Appellant v Respondent

1 The question on this appeal is whether duty is payable under the Duties Act 2000 (Vic) ("the Duties Act") on a transfer in December 2001 of the estate in fee simple in land[1] situated at 179 Rosamond Road Maribyrnong upon which there is erected a retail shopping centre.

2 The transferor and registered proprietor of the land was the "custodian" in relation to a registered scheme under Chapter 5C of the Corporations Act 2001 (Cth) ("the Corporations Act") and the transferee (the appellant) was the responsible entity of that registered scheme. The appellant contends that the transfer was exempt from duty under a number of provisions of the Duties Act and that, in any event, the estate in fee simple transferred had no value because it was a bare legal estate.

3 The essential facts are not in dispute. On 4 November 1997 a Trust Deed was executed establishing a unit trust known as the Homemaker Retail Property Trust ("the HRPT"). The Trust Deed was approved by the Australian Securities Commission under the Corporations Law then in force. The Trustee was Trust Company of Australia Ltd ("TCAL") and the Manager was Christie Retail Management Ltd. The latter company subsequently changed its name to Homemaker Retail Management Pty Ltd and it will be convenient to refer to it simply as "HRML."

4 The Trust Deed relevantly provided that the Trustee must hold the Assets of the Trust on trust for its Unit Holders[2] and that:

"5.1 The beneficial interest in the Trust is divided into Units. Subject to this deed, each Unit confers an equal undivided interest. A Unit does not confer any interest in a particular Asset but only an interest in the Assets of the Trust as a whole, subject to the Liabilities of the Trust.

...

5.5 Except as provided in this deed and subject to the law, a Unit Holder must not:

(a) interfere with any rights or powers of the Manager or Trustee under this deed;

(b) exercise a right in respect of an Asset or lodge a caveat or other notice affecting an Asset or otherwise claim any interest in an Asset; or

(c) require an Asset to be transferred to the Unit Holder."

5 At all relevant times until the transfer to the appellant, TCAL was the registered proprietor of the land.

6 On 12 April 2000 the HRPT was registered as a managed investment scheme under Chapter 5C of the Corporations Act. At the same time TCAL retired as Trustee and HRML became the responsible entity of the registered scheme. HRML appointed TCAL as the "custodian" under a Custody Agreement.

7 The Custody Agreement recited that HRML was the responsible entity of the HRPT and wished to appoint TCAL as custodian of the assets of HRPT. Neither party contended that the specific provisions of the Custody Agreement were relevant but the appellant pointed out that the duties of the custodian included holding "Assets of the Trust on the Responsible Entity's behalf" and holding all original Certificates of Title in a secure place. The custodian was entitled to a stipulated annual fee for its services.

8 On 27 November 2001 the unit holders of HRPT resolved to approve the acquisition of all of their units by General Property Trust ("GPT") or an entity controlled by GPT. GPT was also a registered managed investment scheme and was listed on the Australian Stock Exchange.

9 Prior to 28 November 2001, the appellant decided that it would seek to become the responsible entity of HRPT rather than employing an external trustee as responsible entity. The appellant also decided that it would be logical to terminate the Custody Agreement with TCAL in order to ensure that all custodian responsibilities and processes were undertaken internally by the appellant. The appellant had various systems and processes in place which allowed it to undertake the role and duties that TCAL had previously undertaken.

10 On 28 November 2001 HRML retired and the appellant (then named GPT Management Ltd) was appointed as responsible entity of HRPT. On the same day, the appellant, in its capacity as responsible entity of HRPT, by notice in writing directed TCAL to transfer to it all of the listed property of HRPT currently held by TCAL (and this included the land in Maribyrnong) and to sign transfers relating to that property.

11 On 12 December 2001 the appellant terminated the custody agreement. By transfer of land dated 18 December 2001, TCAL transferred "all its estate in fee simple" in the land to the appellant. The consideration stated was "pursuant to a direction dated 28 November 2001 from [the appellant] as responsible entity of the [HRPT] to [TCAL] as custodian of the [HRPT]." It is the transaction effected by this transfer of land which is said by the respondent Commissioner to be dutiable.

12 On 13 February 2002 the appellant applied to ASIC for deregistration of HRPT on the stated ground that the scheme was not a managed investment scheme. As a result, on 27 June 2002, the HRPT was deregistered by ASIC as at 13 February 2002.

