Diebold No. 5 Pty Limited v The Commissioner of Land Tax [2000] QLC 3 (2000) 22 QLCR 17

LAND COURT BRISBANE 14 JANUARY 2000 Re: Appeals against Assessments of Land Tax (A98-43 and A99-24). Diebold No. 5 Pty Limited v. The Commissioner of Land Tax D E C I S I O N These are two appeals by Diebold No. 5 Pty Limited (Diebold) against the assessment of land tax by the Commissioner of Land Tax (the Commissioner) on land owned by Diebold at midnight on 30 June 1997 (the 1997 assessment) and on land owned by the appellant at midnight on 30 June 1998 (the 1998 assessment). The appeals are against assessments on the same land and were heard together. Background The assessments are in respect of land described as Lots 1-2 on Registered Plan 192633, Parish of Urangan, County of March, in the City of Hervey Bay (the subject land). Diebold is the registered proprietor of an estate in the land of 15 undivided eightieth parts or shares. The appellant holds the land as tenant in common with Archer & Carlson Pty Ltd (24 undivided eightieths), which may have been the original owner of the land, and with a number of people holding the balance of 41 eightieths. Diebold holds a certificate of title for its estate in the subject land so it is assumed that each of the tenants in common in the land holds a separate certificate of title in respect of their individual interests. The only evidence for Diebold was contained in an unsworn statement by Mr John Stirton Kinross, a director of Diebold, together with attachments, which was admitted by consent. Mr Kinross explained that the appellant entered into an agreement with Archer & Carlson Pty Ltd in June 198l to purchase 15 undivided eightieths share of land then described as Portion 36, Parish of Urangan, as tenant in common with others. The Certificate of Title registering Diebold's estate in the land issued on 28 June 1982 and shows the area of Portion 36 as 32.37 ha. According to Mr Kinross' statement, Diebold's purpose in purchasing the land was to hold it as a long-term investment. At all material times it was vacant and not [2000] QLC 3 -- 1 of 14 -- 2 used or occupied by any of the joint owners, nor to Mr Kinross' knowledge, is there any proposal to do anything with the land. It seems that at some time since 1982 there has been some dealing with the land, as its description has changed. However, no evidence was given of this matter. Mr Kinross merely stated that "The land is now part of the land contained in Lots 1 & 2 RP 192633 and known as 43 Amos Road, Booral and 1245 Booral Road, Wondunna…". Mr M Foley, Solicitor, who appeared on behalf of Diebold, informed me that the new description is the result of the land being severed by a highway, creating two parcels. In the absence of any dissent from the Commissioner, I am prepared to accept Mr Foley's explanation. The significance of the severing of the land will be apparent later. The only evidence on behalf of the Commissioner was an affidavit of Mr Michael Moynihan, Solicitor, employed in the Office of the Crown Solicitor, who had caused a search to be made of the database of the Australian Securities Investments Commission. He had ascertained that Archer & Carlson Pty Ltd was deregistered on 1 August 1997. The Assessments On 11 August 1998 the Commissioner assessed Diebold for land tax as at midnight on 30 June 1997, as if it were the owner of the land. At that time the taxable value was $235,000. The appellant objected on the basis that it was registered owner of only 15 eightieths' interest in the land as tenants in common with others. On 2 September 1998 the Commissioner notified the appellant that its objection was not allowed. On 30 September 1998 Diebold appealed to the Land Court. The grounds of appeal are essentially that the Commissioner wrongly assessed Diebold for land tax under the provisions of s.25(2A) of the Land Tax Act 1915. In particular:  other than 15 eightieths' interest in the subject land the appellant does not own or have any interest in any other land in Queensland;  the value of the appellant's interest in this land is less than the threshold value at which the appellant becomes liable to pay land tax;  the appellant holds its interest in this land as "tenants in common with others" or "in severalty with others" rather than "jointly with others"; -- 2 of 14 -- 3  the appellant does not hold any land in trust for any of the other co-owners of the land;  the provisions of s.25 of the Land Tax Act 1915 cannot be applied to create any deemed trust or other arrangement that creates any liability on the appellant's part to pay the assessment;  if the provisions of s.25(2B) are read with those of s.25(2A), then no liability attaches to the appellant as the holding of its interest in this land cannot be considered as joint in the terms of s.25(2B) as the appellant is not in a partnership or a firm or in a company as member with any of the other persons who hold an interest in this land as tenants in common with the appellant;  the appellant is not in any way associated or connected with any of the other persons who have an interest in this land. Then on 3 December 1998 the Commissioner assessed Diebold for land tax as at midnight on 30 June 1998, as if it were the owner of the land. At that time the taxable value was $195,000. Again the appellant objected on similar grounds to the 1997 assessment, and