2014-current, I live in Lot 2506 Bundaleer Street, Belrose” and stated that since November 2014 he had lived at Lot 2506, that he made the affidavit in February 2017 and at that date he lived at Lot 2506.
Mr Wu was then shown his driver’s licence renewal application which he confirmed signing on 31 January 2017. He denied that he filled out the details on the form and, after some prevarication, he acknowledged that he was aware that the form had to be correct. Paragraph 18 of the form stated “Please read carefully before you sign. If you do not tell the truth you can be fined ...” After further prevarication in response to the question “you read [the form] and you believed the contents of it to be true …” Mr Wu said “I believe, yes.”
Mr Wu was then shown the detail of the residential address of the customer, immediately below his name on the form. The residential address is stated to be “Suite 201A, 24 Thomas St, Chatswood NSW 2067”. Mr Wu said that it is not true that that was his address, that was “the business address and nobody can be living there”. Mr Wu conceded that the form was “not true”. Mr Wu also stated that he had not read the form before he signed it, he knew the form had to be correct, and when he signed the form he was not sure “100%” that it was correct.

I make no findings in respect of, the existence at any time or the contents of, documents which Mr Wu claims are missing. However I have no recollection of any evidence concerning:

any covering letter or other document from Mr Wu to the OSR/Chief Commissioner referring to any attached or annexed documents now claimed to be missing; or

any acknowledgement of receipt by OSR/Chief Commissioner of any such documents from Mr Wu

being brought to my attention.

Having regard to the 4 March 2005 notice of assessment, it is not surprising that Mr Wu relies on s 119 of the TA Act which is:

Production of a notice of assessment, or of a document signed by the Chief Commissioner purporting to be a copy of a notice of assessment, is:
(a) conclusive evidence of the due making of the assessment, and
(b) conclusive evidence that the amount and all particulars of the assessment are correct, except in objection or review proceedings when it is prima facie evidence only.

Mr Wu submits in ACS that as the Chief Commissioner has not challenged the reassessments for 2004 and 2005 then those reassessments must be considered conclusive evidence of his residing on the Land.
In response, the Chief Commissioner submits at [106]:

… s. 119(b) TAA makes it clear that the 2004 and 2005 reassessments are not conclusive evidence in these proceedings. … the Respondent does not bear any onus of proof, including disproving that the Land was the Applicant's PPR in 2004-2005 or at any other time.”

Regrettably, neither party provided any authority to support their position.
With respect, and disregarding for the moment, the second submission by the Chief Commissioner, I disagree with the Chief Commissioner’s first submission concerning s 119 of the TA Act.
In my opinion, the section refers to the production of a particular notice of assessment or copy thereof and states that such production is conclusive evidence of the due making of that assessment and that the amount and all particulars of that assessment are correct except in objection or review proceedings concerning that assessment when the production will be prima facie evidence only. In other words, unless relevant proceedings deal directly with a review of the subject assessment, the production of the assessment is conclusive evidence that all particulars are correct.
The Chief Commissioner submits that he could revoke the principal place of residence exemption for the Land for the 2004 and 2005 Tax Years and reassess the Land to land tax for those years.
It may well be, and I make no finding to this effect, that the Chief Commissioner could reassess the Land for those years, pursuant to s 9(3)(b) of the TA Act, on the basis that all facts and circumstances were not fully and truly disclosed to the Chief Commissioner, as the Chief Commissioner asserts at [104]. However, on the material before me it appears that the Chief Commissioner has not made any such reassessment. The Tribunal’s powers in these proceedings relate to Mr Wu’s application that it review assessments for certain Tax Years from 2006.
As the proceedings before me are not objection or review proceedings in respect of the 2004 or 2005 years I find that the production of the assessments for those years are conclusive evidence that the amount and all particulars of those assessments are correct. Those particulars include the words that for each year there is an exemption “… under section 10(1)(r) of the [LTM Act] - land used and occupied as the principal place of residence”.
Mr Wu inserted the following in ACS at “III. Concession for absence from former residence”:

Schedule 1A of the Land Tax Management Act states:
8   Concession for absences from former residence
(1) If the Chief Commissioner is satisfied that:
(a)   a person is the owner of land ("the former residence ") that has been used and occupied by the person as his or her principal place of residence for a continuous period of at least 6 months, and
(b)   the person uses and occupies other land (whether or not in New South Wales), that is not owned by the person, as his or her principal place of residence,

the person is taken, for the purpose of the principal of residence exemption, to continue to use and occupy the former residence as his or her principal place of residence

