IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Commercial Court
Taxation List
S ECI 2023 00539

FRONTLINK PTY LTD	Applicant	
		
v  		
		
COMMISSIONER OF STATE REVENUE	Respondent	

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JUDGE:	Croft J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	17 August 2023	
DATE OF JUDGMENT:	1 September 2023	
CASE MAY BE CITED AS:	Frontlink Pty Ltd v Commissioner of State Revenue	
MEDIUM NEUTRAL CITATION:	[2023] VSC 521	

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PRACTICE AND PROCEDURE — Appeal to the Trial Division of the Supreme Court of Victoria from the Victorian Civil and Administrative Tribunal — Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21 — Victorian Civil and Administrative Tribunal Act 1998, ss 148(1), 148(2A) — Commissioner of State Revenue v Frost (2011) 83 ATR 832 — Must demonstrate a real prospect of success — Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 — Court must not subvert position entrusted by legislature to particular tribunal by seeking out error — Roncevich v Repatriation Commission (2005) 222 CLR 115 — Appeal limited to questions of law and Court not to entertain further debate as to merits of Tribunal’s decision on the facts — Court’s function limited to exercise of supervisory jurisdiction — Hoskin v Greater Bendigo City Council (2015) 48 VR 715 — Leave to appeal not granted.

TAXATION — Land tax — Land Tax Act 2005, s 16(1)(a) — Whether Tribunal erred in construing clause in contract for the sale of land as not requiring purchasers to take possession — Whether Tribunal erred in finding that purchaser had not taken possession of land by signing contract — Whether Tribunal’s construction of the clause was such that it did not operate where lot not registered — contractual interpretation — Meaning of “taken possession” vis‑à‑vis “obtained possession” — Commissioner of State Revenue v Oakbee Pty Ltd (2013) 96 ATR 619 — Highlands Pty Ltd v Deputy Federal Commissioner of Taxes (SA) (1931) 47 CLR 191 — Cam & Sons Pty Ltd v Commissioner of Land Tax (NSW) (1965) 112 CLR 139 — Difference between contractual entitlement to possession and the actual taking of possession — Kameel Pty Ltd v Commissioner of State Revenue (2016) 52 VR 55 — Some action required beyond agreement to take possession for possession to be taken pursuant to s 16(1)(a) of the Land Tax Act 2005.

TAXATION — Land tax — Land Tax Act 2005, s 65 — Primary production exemption — Whether Tribunal erred in holding exemption did not apply — Question of fact not law — No jurisdiction for Court to allow appeal.

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr J Korman	Belleli King & Associates	
			
For the Respondent	Mr DJ Williams KC and
Mr D Morgan	Solicitor for the Commissioner of State Revenue	

HIS HONOUR:
Introduction and Background
Issues
1	This proceeding is brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’).  The applicant, Frontlink Pty Ltd (‘the Applicant’), seeks leave to appeal the Orders of Member R Tang AM of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) made on 18 January 2023 in VCAT proceeding number Z123/2021.  The Tribunal published reasons for the making of these Orders.
2	The proceeding in the Tribunal in relation to which this proceeding is brought was in respect of an assessment by the Commissioner of State Revenue (‘the Respondent’) of the Applicant to land tax in respect of the 2014 land tax year, by way of a Notice of Assessment dated 30 January 2015.  The Applicant objected to the Assessment on the basis that it included a number of properties that the Applicant contended were either exempt from land tax or should be treated as having not been owned by it.  The Applicant’s objection was disallowed by the Respondent, the Commissioner, and the Applicant sought review of the disallowance in the Tribunal.  Following the hearing in the Tribunal on 21 and 22 November 2022 the Tribunal made the Orders the subject of this proceeding.  
3	There were, in substance, four separate sets of issues for resolution in the Tribunal. One of these concerned whether a property owned by the Applicant and located in Elliminyt was exempt under s 65 of the Land Tax Act 2005 (‘LTA’).  The Tribunal found that it was so exempt, a position which the Respondent, the Commissioner, has not appealed and accordingly this is not a live issue.  Another set of issues concerned whether a property owned by the Applicant and located in Lyndhurst was exempt under s 65 of the LTA.  The Tribunal found that it was not exempt and the Applicant does not seek to disturb that finding.  It follows that this proceeding does not require any consideration of the Applicant’s properties at Elliminyt and Lyndhurst.
4	In relation to the other two sets of issues, relating to the Applicant’s properties at Clyde North and Sunbury, the Applicant was unsuccessful in the Tribunal and now seeks leave to appeal to the Court.  Consequently, it is only those two sets of issues, and those properties, which require consideration in these proceedings.
Proposed further amended notice of appeal
5	There are three versions of the Notice of Appeal in this proceeding.  The first was superseded by an Amended Notice of Appeal filed on 14 April 2023 pursuant to leave.  At the time of filing its submissions, the Applicant proposed a Further Amended Notice of Appeal.  On 17 May 2023, after the Applicant had filed its submissions, the Further Amended Notice of Appeal was filed, pursuant to leave.
Clyde North Properties
6	The first set of issues in this proceeding concerns four properties all located in Clyde North (‘Clyde North Properties’).  For each of them, the relevant property had been sold by the Applicant prior to the assessment date, but the sale had yet to settle.  In those circumstances, s 16 of the LTA deems the vendor to be the owner, and thus liable to any land tax, unless the purchaser had taken possession and either at least 15% of the purchase money had been paid or the Respondent, the Commissioner, exercised a discretion to deem the vendor not to be the owner.  The Applicant submitted that a clause of the sale contracts (‘Possession Clause’) operated to give the purchasers de facto possession from the time of entering into the sale contract.  
7	On the Clyde North Properties, the Tribunal found against the Applicant for two reasons.  For three of the four Clyde North Properties, the Tribunal found that the Possession Clause did not apply because it was limited in its operation to contracts entered into prior to the registration of an applicable plan of subdivision.  For all of the Clyde North Properties, the Tribunal found that the Possession Clause did not give the purchaser de facto possession.  Thus, for three of the Clyde North Properties, the Tribunal had two alternative reasons for rejecting the Applicant’s argument.  For the fourth it had one.  The Applicant now seeks to challenge both reasons by its appeal grounds numbered 1 and 2.
Sunbury Properties
8	The second set of issues in this proceeding concerns two neighbouring properties owned by the Applicant and located in Sunbury (‘Sunbury Properties’).  The Tribunal acknowledged that there was some evidence that the Sunbury Properties were being used for primary production, but also evidence that they were being used as a rubbish dump.  The Tribunal was not satisfied that the primary production use represented a sufficiently chief use as to impart a primary production character to the whole of the land and comprising these properties.  The Applicant’s Ground of Appeal 3 seeks to challenge this finding.  The Respondent contends that, despite its wording, Ground of Appeal 3 mischaracterises the Tribunal’s findings and that, in reality, this ground only involves challenging findings of fact made by the Tribunal and, consequently, does not raise a question of law which could be the subject of appeal in these proceedings. 
9	The Applicant makes a second argument about the Sunbury Properties in Ground of Appeal 4.  This is that the Tribunal should, in the alternative, have treated them as partly exempt.  The Respondent observes that this argument was not run in the Tribunal and was, in fact, expressly disowned.  Consequently, the Respondent says, the Tribunal did not err in finding for the Applicant on this argument. Moreover, had the argument been run before the Tribunal it would have been open to the Respondent to cross‑examine on the issue and to lead responsive evidence.  Accordingly, the Respondent says that it would be prejudiced were the Applicant permitted to pursue this argument for the first time in the Court and, accordingly, the Applicant should be held to the forensic choice it made in the Tribunal.  
Principles applicable with respect to appeals
10	Section 148(1) of the VCAT Act provides:
A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding—
(a)	if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or
…
(b)	in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.
It follows from this provision that any appeal is dependent upon two important qualifications.  First, that the appeal be on a question of law, and secondly, that the Court gives leave to appeal.  The legislative policy underlying these provisions is that “VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal”.  It follows that “[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal”.
11	The leave requirement under s 148(1) of the VCAT Act is designed to maintain this position.  As Pagone J said in Commissioner of State Revenue v Frost:
The requirement for leave under s 148(1) of the [VCAT Act] “is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the court do found the subject matter of the appeal”.  It also confers a discretion about whether to grant leave which an applicant must persuade the court to exercise in its favour.  What must be shown will depend upon the particular case bearing in mind the statutory criteria being a grant of leave and not special leave.  It will ordinarily be necessary (in addition to a clearly articulated question of law) for an applicant to make out a prima facie case and in an appropriate case it may be necessary for the applicant to show that the question upon which leave is sought has public or general importance.
12	An additional safeguard has since been imposed.  Effective from 1 May 2018, the VCAT Act was amended to include s 148(2A).  The section provides:
The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.
13	This amendment sees the replacement of the requirement that an applicant seeking leave to appeal from VCAT to the trial division of the Supreme Court must show that there is a real or significant argument to be put that an error below exists, sometimes referred to as the Hulls test.  Instead, all applicants under s 148 are now subject to the same and more burdensome requirement:  they must demonstrate that the appeal has a real prospect of success.  With respect to applications subject to the same test, the Court of Appeal has said:
the test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a “real“ as opposed to a “fanciful“ chance of success; that the “real chance of success“ test is to some degree a more liberal test than the “hopeless“ or “bound to fail” test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not “hopeless“ or “bound to fail”, it does not have a real prospect of succeeding.
14	The new requirement of s 148(2A) makes express the restraint this Court ought exercise when reviewing decisions of VCAT, a restraint long and more generally recognised in case authority.  In considering applications of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error.  Thus, Kirby J in Roncevich v Repatriation Commission said:
Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons.  The focus of attention is on the substance of the decision and whether it has addressed the “real issue” presented by the contest between the parties.
Similarly, in Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc, Ashley J said:
This Court has said more than once that it should not examine briefly stated reasons by an expert Tribunal in an over‑legalistic manner or by the over‑zealous drawing of inferences in order to disclose some supposed error; although where unambiguous language is used, the user should be taken to mean what the words say.  I should add that the Court is not entitled to interfere with the Tribunal’s decision unless it is satisfied that there was in fact a vitiating error of law.  It is not enough for the appellant to show that the Tribunal’s reasons for its decision are so expressed as to suggest the possibility that it proceeded upon a wrong view of the law.  In support of the several propositions that I have just stated I refer to Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works, Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works and Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works.
Additionally, “[o]n appeal this Court must recognise the forensic realities of the way in which the case was put to the Tribunal.  It is these realities to which a Tribunal must respond in its reasons.”
15	In terms of the parties’ submissions, it is clear from the authorities to which reference has been made that the role of a specialist tribunal, such as VCAT, is not to be usurped by the Court and that a decision of such a tribunal is not to be interfered with absent a vitiating error of law.
16	Moreover, the authorities also indicate and emphasise that it is not the function of the Court on an application under s 148 of the VCAT Act to substitute its own views on the evidence which is before the Tribunal, its relevance, significance and inferences which might be drawn from it.  Thus, the Court of Appeal in Hoskin v Greater Bendigo City Council said, with respect to an appeal pursuant to s 148 of the VCAT Act:
9.	Such an appeal is limited to an appeal on questions of law.
10.	It is not open to this Court to entertain further debate as to the merits of the Tribunal’s decision on the facts.  It is only if a conclusion on the facts was not open to it that an error with respect to factual matters will involve a question of law.