on 22 February 1999, the Commissioner advised Diebold that its objection was not allowed. On 23 March 1999, the appellant appealed to the Land Court on essentially the same grounds as previously, but adding the following:  the Commissioner attached a simplistic and inappropriately narrow interpretation of the operation of s.25(2A) and s.25(2B) of the Act;  the Commissioner did not properly exercise his discretion in deciding whether it was "advisable" to proceed pursuant to the provisions of s.25(2A) of the Act;  the Commissioner is wrong in attempting to base the exercise of his discretion on the decision in the SK Property Syndication Ltd case;  there is another company that holds a greater share of the land than the appellant and it would be more appropriate to levy any land tax properly payable on the land against that other company rather than the appellant. The Land Tax Legislation: The Land Tax Act 1915 is stated to be "An Act to impose a land tax upon relevant unimproved values, and for purposes incidental thereto and consequent thereon". The Act provides that land tax is payable by every owner of land on the taxable value of the land owned by the owner and not exempt from taxation under the Act (s.11(1)). The taxable value of all the land of an owner is the aggregate of the -- 3 of 14 -- 4 unimproved values of those parcels, less any deductions allowable (s.11(2)). Land tax is charged on land owned at midnight on 30 June immediately preceding the financial year in and for which the tax is levied (s.12). "Owner" is defined to include every person who is entitled to the land for an estate of freehold in possession, or who is entitled to the rents and profits from the land, or who is taken to be the owner under the Act (s.3B). The phrase "joint owners" means persons who own land jointly or in common, whether as partners or otherwise (s.3). Specifically, these cases turn on the interpretation of s.25 of the Act, which provides: "Joint owners 25.(1) Joint owners of land shall be severally assessed and liable in respect of the land (exclusive of the interest of any joint owner exempt under this Act), and the value of each owner's share shall be added to the value of all other land of which he or she is the owner. (2) Each joint owner of land shall be separately assessed and liable in respect of – (a) his or her individual interest in the land (as if he or she were the owner of a part of the land in proportion to his or her interest); together with (b) any other land owned by him or her in severalty; and (c) his or her individual interests in any other land. (2A) However, where the jointly owned land is of a relevant unimproved value of $50,000 of upwards, or where there are 5 or more joint owners of land, the commissioner may, if the commissioner considers it advisable to do so, make 1 assessment as if the land were owned by 1 person, but in such case the proportional assessment of the shares in the land shall not be added to the individual assessments of the joint owners. (2B) For the purposes of subsection (2A) lands which are held in severalty for an estate in fee simple by separate titles in the respective names of 2 or more persons shall be considered to be jointly owned by such persons if the lands are used by a partnership firm or company whereof such persons are members. (3) The commissioner may, for the purposes of this Act, declare any joint owner of land to be the agent or trustee of all other joint owners of the same land." -- 4 of 14 -- 5 The Issues Despite the ground of appeal in each case, it was not argued on behalf of the appellant that the definition of "joint owners" would not include tenants in common as well as joint tenants. There is no dispute that s.25(1) sets out the general rule that joint owners of land will be severally assessed for land tax and the value of each owner's share is added to the value of all other land of that owner. Similarly, there is no dispute that in each case the relevant value of the jointly owned land is in excess of $50,000 and that there are more than five joint owners of the land. Therefore, the issues in these cases concerned the interpretation of s.25(2A) and the exercise by the Commissioner of his discretion in respect of s.25(2A) and s.25(3). Before dealing with the submissions of the parties it is necessary to refer to a previous decision of the Land Court where similar issues arose. The Decision in the SK Property Case In their submissions in the present appeals, Mr Foley for Diebold and Mr Boddice, counsel for the Commissioner, referred to the decision of the Land Court in SK Property Syndication Limited v. The Commissioner of Land Tax (1997-98) 17 QLCR 148. That case concerned the appeal against an assessment of land tax by the Commissioner on a parcel of land with an area of 3,021 m², situated in the Town of Gympie, as at midnight on 30 June 1995. The land was owned by the appellant in that case and a number of other owners as tenants in common in a manner similar to that of the ownership of the subject land. Pursuant to s.25(3) of the Act, the Commissioner declared the appellant to be the trustee for all the joint owners and the assessment was made accordingly under s.25(2A). The issues raised in that case are similar to many of those raised in the present cases. In support of its contentions, the appellant in that case relied on passages in the Parliamentary Debates of the Legislative Assembly concerning the Land Tax Amendment Act 1920, where provisions similar to those contained in the present sub- s.