Mr Wu then submitted at [a]:

The reassessment of Tax Years 2004 and 2005 indicates the Respondent is satisfied that I used and occupied the Belrose Property for more than 6 months. The Belrose Property is "residential land" during all relevant Tax Years. The land was use as residential purpose before I even purchased it and I have been living there before I moved out. Thus I am entitled to 6 years concession for absence from former residence. Even if the Respondent successfully challenges my PPR for Tax Years 2006 to 2012, I am still entitled to have the PPR exemption under Schedule 1A Clause 8 of the LTMA for Tax Years 2006 to 2011.

In response the Chief Commissioner submitted:

107 … cl.8 of Schedule 1A of the Act, as it applied as at the taxing date for the 2005 Tax Year (i.e. 31 December 2004), would not assist the Applicant in these proceedings. Relevantly, the historical version of cl.8 of Schedule 1A that applied as at 31 December 2004 provided:
8   Concession for absences from former residence
(1) If the Chief Commissioner is satisfied that:
(a)   a person is the owner of land (the former residence) that has been used and occupied by the person as his or her principal place of residence for a continuous period of at least 6 months, and
(b)   the person uses and occupies other land (whether or not in New South Wales), that is not owned by the person, as his or her principal place of residence,
the person is taken, for the purpose of the principal place of residence exemption, to continue to use and occupy the former residence as his or her principal place of residence.
(2)   The maximum period for which a person may be taken, under this clause, to continue to use and occupy a former residence as a principal place of residence is 6 years starting at the end of the last period (of at least 6 months) during which the former residence was used and occupied by the person as a principal place of residence (not including any period for which the person may be taken, under clause 7 or this clause, to have used and occupied the former residence as a principal place of residence).
(3)   If the principal place of residence exemption applies to the former residence of a person by operation of this clause, the exemption is revoked if the person is the owner of the former residence at the end of the 6-year period referred to in subclause (2) and fails:
(a)   to resume actual use and occupation of the residence as a principal place of residence by the end of that period, and
(b)   to continue that use and occupation for at least 6 months.
(4)   The effect of the revocation is that the principal place of residence exemption is taken not to have applied to the former residence in respect of any tax year to which, but for the revocation, it would have applied. Land tax liability is to be assessed or reassessed accordingly.

108. Thus, the exemption under cl.8 was revoked (i.e. taken not to have applied at all) unless the taxpayer resumed actual use and occupation of the land as their PPR for at least six (6) months within six (6) years starting at the end of the last period that the taxpayer continuously used and occupied the land as their PPR for at least six (6) months. Here, this would require the Applicant to prove that he used and occupied the Land as his PPR for at least six (6) months before 31 December 2010 (i.e. within six (6) years of 31 December 2004, being the taxing date for the 2005 Tax Year). For the reasons set out above and below, the Tribunal would reject the Applicant's evidence that he used and occupied the Land as his PPR at any time during (and before) the Tax Years, such that the Applicant has failed to discharge his onus that cl.8, as it applied on 31 December 2004, had any application during the Tax Years.

I have had regard to the Chief Commissioner’s analysis. With respect it seems to me that his analysis appears to have overlooked the content and effect of State Revenue Legislation Further Amendment Act 2005 No 111 (the 2005 Act) to which assent was granted on 7 December 2005. The 2005 Act amended cl 8 (3) to replace “exemption is revoked” with “exemption ceases to have effect” and omitted cll 8(4) and (5), all with retrospective effect
Part 17 of the 2005 Act relevantly provided at [37] the general provision that the amendment applied in respect of the assessment of land tax in the 2006 Tax Year and all subsequent tax years but not in respect of the 2005 or any previous tax years.
Paragraph 38 in Part 17 referred expressly to amendments to the principal place of residence exemption and stated that the amendments to cl 8 had effect as if the amendments had commenced on 31 December 2004 and extended to the assessment of any land tax payable for the land tax year commencing on 1 January 2005.
As the Second Reading speech noted, the 2005 Act intentionally removed the retrospective liability from cl 8(3).
I note that the Chief Commissioner is aware of the 2015 Act, having confirmed the removal of the retrospective liability and the lack of any requirement for the owner to resume occupation in Revenue Ruling No. LT 082 Version 5.

