New South Wales Civil and Administrative Tribunal (NCAT ) administer retail lease act and resolve disputes between tenant and landlord. On 30 October 2018 orders were made by NCAT Senior member to pay rent in breach of tax law. Tenant is subject to penalties from ATO if he complies with orders. Tax compliance is an issue in every retail lease transaction that involves rent and GST. Senior Member Goldstein made orders to surrender possession on 27 Feb 2019. Supreme Court Justice Button also ignored the breach of Tax Law and upheld the decision of Senior Member Goldstein when prerogative relief was sought. However, Tribunal Principal Member Harrowell stayed orders of possession and order the tenant to pay $26000 (without GST) into a tribunal trust account. Tenant paid the outstanding rent into tribunal trust account pending the hearing of the appeal.
Retail lease tenant for premises located at 8 Bringelly rd Kingswood paid over a million dollar to landlord over 11 years. It’s an uphill battle not only with the landlord but with the New South Wales Civil and Administrative Tribunal (NCAT ) who continue to ignore tax compliance by the landlord for reasons that point towards one or all of the following
- lack of training of members to deal with issues involving tax law or
- lack of jurisdiction to deal with federal tax law.
Since Dec 2017 NCAT ignored the tax compliance by the landlord 8 times especially by Principal Member Harrowell, Deputy President Westgarth, Senior Member Simon, and Senior Member Goldstein and continue to help the landlord to breach tax law and expose the tenant with possible penalties from the ATO.
Directions were made by Principal Member Britton on 14 Dec 2018 to list the appeal for hearing on 28 March 2019 in matter AP 18/52044
The appeal has 9 grounds and most of them relate to tax compliance of the landlord. The landlord has provided no evidence to the tribunal at first instance that Fobupu Pty Ltd is a trustee of Khan Family Trust No 2. A mere oral undertaking is accepted from the landlord without any objective evidence. Fobupu Pty Ltd has no ABN and not registered for GST and there is no relationship with Khan Family Trust No 2 established by way of objective evidence. Tenant is subject to penalties from ATO if that oral undertaking happens to be flawed. NCAT may become an accessory to tax fraud if an oral undertaking happens to be flawed.
On 28 March 2019 Principal Member K Rosser and Senior Member K Ransome adjourned the proceeding to consider if there is any utility to hear the appeal. It is important to note this is the 9th instance when the issue of tax compliance by landlord being ignored or trying to sweep under the carpet by the tribunal.