11.	This Court’s function is limited to the exercise of a supervisory jurisdiction intended to ensure that the merits review which the Tribunal carried out was undertaken in accordance with its statutory obligations.
17	For the reasons which follow, I am not satisfied that the applicant has established any proper basis upon which leave to appeal should be granted on any of the four Grounds.  Moreover, as these reasons indicate, an appeal on any of these Grounds would, in my view, have failed in any event, even if leave to appeal were to have been granted.
The appeal
18	Leave to appeal is sought with respect to the following questions of law as put by the Applicant in the Further Amended Notice of Appeal:
(1)	What is the proper construction of clause 35 of the contracts of sale concerning Lots 615, 618 and 672, in circumstances where the relevant plan of subdivision was registered prior to formation of the contracts?
(2)	What is the nature of action taken by a purchaser that will suffice to permit a finding that the purchaser has taken possession of land for purposes of section 16(1)(a) of the Land Tax Act 2005 (Vic) (“Act”)?
(2A)	Further or alternatively. was it impossible, as a proposition of law, for the purchaser of lot 412, being a parcel of land identified in an unregistered plan of subdivision to bind itself to take possession of the land it had purchased once the plan was registered?
(3)	Is the requirement of section 65 of the Act that the subject land be “used primarily for primary production”, satisfied by pointing to a qualifying primary production activity being conducted on the land that gives the land the character of being mainly used for that activity?
(3A)	Further or alternatively, did the Tribunal err in finding that it required evidence as to the revenue derived from an activity conducted on 99.45% of the land and the income and expenditure associated with an activity conducted on 0.55% of the land, in order to determine whether the land was used primarily for primary production for purposes of section 65 of the Act?
(4)	Alternatively, the taxpayer submitted that although the subject land was used for two purposes, section 65(2) of the Act was not engaged because the use for the second purpose was trivial and the land as a whole had the character of being mainly used for the first purpose. The Tribunal found the use for the second purpose was not trivial and ruled no part of the subject land was exempt. Before takin [sic.] that step, should the Tribunal have first considered whether that part of the land which was used for the first purpose was exempt land pursuant to section 65(2) of the Act?
(5)	Is evidence that land was licensed for the purpose of raising cattle, and that cattle were grazing on the land throughout the period of that licence, sufficient to establish that the subject land was “used primarily for primary production” for purposes of section 65 of the Act?
19	The four grounds relied upon in support of the Appeal are as follows:
(1)	The Tribunal erred in determining that clause 35 of the contracts of sale in respect of Lots 615, 618 and 672 did not, on its true construction, require purchasers to take possession of the purchased land upon entry into the contracts in circumstances where the relevant plan of subdivision was registered prior to formation of the contracts.
(2)	The Tribunal erred in finding that the purchaser of Lot 421 had not taken possession of the land upon registration of the plan of subdivision for purposes of s 16(1) of the Act. Specifically, the Tribunal erred in finding that:
(a)	it is impossible for a purchaser to take any action in relation to land which is the subject of an unregistered plan of subdivision, prior to the registration of the plan of subdivision; and/or
(b)	a purchaser who undertakes a binding obligation to take possession of land the subject of an unregistered plan of subdivision upon registration of the plan of subdivision, has not taken any action that results in the purchaser taking possession of that land upon registration, for purposes of section 16(1)(a) of the Act; and/or
(c)	section 16(1)(a) of the Act cannot be satisfied if the purchaser’s actions that cause it to take possession of land on or after registration of the plan of subdivision are the direct result of actions taken prior to the registration of the plan of subdivision.
(3)	The Tribunal erred in holding that the requirement in section 65 of the Act that the subject land be “used primarily for primary production” was not satisfied in relation to the Sunbury Land. Specifically, the Tribunal erred in finding that:
(a)	the requirement is not satisfied by pointing to a qualifying primary production activity being conducted on the land that gives the land the character of being mainly used for that activity; and
(b)	further or alternatively, in circumstances where 99.45% of the land was used for cropping and 0.55% of the land was used as a rubbish dump, the requirement could not be satisfied unless evidence was adduced establishing the revenue generated from the sale of the wheat crop and the income and expenditure associated with the operation of the rubbish dump.
(4)	Alternatively, the Tribunal erred in failing to determine, in relation to the Sunbury Land, that part of land outside greater Melbourne which the evidence established was used for primary production was exempt land pursuant to s 65(2) of the Act, even though an activity other than primary production was carried on on another part of the land.
Legislative provisions
20	The LTA imposes land tax on all taxable land in Victoria.  Land tax is payable by the owner of the land as at 31 December.  Owner is defined by s 10, which relevantly provides:
(1)	The following persons are owners of land for the purposes of this Act –
(a)	a person entitled to land for a freehold estate in possession;
…
(e)	a person deemed by this Act to be the owner of land.
21	Sections 15 and 16 of the LTA contain specific provisions that address the situation of land that is the subject of a contract of sale but where title has not passed as at the relevant date.  They provide:
15	Purchaser of land under contract of sale
(1)	For the purposes of this Act, a purchaser under a contract of sale of land is deemed to be the owner of the land (but not to the exclusion of any other person) if the purchaser has taken possession of the land.
(2)	Subsection (1) applies whether or not the contract of sale has been completed by the transfer of the land.
16	Vendors of land
(1)	For the purposes of this Act, the vendor of land under a contract of sale of land is deemed to be the owner of the land (but not to the exclusion of any other person) until –
(a)	the purchaser has taken possession of the land; and
(b)	subject to subsection (3), at least 15% of the purchase money has been paid.
(2)	Subsection (1) applies whether or not the contract of sale has been completed by the transfer of land.
(3)	The Commissioner may determine that the vendor is deemed not to be the owner of land despite the fact that 15% of the purchase money has not been paid if the Commissioner is satisfied that –
(a)	the contract of sale was made in good faith and not for the purpose of evading the payment of land tax; and
(b)	the contract of sale is still in force.
22	Certain primary production land is exempt from land tax under subdivision 2 of Part 4 of the LTA.  Relevantly, s 65 provides:
65	Exemption of primary production land outside greater Melbourne
(1)	Land outside greater Melbourne that is used primarily for primary production is exempt land.
(2)	If a part of any land outside greater Melbourne is used primarily for primary production that part is exempt land even if an activity other than primary production is carried on on any other part of the land.
23	Section 64 of the LTA defines “primary production” relevantly to mean:
(a)	cultivation for the purpose of selling the produce of cultivation (whether in a natural, processed or converted state); or
(b)	the maintenance of animals or poultry for the purpose of selling them or their natural increase or bodily produce; or
(c)	…
(d)	…
(e)	the cultivation or propagation for sale of plants seedlings mushrooms or orchids;
Grounds 1 and 2 — the Clyde North Properties
Tribunal’s findings relating to the Clyde North Properties
24	Each of the four Clyde North Properties was the subject of a sale contract that included the following clause, referred to as the Possession Clause.  The Possession Clause is identical in each of the sale contracts, but for three of the contracts (those for Lot 615, Lot 618 and Lot 672) it is Special Condition 35 and for the other (Lot 421) it is Special Condition 36.  The text of the Possession Clause in the contracts for Lots 615, 618 and 672 is as follows:
35	POSSESSION
35.1	The Vendor must provide possession of the Land to the Purchaser on the date on which the Plan is registered by the Registrar of Titles (“Registration Date”), and the Purchaser agrees that the purchaser must take possession of the Land on the Registration Date.
35.2	At all times after the Registration Date, the Purchaser shall:
35.2.1.	maintain the Land in good repair and keep the Property safe, lawful and free from contaminations and dangerous substances;
35.2.2	pay any charges for any water or electricity consumed or used in connection with the Land;
35.2.3	be responsible for and make good all damage done to the Land (or to any part of the Land or to fixtures or fittings) by the Purchaser, its servants, agents or contractors;
35.2.4	at all times keep the land in a thoroughly clean and tidy condition at its own expense to the satisfaction in all respects of the Vendor;
35.2.5	comply in all respects with the requirements of any relevant Acts of Parliament, rules, regulations, by‑laws or ordinances of the Commonwealth or State (including but limited to the Occupational Health and Safety Act 2004 (Vic)) or of any competent local or special authority applicable, and ensure that all necessary permits, consents and applications are obtained prior to the commencement of any works;
35.2.6	take out and keep current at all times during the term of this Contract a public risk insurance policy covering loss of life and bodily injury and loss of or damage to property occurring on the Land and any adjacent land for an amount of $20,000,000.00 for any single accident or event and which sets out the Vendor as an insured party;
35.2.7	obtain and keep in force a Work Cover insurance policy under the Accident Compensation (Work Cover Insurance) Act 1993 (Vic);
35.2.8	not alter the Land in any way without the written consent of the Vendor, and not undertake any construction work; and
35.2.9	observe all obligations that affect owners or occupiers of the Land.
35.3	The Purchaser releases the Vendor, the Developer and their Representatives from any Loss or Claim that the Purchaser and the Representatives of the Purchaser directly or indirectly suffer, incur, pay or are liable for which results in any way from the Purchaser’s possession or use of the Land.
35.4	The Purchaser must indemnify hold harmless and keep indemnified the Vendor, the Developer and their Representatives against any Loss or Claim that the Vendor, the Developer and their Representatives directly or indirectly suffer, incur, pay or are liable for which results in any way from the Purchaser’s possession or use of the Land.
35.5	At the termination of this Contract, the Purchaser shall forthwith at its own expense remove all property of the Purchaser from the Land.
35.6	The Vendor shall not be in any way responsible for any property of the Purchaser which is placed or brought onto the Land by the Purchaser and if the Purchaser on request by the Vendor or upon the termination of this Contract fails to remove them and the Vendor shall not be answerable in respect of any loss or damage caused by that removal. It shall be lawful for the Vendor to sell any items left on the Land by the Purchaser and pending such sale to store them at the risk and expense of the Purchaser in all respects and all costs or expenses incurred by the Vendor in connection with such sale and storage shall be recoverable from the Purchaser. The Vendor shall further be entitled to deduct from any surplus in its hands any amount due to the Vendor under this Contract before accounting to the Purchaser in respect of such moneys.
35.7	It is agreed by the parties that the Purchaser shall obtain no tenancy or leasehold interest in the Land or any part of the Land, nor shall this Contract be construed as conferring upon the Purchaser any of the rights referred to in Section 42 of the Transfer of Land Act 1958 (Vic).
35.8	The Vendor shall be entitled to enter the Land at any time after the Purchaser has become entitled to possession of the Land and prior to Settlement and do all such things as the Vendor requires for any purpose associated with the development of the Development Land, and to satisfy any requirement of any authority with respect of such development.
35.9	The Purchaser must prepare the notice of acquisition of an interest in land showing the “Date of Possession” as at the Registration Date, and must deliver a copy to the Vendor’s Legal Practitioner at least 10 Business Days before the Due Date for Settlement.
25	A number of other special conditions contained in these contracts are potentially relevant and should be noted:
•	Special Condition 3 expressly deletes a number of general conditions and, in most cases, states the special condition that replaces it.
•	Special Condition 24 is headed “Unregistered plan” and provides additional conditions where a lot was sold on an unregistered plan of subdivision.
•	Special Condition 51 provides that the purchaser or their representative may inspect the property at any reasonable time during the seven days preceding the due date for settlement.
•	General Condition 10 provides:
At settlement:
(a)	the purchaser must pay the balance; and
(b)	the vendor must:
(i)	do all things necessary to enable the purchaser to become the registered proprietor of the land; and
(ii)	give either vacant possession or receipt of rents and profits in accordance with the particulars of sale.