… The exemption ceases if the owner fails to resume occupation within six years and the land will be taxable from that time ... [my emphasis]

However, it seems to me somewhat more importantly for these proceedings, that Mr Wu’s analysis of his excerpt from cl 8(1) omitted the mandatory requirement that, in order for the cl 8 concession to take effect, the Chief Commissioner/Tribunal must be satisfied that Mr Wu used and occupied other land which he did not own as his principal place of residence.
In his affidavit, as amended by his oral evidence, Mr Wu said he lived at Lot 2818 from 18 February 2009 to March 2012, at 3 McMahons Rd from 18 February 2012 to 30 August 2012, at Kullah Pde from 30 August 2012 / 1 September 2012 to 20 November 2014 and then he returned to the Land...
Mr Wu said that when he lived at Lot 2818 he rented one bedroom from the owner, who he identified. He said he shared a bathroom, kitchen, living room, laundry, swimming pool and games room with persons who rented the other four (or five) bedrooms. Mr Wu did not identify any person who lived at Lot 2818 during the three years he said he lived there, nor for reasons best known to him, he did not call any such person nor any other person as a witness to support his submission that he resided at Lot 2818 for any period.
I note that in a Vigor Master insurance proposal, dated 25 July 2011 signed by Mr Wu as an authorised representative of Vigor Master (the Vigor Master July 2011 insurance proposal), Mr Wu’s address (as sole director) is shown as 3 McMahons Rd.
Mr Wu said, and there is no dispute, that he owned McMahons Rd from 2006 until he transferred it to Ms Wang on 30 August 2012. Mr Wu acknowledged he owned McMahons Rd while he lived there.
Mr Wu provided no evidence in these proceedings as to the use to which 3 McMahons Rd was put between the date in 2006 when he purchased the property and years later in February 2012 when he said he commenced residing there. I note that contrary to Mr Wu’s evidence that he lived at Lot 2818 throughout 2011, Mr Wu's driver’s licence history shows him living at McMahons Rd from July 2011 until after 31 December 2011. This is consistent with the information in the Vigor Master July 2011 insurance proposal signed by Mr Wu.
Mr Wu said he bought Kullah Pde before he lived there and settled the sale of the property in November 2014 when he moved to the Land. He said he had made a development application as owner, received approval and sold the property with the benefit of the DA..
Lane Cove Council v Wu [2011] NSWLEC 43 (the Lane Cove proceedings) involved a conviction of Mr Wu of a charge under the Environmental Planning and Assessment Act 1979 (NSW) that, as the holder of an owner-builder licence, carried out development of McMahons Rd otherwise than in accordance with a grant of consent. In the reasons for judgment Sheahan J said:

23 In early 2007, Mr Wu's relationship with Ms Wang deteriorated, and he decided to sell the property for whatever he could get for it. She opposed the sale, and wanted to build a (new) house on the property, and live there with their children. No sale eventuated and they separated, with Mr Wu agreeing to transfer the title to Ms Wang, and to let her use their loan facility to fund the construction of the house. Mr Wu, under cross-examination, stated that this agreement to transfer the title was detailed in a document, which at the time of the hearing was at his residence.
24 He offered to assist her with the project, but deposes (par 8) that he " did not get involved much ... from the stage of Construction Certificate " (1 August 2007). Ms Wang employed a " site manager " (apparently Hogarth Jiang) from July 2007, when construction commenced. Mr Wu was not on site " at any time that excavation was taking place " (par 9). He did, however, become involved by telephone when so requested by Ms Wang, mainly regarding the excavation. An important fax addressed to him at Vigor Master on 23 August 2007 did not reach him, as he was not working there at the time.