Provisions of the Duties Act relied upon for exemption from duty

13 The appellant relies on three provisions of the Duties Act as each exempting the transfer from duty.

14 Section 251(b) exempts from duty "a transfer of property from the custodian of the responsible entity of a management investment scheme to the responsible entity." The appellant contends that the transfer falls precisely within the language of this exemption. The respondent contends that the exemption does not apply because at the date of the transfer HRPT was not a managed investment scheme.

15 Section 33(3) of the Duties Act provides that no duty is chargeable in respect of a transfer of dutiable property if the Commissioner is satisfied "that the transfer is made solely - (a) because of the retirement of a trustee or the appointment of a new trustee, or other change in trustees; and (b) in order to vest the property in the trustees for the time being entitled to hold it." Again, the appellant contends and the respondent disputes that the transfer falls within the language of the provision and, in particular, the appellant says that the transfer was made solely because of the retirement of a trustee or other change in trustees.

16 Section 33(4) of the Duties Act provides that if the Commissioner is not satisfied as mentioned in s.33(3), the transfer is chargeable with duty unless s.33(5) applies. Section 33(5) relevantly provides that no duty is chargeable in respect of a transfer "as a consequence of" the retirement of a responsible entity of a managed investment scheme or the appointment of a new responsible entity of a managed investment scheme. The appellant also relies on this provision but the respondent says that the transfer was not a "consequence" of any relevant retirement or appointment and further that the HRPT was not at that point a managed investment scheme.

Was the transfer exempt from duty under s.251(b) of the Duties Act?

17 The question is whether the transfer was "a transfer of property from the custodian of the responsible entity of a managed investment scheme to the responsible entity." Section 3(1) of the Duties Act provides that in "this Act," "managed investment scheme means a managed investment scheme within the meaning of Chapter 5C of the Corporations Act."

18 The appellant referred to the scheme of Chapter 5C of the Corporations Act. The appellant said that Part 5C.1 of the Corporations Act contained provisions for the registration of a managed investment scheme and Part 5C.2 contained provisions relating to responsibilities and powers of the responsible entity of a managed investment scheme and provisions relating to changing the responsible entity. The appellant referred to s.601FB which permitted a responsible entity to appoint an "agent" or custodian "to do anything that it is authorised to do in connection with the scheme" and to s.601FC(2) which provided that a "responsible entity holds scheme property on trust for scheme members."

19 The appellant drew attention to s.601PA of the Corporations Act which provided that a responsible entity of a registered scheme might lodge an application for deregistration of the scheme with ASIC and s.601PA(2) which provides that:

"The responsible entity may only apply if:

(a) the scheme:

(i) has 20 or less members...; and

(ii) is not required to be registered...; or

(b) ...; or

(c) the scheme is not a managed investment scheme."

20 Section 601PA(3) goes on to provide that, if ASIC is satisfied that the application complies with sub-sections (1) and (2), it must give notice of the proposed deregistration on the national database and in the Government Gazette and when two months have passed since the Gazette notice, ASIC may deregister the scheme.

21 The appellant said that the structure of Chapter 5C was such that, once a scheme was registered under Part 5C.1, it continued to be a "registered scheme" unless and until it was deregistered under Part 5C.10.

22 The appellant pointed out that the Duties Act defined a managed investment scheme to mean a managed investment scheme within the meaning of Chapter 5C of the Corporations Act. The Duties Act did not define a managed investment scheme by reference to the definition thereof in s.9 of the Corporations Act. The appellant submitted that a trust was a "managed investment scheme" for the purposes of the Duties Act if it was registered under Part 5C.1 of the Corporations Act and had not been deregistered and that that was so even if the relevant scheme had ceased to satisfy the Corporations Act definition of a managed investment scheme at some time prior to its deregistration. Accordingly, the appellant submitted that, at the time of the transfer, HRPT satisfied the definition of "managed investment scheme" for the purposes of s.251(b) of the Duties Act. The transfer therefore satisfied the criteria for exemption thereunder - it was a transfer of property from TCAL as custodian of a managed investment scheme to the appellant as the responsible entity of a managed investment scheme.

23 The appellant further submitted that the focus of s.251(b) was upon the identification of the relevant transferor and transferee. The transferor had to be a custodian of the responsible entity of a managed investment scheme and the transferee had to be a responsible entity. The appellant pointed out that "responsible entity" was defined by s.3 of the Duties Act as follows: "responsible entity of a managed investment scheme, has the same meaning as in the Corporations Act." The appellant then referred to s.9 of the Corporations Act which provided that:

"responsible entity of a registered scheme means the company named in ASIC's record of the scheme's registration as the responsible entity or temporary responsible entity of the scheme."