26	The contract and settlement dates varied for each Lot, as did the dates on which the relevant plans of subdivision were registered.  The details were set out by the Tribunal in tabular form:
Lot	Sale Contract Date	Date of Registration of Plan of Subdivision	Date of transfer	
421	11 November 2014	24 November 2014	13 March 2015	
651	10 December 2014	2 May 2014	23 March 2015	
618	18 November 2014	2 May 2014	13 February 2015	
672	21 November 2014	30 June 2014	7 January 2015	
27	Finally, as the Respondent emphasises, there was no evidence before the Tribunal as to when the purchasers of any of the Clyde North Properties took physical possession of their Lot.
Ground 1 — construction of the contracts as to the effect of pre‑contractual registration
28	Ground 1 is that the Tribunal erred in determining that clause 35 of the sale contracts in respect of Lots 615, 618 and 672 did not, on its true construction, require purchasers to take possession of the purchased land upon entry into the contracts in circumstances where the relevant plan of subdivision was registered prior to formation of the contracts.
29	The Possession Clause states that the Vendor must provide possession to the Purchaser on the date upon which the Plan is registered and the Purchaser must take possession of the Land on that date.  It was not in dispute in the Tribunal that for three of the four Clyde North Properties, the relevant contract was not entered into until after the Plan had already been registered.  For those Lots, on a literal reading, the Possession Clause could not have been complied with.  The parties accepted that there were two possible constructions of the Possession Clause.  The first construction is that the Possession Clause only applies where there is not already a registered plan of subdivision in respect of the property being sold.  The Tribunal expressed this construction slightly differently, but nothing turns on the difference of expression.  The second construction was that where the sale contract relates to land already the subject of a registered plan of subdivision, the Possession Clause has effect “at all possible times”.  The Tribunal adopted the first construction.
Applicant’s submissions
30	The Applicant submitted that, on its true construction, the Possession Clause applied at all possible times — that is, from the date of entry into the contract.  This is contrary to the position put by the Respondent that this clause applied only in relation to land on an unregistered plan of subdivision and was otherwise inoperative.  The Applicant submits that the Tribunal correctly examined the purpose, text and context of the Possession Clause to determine which of the competing interpretations was correct but that its findings were, nevertheless, flawed leading it to incorrectly determine that the Possession Clause had no effect when the purchaser acquired land on a registered plan of subdivision.  The Tribunal accepted the Applicant’s contention that the purpose of the Possession Clause was to shift risks of ownership from the vendor to the purchaser.  It found that the contractual purpose was made clear by:
(a)	the range of responsibilities foisted on the purchaser by cl 35.2 or 36.2 which applied “at all times after the Registration Date”.  These included obligations which could normally be satisfied only by taking possession of the land, including requirements to:
(i)	maintain the land in good repair, and keep it safe, lawful and free from contaminations and dangerous substances;
(ii)	at all times keep the Land in a thoroughly clean and tidy condition at its own expense to the satisfaction in all respects of the Vendor; and
(iii)	observe all obligations that affect owners or occupiers of the Land; and
(b)	the indemnity provided by cl 36.4 against liabilities arising from “the Purchaser’s possession or use of the Land”.
31	It is contended, however, that the Tribunal having found the contractual purpose then erred in finding that this was only a conditional or contingent intention, which could be discerned only “… in circumstances where it is not known when a plan of subdivision will be registered and hence how long the period between registration of that plan and settlement might be”.
32	As the Applicant says, the Tribunal observed that where the purchased land was already on a registered plan of subdivision, there was no uncertainty as to the registration date, and settlement was in these circumstances the date fixed between the parties, “meaning that the period of risk is certain”.  But, it is said, the Tribunal wrongly held that in these circumstances, the parties did not intend to shift the risk burden by having the purchaser take possession upon entry into the contract.
33	More particularly, the Applicant submits that, first, there was no discernible basis upon which the Tribunal was able to circumscribe the evident intention of the contracting parties.  The supposition that buyer and seller intended to control pre‑settlement risks in some but not other circumstances is, it is said, speculative: it has no basis in any express or implied language in the contract.  Secondly, the Applicant submits that, as the table below shows, the Tribunal was operating on a flawed presumption with respect to risk in that the duration of the risk was not necessarily greater where the date or registration was unknown at the time the contract was formed.  It is said that the vendor was in fact exposed to greater risk in relation to two out of the three contracts where registration took place prior to formation, as compared with the period of risk in relation to the contract for Lot 421.
Lot	Sale Contract Date	Specified settlement date	Period of risk	
421	11/11/14	6/1/15 or 2 weeks after registration	Minimum: 14 days
Maximum: 56 days	
651	10/12/14	3/3/15	83 days	
618	18/11/14	13/2/15	87 days	
672	21/11/14	30/12/14	40 days	
34	Moreover, it is said that the duration of the risk in respect of Lot 421 was known at the time the contract of sale was formed and was between 14 and 56 days, because the contract of sale specified that settlement would occur on the later of the specified date or two weeks after the date of registration.
35	Thirdly, it is said that there is no reason why the Developer, who drafted the contract and was a party to it, would ever wish to take on the risks of ownership, whether or not the duration of that risk was fixed.  Thus it is said that if the contract is to be given a businesslike interpretation by reference to what a reasonable business person would understand it to mean and by reference to the commercial circumstances and purposes it addresses, as it must, it makes no sense to suggest that the Developer intended to give up the benefit of a protective clause which cost it nothing to include.  Further, it is said that for its part the purchaser was prepared to take on the risk of possession where the date of registration of the subdivision was unknown, so there is no reason to infer it would not have been prepared to do so where the date was known.  
36	As to textual matters, the Applicant contends that the Tribunal did not identify any text within the Possession Clause or the Contract of Sale that evinced an intention that the Possession Clause would, in such a circumstance, be inoperative.  Rather, it decided that the failure by the parties to expressly deal with the eventuality of registration prior to formation of the contract made the contractual text “more consistent with the Possession Clause being inapplicable and the risk remaining where it naturally lies, ie with the vendor”.
37	In this respect the Applicant refers to authority that it is seldom helpful to reason from the absence of an express provision in a contract that a certain meaning was or was not intended nor because the parties did not foresee the factual situation which had arisen and to which the contract applies.  Hence it is contended that it is inappropriate to reason from a failure to contemplate a given event that the contract must be taken not to apply if that event arises, referring to the statement of Lord Neuberger in Re Sigma Finance Corp:
I do not think it is normally convincing to argue that, if the parties had meant a phrase to have a particular effect, they would have made the point in different or clearer terms. That is a game which all parties can normally play on issues of interpretation.
38	The Applicant submits further that the Tribunal erred in finding that the context of the contracts of sale suggests an intention to render the Possession Clause inoperative.  The Tribunal based its finding on three contractual clauses:
(a)	General Condition 10.1(b)(ii) which provides for vacant possession (or rent and profits relating to the land) to be given at settlement; 
(b)	Special Condition 51 which affords the Purchaser a right to inspect the Property in the seven day period before settlement; and
(c)	Special Condition 25 (or 24 in some contracts) which contained provisions that were expressly restricted to the circumstance where property was sold on a lot on an unregistered plan of subdivision.
39	It is said that none of these three contractual provisions establish an intention that the vendor take on the risks of ownership on acquisition of land identified on a registered plan of subdivision.  Moreover, it is said that to the extent that GC 10 and SC 51 are inconsistent with the circumstance where registration took place prior to contractual formation, they are equally inconsistent with the circumstance where registration post‑dates formation and the Possession Clause and the purchaser is unequivocally bound to take possession upon registration.  Thus it is said that given the requirement that settlement occur at least two weeks after registration, the purchaser would be expected to ordinarily be in possession at the time the right to inspect and the right to vacant possession arises.
40	Consequently, it is contended that since GC 10 and SC 51 co‑exist in the contract of sale with the Possession Clause, the three provisions should be interpreted harmoniously.  In this respect it is said that GC 10 and SC 51 will have work to do where, despite the Possession Clause, the vendor has leased the land to a third party, or has otherwise prevented the purchaser from taking possession.  Additionally, it is said that the wording of SC 24 or 25 supports the opposite conclusion to that reached by the Tribunal.  The chapeau to that condition reads:
If the Property sold is a lot on an unregistered plan of subdivision, the following conditions shall also apply …
On this basis it is said that if the Possession Clause was intended to apply only where the property was on an unregistered plan of subdivision when it was sold, that clause would have followed the chapeau and would have been situated within SC 24 or 25.  It is said that the fact that it is a standalone provision lends strong support to the view that, like most or all of the other standalone provisions, it applies whether the plan is registered or unregistered at the time of sale.  
41	It is also submitted by the Applicant that SC 35.2 or 36.2 supports the construction of the contract on the basis that another important aspect of the contractual context indicates the parties intended that the purchaser would take possession whether or not the plan of subdivision was registered when the property was sold.  The sub‑clause immediately following the Possession Clause (SC 35.2 or 36.2) sets out what the Tribunal described as “the range of responsibilities that are foisted upon the purchaser” and which the Tribunal accepted indicated that the evident purpose of the Possession Clause was to shift risks of ownership from vendor to purchaser.
42	It is observed that the text of the chapeau to SC 35.2 or 36.2 — “at all times after the Registration Date, the Purchaser shall:” — applies to contracts formed after as well as before registration.  Thus it is said that where the plan of subdivision has already been registered when the contract is formed, the purchaser is saddled with the range of responsibilities listed in SC 35.2 or 36.2 from the moment of entry into the contract.  It must follow, it is said, that the parties intended possession to be taken at the time that the obligation to comply with SC 35.2 or 36.2 arose because some of the responsibilities are compatible only with possession having been taken.  
43	In summary, the Applicant contends that taken together, SC 35.2 or 36.2, the parties’ objective intention to shift risk from vendor to purchaser, and the location of the Possession Clause as a standalone provision rather than part of SC 24 or 25, establishes that the parties objectively intended that the Possession Clause would take effect immediately where the land that is sold is already on a registered plan of subdivision.
44	It should also be observed that a significant difficulty with the Applicant’s reliance on party intention is that, as conceded, the contracts are standard form contracts which were used for a number of separate sales and, consequently, there is no evidence, insofar as such evidence is admissible, with respect to the intention of the parties to any particular sale.  Rather, the Applicant’s arguments with respect to intention are limited to the intentions of the vendor and its said to be desire to minimise the risks of land ownership.  This position is said to be “objective intention” derived from a consideration of the terms of the contracts.  However, as the Respondent contends, these terms do not necessarily point to such an intention as the effect of these terms in this respect is the product of a process of construction and, in the present circumstances, it is not contended that the Tribunal did not apply proper principles to the construction process.  Rather, the Applicant is saying that, applying these principles, the Tribunal should have formed a different view.  Without more the possibility of a different outcome in the construction process does not amount to an error of law. 
Respondent’s submissions
45	As to the first construction of the Possession Clause, that it only applies where there is not already a registered plan of subdivision in respect of the property being sold, the Respondent contends that this construction involves a straightforward reading down of the Possession Clause to prevent it having the capricious and unreasonable effect of placing both parties in breach upon signing the sale contract without severing it altogether.  This construction is, it is said, also supported by the other terms of the sale contracts.  Each consist of particulars of sale, special conditions and general conditions, in that order of priority.  As submitted by the Respondent it does seem likely that the expected reaction of a purchase when the plan of subdivision had been registered would be to assume the Possession Clause was no longer applicable. 