The above details appear to have been drawn by His Honour from Mr Wu's affidavit in the Lane Cove proceedings. The whole of that affidavit was not drawn to my attention in these proceedings.
It may well be, that in the context of pars [23] and [24] in the Lane Cove proceedings, His Honour found, from Mr Wu's affidavit, that Mr Wu, presumably after he purchased McMahons Rd in 2006, lived at that property in a de facto relationship with Ms Wang and their children until sometime between early 2007, when Mr Wu and Ms Wang’s relationship deteriorated, and July 2007, when construction apparently commenced.
I note that Mr Wu states in his affidavit in these proceedings that he resided at the Land from November 2003 to February 2009. However, in these proceedings Mr Wu makes no reference to cohabiting with Ms Wang at any time, nor that his children were present at any place in which he was residing.
Whether Mr Wu lived at 3 McMahons Rd for 6 ½ months in 2012, during which period Ms Wang withdrew a caveat over the property is not clear to me on the evidence before me.
Mr Wu did not call Ms Wang as a witness in these proceedings nor did he provide any reason for failing to do so. It may well be that Ms Wang was not called because she was not available, or perhaps that her evidence would not have assisted Mr Wu. In any event, the location of Mr Wu's residence from time to time is a matter which is peculiarly within Mr Wu's knowledge. The onus lies on Mr Wu to not only satisfy me as to that location but also to satisfy me that the location was his principal place of residence at all relevant dates.
There is no evidence from Mr Wu nor from any other witness that any person lived with him in a caravan or a fibro cottage at Lot 2506 at any time during the Relevant Period.
At [28] in the Lane Cove proceedings the reasons for judgment quote from an excerpt of Mr Wu’s affidavit in that matter as follows:

… While the house has remained incomplete, she [Ms Wang] has had to find alternative accommodation in Belrose, which is a long distance from the school of the children and that has caused much inconvenience to both [Ms Wang] and the children …

It may be that Ms Wang and the children resided in Belrose at Lot 2818 at some time. However, Mr Wu stated that he lived in one of six bedrooms with a shared bathroom and other shared accommodation and made no mention of Ms Wang and their children living with him. Perhaps Ms Wang and the children lived elsewhere in Belrose at the relevant time. Once again, the onus lies on Mr Wu to prove his case on the basis of the material before the Tribunal.
I have referred elsewhere in these reasons to my concern regarding defects in relation to the accuracy of Mr Wu’s evidence, his credibility, and the amount of weight to be given to his evidence and that of his witnesses.
As the Chief Commissioner submitted, numerous documents in evidence in these proceedings, signed by Mr Wu, include various addresses other than the Land, which purportedly were his residential address on dates on which Mr Wu has, without producing corroborating documents, stated that he resided at the Land and used and occupied it as his principal place of residence.
Lot 2818 is the only property stated by Mr Wu not to have been owned by him but to have been used and occupied by him as his principal place of residence so as to entitle him to the benefit of cl 8 for the purpose of these proceedings. Having regard to my above findings, I am not satisfied, on the basis of Mr Wu’s uncorroborated testimony, that he lived in Lot 2818, whether as his principal place of residence or otherwise, at any relevant date.
I also find that the Chief Commissioner, by his disallowance of Mr Wu’s objections and his submissions in these proceedings has indicated that he is not satisfied that Mr Wu has complied with the requirements of cl 8 (1) (b).
Accordingly I find that Mr Wu did not satisfy the requirements of cl 8.

Mr Wu’s submissions and the Chief Commissioner’s witnesses’ evidence

Mr Wu submitted at [102] “Mr Juniper's affidavit confirms the relocation of the steel structural house further away from Linden Avenue.” This submission was copied and repeated at [24] in ACSR. There is nothing in Mr Juniper’s affidavit to support Mr Wu’s submissions and I reject them.
Mr Wu submitted at both [104] in ACS and [27] in ACSR “… Mr Juniper confirms the thick and overhead height vegetation between Lot 2410 and the New Fibro House.” Neither Mr Juniper’s affidavit nor any oral evidence by Mr Juniper referred to any fibro house. Indeed, Mr Juniper’s evidence was that the Land was vacant apart from vegetation, there was no structure or human habitation on it and subsequently a shipping container was positioned on the Land. I reject Mr Wu’s submissions.
Mr Wu submitted at [122] “The Respondent relied on inadmissible and irrelevant evidence, including Mr Juniper’s affidavit …” I find much of Mr Juniper’s affidavit to be relevant and I have rejected Mr Wu’s submissions that the affidavit was inadmissible. I reject Mr Wu’s submission at [122].
At [34] in ASR Mr Wu submitted “… due to the ground levels of Lot 2506 and Lot 2410, it is actually impossible to see through the entire Lot 2506 without entering it.” At [89] in ACS Mr Wu submitted “The area supported the New Fibro House was approximately 50 metres away from Lot 2410, has dense blue gum forest and a level that significant higher than Lot 2410 which should be the reason that Ms Armstrong and Ms Harris did not notice my house while visiting the owner of Lot 2410.”
Having regard to my prior findings concerning the lack of reliability of Mr Wu’s purported statements of fact, I prefer to rely on statements by Ms Armstrong, Mr Juniper and Dr Harris as to the extent of the area of Lot 2506 which was visible to them from Lot 2410 at relevant dates.
At [34] in ASR Mr Wu submitted “ … the statements of Dr. Cornelia Harris and Mr. Peter Juniper about the container on Lot 2506 are contradicting to each other.” Mr Wu’s authority for this submission was “[29] (CH), [9] (PJ)” which I take to mean paragraph 29 of Dr Harris’s affidavit and paragraph 9 of Mr Juniper’s affidavit. A perusal of those paragraphs indicates to me that Mr Juniper’s paragraph refers to him having a close look inside the container and describes what he saw. Dr Harris’s paragraph refers generally to the container, provides her estimation of its dimensions from a distance, and her comments as to the lack of activity around the structure and what she saw of and around the steel structure from some distance. To the extent that Dr Harris said she did not see the windows referred to in Mr Juniper’s paragraph 9, there is no evidence from any witness that any windows in the steel structure faced the direction from which Dr Harris was looking at the structure. I reject Mr Wu’s submission.