24 The appellant argued that there could not be a responsible entity of an unregistered managed investment scheme. The identification of a responsible entity depended on the continued registration of the scheme and the identification of the responsible entity in the records of ASIC. A managed investment scheme remained subject to the rules contained in Chapter 5C of the Corporations Act unless and until deregistered by ASIC. The appellant therefore submitted that all trusts so registered remained, until deregistered, "managed investment schemes within the meaning of Chapter 5C" as referred to in the Duties Act.

25 I will refer later below to the appellant's arguments as to why HRPT remained, in any event, a managed investment scheme.

26 On the other hand, the Commissioner submitted that HRPT was not a "managed investment scheme" at the time of the transfer on 18 December 2001. The Commissioner submitted that the appellant had ignored the fundamental distinction between a "managed investment scheme" and a "registered scheme" each of which was defined by s.9 of the Corporations Act. I note here that registered scheme is defined to mean, by s.9 of the Corporations Act (unless the contrary intention appears), "a managed investment scheme that is registered under section 601EB."

27 The Commissioner submitted that, without the definition of managed investment scheme in s.9 of the Corporations Act, there was no definition at all. To make any sense of the reference in the Duties Act to a managed investment scheme within the meaning of Chapter 5C of the Corporations Act one had to read in the words of the substantive definition contained in the particular enactment referred to.

28 The Commissioner said that it was clear that registration might continue, at least for a time, even if the scheme in question was no longer a "managed investment scheme."

29 The Commissioner submitted that, when GPT acquired the units in HRPT on 27 November 2001, HRPT no longer met the definition of a managed investment scheme under s.9 of the Corporations Act, which relevantly provided as follows:

"(a) a scheme that has the following features:

(i) people contribute money or money's worth as consideration to acquire rights (interests) to benefits produced by the scheme (whether the rights are actual, prospective or contingent and whether they are enforceable or not);

(ii) any of the contributions are to be pooled, or used in a common enterprise, to produce financial benefits, or benefits consisting of rights or interests in property, for the people (the members) who hold interests in the scheme (whether as contributors to the scheme or as people who have acquired interests from holders);

(iii) the members do not have day-to-day control over the operation of the scheme (whether or not they have the right to be consulted or to give directions)..."

30 HRPT did not meet the above definition, the Commissioner submitted, because there was no longer a "pooling" or a "use of contributions" in a "common enterprise" and it could no longer be said that the members "do not have day-to-day control over the operation of the scheme" because the appellant (controlled by GPT) was the responsible entity or manager of the scheme and GPT held all of its units (except one).

31 I interpolate here that the appellant submitted to the contrary, namely, that in any event HRPT continued to be a managed investment scheme after the acquisition by GPT because the people whose moneys were contributed were the unit holders in the GPT and the funds of the GPT unit holders were invested as much in HRPT assets as they were in all the other real estate assets of the GPT. The people who had contributed the money did not have day-to-day control over the operation of the scheme. The appellant submitted in substance that the fact that the real contributors were "one stage removed"[3] by reason of the interposition of GPT between them and HRPT did not mean that HRPT was no longer a managed investment scheme. The Commissioner's response to this submission was that the common enterprise to which the unit holders of GPT had contributed was the enterprise of the GPT and not the enterprise of the HRPT.

32 In my opinion, the Commissioner's submissions are to be preferred.

33 I consider that, when s.3(1) of the Duties Act provides that a managed investment scheme means a managed investment scheme within the meaning of Chapter 5C of the Corporations Act, the legislature intended to utilise the same meaning for this expression as the meaning adopted in the Corporations Act and, therefore, the definition contained in s.9 of the Corporations Act must be taken to be incorporated by reference.

34 It is evident, upon a reading of Chapter 5C of the Corporations Act as a whole, that a managed investment scheme may or may not be registered and that a registered scheme may or may not at any given time be a managed investment scheme as defined. It would seem therefore that the reference in the Duties Act to a "managed investment scheme" must be a reference to a managed investment scheme as defined and not to a registered scheme as such. I note the appellant's reliance on the definition of responsible entity as being the responsible entity of a registered scheme but had the legislature intended to make the fact of registration part of the criterion for exemption it would have been easy to do so. I think that the correct question, therefore, is whether on 18 December 2001, despite the fact that it was still registered as a scheme on that date, HRPT remained a managed investment scheme as defined by the Corporations Act.