46	More particularly, Special Condition 3 expressly deletes some of the general conditions and, in some cases, replaces them with alternative special conditions.  In particular, GC 10.3 is deleted but the balance of GC 10 is not.  The effect is, it is said, that GC 10.1(b)(ii) remains a term of the sale contracts.  It provides that at settlement the vendor must give either vacant possession or receipt of rents and profits.  On this basis, the Respondent contends that to construe the Possession Clause as giving the purchaser possession at the earlier of the registration of the plan of subdivision and the date of the sale contract leaves no work for GC 10.1(b)(ii).  Thus it is said that because the parties left that provision in their agreement this is only consistent with the intention that the Possession Clause was only to operate if a plan of subdivision had not already been registered in respect of the land.  Special Condition 51 also assumes that in some circumstances a purchaser will not already have possession at settlement.  It provides for inspection by the purchaser in the seven days prior to settlement.  
47	The Respondent submits that, as the Tribunal recognised, there are good reasons why the parties may have intended the Possession Clause to operate in the manner it found.  In particular, the risk for the vendor is greater where no plan of subdivision has been registered and settlement is therefore dependent on the occurrence of an event outside the control of the parties and that may not happen for some time.  It is said that in those circumstances, it is understandable that a vendor wishing to shift risk as soon as possible would insist on a provision that transfers possession immediately on registration of the plan of subdivision.  On the other hand, where a plan of subdivision has already been registered, the vendor can protect itself by agreeing to an appropriate settlement date.  
48	Thus, the Respondent contends that the Tribunal correctly construed the sale contacts and correctly found that the Possession Clause does not operate where there is already in place a registered plan of subdivision.  As the Possession Clause was the only basis upon which the Applicant contended that the purchasers had taken possession for the purposes of s 16(1)(a) of the LTA, this conclusion means that Lots 615, 618 and 672 were correctly treated as being owned by the Applicant at the relevant time and that the Respondent, the Commissioner, was right to assess it to land tax accordingly.
Further matters
49	On the basis of the Tribunal’s findings as to the criticality of the three contractual clauses with respect to the proper interpretation of the Possession Clause, GC 10.1(b)(ii), SC 51 and SC 25 (or 24 in some contracts), I am of the view, for the reasons indicated in the submissions by the Respondent, that there is no error in the Tribunal’s construction of the contracts and its conclusion that the Possession Clause does not operate where there is already in place a registered plan of subdivision. 
50	Moreover, I am of the view that the Applicant does not gain support for the construction of the contracts which it puts forward having regard to the provisions of SC 35.2 or 36.2.  As with all the provisions of the contracts they need to be viewed harmoniously and in as business‑like a way as possible and, that being so, these provisions do not affect the significance and weight given to the three contractual clauses to which reference has been made and upon which the Tribunal based critical reasoning.
51	In the context of this ground of appeal I appreciate that the Applicant contends that critical to the interpretation of these and other provisions of the contracts, and informing the basis of its business efficacy argument, is that the contracts were regulating the allocation of risks of ownership as between vendor and purchaser. It is a trite proposition that entry into a contract of sale of real property generally passes risk, particularly in the eye of equity. Nevertheless, risk is passed according to the provisions of such a contract, properly construed. In this instance the Applicant raises arguments with respect to the passing and management of risk which, as I have indicated, do not have regard to the actual provisions of the contracts construed as harmoniously as possible applying proper principles of construction.  Moreover, as previously observed, arguments with respect to party intention do not assist the Applicant having regard to the nature of the contracts as standard form, multi‑use contracts.  It follows that, apart from the general proposition that contracts for the sale of real property do pass risk, these arguments are not compelling or of assistance on their construction and operation.
52	Finally, as the Respondent observes, it was always possible for the Applicant to regulate its risk where sales were of properties where the plans of subdivision had been registered by agreeing an appropriate settlement date. Thus if, as the Applicant contends, a relevantly critical intention of the parties to the contracts was to manage risk that intention was not defeated or thwarted by the construction applied by the Tribunal as, on that construction, it remained open for the Applicant to manage risk under the contracts as it might choose to do.
Ground 2 — Whether the purchasers had taken possession
Applicant’s submissions
53	At the outset the Applicant makes reference to s 16(1)(a) of the LTA, emphasising that its provisions mean that the vendor will not cease being the owner of the relevant land until, among other things, “the purchaser has taken possession of the land” (emphasis added).  In this vein reference is made to Cam & Sons Pty Ltd (in vol liq) v Commissioner of Land Tax (NSW) where the purchasers of land had not taken physical possession or used the land for any purpose.  Nevertheless, the High Court found that the purchaser had obtained possession of the lands, and held that a purchaser will have obtained possession of land when the vendor has done all that is necessary for him to do to enable the purchaser of land to assume actual possession or receipt of its rent and profits.  Further, the High Court held in Cam & Sons that when determining whether a purchaser of land had obtained possession of land, consideration should be given to the construction of the relevant contract of sale and its terms, as a whole, in order to determine whether the vendor and purchaser intended the purchaser of land to take possession of the land, and in what capacity the purchaser was to take possession of the land.  
54	In the present context, the Applicant submits that the Possession Clause makes it clear that the parties intended that the purchaser take possession, as purchaser, from the date of registration of the plan of subdivision or the date of entry into the contract.  This, it is said, is consistent with Commissioner of State Revenue v Oakbee Pty Ltd, where Ginnane J said:
The nature of the conduct by a purchaser that will suffice to permit the finding that it has taken possession of land will depend on a range of matters. These will include the terms of the contract of sale and the nature of the land. In an appropriate case, something less than a purchaser taking physical possession of the land may satisfy the requirement that the purchaser ‘has taken possession of the land’.
55	Applying these authorities in context, the Applicant contends that the Tribunal accepted its submission that Ginnane J in Oakbee left open the possibility that something other than the taking of physical possession would suffice to establish the taking of de facto possession.  However, it is submitted that the Tribunal erroneously held that a purchaser of a parcel of land identified in an unregistered plan of subdivision cannot, apparently as a proposition of law, bind itself to take possession of land when the plan of subdivision is registered.  Specifically, it is submitted the Tribunal held incorrectly that:
(a)	it is impossible for a purchaser to take any action in relation to land which is the subject of an unregistered plan of subdivision, prior to registration of the plan of subdivision;
(b)	a purchaser who undertakes a binding obligation to take possession of land the subject of an unregistered plan of subdivision upon registration of the plan of subdivision has not taken any action that results in taking possession of land for purposes of s 16(1)(a) of the Act; and
(c)	s 16(1)(a) of the Act cannot be satisfied if the purchaser’s actions that cause it to take possession of land on or after the registration date are the direct result of actions taken prior to the registration of the plan of subdivision.
56	Turning to specific lots, it is contended that the Tribunal’s objections fall away in the event that the first proposed ground of appeal is upheld so that the contracts of sale for Lots 615, 618 and 672 are construed to require the purchaser of land on a registered plan of subdivision to take possession immediately upon entry into the contracts.  On this basis it is said that by entering into an agreement that compelled the purchasers to take immediate possession of the purchased land, these three purchasers took possession of the land for purposes of s 16(1)(a) of the LTA upon entry into the contracts of sale, which was prior to 31 December 2014.
57	Turning to Lot 421, which was the lot in relation to which the plan of subdivision was registered after the parties entered into the contract of sale, the Applicant contends that by entering into the contract of sale, the purchaser promised and was contractually bound to take possession of the land upon registration of the plan.  The contract of sale for Lot 421 identifies the subject land in the Particulars of Sale as:
Lot 421 on proposed plan of subdivision no PS706788S (“Plan”) being part of the land in certificate of title volume 11435 folio 240 and includes all improvements and fixtures.
The Applicant again makes reference to Special Condition 25 which is said to deal with issues arising where the property sold is a lot on an unregistered plan of subdivision.  SC 25.4.2 provides:
Without limiting the generality of any other provision of this Contract, the Purchaser must accept as identical with the Land described in the Particulars of Sale:
(a)	the lot bearing the same number on the Plan when registered as the number set out in the Particulars of Sale; or
(b)	if the lot shall at any time prior to registration be renumbered, the lot on the Plan as registered which shall occupy the same or approximately the same position on the Plan as the lot described in the Particulars of Sale.
58	On the basis of these provisions it is said that as the description of a parcel of land that was contracted to be conveyed was certain the effect of Special Condition 25.4.2 is that the vendor agreed to convey to the purchaser the lot bearing the same number as on the unregistered plan of subdivision or, if there was a renumbering, occupying the same or approximately the same position on the registered plan of subdivision, as the land described as Lot 421 on the unregistered plan.  For these reasons it is said that the contract of sale was valid and enforceable and that there was no impediment at law preventing the vendor from contractually binding itself to deliver the as‑yet non‑existent title to a parcel of land whose boundaries had not yet been precisely defined.  The fact that the vendor could not comply with the obligation to deliver title at the time of entry into the contract did not, it is said, prevent it from contracting to so comply once title came into existence as a result of the registration of the plan of subdivision, hence the definition of the parcel of land to be conveyed.  
59	For these reasons the Applicant says that it must follow that there was no impediment at law preventing a purchaser from contractually binding itself to take possession of land whose boundaries had not yet been precisely defined.  Pursuant to Special Condition 25.4.2, the Purchaser bound itself by the Possession Clause to take possession of Lot 421 on the registered plan or, if the lots were renumbered, the land occupying the same or approximately the same position on the registered plan of subdivision, the Applicant contends.  Moreover, it is said that the fact that the purchaser could not comply with the obligation to take possession at the time of entry into the contract did not prevent it from contractually binding itself to do so once the boundaries of the land sold were precisely defined as a result of the registration of the plan of subdivision.  Consequently, contrary to the Tribunal’s findings, the Applicant submits that:
(a)	it is possible for a purchaser to take action in relation to land which is the subject of an unregistered plan of subdivision, prior to registration of the plan of subdivision — and, specifically to bind itself to take possession of the corresponding lot on the registered plan, immediately upon registration;
(b)	a purchaser who undertakes a binding obligation to take possession of land the subject of an unregistered plan of subdivision upon registration of the plan of subdivision will take action that results in taking possession of land for purposes of s 16(1)(a) of the LTA immediately upon registration of the plan; and
(c)	s 16(1)(a) of the LTA can be satisfied if the purchaser’s actions that cause it to take possession of land on or after the registration date are the direct result of actions taken prior to the registration of the plan of subdivision — namely, entry into a contract of sale pursuant to which the purchaser bound itself to take possession upon registration.
Thus the Applicant contends that it follows that the effect of the Possession Clause was to cause the purchaser of Lot 421 to unequivocally take possession of the purchased land upon registration of the plan of subdivision on 24 November 2014 — which was, of course, prior to 31 December 2014. 
60	Some particular criticisms were made of the Tribunal’s observations as to the impossibility of a purchaser taking possession prior to registration of the plan of subdivision and thus the obligation to take possession only crystallising on this event.  In any event, for the reasons which follow, the entry into an obligation by a purchaser to take possession at a future time does not constitute a taking of possession in the presently relevant sense.  Moreover, there is no error in the Tribunal observations in the paragraph to which the Applicant refers.  Rather, I entirely agree with these observations. 