At [107] Mr Wu submitted:

The Respondent's witnesses' evidence are considered weak and insufficient to disprove my residence at the Belrose Property for Tax Years 2006 to 2009 and 2015

On several occasions I have preferred the Chief Commissioner’s witnesses’ evidence to that of Mr Wu and his witnesses. I reject Mr Wu's general submission at [107].

Mr Wu’s English language skill

Mr Wu requested that an interpreter be available to assist him throughout the hearing and an official interpreter was provided each hearing day for that purpose.
In ACS Mr Wu submitted:

85. I am not a native English speaker. I can understand, speak and read simple sentences. I cannot spell correctly or express myself freely. I am not able to fill any form in English myself. I cannot understand the legal terms or warnings on the forms that someone filled (sic) and I signed.

On several occasions during the hearing, in relation to questions asked of Mr Wu concerning documents to which he was referred, I commented positively on his knowledge of English. I also said to him “I am getting the impression that you fully understand the questions and you are trying to delay your answer” and “I think your English is very good”.
An example of Mr Wu's long-standing proficiency in written English is in the s 58 documents in Exhibit R3. The documents include an application for an Individual Contracting Licence in relation to home building in Mr Wu’s name, which appears to have been signed by him in August 2001, more than 17 years ago. The application, amongst other matters states that Mr Wu’s TAFE/University (etc) Qualifications include CERTIFICATE IN BUILDING CONTRACTING MANAGEMENT NSW TAFE COMMISSION and CERTIFICATE IN FULL BUILDERS BUSINESS MANAGEMENT issued by the Housing Association.
At page 27 and following in the extract of the transcript of 1 June 2017 Mr Wu denied that Chinese words on a Commonwealth of Australia incoming passenger card meant or were to the effect of “your intended address or residence in Australia?” Mr Wu said that meaning was mistaken. The interpreter said the meaning was “intended residence”. Mr Wu disputed the accuracy of the interpreter’s interpretation. The interpreter said “he [Mr Wu] tried to teach me how to interpret” and said to Mr Wu “Don’t coach me.”
Mr Wu included his version of a translation of “simplified Chinese” rather than the interpreter’s translation. I prefer the official uninterested interpreter’s translations to those of Mr Wu, who on several occasions during the hearing, improperly attempted to put his version of matters forward, including interrupting witnesses who were giving evidence with which he disagreed or attempting to give their evidence for them, rather than allowing the Tribunal to consider all the evidence being placed before it. I cautioned Mr Wu on several occasions against such behaviour.
During the course of the hearing Mr Wu disagreed with several interpreters as to the accuracy with which they were translating between the English and Chinese languages. This indicates to me, and I find, that Mr Wu exhibited substantial confidence in his ability to accurately translate between those two languages.
I am satisfied that, while Mr Wu may not have a university degree in English literature, he fully understood the vast majority of the questions asked of him. I am not satisfied that all of the apparent confusion exhibited by Mr Wu during the hearing as to the meaning of relevant parts of the English language, both written and oral, was genuine confusion or lack of knowle0dge and understanding of words used.
In making the above comments and findings I accept that Mr Wu was representing himself and he is not a lawyer. However, unlike other unrepresented applicants in my experience, Mr Wu acknowledged on the sixth day of the hearing that a group of 3 or 4 of his colleagues had attended each day of the hearing and at least one member of that group is a legal practitioner. I observed Mr Wu speaking with those persons on numerous occasions during the hearing. They also provided him with numerous documents throughout the hearing.