(2A) and sub-s.(2B) of s.25 were inserted into the Act. The learned Member of the Land Court, Mr Neate, had regard to those passages under the provisions of s.14B of the Acts Interpretation Act 1954. The passages relied on by the appellant were contained in an explanation in the Second Reading Speech of the then Premier of the policy which prompted the various amendments. In referring to what appear to be the relevant provisions, the Premier stated that they were made to prevent spurious -- 5 of 14 -- 6 subdivisions of land and to prevent fraudulent evasion of land tax. The Premier went on to say that any bona fide subdivision of land would get the full benefit of the reduced rates of land tax. He continued: "We desire to encourage the subdividing of land. There have been a few cases in this State – not many, happily – where the subdivision has been what might be termed fraudulent – spurious, fictitious, a subdivision only on the surface, merely for the purpose of evading tax. Only when the Commissioner considers it necessary to exercise his discretion in the matter shall they be treated as still the property of the original owner, and subject to the original tax." (Parliamentary Debates at 3045) Later in the debate the Premier stated that, "… in the case of a bona fide subdivision, like that among the members of the family, they will always get the benefit of the exemption". (Parliamentary Debates at 3045) A little later he pointed out that, "If title deeds are held separately by individual owners, they cannot be treated as a joint ownership. The amendment only applies in such cases where the Commissioner thinks it is a spurious partnership." (Parliamentary Debates at 3046) Mr Neate said that the latter statement clearly refers to what is now s.25(2B) which, for reasons which he gave later in his decision, he concluded did not apply to the circumstances in that case. Mr Neate rejected the appellant's submission for two reasons. First, he stated that although the extracts from the Parliamentary Debates indicate one specific mischief which the amendment to s.25 was meant to remedy, the amendment was not expressly confined to dealing with cases of "fraudulent evasion" of land tax by "spurious subdivision". (17 QLCR 158) He held that s.25(2A) was able to operate for the purpose of ensuring that the revenue base is not in any way diminished by people arranging their affairs so that the property is held by a large number of owners who place themselves under the threshold in relation to their individual ownership. The fact that the syndicate structure was created for what the appellant described as "legitimate and valid commercial reasons" including "tax effectiveness" does not necessarily protect members of the syndicate from the operation of s.25(2A). (17 QLCR 159) The Member's second reason for rejecting the appellant's argument on that point was that he held there was no subdivision of the land. The Member went on to say that the sharing of ownership of the land did not constitute a subdivision. -- 6 of 14 -- 7 He continued: "Subdivision of land involves the issue of separate titles to separate parcels carved from a larger block. … [In s.26C of the Act] subdivision refers to the division of land and the registration of a plan of subdivision, not the distribution or division of ownership of one parcel of land." (17 QLCR 159) He held that there was one parcel of land with more than five persons who were registered owners of that land. All the separate entities together owned the land as tenants in common. He went on to say, "This is a case where the ownership of the land, but not the land, is divided in different sized shares. Because there is no subdivision, the specific mischief identified by the Parliamentary speeches quoted earlier is not exemplified by the circumstances of this case." (17 QLCR 160) The appellant in the SK Property case submitted that the Act is unclear in the sense that it does not specify the criteria to be considered by the Commissioner in deciding whether it is "advisable" to issue an assessment under s.25(2A); it should be understood in the context and in the sense intended by the Legislature as that intention was expressed in the explanatory speech of the Premier when introducing the 1920 amendments; that is, the discretion is to be exercised only when the land-owning structure is spurious in the sense that it was set up to evade land tax. In rejecting the appellant's submission, the learned Member held that there was nothing in the section or indeed the Parliamentary speeches, to compel the view that the Commissioner should consider it advisable to issue such an assessment only where the land-owning structure is a spurious one set up to evade land tax. The learned Member found that the power conferred by s.25(2A) can be exercised when either of the two preconditions is met: "When such a precondition exists there is a discretionary element in the exercise of the power. The Commissioner must consider it advisable to act in that way. In the absence of any other statutory guidelines, it can only be said that the Commissioner is not obliged to act in every case where one of the criteria is satisfied, and