61	The Applicant’s concluding submission in this respect is that courts and tribunals should strive to uphold contractual provisions rather than let them fail for uncertainty.  Effectively, it is said, the Tribunal held that the Possession Clause must fail for uncertainty, because “prior to the registration of the plan of subdivision the exact identity of the land is uncertain”.  This, it is said, is at odds with the position as stated by Barwick CJ in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd:
So long as the language employed by the parties, to use Lord Wright’s words in Scammell (G.) & Nephew Ltd v Ouston (1941) AC 521 is not “so obscure and incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention”, the contract cannot be held to be void or uncertain or meaningless. In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved.
62	As indicated previously, the Applicant’s submission with respect to the Tribunal’s position or decision on the Possession Clause is a gloss on the Tribunal reasons which is inaccurate and provides no basis for this submission.  On this basis, it is contended that if there were any uncertainty as to the operation of the Possession Clause the Tribunal erred in failing to resolve that uncertainty by construing the clause in light of SC 25.4.2 in circumstances where it is said the clear intention of the parties was that the purchaser should take possession of the land to be conveyed upon registration of the plan of subdivision. For the preceding reasons this does not, however, address the application and operation of s 16(1)(a) of the LTA insofar as those provisions require that possession be “taken”.
63	The Applicant’s further submissions in reply as to the nature and acquisition of possession seek to address matters from a somewhat different perspective.  In so doing it is sought to equate the signing of a document and a physical act when possession is “taken”.  It is not clear though whether the document signed purports to grant possession or is the entering into an obligation to take or accept possession at some future time.  These further submissions also emphasise “control” as an aspect or indicia of possession.  In any event, the Applicant submits:
12.	The nub of the issue is whether there is a material difference between possession that is “taken” by the act of signing a document, and possession that is “taken” by a physical act. Can it be said that possession was not “taken” because the purchasers’ sole physical act was its signing of a document?
13.	It is trite that interests in land are transferred by the mere act of signing a document. This is not just true in the case of instruments that transfer legal interests, such as a Lease or Transfer of Land. By execution of a contract which does no more than bind the purchaser to pay a settlement sum at a future date, the purchaser acquires a beneficial interest in the land under a resulting trust and thereby “takes” an equitable interest in the land.
14.	Can possession be acquired by the mere act of signing a document? In Mabo v Queensland Toohey J said:
Possession is notoriously difficult to define but for present purposes it may be said to be a conclusion of law defining the nature and status of a particular relationship of control by a person over land.
15.	In the scholarly work cited above by Toohey J, AES Tay develops the proposition that “possession” is a relation that centres on the concept of control. Tay proposes a definition of possession, as a fundamental and general concept in law: “Possession is the present control of a thing, on one’s own behalf and to the exclusion of all others”.
16.	Possession of land is thus a relationship of control by the possessor over that land. In this case, the contracts of sale compelled the vendor to grant, and the purchasers to take, control of the subject land - either immediately or upon registration of the plan of subdivision. By their act of signing the contract the purchasers took immediate or delayed control over the land.
17.	The Commissioner’s insistence on physical control as a precondition or defining characteristic of possession is misconceived. As Tay explains:
The crucial thing here is the emphasis on power and control. Possession is not mere physical detention – such detention in pristine form rarely confronts the law (people do not keep their belongings chained to their wrists): such detinue readily shades off into forms of control (‘detaining’ in one’s house or one’s office, for instance) and is practically useless as a fundamental concept on which to build a structure of rights and duties. Possession, one might say, is the present physical power to use, enjoy or deal with a thing, on one’s own behalf and to the exclusion of all others.
18.	While the above passage focusses on possession of chattels, it requires little imagination to extend it to real property: the power to control rather than physical presence is the touchstone.
19.	The purchasers’ act of taking possession – that is, taking control – of the land was no mere formality. It had repercussions, whether or not the purchasers took any physical step in relation to the land.
20.	Clauses 35.3 and 35.4 of the contracts of sale provide for two categories of release and indemnity – one in respect of losses or claims arising merely from the use of the land, and one arising from possession of it. If the subject land was, for example, flooded while it was unoccupied, as a result of causes the vendor could have prevented by taking physical actions on the, the vendor was liable so long as it had possession, and the purchasers became liable once they took possession. In the latter case, by taking possession of the land, the purchasers took control of it and were henceforth in a position to prevent such flooding.
21.	More generally, the purchasers acquired for themselves the power to exclude all persons, subject to contractually specified exceptions, from the land, from the moment of registration of the plan of subdivision. That power was real, and the question of whether it was physically exercised is irrelevant to that reality.
64	The submissions do not, however, go beyond a discussion of indicia and concepts of possession and the rights and obligations that may, in particular circumstances, flow from possession.  Again, they do not address the issue in the context of the provisions of s 16(1)(a) of the LTA which require that possession be “taken”, save for the general assertion that the mere signing of a document, which I take in this context to be the signing of the contracts, is sufficient.  As discussed further in these reasons this is not a proposition which flows from the provisions of the LTA or the authorities as they now stand.  
65	In many respects the introduction or emphasis of “control” as a feature of possession illustrates these points.  Rhetorically, how can it be said that the mere entry into a contract to enter into or to take possession at some time in the future can be said to be a taking of control — hence, as the Applicant would have it, a taking of possession?  Even further doubt is cast on this proposition having regard to the position, in the present circumstances and as emphasised by the Respondent, that the future event upon which possession or control depends — the registration of the plan of subdivision — is unknown both as to timing and also the fact of its registration which will happen within the Land Titles Office administratively outside the public domain at the point of time.  Clearly the purchaser obligor is not in possession or control until the obligation is fulfilled and some objective step taken to take possession or control, however the emphasis on these terms is sought to be placed.  
Respondent’s submissions
66	Ground 2 in the Further Amended Notice of Appeal is that the Tribunal erred in finding that the purchaser of Lot 421 had not taken possession of the land upon registration of the plan of subdivision for the purposes of s 16(1) of the LTA.  The Applicant contends that three steps in the reasoning of the Tribunal are specific errors.  Moreover, although Ground 2 is only directed at Lot 421, as the Respondent observes, the issue arises in respect of all of the Clyde North Properties.  The Tribunal found that the Possession Clause did not pass de facto possession to the purchaser of Lot 421, meaning that s 16(1)(a) of the LTA was not satisfied and the discretion in s 16(3) could not be exercised.  As the Tribunal appreciated, this issue arose in respect of the other Clyde North Properties in the event the Tribunal had been wrong on the issue of the timing of the registration of the plans of subdivision.  Since the Possession Clause was in the same form for each Lot, the Tribunal’s conclusion on this issue is a further reason why the Applicant could not succeed in respect of Lots 615, 618 and 672.  It follows that even if the Applicant were successful in this Court on Ground 1, the appeal in respect of the Clyde North Properties would still be dismissed unless it also succeeded on Ground 2.  
67	There are, as the Respondent submits, a number of authorities relevant to the meaning of “taken possession” in s 16(1)(a) of the LTA.  They begin with the decision of the High Court in Highlands Ltd v Deputy Federal Commissioner of Taxes (SA), which concerned s 37 of the Land Tax Assessment Act 1910‑1926 (Cth), the equivalent of s 16 of the LTA.  Subsection (1) provided:
Where, before or after the commencement of this Act, an agreement has been made for the sale of land, whether the agreement has been completed by conveyance or not –
(a)	the buyer shall be deemed to be the owner of the land (though not to the exclusion of the liability of any other person) so soon as he has obtained possession of the land; and
(b)	the seller shall be deemed to remain the owner of the land (though not to the exclusion of the liability of any other person) until possession of the land has been delivered to the purchaser and at least fifteen per centum of the purchase‑money has been paid.
68	As the Respondent submits, the issue in Highlands was whether the buyer had “obtained possession”; however, by contrast, under the LTA, the critical issue is whether the purchaser has “taken possession”.  The difference between those two concepts is said to be critical; as, in my view, the authorities indicate and emphasise.
69	In Highlands, Dixon J said:
The material portion of sec 37 requires that, where an agreement has been made for the sale of land, the buyer shall be deemed to be the owner of the land so soon as he has obtained possession of the land. This appears to me to mean possession as purchaser obtained in intended execution of the agreement of sale, performance of which may, of course, be affected by agreed variations of its terms and by waiver, including the acceptance of substituted terms and modes of performance. The provision is, no doubt, intended to include cases where the vendor has been in possession by himself, and cases where he has been in possession by his tenants. Accordingly, it includes not only cases in which the buyer obtains vacant possession, but cases in which he is put in receipt of the rents and profits. Further, “by possession is meant possession of that character of which the thing is capable” (per Lord Fitzgerald, Lord Advocate and North British Railway Co v Young).
70	Cam & Sons concerned s 23 of the Land Management Act 1956‑61 (NSW), which was in materially identical terms to the provision considered in Highlands.  A term of the relevant contract provided that the purchaser was entitled to all rents and profits and liable for all rates and outgoings from the date of the contract.  A further term was an attornment clause which, in effect, involved the purchaser paying rent to the vendor.  The attornment clause in particular persuaded the Court that the purchasers had obtained possession as it would have served no purpose otherwise. Kitto, Taylor and Owen JJ quoted with approval the following statement made by Sugerman J in the Full Court of the Supreme Court of New South Wales:
When the vendor, himself retaining no vestige of possession, has done all that is necessary for him to do to enable the purchaser to assume actual occupation of the land or receipt of its rents and profits, and when, there being no obstacle in the way such as adverse occupation by a third party, it rests solely with the purchaser to decide whether and when he will do so. … When and whether he chooses to enjoy its profitable use or its returns are matters entirely for him. He has “obtained possession”, and the vendor has “delivered possession” to him, in the intended senses of those expressions.
71	In Victoria, s 48 of the Land Tax Act 1958 was in similar terms to the provisions considered in Highlands and Cam & Sons: it provided that a purchaser was deemed to be the owner of land so soon as they had “obtained possession”.  This changed with the passage of the LTA in 2005, when this language was replaced with the expression “taken possession”.  The Explanatory Memorandum to the 2005 Act does not assist in understanding the reason for this change.
72	The meaning of “taken possession” was considered by Ginnane J in Oakbee.  His Honour quoted from the decision of Sugerman J in the Full Court in Commissioner of Land Tax v Cam & Sons Pty Ltd .  As well as citing the passage quoted with approval by the High Court, his Honour quoted the one immediately preceding it:
The words of paras (a) and (b) of s 26(1) are “obtained possession of the land”, and “possession of the land has been delivered to the purchaser.” It is not in terms required by the paragraphs that the purchaser should have taken or entered into possession or that the vendor should have put him physically into possession, but that possession should have been “delivered” on the one hand, and “obtained” on the other. One takes or enters into possession solely by one’s own act, but one “obtains” it in this context by the act of another “in delivering it”. These 2 expressions, “obtain” and “deliver”, refer to the same acts and their consequences, since it is not to be taken that, in cases where more than 15 per cent of the purchase money had been paid, the legislature contemplated a lacuna between the vendor’s being deemed to be the taxable owner and the purchaser’s being so deemed …
73	Justice Ginnane then referred to what the other Judges in the Full Court had said before noting the appeal to the High Court.  His Honour then continued:
The observations of Sugerman J in [Commissioner of Land Tax v Cam & Sons Pty Ltd [1965] NSWR 589] point to a distinction between obtaining possession and taking possession and suggest that a person takes possession by their act. That construction adopts one of the many meanings of the verb “to take”. Many of the dictionary definitions of the word “take” use some active word such as to seize, grasp, capture or catch. Amongst the many definitions of the verb “take” given in the Oxford English Dictionary are:
15(a)	To transfer by one’s own direct act (a thing) into one’s possession or keeping; to appropriate; to enter into possession or use of.