35 In my opinion, HRPT was not a managed investment scheme on 18 December 2001 because, as the Commissioner submitted, it did not satisfy the requirements of sub-paragraph (a) contained in the definition provided by s.9 of the Corporations Act. In particular, I do not accept the appellant's contentions that the contributions of the unit holders of GPT were pooled or used in a common enterprise represented by HRPT or that those unit holders are the "members" referred to in sub-paragraph (a)(iii) of the definition. Rather, GPT or its interposed entity is the relevant "member" and it does have the day-to-day control over the operation of HRPT.

36 For the foregoing reasons, the transfer was not exempt from duty under s.251(b) of the Duties Act.

Was the transfer exempt from duty under s.33(3) of the Duties Act?

37 This raises the question whether the Commissioner was bound to be satisfied, on the facts, that the transfer was made solely because of the retirement of a trustee or the appointment of a new trustee or other change in trustees and in order to vest the land in the trustees for the time being entitled to hold it. As I understood it, the appellant did not rely upon the words "the retirement of a trustee or the appointment of a new trustee," but the appellant confined its argument to the words "or other change in trustees" contained in s.33(3)(a) of the Duties Act.

38 The appellant submitted that TCAL, as a custodian, was a "special function trustee" because it necessarily held the land pursuant to the Custody Agreement on behalf of the responsible entity and the transfer was made solely because of a "change in trustees" and solely in order to vest the land in the trustee for the time being entitled to hold it. The appellant submitted that the Commissioner was, on the facts, bound to be satisfied of the foregoing matters.

39 The appellant submitted that the only purpose of the transfer was to give effect to the change of trusteeship[4] and that it was unnecessary that the transfer be a "requirement" arising from the appointment of the appellant as responsible entity and hence trustee. The transfer was made solely because of the removal, as custodian trustee of TCAL and the assumption by the appellant of that role or the functions associated with it and the transfer was made solely in order to vest the land in the appellant in its trustee capacity. The nature of the business transaction as a whole and the commercial considerations attendant upon the appellant's decision to take over the custodial functions did not detract from the foregoing and were not matters that the Commissioner was entitled to take into account in considering whether to be satisfied of the matters set out in s.33(3) of the Duties Act.

40 The Commissioner submitted that the appellant had failed to demonstrate that he had erred in reaching his stated satisfaction in any of the ways identified by Dixon J in Avon Downs Pty Ltd v The Federal Commissioner of Taxation.[5] The Commissioner submitted that there was no "change in trustees" because the relevant trust was simply terminated, that is to say, TCAL as custodian held the land on trust for the appellant and that trust was terminated by the appellant's revocation of the Custody Agreement and consequent direction to TCAL to transfer the land to the appellant. The Commissioner said that the exemption only operated where an existing trust continued and there was a retirement of a trustee of that trust, or an appointment of a new trustee of that trust, or a change in trustees of that trust. But the exemption did not apply where a trustee ceased to be a trustee because of a termination of the trust concerned.

41 In my opinion the Commissioner's submission takes an unduly restrictive approach to the interpretation and application of s.33(3) of the Duties Act. The evident purpose of the provision is to exempt from duty transfers made solely for the purpose of giving effect to mere administrative changes affecting trusts such as the retirement of a trustee or the appointment of a new trustee and I think that the words "or other change in trustees" should be given an expansive interpretation in order to cover other administrative changes effecting a change in the person or persons carrying out trustee functions.

42 In the present case, when TCAL retired as trustee in April 2000 and at the same time was appointed by the new responsible entity (HRML) as custodian, TCAL came to hold the land of which it was registered as proprietor as trustee for the responsible entity. It may be accepted that from April 2000 there was also a relationship of a contractual and agency nature between HRML as responsible entity and TCAL as custodian but that does not detract from an analysis that recognises that TCAL held the land, as registered proprietor, merely as a trustee for the entity that had appointed it as a custodian thereof.

43 The Commissioner's submission was that there was no "change" of trustees because the relevant trust was terminated and the exemption only operated where an existing trust continued and there was a change in trustees of that trust. However, I think that the better view is that there was a change in trustees in a wider sense compatible with the purpose of the statutory provision. That is because TCAL ceased to be a trustee - that in itself involved a "change in trustees." Further, the appellant, as responsible entity, while an existing and continuing trustee, took over the custodial role formerly vested in TCAL and there was thereby a "change in trustees" in relation to that aspect of the trustee function.