that, in exercising the discretion, the Commissioner must not act arbitrarily, capriciously, unreasonably or unjustly. There is no evidence to suggest that the Commissioner was so acting in relation to the subject land when making the assessment." (17 QLCR 161) The learned Member also considered the relationship between s.25(2A) and s.25(2B). He found that s.25(2A) is not expressed to be subject to s.25(2B), it does not limit the operation of s.25(2A), but explains how s.25(2A) operates in certain -- 7 of 14 -- 8 circumstances. He found that it may be described as a deeming provision whereby land held in a specified way is subject to the operation of s.25(2A). (17 QLCR 162) I have discussed the decision of Mr Neate in the SK Property case in some detail because it is directly relevant to the issues in the present cases. I agree with the reasoning and conclusions of the learned Member in that case. Against that background, I now turn to the submissions on behalf of the parties in the present cases. The Submissions The Proper Interpretation of s.25(2A) Mr Foley submitted that decision in the SK Property case can be distinguished because in that case the land was not held by separate titles. Therefore one of the necessary elements of s.25(2B) was not present and the effect of that subsection was not taken into account by the learned Member. The effect of s.25(2B) on the operation of s.25(2A) was not considered. When read together, s.25(2A) does not apply to the subject land. The intention of Parliament when the provision which is now s.25(2A) was inserted into the Act, was to circumvent persons making a fictitious subdivision of land merely for the purpose of reducing their land tax liability by putting land into a number of different names jointly. In such a case, the Commissioner was given the discretion to assess the original owner as if the land was held by one person. There had been no suggestion in the present cases that the holding of the land was for other than long-term investment or that it was structured so as to reduce or avoid land tax. Mr Foley went on to argue that the clear construction of s.25(2A) read with s.25(2B) is that where lands are held in severalty by separate titles in the names of two or more persons and are not used by a partnership, firm or company, then they are not to be considered as jointly owned for the purposes of s.25(2A). Accordingly, as a matter of construction, s.25(1) and (2) are the operative provisions for the assessment of land tax of such land. In the present cases, some elements of s.25(2B) were present; the subject land had been subdivided into two lots by a highway, they are held in severalty by tenants in common, in fee simple, by separate titles, in the respective names of the joint owners. However, one element was missing. The lands were not used by a partnership, firm or company, whereof such persons are members. There is no such usage. Therefore, they -- 8 of 14 -- 9 should not be considered to be jointly owned for the purposes of s.25(2A) and should be assessed under s.25(1) and (2). The appellant's second argument was that the words "joint owners" as defined by s.3 and as used in s.25(2A) must be given a separate interpretation in s.25(2B), otherwise that subsection was meaningless, because all situations involving joint owners were covered in s.25(2A). Section 25(2B) must be read "considered to be jointly owned by such persons [only] when lands are used by a partnership firm or company whereof such persons are members". If the lands are not so used, then the land is not considered to be jointly owned for the purposes of s.25(2A). As I understand his submission, Mr Foley argued that s.25(2A) is qualified by s.25(2B) and joint ownership has a different interpretation, requiring (i) that the lands are held in severalty, by separate titles, (ii) in the name of two or more persons, and (iii) that such lands are used by a partnership, firm or company, of which those persons are members. Only then are the lands to be regarded as jointly owned for the operation of s.25(2A). If, as here, the lands are not used by a partnership, firm or company, then they cannot be considered to be jointly owned for the purposes of s.25(2A). Otherwise, s.25(2B) is meaningless. Mr Boddice, for the Commissioner, submitted that s.25(2A) deals with an exception to the general rule that a joint owner of land is to be assessed severally and liable for land tax on the value of his or her share, which is added to the value of any other land of which they may be an owner (s.25(1)). The exception in s.25(2A) has two preconditions, either of which is sufficient for it to be enlivened. The first precondition is that the jointly owned land has an unimproved value of $50,000 or upwards. The second precondition is where there are five or more joint owners of the land. Mr Boddice rejected the contention that there can be separate interpretations of the same words, especially in the same section of an Act. "Joint owner" is defined in s.3 and the appellant is included in that definition for the purposes of s.25(2A). Mr Boddice went on to submit that where one of the preconditions in s.25(2A) is satisfied, the Commissioner has a discretion, if the Commissioner considers it advisable, to make one assessment as if the land was owned by one person. However, where the Commissioner does so, the