Disruption of proceedings

On many occasions during cross-examination of Mr Wu’s witnesses, when critical questions were being asked, Mr Wu would raise irrelevant objections or try to give answers himself. I requested that Mr Wu not raise objections unless they were relevant and that he should not try to give answers to questions which were asked of his witnesses, irrespective of whether he thought his witnesses were having difficulty answering the questions. I reminded him on several occasions that after his witnesses had been cross-examined he would have the opportunity to re-examine his witnesses to clarify their answers.

Interest

Each of the 2014 assessment and the 2015 assessment included amounts for “interest on tax”. Mr Wu claimed he should not be liable for any interest payable to the Chief Commissioner.
Division 1 of Part 5 of the TA Act provides for interest in respect of tax defaults (including failure to pay land tax) as the sum of a market rate component and a premium component. (ss 21 and 22).
The Appeal Panel in Chief Commissioner of State Revenue -v- Incise Technologies Pty Ltd & Anor (RD) [2004] NSWADTAP 19 at [60] stated:

“In our view the primary interest rate (the market rate component) is intended to compensate the Commissioner (on behalf of the Government of New South Wales) for not having the benefit of the tax payment from the time it was due.” In Trust Co. of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21 (“Trust Co of Australia”) Judicial Member Verick stated at paragraph 27.” In cases where an amount of interest is imposed by the application of the market rate, only exceptional circumstances would justify any remission. The narrow category of circumstances would include cases where the 'tax default' is entirely due to a fault of the Chief Commissioner. Other circumstances would include situations completely out of the control of the taxpayer.”

The premium component of the interest rate is a fixed 8% per annum (s22(3) of the TA Act). At [25] in Trust Co. of Australia the Appeal Panel stated “..the fixed premium rate component is a rate imposed by way of a penalty for the 'tax default' in question. A premium rate of interest is imposed where a 'tax default' is a result of some culpable conduct on the part of the taxpayer..”
On the last hearing day Mr Rider informed both Mr Wu and me of his instructions that the premium rate of interest had been remitted and notations as to “interest on tax” included in the assessments related to the market rate of interest as at 22 April 2014. Mr Rider said that when assessments were not paid in full any unpaid amounts thereafter attracted interest at the premium plus market rate. Mr Rider informed me that his instructions were that the interest charged thereafter was interest on the unpaid tax, not interest on the outstanding interest.
I explained to Mr Wu that he had an obligation to prove his case and in relation to any charge of interest on outstanding tax it was necessary for him to explain his interpretation of the law as to why relevant interest should not be charged.
In his post-hearing submissions Mr Wu made a series of allegations from [108] to [122] under the heading “the Respondent’s mistakes”, many of which are irrelevant, others of which I have rejected, and none of which directly address the legislative basis for interest charges or specifically refer to ‘interest’.
Mr Wu submitted at [96] and [123]:

Land Value of the Belrose Property
96.1 won the court cases against valuer general regarding the land value of the Belrose Property for 2006 to 2011. The determinations were made in 2013. If there was any outstanding land tax prior to 2013, no interest should be charged
123. In any event, I should not be liable for any interest payable to the Respondent.

In relation to [96] I note that both the 2014 assessment and the 2015 assessment post-date the 2013 determinations referred to by Mr Wu and Mr Wu did not provide any evidence that correct valuations had not been taken into account.
The Chief Commissioner dealt with interest in the assessments at [152] by submitting “In response to [123] AS, the Applicant has not made out any grounds for remission of interest.”
Mr Wu responded in ACSR at [87] by submitting “Contrary to [152] RS, In any event, I should not be liable for any interest payable to the Respondent.”
In my opinion, merely by stating that he “should not be liable for any interest payable“ without providing reasons, and without providing any calculations showing that the amounts of interest included in the relevant assessments were incorrect, Mr Wu has not satisfied his onus of showing why either or both of the market rate component and the premium component of interest should not be charged and why the Chief Commissioner’s calculations were in error.
I note that the Chief Commissioner did not impose any penalty tax pursuant to Division 2 of Part 5 of the TA Act and make no comment thereon.