44 When the appellant decided, for various business reasons, to terminate the Custody Agreement with TCAL and did so, that termination necessitated the transfer of the land by TCAL to the appellant. It seems to me that the Commissioner was therefore bound to be satisfied that the transfer was made solely because of a change in trustees and in order to vest the land in the trustees for the time being entitled to hold it.

45 For the foregoing reasons, the transfer was exempt from duty under s.33(3) of the Duties Act.

Was the transfer exempt from duty under s.33(5) of the Duties Act?

46 For the exemption contained in s.33(5) to be applicable, there has to be, among other things, the retirement of a responsible entity of "a managed investment scheme" or the appointment of a new responsible entity of "a managed investment scheme." For the same reasons as I have stated in relation to s.251(b) of the Duties Act, HRPT was not a managed investment scheme on the date of the transfer so that s.33(5) of the Duties Act is likewise inapplicable.

Did the dutiable property transferred have a nil value?

47 Having regard to my conclusion that the transfer was exempt from duty, it is strictly unnecessary to consider the appellant's submission that the dutiable property transferred was the bare legal title to the land and that its value was nil and not $34,550,000 as set out in the Assessment.[6] However, in case I am wrong about the transfer's exemption from duty, I will briefly consider this further submission by the appellant.

48 The appellant and the Commissioner agreed that the dutiable property in this case was that which was referred to in s.10(1)(a)(i) of the Duties Act, namely, "an estate in fee simple" but the appellant pointed out that this provision did not exclude the possible separate existence in land of the legal estate in fee simple and the equitable estate in fee simple and it submitted that what was transferred to the appellant and had to be valued was the bare legal estate in fee simple.

49 The appellant referred to s.22(1) of the Duties Act which provides that the unencumbered value of dutiable property is the amount for which the property might reasonably have been sold in the open market at the time the dutiable transaction occurred free from any encumbrance to which the property was subject at that time. The appellant submitted that, in identifying the dutiable property the subject of the dutiable transfer, it was necessary to ascertain what had passed as a result of the transfer from the transferor to the transferee. While contractual or personal rights or encumbrances which reduced the value of the property the subject of the transfer could not be taken into account, the beneficial interest held in land by a unit holder or other person was not such a right or encumbrance. The appellant referred to the evidence relating to the beneficial ownership of, or the beneficial interest in, the land which were not affected by the transfer from TCAL to the appellant.

50 On the other hand, the Commissioner emphasised that the dutiable property was the "estate in fee simple" in the land the whole of which was disposed of by the transfer. Referring to the High Court's decision in CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria,[7] the Commissioner said that none of the unit holders in HRPT had any proprietary interest in the land but only beneficial interests in the trust fund as a whole and, in that regard, the Commissioner referred to the terms of the HRPT Trust Deed to the effect that a unit did not confer any interest in a particular asset but only an interest in the assets of the trust as a whole. The Commissioner submitted that, in any event, the equitable nature of unit holders' interests did not mean that the transfer operated to convey only a bare legal title and that the trustee had at law all the rights of the absolute owner in fee simple even though he might not be free to use those rights for his own benefit in the way he could if the trust did not exist. Finally, the Commissioner submitted that the existence of exemptions from duty in transfers involving trustees demonstrated Parliament's intention that estates in fee simple held by trustees were to be valued on the basis that the equitable proprietary interests (if any) of the beneficiaries were not to be taken into account.

51 In support of its argument, the appellant placed some emphasis upon what was said by Ormiston JA in Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue[8] as follows:

"The critical question, as has been frequently stated, depends on the language of the statute itself and in this case the question posed by the subparagraph is what is the "amount" for which the property consisting of the estate or interest in real property, which is the subject of the conveyance or transfer, "might reasonably have been sold in the open market" at the time of sale. As I have said, it would be remarkable if a pre-existing equitable interest, so clearly now recognised as a property right regardless of its origins in equity, could be disregarded in fixing what is the proper value of the interest sold."

52 No doubt, with respect, that statement is clearly correct and if a bare legal estate in fee simple is transferred it is that which has to be valued. But the question here is whether it was a bare legal estate in fee simple that was transferred.