proportional assessment of -- 9 of 14 -- 10 the shares in the land cannot be added to the value of the joint owner's other landholdings in Queensland. Mr Boddice submitted that, as found by Mr Neate in the SK Property case, s.25(2B) is a deeming provision which deals with a specific situation in which land is to be considered as being jointly owned. The subsection deals with a situation where there are two or more persons. That is different from s.25(2A), where it is a precondition that there be five or more, or if under five, that the unimproved value be $50,000 or more. Section 25(2B) uses the word "lands", whereas in all other section it is "land". It would appear to be intended to cover a subdivision where land is subdivided into a number of lots, each of which is owned by several people with separate title. Section 25(2B) allows the Commissioner to consider that land to be jointly owned and be assessed under s.25(2A). That is the subdivision situation dealt with in the Parliamentary Debates. That is why there is the added requirement that the lands be used by a partnership, firm or company. Section 25(2B) does not limit the operation of s.25(2A). It allows for the operation of sub- s.(2A) to be extended in circumstances which may not otherwise fall within the provisions of s.25(2A). Then s.25(3) empowers the Commissioner to declare a person to be the trustee for the purpose of issuing the individual assessment. Mr Foley submitted that s.25(2A) must be read subject to s.25(2B). Despite Mr Foley's submission to the contrary, Mr Neate dealt with the relationship between s.25(2A) and s.25(2B) when he described it as a deeming provision. Section 25(2A) allows the Commissioner to make one assessment as if the land was owned by one person when one of the two preconditions is present. In my view, s.25(2B) also requires the Commissioner to consider whether he should make one assessment of the land as if it were owned by one person, if the circumstances set out in s.25(2B) are present. Those circumstances are:  the lands are held in severalty for an estate in fee simple;  the lands are held by separate titles in the respective names of two or more persons;  the lands are used by a partnership, firm or company; and  the persons holding those lands are members of that partnership, firm or company. -- 10 of 14 -- 11 Those circumstances do not apply in the present cases. Therefore, s.25(2B) is not relevant. The Commissioner has assessed land tax under the provisions of s.25(2A) in both cases and, in my opinion, correctly. The Commissioner's Discretion The appellant's second argument was that the Commissioner had wrongly exercised his discretion under s.25(2A) and should have assessed land tax under the general rule in s.25(1). Mr Foley submitted that even in the absence of s.25(2B), the correct interpretation of s.25(2A), when read in the context of how the Legislature intended it to operate, indicates that there was an improper and invalid exercise of the discretion by the Commissioner to assess the land as if it was held by one person, simply because the elements of s.25(2A) existed in terms of value or numbers of joint owners. He submitted that the discretion could be exercised only where the Commissioner considered it "advisable to do so". Although the Commissioner may exercise his discretion when one of the statutory criteria is satisfied, the proper exercise of the discretion requires the Commissioner to have regard to all relevant circumstances. These are not confined to the value of the land and the number of joint owners, but probably extends to the type of land, whether it is used and the commerciality of that use. Mr Foley went on to contend that there is no evidence as to why the Commissioner exercised his discretion in the manner in which he did. He had not felt it necessary to do so before 1997. It is self-evident, he said, that the Commissioner must not act arbitrarily, capriciously, unreasonably or unjustly in exercising his discretion, but there must be some evidence as to why he exercised his discretion. The obvious relevant circumstances would be the number of owners, the extent of that ownership, the type of land, its location, the use to which it is put, its commercial structure, and whether it is income producing. In these cases, there was a vacant block of land, not used for anything, owned by a number of people. The appellant in these cases would probably not be liable for land tax on its interest if it was separately assessed. No previous land tax assessment had issued to any of the co-owners. When all these criteria are considered, there is doubt as to whether the Commissioner had properly exercised his discretion. Referring to the finding by the learned Member concerning the Commissioner acting under s.25(2A) to protect the revenue base, Mr Foley -- 11 of 14 -- 12 submitted that having regard to the intention of the Legislature, the discretion should be exercised only if it was intended to ensure that the revenue base was not diminished by people "improperly" arranging their affairs so that a large number of owners "purposely" ensure the value of their land is less than the threshold value. In the absence of statutory guidelines on how the discretion is to be exercised, that was the only possible interpretation of the phrase "if the Commissioner considers it advisable to do so". Mr