(b)	absol. To take possession; spec in Law, to enter into actual possession.
In my opinion, the definitions of the word “take” that I have referred to and set out in the previous paragraph, convey the sense in which the word “taken” is used in the phrase that “the purchaser has taken possession” that is contained in s 16(1)(a) of the Land Tax Act 2005 (Vic). Where a conveyance of the vendor’s estate in the land to the purchaser has not occurred, some action by the purchaser in relation to the land is required to support a finding that the purchaser has taken possession of it.
Support for the conclusion that I have reached is found in other provisions of the Land Tax Act 2005 (Vic). The words “taken possession” are used in s 16A and the words “takes possession” in s 30. In both instances, the context suggests that the provision requires some action by the acquirer of the land in relation to the land.
…
The nature of the conduct by a purchaser that will suffice to permit the finding that it has taken possession of land will depend on a range of matters. These will include the terms of the contract of sale and the nature of the land. In an appropriate case, something less than a purchaser taking physical possession of the land may satisfy the requirement that the purchaser “has taken possession of the land”.
A right to possession that a vendor confers on a purchaser pursuant to a term of a contract might well satisfy a requirement that possession be delivered or obtained. However, in the circumstances of this case, it does not satisfy the requirement contained in the Land Tax Act 2005 (Vic) that the purchaser has taken possession of the land.
In the present case, the purchasers had paid a small part of the purchase prices, settlements had not occurred, the purchasers had a contractual right to possession, but had not exercised it, and they still owed the balance of the purchase prices.
I do not consider that this case is to be decided by considering whether the Land Tax Act 2005 (Vic) differs from the Land Tax Act 1958 (Vic). Rather I apply the ordinary meaning of the words “take possession,” which I have attempted to identify previously in this judgment.
In my opinion, neither purchaser had engaged in any conduct which could be described as “taking possession” of the land.
The purchasers had the right to take possession, but were still obliged to pay the balance of the purchase price. They had not exercised that right to possession by taking any action in connection with the land on or prior to 31 December 2008.
The tribunal correctly concluded that the purchasers had not taken possession of the land by the relevant date and, therefore correctly rejected the contention filed by Oakbee.
74	The final decision said by the Respondent to be relevant to the construction of s 16 of the LTA is that of the Court of Appeal in Kameel Pty Ltd v Commissioner of State Revenue.  There the plurality said that Highlands “stands for the two‑limbed proposition that a buyer will have taken possession of land for the purposes of s 15 of the [LTA] when the buyer has de facto possession and when it is in that position in intended execution of the agreement for sale of the land.”  The plurality continued:
It is the second limb of the test that is contentious. We do not agree [with Whelan JA] that it is irrelevant whether it can be said that the particular actions taken are properly to be seen as pursuant to the provisions of the agreement for the sale of land, or that it does not matter, and it is unnecessary to resolve the question, of what might be the contractual consequences of what has in fact occurred. 
The critical question is: what is it for the purchaser to take possession in intended execution of an agreement for the sale of land?
75	Their Honours continued:
In our view, it is not sufficient to satisfy the second limb of the Highlands test that … a contract of sale remains on foot and is executory, and the purchaser has not purported to repudiate. It is necessary to tie the parties’ conduct to the contract. It may be that a contract taken as a whole makes no sense unless a clause can be construed as implicitly conferring a right to early possession. Alternatively, the parties’ conduct may reveal that the vendor has waived a pre‑condition to a purchaser’s entitlement to access, and to control, the land. The parties may have revealed, by their conduct, that they have agreed to a variation of the contract, by the tender and acceptance of substituted performance. When Dixon J remarked in Highlands that it was “immaterial” which of these alternative analyses one adopted, he was not suggesting that the contract had become immaterial or no longer governed the legal relationship between the parties. On the contrary, he was remarking that a literal interpretation of all the provisions of the contract made no sense and, to give the agreement a sensible operation, it was necessary to construe the contractual arrangements between the parties differently, including, of course, potentially, by an agreed variation of the terms of the contract.
…
… when considering whether a purchaser has acted in intended execution of the agreement for sale it is necessary to ask the following question: Is the conclusion that the purchaser has taken possession consistent with the parties’ contractual arrangements for the sale of the land, as they have evolved? It may be that, as in the circumstances of Highlands, the conduct of the parties is so clearly consistent with a number of alternative analyses of the contractual arrangements for the sale of land, as they evolved over time, that it is unnecessary to resolve which particular analysis properly applies so long as one can conclude that the parties had the relevant contractual intention at a time when the purchaser also enjoyed de facto possession. It remains the case, even where no particular analysis needs to be chosen as the correct one, that a court should ask, as the Court in Highlands did ask, whether the particular actions taken are properly to be seen as derived from the contractual arrangements between the parties rather than as revealing an entirely separate arrangement, that is, an arrangement “standing right outside” the contract for the sale of land.
To ask whether the parties’ conduct is consistent with their contractual arrangements for the sale of land, as evolved, invites attention to exactly what it is both parties have done and the legal effect of what they have done. Close attention may reveal that the conduct of the parties does not support the view that there has been an agreed variation to the contract. A feature of the circumstances may also preclude the inference of waiver on behalf of the vendor. It is only by being alert to the contractual consequences of what has in fact occurred between the parties that a court is in a position to determine whether the arrangements for the sale of land between the de facto possession enjoyed by the purchaser is consistent with the contractual arrangements for the sale of land between the parties, as they have evolved over time. In our view, in circumstances where there is no consistency, a court could not conclude that the purchaser is in possession within the meaning of s 15.
76	Thus the Court of Appeal in Kameel recognised the important distinction between having a contractual entitlement to possession (or even a contractual obligation in this respect), and actually taking possession.  After all, parties do not always act in accordance with their contracts.  The Tribunal was, accordingly, correct to focus on what the parties did, rather than merely on what they had agreed to do.  In my view, having regard to the context of this issue which lies in sub‑s 16(1) of the LTA, critically the use of the word “taken” with respect to “possession”, this must be correct.  Something more needs to be done than merely agreeing to take possession at some time in the future.  This is an event which may never occur, even though its non‑occurrence may expose the promisor to the consequences of a breach of a contracted obligation.  Nevertheless this is not a matter of consequence in relation to the operation of the LTA provisions.  
77	The Tribunal accepted the submission of the Applicant that in Oakbee, Ginnane J left open the possibility that something other than the taking of physical possession would suffice to establish the taking of de facto possession.  The Member accepted that the something other than physical possession was not necessarily limited to a right to rent and profits.  He did not, however, accept that a purchaser entering into a sale contract that included the Possession Clause was sufficient to establish that de facto possession had been taken by the purchaser, since some further action was required.  He recognised that such further action would be particularly difficult to establish for those lots where the plan of subdivision had not been registered: prior to registration, the exact identity of the land is uncertain and thus “even if it were possible to take some intangible action to assert the right to possession, it would be ineffective”.
78	In light of these authorities the Respondent contends that, when reduced to essentials, the Applicant’s argument on Ground 2 has three elements. In my view the Respondent’s submissions with respect to the Applicant’s argument on Ground 2 do properly identify the essential elements relied upon.  As to those elements the Respondent submits there are significant flaws, flaws which mean that Ground 2 of the appeal must fail.  I now turn to those matters.  
79	First, Cam & Sons was concerned with different statutory language — “obtained possession” rather than “taken possession” — and subsequent authority has established that these have different meanings.  Cam & Sons does not assist in construing s 16 of the LTA except to the extent that subsequent decisions have relied on it to explain the meaning of the current provision.
80	Secondly, the reason why the Tribunal found that the purchaser of Lot 421 had not taken possession was that the mere entry into of the sale contract, including the Possession Clause, was insufficient.  As indicated previously, the observation that demonstrating that further action is “seemingly impossible” until a plan of subdivision is registered is just that: an observation. Moreover, I accept that it is an observation that the Applicant takes further than the Member did.  The Member did not find, contrary to what is said in the Applicant’s Written Outline of Submissions, that a purchaser cannot bind itself to take possession of land when the subdivision is registered.  The Tribunal’s observation was limited to the time between entry into the sale contract and registration of the plan of subdivision.  The Tribunal said nothing about what might be the case after registration.  In the case of Lot 421, the plan of subdivision was registered on 24 November 2014, prior to the relevant assessment date, 31 December 2014.  There is nothing in the Tribunal’s reasons to suggest that if the Applicant had taken some relevant further step between 24 November 2014 and 31 December 2014 that this could not have constituted the taking of possession.  But no such step took place.  And this leads to the third and most significant flaw in the Applicant’s analysis.
81	Thirdly, neither at the Tribunal nor in this Court, has the Applicant pointed to any action taken by the vendor or the purchaser of any of the Clyde North Properties that would constitute the taking of de facto possession.  It is true that in Oakbee, Ginnane J did not set out exhaustively what such a step must be.  But that does not relieve a person of the obligation of identifying a relevant step.  The two actions that the authorities establish can constitute the taking of possession are the taking of physical possession and the taking of possession by a tenant, that is becoming the lessor of the property and thus entitled to its rents and profits.  There may be other actions beyond these two — such a possibility was not foreclosed by Ginnane J — but the mere operation of a clause by which the purchaser agrees to take possession is not sufficient.  Agreeing to take possession is not the taking of possession.
82	Concluding in relation to this ground the Respondent made further, particular, submissions identified in relation to Ground 2:
(52)	Sub‑paragraph (a) is that the Tribunal erred in finding that it is impossible for a purchaser to take any action in relation to land which is the subject of an unregistered plan of subdivision prior to the registration of the plan of subdivision. This issue has largely been dealt with above. The Court need not determine this issue. Success would not avail the Applicant because there was a period after registration of the plan of subdivision but before the assessment date and the Tribunal did not say that it would have been impossible for the Applicant to have taken de facto possession in that period.
(53)	Sub‑paragraph (b) is that the Tribunal erred in finding that a purchaser who undertakes a binding obligation to take possession of land the subject of an unregistered plan of subdivision upon registration of the plan of subdivision, has not taken any action that result [sic] in the purchaser taking possession of that land upon registration. The Tribunal did not express itself in those terms but the principle said to be in error is correct. The mere agreement by a purchaser and vendor of land to give and take possession on and from the registration of a plan of subdivision would not, without more, constitute the taking by the purchaser of de facto possession.
(54)	Sub‑paragraph (c) is that the Tribunal erred in finding that s 16(1)(a) of the LTA cannot be satisfied if the purchaser’s actions that cause it to take possession of land on or after registration of the plan of subdivision are the direct result of actions taken prior to the registration of the plan of subdivision. The Commissioner does not understand this sub‑paragraph. The Tribunal did not make the alleged error attributed to it.
(55)	Finally, and contrary to what is said at [4] of the Applicant’s Written Outline of Submissions, the Tribunal did not find that the Possession Clause “must fail for uncertainty”.
As indicated in the preceding reasons, this issue does not arise as there had not, in my view, been any taking of possession for the purposes of s16(1)(a) of the LTA. 