53 In CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria,[9] the High Court was concerned with the provisions of the Land Tax Act 1958 (Vic) which imposed tax on the total unimproved value of all land of which a taxpayer was "the owner" at a given date and time. There were specific provisions of the Act dealing with the definition of owner, dealing with the owners of equitable estates and interests and with land vested in trustees. The case involved land vested in trustees of unit trusts. The High Court held that the unit holders were not assessable as the "owner" of the land within the definition of the Land Tax Act. In dealing with the case of Glenn v Federal Commissioner of Land Tax,[10] the High Court said this:[11]

"In that case, Griffith CJ said of an argument for the Revenue that it was:

"based on the assumption that whenever the legal estate in land is vested in a trustee there must be some person other than the trustee entitled to it in equity for an estate of freehold in possession, so that the only question to be answered is who is the owner of that equitable estate. In my opinion, there is a prior inquiry, namely, whether there is any such person. If there is not, the trustee is entitled to the whole estate in possession, both legal and equitable."

That statement was a prescient rejection of a "dogma" that, where ownership is vested in a trustee, equitable ownership must necessarily be vested in someone else because it is an essential attribute of a trust that it confers upon individuals a complex of beneficial legal relations which may be called ownership. The current state of authority, exemplified by Federal Commissioner of Taxation v Linter Textiles Australia Ltd (In liq), bears out what was said in Glenn by Griffith CJ." (citations omitted)

54 Although the High Court was concerned with the definition of "owner" in the Land Tax Act, the above passage supports the argument put by the Commissioner that, in the case of a unit trust and depending on the terms of the Trust Deed, where no persons can be identified as entitled to an equitable estate in the land, the trustee, despite being a trustee, is entitled to the whole estate both legal and equitable.

55 In CPT Manager Ltd v Chief Commissioner of State Revenue,[12] in a passage that he stressed was strictly obiter, Gzell J said[13] that there was nothing in the High Court's decision in CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria "to suggest that the holder of a unit in a unit trust lacks an equitable interest in the trust property." That statement was, with respect, incorrect or perhaps only relevant in the context of that case.

56 Looking at the terms of the Trust Deed in the present case, in my view it can be said that the unit holders do not have an equitable estate in the land whatever equitable interest they may have in the assets of the Trust as a whole.

57 But that is not the end of the matter. The question is not what estate in fee simple is held by the appellant, as registered proprietor of the land, vis-à-vis the unit holders and having regard to the terms of the Trust Deed. The question is what was the nature of the estate in fee simple held by TCAL, as registered proprietor, that it transferred to the appellant. In my opinion TCAL, from the time that it retired as responsible entity and was appointed custodian by HRML, held the land as bare trustee for the responsible entity. It was entitled only to the legal estate in fee simple. That is what TCAL transferred to the appellant. HRML, and its successor (the appellant), was probably entitled to the equitable estate in fee simple in the land. That view is supported, I think, by the authorities to which I have referred. But irrespective of who may be identified as the beneficial owner or owners of the land, it seems to me that TCAL had only a legal estate in fee simple to transfer.

58 I do not think that evidence is required (although there was some evidence) to support the conclusion that the bare legal estate in the land had a nil value and I so conclude.

59 For the foregoing reasons, the appeal is allowed and the assessment is set aside. The Commissioner must pay the appellant's costs including reserved costs.

[1] Being the land comprised in Certificate of Title Vol 8164 Fol 985.

[3] In fact, as I understand it, there was another entity (Gem Retail Property Trust) interposed between GPT and HRPT but this does not seem to affect the substance of the appellant's argument.

[4] Citing Commissioner of State Revenue v Challenger Property Nominees Pty Ltd [2006] VSC 203; (2006) 63 ATR 65 at [34] per Hollingworth J.

[5] [1949] HCA 26; (1949) 78 CLR 353, 360.

[6] And not $37,500,000 as set out in an affidavit of Richard Myles Bowman sworn 17 December 2008.

[7] [2005] HCA 53; (2005) 224 CLR 98.

[8] [2004] VSCA 10; (2004) 12 VR 351 at [78].

[9] [2005] HCA 53; (2005) 224 CLR 98.

[10] [1915] HCA 57; (1915) 20 CLR 490.

[11] [2005] HCA 53; (2005) 224 CLR 98, 112.

[12] (2006) 64 ATR 654.

[13] (2006) 64 ATR 654 at [50].