Costs

During the hearing Mr Rider foreshadowed that, irrespective of my substantive decision, the Chief Commissioner intended applying for costs at the conclusion of the matter. In RCS the Chief Commissioner confirmed this intention.
I have considered the brief points raised by the Chief Commissioner and made an order which has regard to the Chief Commissioner’s expressed intention as well as my substantive decision and orders.

Decision

Having regard to my above findings on the material before me I am not satisfied on the balance of probability that the Land was Mr Wu's principal place of residence for any of the 2006 to 2012 or 2015 Tax Years. Accordingly, the correct and preferable decision of the Tribunal is that the Land was not exempt from land tax for those Tax Years.
Further, Mr Wu has not satisfied me that the Chief Commissioner was in error in the amounts of interest included in either of the 2014 assessment or the 2015 assessment.

Orders

The decisions of the Chief Commissioner under review are affirmed.
If the Chief Commissioner wishes to pursue an application for costs of this matter:

The Chief Commissioner is to give to the Tribunal and to Mr Wu his submissions, not exceeding 5 pages in length, on the costs of this matter and on why the Tribunal should not determine the question of costs without an oral hearing, on or before 10 January 2019 The Chief Commissioner is to have regard to the provisions of ss 50 and 60 of the CAT Act;

Mr Wu is to give to the Tribunal and to the Chief Commissioner his submissions, not exceeding 5 pages in length, on the costs of this matter and on why the Tribunal should not determine the question of costs without an oral hearing, on or before 17 January 2019 Mr Wu is to have regard to the provisions of ss 50 and 60 of the CAT Act;

The Chief Commissioner is to give to the Tribunal and to Mr Wu any submissions, not exceeding 3 pages in length, in reply on or before 24 January 2019.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 17 December 2018

Medium Neutral Citation:	Wu v Chief Commissioner of State Revenue [2018] NSWCATAD 292
Hearing dates:	31 May, 1, 2 June, 10 July and 1, 4 and 5 September 2017. Final submissions 22 December 2017.
Date of orders:	17 December 2018
Decision date:	17 December 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	NS Isenberg RFD, Senior Member
Decision:	1 The decisions of the Chief Commissioner under review are affirmed. 2 If the Chief Commissioner wishes to pursue an application for costs of this matter: (a) The Chief Commissioner is to give to the Tribunal and to Mr Wu his submissions, not exceeding 5 pages in length, on the costs of this matter and on why the Tribunal should not determine the question of costs without an oral hearing, on or before 10 January 2019 The Chief Commissioner is to have regard to the provisions of ss 50 and 60 of the CAT Act; (b) Mr Wu is to give to the Tribunal and to the Chief Commissioner his submissions, not exceeding 5 pages in length, on the costs of this matter and on why the Tribunal should not determine the question of costs without an oral hearing, on or before 17 January 2019 Mr Wu is to have regard to the provisions of ss 50 and 60 of the CAT Act; (c) The Chief Commissioner is to give to the Tribunal and to Mr Wu any submissions, not exceeding 3 pages in length, in reply on or before 24 January 2019.
Catchwords:	REVENUE LAW – merits review - land tax – onus - principal place of residence exemption – concession for absence from former residence – credibility of witnesses – conflicting evidence.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Land Tax Management Act 1956 (NSW) Real Property Act 1900 (NSW) State Revenue Legislation Further Amendment Act 2005 No 111 (NSW) Taxation Administration Act 1996 (NSW)
Cases Cited:	B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 Chief Commissioner of State Revenue -v- Incise Technologies Pty Ltd & Anor (RD) [2004] NSWADTAP 19 Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) (2013) NSWADTAP 25 Haddad v Chief Commissioner of State Revenue (No 2) [2017] NSWCATAD 23 Lane Cove Council v Wu [2011] NSWLEC 43 Macat Pty Ltd v Warringah Council Appeal No 10987 of 2002 Land and Environment Court 4 June 2003 Trust Co. of Australia v Chief Commissioner of State Revenue [2002] NSWADT 21 Yen-Cheng Chuang & Anor v Chief Commissioner of State Revenue [2009] NSWADT 160
Category:	Principal judgment
Parties:	Pei Long We (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel: AH Rider (Respondent) Solicitors: Applicant (self-represented) Crown Solicitor’s Office (Respondent)
File Number(s):	2015/383474; 1510590