Further matters
83	In my view the Applicant has failed to have regard to the statutory language of the provisions now contained in s 16(1)(a) of the LTA which now uses the expression “taken possession” rather than “obtained possession”.  The distinction and effect of the distinction was, in my view, made clear by Ginnane J in Oakbee which, in the present context, means that a mere contractual right to possession or an obligation to take possession at some time in the future does not amount to a position where it can be said that the purchaser in whose favour or obligation such a provision exists can be said to have “taken possession” without more.  In the present circumstances there is no evidence of anything in the nature of further steps of this nature or any action taken by the vendor or the purchaser of any of the Clyde North Properties that would constitute the taking of de facto possession. 
84	I accept the submissions of the Respondent on the basis of the reasons advanced in those submissions and for the further reasons I have indicated more particularly in the preceding discussion and consideration of those submissions. Moreover the Applicant’s position is not assisted, in my view, by resort to arguments with respect to issues of business efficacy in the construction of contracts where, as in the present circumstances, this is merely to cloak a preferred construction as indicative of the contractual intention of the parties, where this is not clearly supported by the actual terms of the contract, construed as a whole according to ordinary principles of construction, or any mutuality of intention by both parties to the contract. Additionally, it cannot be said that the construction as found by the Tribunal leaves the contracts void, uncertain or meaningless.
Grounds 3 and 4 — the Sunbury Properties
Introduction
85	Appeal Grounds 3 and 4 seek to challenge the finding that the Applicant had not established that the Sunbury Properties were used primarily for primary production.  There are two distinct challenges to the result in the Tribunal.  The first, in Ground 3, is that the Tribunal erred in not finding that the whole of the Sunbury Properties were exempt under s 65 of the LTA. The second, in Ground 4, raises the question of apportionment, and alleges that the Tribunal erred in failing to determine that the Sunbury Properties were partly exempt.  
86	Section 65(1) of the LTA provides that “land outside greater Melbourne that is used primarily for primary production is exempt land”.
87	The Tribunal made reference to the evidence adduced by the Applicant as to the extent of primary production but was not satisfied as to the extent of primary production use:
99	While Mr Steeper and Mr Curnow give some evidence that would allow the extent of primary production use to be assessed, in the absence of evidence from Mr Atwell regarding matters such as the revenue (if any) generated from any sale of the wheat crop, or the income and expenditure associated with the use of the property as a rubbish dump, I am not satisfied – on the balance of probabilities – that the primary production use represented a sufficiently chief use at the relevant time so as to impart a primary production character to the whole of the land.
Applicant’s submissions
88	In relation to s 65 of the LTA, the Applicant submits that, unlike s 67 of that Act, there is no requirement that a business of primary production be carried out on the relevant land; s 65 requires only that the land be “used”.  A commercial element is introduced by the definition of primary production in s 64 of the LTA.  In that context where, as in the case of the Sunbury land, the land is cropped, primary production will occur where there is: 
Cultivation for the purpose of selling the produce of cultivation (whether in a natural, processed or converted state).
89	Nevertheless, the Applicant submits that this is a threshold condition and does not require that the produce of the land be sold and nor does it require a business to be conducted.  It is said that the statutory requirements are satisfied as long as the purpose of cultivation was the sale of the relevant crop, hence the threshold condition is satisfied and “primary production” is being carried on.  Thus, it is said, having satisfied itself that the threshold definition of primary production is satisfied, the focus must shift to the question of whether the crop is being grown for the purpose of sale, to the exclusive question of whether the land is primarily “used” for cropping.  In this context, reference is made to the statement of Lush J in Abbott v Commissioner of Land Tax where his Honour said:
In construing the word “primarily” in its application to a case where a parcel of land is divided into two parts, one of which is devoted to an exempt use and one not, it must be remembered that the question is whether the whole of the parcel is primarily used for the exempt purpose …. The predominance must be of such a degree as to impart a character to the parcel as a whole.
90	Having regard to these matters, the Applicant contends that the Tribunal erred in effectively holding that determination of the primary use of land necessarily requires a review of the relative economic performance of different activities taking place on the land.  Thus it is said that where land is quite obviously used predominantly for primary production, the decision maker need not investigate any further in order to determine whether the land was primarily used for that purpose.  
91	In Greenville v Commissioner of Land Tax Helsham CJ said, of a provision that required determination of whether the land was “land used primarily for – (a) the cultivation thereof for the purpose of selling the produce of such cultivation”:
It would probably not be sufficient to look merely at the financial return from the cultivation; the fact that there was none would not of itself warrant a finding that the land was not used primarily for cultivation, nor would the existence of a more rewarding cottage industry carried on by the owner on the land at the same time.
Thus, it is said, that there will be cases where the question of the economic return from different activities cannot affect the conclusion that one is predominant so that an inability to determine the relative economic returns will not prevent the decision maker from finding that the land is primarily used for the obviously predominant purpose. In Abbott, 83 acres of a parcel of land was used as a golf course and 126 acres was used for grazing and raising animals for sale.  It was not readily apparent which, if any, use predominated.  In determining that the farming activities could not be said to be the predominant use of the land, Lush J considered, as indications of the intensity of the two uses, whether more money and effort had been expended on one use rather than another, a comparison of the income generated from the competing uses, and the priority with which the land was allocated to those uses (in terms of the position and area allocated to each use).  It is said, however, that Abbott is a case far removed from the present case where 99.45% of the arable land was used for cropping.  It is contended that a finding that there was no financial return at all from that cropping would not warrant a finding that the land was not used primarily for primary production.  Nor would a finding that a cottage industry, such as the conduct of an illegal rubbish dump, conducted on 0.55% of the land was very rewarding, negate the fact that the land was primarily used for cropping.  
92	Consequently, in the circumstances of this case, it is submitted by the Applicant that the Tribunal made an error of law in finding that the absence of economic data precluded it from finding that wheat cropping imparted a primary production character to the whole of the land.  
93	With respect to the application of s 65(2) of the LTA, raised in Ground 4, it is submitted that the Tribunal, standing in the shoes of the Respondent, the Commissioner, is required to make the correct or preferable objection decision.  Thus it is said that it follows that the Tribunal may make an error of law if it ignores an important issue of relevance to the decision under review, even if the parties make no submissions on that issue.  In this respect reliance was placed on the decision in Transport Accident Commission v Bausch.  However any general obligation of this kind must be read subject to the statutory environment in which the decision making of the Tribunal is being conducted.  In particular any general duty cannot transcend statutory provisions, such as s 109 of the Taxation Administration Act 1997 (‘TAA’) which regulates objections and other processes which determine the live issues which remain for determination by the Tribunal.  Further, it is said that where an appellant seeks to raise a new question of law that is reasonably arguable, the Court may grant leave to do so absent case management or other vitiating considerations.
94	On these bases it is contended that the Tribunal should have applied s 65(2) of the LTA which provides that:
If part of any land outside greater Melbourne is used primarily for primary production that part is exempt land even if an activity other than primary production is carried on on any other part of the land.
In this context, it is submitted that the evidence established that one hectare of the subject land was used for an activity other than primary production and the remaining area was used primarily for primary production.  The Tribunal, having found that it was unable to determine the character of the land use overall for purposes of s 65(1) ought, it is said, then have applied s 65(2) effectively dividing the land into two parts and applying the exemption to the part used primarily for primary production.  
95	This, it is contended, was the “correct or preferable” decision in relation to the Sunbury land, and it was the one that the Tribunal was, by law, required to make.  Hence it is said that if the Ground of Appeal 3 fails and there was no error in the Tribunal’s finding that it could not be satisfied that the primary production use represented a sufficiently chief use at the relevant time so as to impart a primary production character to the whole of the land, the Tribunal ought then have applied s 65(2) to determine that one hectare area of the Sunbury Land was taxable land and the remaining 183.71 hectares was exempt.
Respondent’s submissions
96	A point on procedural and evidentiary matters was raised at the outset by the Respondent in its submissions.  The Respondent observes that the Assessment included the Sunbury Properties in the Statement of lands and did not treat them as exempt.  The Applicant’s Objection was brief and, after listing six rural properties, stated that each was “used for primary production and should be exempt from land tax”.  It concluded that the Applicant “should not be subject to land tax on the properties above”.  The Determination concluded that the evidence provided by the Applicant did not establish that the Sunbury Properties were used primarily for primary production.  It made reference to the failure by the Applicant to provide documentation requested by the Commissioner and noted that, other than a farming licence, there was no other evidence to establish that primary production activities were carried on on the land.  The Determination noted that contemporaneous aerial imagery showed that parts of the Sunbury Properties were physically unused.  Neither the Objection nor the Determination raised the possibility that part only of the Sunbury Properties might be exempt under s 65 of the LTA.  Neither made any reference to s 65(2).
97	The Applicant filed written contentions in the Tribunal proceeding. The Sunbury Properties were addressed in those contentions and referred to evidence that sheep had been run over the entirety of the area.  These contentions relied on s 65(1) but made no reference to s 65(2).  Nor did they otherwise raise an argument that the Sunbury Properties might be partially exempt from land tax.  Although the contentions do not address the orders the Applicant asked the Tribunal to make, it is implicit that the submission was that the Tribunal should make orders to the effect that each property the subject of the proceeding was to be treated as wholly exempt.  Had the Applicant wished to raise a partly exempt argument before the Tribunal, it would have required leave under s 109(a) of the TAA.  No such leave was sought.  Consequently the Respondent contends that there is no ground of appeal (and nor could there be) that the Tribunal erred in not granting leave when none was sought.  
98	When the matter was heard by the Tribunal, counsel for the Applicant opened its case.  He did not seek leave under s 109 of the TAA, did not say that the Applicant would rely on s 65(2) of the LTA, and did not make any reference to the Sunbury Properties being partly exempt.  Three witnesses gave evidence in relation to the Sunbury Properties: Mr Steeper gave evidence that his father had previously owned the Sunbury Properties and continued to farm the neighbouring land; Mr Curnow gave evidence that he agisted sheep on the Sunbury Properties; and Mr Mondous, the general manager of the Applicant, gave evidence about his attempts to obtain a witness statement from the tenant who farmed the Sunbury Properties and exhibited an aerial photograph.  All three were cross‑examined by counsel for the Commissioner.
99	In closing, counsel for the Applicant addressed s 65(2) of the LTA for the first time.  He said the following:
And then we have the issue of the rubbish on the land, and we have Mr Mondus’s [sic] evidence at paragraph 10 and 11 supported by photographs that the rubbish occupied 0.55 percent of the land. One hectare out of 100, and I asked, a hectare, I think it’s common knowledge it’s 10,000 square metres, 2,700 – (indistinct) 07.44. Which comes to a comparison with 184 hectares comes to 1 over 185. I had asked – Mr Curnow had given evidence in cross‑examination that there was a dam there and the rubbish was being thrown into the dam and I had asked him if he would agree was about a hectare and he did. So, the point being that the presence of a rubbish dump on a relatively very small area of the land doesn’t affect the conclusion that the land was primarily used for primary production. That was the primary use of it.
Hypothetically, if that wasn’t the case, the s 65(2) does allow the court to break the land up into two parcels of land but, in my submission, where you have a very minor usage of part of the land, that’s not the exercise it’s engaged in. That’s really where you have two substantial uses of land and why I say that is because there could be no end to that. You might have a corner of the land where the tractor is parked, you might have all sorts of very minor uses of the land and, in my submission, the entirety of the land was primarily used for primary production, notwithstanding the dumping of the rubbish in the dam.