Foley went on to argue that the Commissioner had not given reasons for exercising his discretion. He suggested that the Commissioner should give some evidence of why he exercised his discretion. In response to the appellant's objection to the 1998 assessment, the Commissioner gave no reason other than he believed that s.25(2A) has application and referred to the decision in the SK Property case. There was no evidence that the Commissioner had considered the matter in the light of what is required in terms of the Parliamentary Debates. His responses to the objections lead to the conclusion that he had not properly exercised his discretion in assessing the appellant. On the other hand, Mr Boddice argued that the provisions of s.25(2A) are not confined to the situations referred to in the Parliamentary Debates. This aspect was dealt with in the SK Property case, where it was held that the subsection was designed to ensure the revenue base was not diminished by people arranging their affairs so that the value of each share of the land falls below the level at which land tax is payable. The Land Court in SK Property accepted that s.25(2A) was able to operate for that purpose. Mr Boddice rejected the appellant's suggestion that there is some onus on the Commissioner to present evidence as to the basis for the exercise of his discretion. In his submission, it is the appellant that has the onus of establishing an improper exercise of the discretion and there is no evidence of that in these cases. The fact that the appellant and other joint owners may have had the benefit of ownership for some time without being assessed for land tax, does not mean that the exercise of the discretion in these cases is capricious. I agree with Mr Boddice that, as found in the SK Property case, the Commissioner's discretion is not confined to the situations referred to in the Parliamentary Debates. However, there are no statutory guidelines as to when the -- 12 of 14 -- 13 Commissioner should consider it advisable to act under s.25(2A). Mr Neate dealt with this in the SK Property case. In Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1985-1986) 162 CLR at 39 to 42, Mason J expressed the view that the exercise of an administrative discretion is reviewable when the decision maker fails to take into account a relevant consideration, but only where the decision maker fails to take into account a consideration which he is bound to take into account in making that decision. He went on to say that if the statute conferring the discretion does not expressly state the factors that the decision maker is bound to consider in making the decision, the relevant factors must be determined by implication from the subject matter, scope and purpose of the Act. There is no evidence that the Commissioner departed from these principles in the present cases. Mr Foley suggested that there is some onus on the Commissioner to present evidence as to the basis on which the discretion was exercised. That is not correct. The appellant has alleged that there was an improper exercise of the discretion. Having done so, the onus is on the appellant to produce evidence of that improper exercise. The appellant has not done so, other than to allege that the Commissioner has not seen fit to assess land tax on the subject land prior to 1997. In my view, that is no evidence of an improper exercise of a discretion. There may be many reasons why the Commissioner did not consider it was advisable to make earlier assessments. Finally, Mr Foley submitted that the Commissioner wrongly exercised his discretion under s.25(3) in declaring the appellant to be the trustee of the other joint tenants. He alleged that Archer & Carlson Pty Ltd was the original owner of the land and that, in accordance with the reference in the Parliamentary Debates, the Commissioner should have declared that company to be the trustee. Archer & Carlson Pty Ltd has 24 eightieths' interest compared with the appellant's 15 eightieths. Even though it is deregistered, Mr Foley submitted, that the company is still the largest joint owner and, as such, if the Commissioner was to assess the land under s.25(2A), he should have declared Archer & Carlson Pty Ltd to be the trustee of all other joint owners of the land. I cannot accept that submission. Section 25(3) gives the Commissioner an unfettered discretion as to which of the joint owners of the land he will declare to be a trustee. There is simply no evidence that the Commissioner has improperly exercised that discretion. -- 13 of 14 -- 14 Conclusion For the reasons set out above, I am of the opinion that the respondent Commissioner was correct in assessing Diebold for land tax under the provisions of s.25(2A) for both the 1997 and 1998 assessments. Therefore, the appeals must fail. Costs The provisions of s.28(2) of the Act are framed in mandatory terms and I have no discretion with regard to the award of costs. In these cases the respondent has been successful and therefore entitled to costs. Orders (i) The appeals are dismissed. (ii) I order that the appellant pay the respondent's costs of and incidental to these appeals. The amount of such costs shall be ascertained and fixed by the Registrar of the Supreme Court at Brisbane in accordance with the provisions of s.41(9) of the Land Act 1962. JJ TRICKETT PRESIDENT OF THE LAND COURT -- 14 of 14 --