100	After the Commissioner made closing submissions, counsel for the Applicant returned to the Sunbury Properties in reply.  He said the following:
Sunbury is a rather curious argument here, and that is the rubbish dump argument. I think one needs to consider where would the applicant be if the boot was on the other foot. If there was an exemption, for example, arising – if the land was primarily used as a rubbish dump, and the applicant were to turn up to the tribunal with 180 hectares of land and say, “Look, we’ve been dumping rubbish in the dam. The entirety of the land has been primarily used as a rubbish dump.” I would feel less comfortable running that case than running this case.
So, the first thing is there are competing uses, one might say, but in that competition, use of the land for wheat and for sheep hands down trumps the use of the land as a rubbish dump. So there’s no question that the primary use of the land is not where we had a golf course in Abbott occupying a large part of the land and farming occupying a large part of the land, and the court said we don’t take measurements and decide where is the larger part of the land, take a more wholistic view. On any wholistic view, the 179 hectares of the land usage is the primary use of the land.
But I should say this: at its highest, the high water mark for the commissioner is that the s 65(2) applies which says that, “If a part of any land outside the greater Melbourne is used primarily for primary production that part is exempt land even if activity other than primary production is carried out on any other part of the land.” So, at its best, the commissioner or the tribunal standing in the shoes of the commissioner, will grant an exemption for 179 hectares rather than 180 and apply land tax pro rata to the rubbish dump. But is my submission, that is not the – in these circumstances where one has a very minor usage of the land, that is not the method that should be used.
101	The reference to s 65(2) of the LTA prompted counsel for the Commissioner to speak and the following exchange took place:
MR MORGAN: Sir, I’m sorry to speak again. I hoped I wouldn’t need to. My learned friend has raised s65, sub‑s 2. I’m not entirely clear of the purpose of doing that. But if what he is seeking is an order varying the assessment to exclude from the assessment that part of the land the rubbish dump is on – that may not be what he’s asking for, I’m not clear – then that’s the first time we’re hearing of it.
It's not part of the objection. He would need leave under s109, I think it is, of the TAA and in circumstances where I can’t cross‑examine any of the witnesses on this point, leave should be refused. I accept that evidence of the size of the rubbish dump is relevant to the question of whether the land was used primarily for primary production, but if my learned friend is seeking an order varying the assessment to exclude 98 per cent of the land so that only land tax is payable on the dump, then I object on the basis that that’s not before the tribunal.
MR KORMAN: Sir, if I can just have a moment before I respond, Member. Yes, Member, I’ll confine my submissions to – and it wasn’t 2 per cent, it was .55 per cent, but I’ll confine my submissions to the fact that the use of 99.45 per cent of the land is the primary use of the land.
MR MORGAN: In that case, I can withdraw my objection.
102	Mr Steeper’s witness statement addressed the issue of rubbish dumping on the Sunbury Properties.  He said that he observed Mr Atwell, the lessee of the Sunbury Properties, allowing “large amounts of rubbish to be dumped on the land.”  He was not asked any questions about this issue in cross‑examination.
103	Mr Curnow’s witness statement also mentioned rubbish dumping.  He said that he saw trucks coming onto the land, rubbish being dumped and money changing hands.  In cross‑examination he was asked about the rubbish and the money changing hands:
He was also using it as rubbish dump, wasn’t he? - - - Yeah, yeah, there was like – yeah, it was quite a strange set up. Because we sort of looked around the place, like went down and inspected it because it had been burnt out the year before, so part of the agreement was we’d fix up the external fences to make it stock proof. And then, yeah, we sort of looked around and then there was just quite a bit of rubbish near a dam in the middle of the property. And then, yeah, there’s a few sort of trucks with building waste coming and going, yeah. So that’s why I thought well I presumed he must have been the owner, you’d hardly do that if you weren’t the owner.
Indeed. And you say in your statement that you saw money changing hands? - - - Well there was – I didn’t actually see cash, but there was it looked like an envelope getting passed through the windows whenever these trucks rolled in. Like I was only – I didn’t spend a lot of time, we dropped the stock off and we’d come down once a week just to check on stock, so we weren’t there a hell of a lot. But we did see – I did see that a few times, yeah.
104	The final witness to give evidence about rubbish was Mr Mondous, the Applicant’s general manager.  He was the only witness to give evidence about the percentage of the Sunbury Properties that was used for rubbish dumping. In his supplementary statement, Mr Mondous said this:
I accessed Google Earth in order to obtain an aerial photograph of the area of the land at 45‑65 Deverall Road Sunbury that would show the rubbish that Mr Atwell had allowed to be dumped on the land. Google Earth has a facility that allows areas to be measured. Annexure 6 to this statement shows that the areas of the dumped rubbish are 2,750 square metres and 7,244 square metres.
Annexure 7 to this statement comprises two property reports, showing that the total area of the Sunbury land is 184.71 hectares.
The area occupied by the dumped rubbish thus occupied 00.55% of the area of the Sunbury land.
105	Annexure 6 comprises two aerial photographs.  Neither is dated, nor does the supplementary statement of Mr Mondous state when they were taken, or even when he accessed Google Earth to produce them.  No evidence was given about the income earned from the use of the Sunbury Properties as a rubbish dump.  Mr Mondous was cross‑examined but was not asked any questions about this evidence.  The Tribunal referred to the aerial photograph and to Mr Mondous’ submission that the ground used for dumping rubbish comprised 0.55% of the total area of the Sunbury Properties, but no finding of fact was made.
106	Turning more specifically to Ground 3 and s 65(1) of the LTA, the Respondent observes that this ground of appeal is that the Tribunal erred in holding that s 65 of the LTA was not satisfied in relation to the Sunbury Property.  The Respondent submits that this ground does not raise a question of law and, in a proceeding under s 148 of the VCAT Act, is therefore incompetent.  As Leeming JA said in Booth v Fourmeninapub Pty Ltd, “[a]n appellant cannot convert a challenge which is wholly or partly factual to one which is on a ‘point of law’ merely by including those words in the formulation of a ground” and as the Court of Appeal confirmed in Commissioner of State Revenue v STIC Australia Pty Ltd:
[t]he right of appeal conferred by s 148 is of a limited nature only. … Parliament, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 148, has disclosed an intention to limit the role of the Court on an appeal from the Tribunal and to limit the capacity of the Court to re‑determine facts or re‑exercise discretions. The legislative purpose of s 148 is to discourage parties from challenging the correctness of a decision of VCAT, except where legal error is demonstrable. An appeal before the Court under s 148 is not a merits review nor is it an appeal that merely involves a question of law. The matter comes before the Court solely by way of judicial review for the Court to correct errors of law by the Tribunal but not to examine the record of the Tribunal to determine whether some different decision could have been made.
107	As to the principles for distinguishing questions of fact and questions of law reference is made to the propositions in this respect expounded by Phillips JA in S v Crimes Compensation Tribunal, propositions which have been widely relied upon since:
The first proposition is this:
1.	What is the proper meaning, as a matter of construction, of the statutory description which is relevant to the claimant’s success or failure is a question of law.
…
The second proposition, which has just been foreshadowed, is this:
2.	Once the task of construction is over, the question whether the claimant’s particular circumstances fall within the relevant statutory description is essentially a question of fact.
…
That brings me to the third proposition, which qualifies the second:
3.	Nevertheless if, in determining whether the particular circumstances of the claimant are such as to fall within the relevant statutory description, the fact‑finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law; and the question whether it arrived at a conclusion which was not open to it is a question of law.
Humphrey Earl Ltd. v Speechley (1951) 84 CLR 126 at 134 per Dixon J.; Nicolia; McPhee v S. Bennett; Australian Gas Light Co.; Hope v Bathurst City Council; Azzopardi; Bowen‑James; Savage at 100.
108	On this basis the Respondent submits that in the present case there is no question of the proper meaning of s 65(1) of the LTA.  The task of the Tribunal was solely to determine whether the Applicant’s circumstances fell within the description provided for in those provisions.  It was, it is contended, a pure question of fact.  It is not alleged that the conclusion reached by the Tribunal was not open to it and nor could it be, it was submitted.  It follows, it is said, that to the extent that paras (a) and (b) of Ground 3 are said to point to questions of law, they do not.  The Tribunal did not make the error alleged in para (a).  It did not find that s 65 is not satisfied by pointing to a qualifying primary production activity conducted on the land that gives the land the character of being mainly used for that activity.  What the Tribunal relevantly did is find that the primary production activity relied on by the Applicant was not sufficient to give to the Sunbury Properties the character of being used primarily for primary production in all the circumstances of the case. As to para (b), it is submitted that this ground relies on a finding of fact that was not made.  Moreover, the Tribunal did not find that the requirement could not be satisfied unless evidence was adduced establishing the revenue generated from the sale of the wheat crop and the income and expenditure associated with the operation of the rubbish dump.  What the Tribunal relevantly did was find that, on all of the evidence led by the Applicant, it had not established that the Sunbury Properties were used primarily for primary production.  It had no occasion to make the sweeping generalised finding that is alleged in para (b). Thus, it was submitted that there being no question of law, the Court has no jurisdiction in respect of Ground 3 which must, accordingly, fail.  
109	Ground 4 is that the Tribunal erred in failing to determine (presumably only in the alternative) that part of the Sunbury Properties was used primarily for primary production.  The Respondent submits that it is difficult to understand how it could be said that the Tribunal erred in failing to resolve a new ground where no leave was sought to argue the ground and the Applicant expressly disowned it.  
110	The Respondent also submits that had the Applicant sought leave in closing submissions at the Tribunal hearing to make an argument that s 65(2) applied, leave should have been refused and/or the ground should have failed for the following reasons:
(a)	the Commissioner would have been prejudiced in at least two ways:
(i)	he was unable to obtain (or even consider obtaining) his own evidence about the percentage of the Sunbury Land used as a rubbish dump.  For example, the Commissioner could have obtained his own time‑stamped satellite imagery; and
(ii)	he lost the opportunity to cross‑examine Mr Steeper, Mr Curnow and Mr Mondous on the question of the percentage of the Sunbury Properties used as a rubbish dump; and
(b)	the only evidence that goes to the proportion of the Sunbury Properties used as a rubbish dump is the aerial photographs at Annexure 6 to Mr Mondous’ supplementary witness statement.  There is no evidence as to when the photographs were taken or how Mr Mondous could conclude from aerial photographs alone where all of the rubbish was, how the rubbish dump was accessed and what area or fencing to exclude any stock was required.  In those circumstances, the Tribunal could not have determined what percentage of the Sunbury Properties was used primarily for primary production.
111	Thus it is submitted that Ground 4 should be dismissed.
Further matters
112	I accept the position contended for by the Respondent in relation to Grounds 3 and 4 for the reasons advanced by the Respondent in his submissions and for reasons otherwise indicated in the consideration and discussion of those submissions and also those of the Applicant. 
113	Even accepting the Applicant’s submissions on the proper construction and operation of the legislation, the matters raised are factual questions not productive of any basis or bases in the present context of their treatment as an error of law. 
114	In relation to s 65(2) of the LTA I accept the Respondent’s position that any reliance on these provisions was a matter for its case before the Tribunal and that to seek to apply those provisions now would be to deny the Respondent procedural fairness, as indicated previously.
Conclusion and orders
115	For the preceding reasons leave to appeal on Grounds 1, 2, 3 and 4 is refused. 
116	Additionally, for the preceding reasons, if leave to appeal had been granted on any of Grounds 1, 2, 3 or 4 such appeal would have been dismissed. 
117	The parties are to bring in orders to give effect to these reasons.  I reserve the question of costs and will hear the parties further on this issue.
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