Applicants v Respondent

65 The judge had earlier summarised the Commissioner's contentions directed to meet a finding that the first transfer gave Mr and Mrs Mondous an equitable interest in the land.[34] The Commissioner's submission was that where, as here, the trustee held other lands on various discretionary trusts, ss 51 and 52 would not have the effect that the trustee would cease to be the owner of the land for land tax purposes. Accordingly, the trustee would in any event remain liable to pay land tax on an aggregated basis including the value of the land.[35]

66 In Lygon Nominees Pty Ltd v Commissioner of State Revenue,[36] the Court of Appeal considered the application of ss 51 and 52 of the Land Tax Act in circumstances where a company was the trustee of 11 discretionary trusts and one unit trust and, in each capacity, held one or more pieces of land in severalty as legal owner. Redlich JA (Ashley JA and Bell AJA agreeing) held that there were no 'beneficial owners' of any of the lands owned by the trustee in its capacity as trustee of the discretionary trusts, and the value of those lands should therefore be aggregated with the value of the lands held subject to the unit trust (where it was arguable that the unit holders were 'beneficial owners'). Redlich JA reasoned as follows:

(1) The phrase 'beneficial owners' in s 52(1) had the same meaning as 'the owner of an equitable estate or interest' in s 51 and s 52(2).[37]

(2) That 'neither the objects of the power of appointment nor the takers in default of appointment in the discretionary trusts fell within the description of a beneficial owner because their equitable interest did not vest in possession'.[38]

(3) As to objects of a power of appointment under a discretionary trust deed, and subject to the terms of the deed at issue, an object of a discretionary trust does not have a proprietary interest in the assets of the trust.[39] Accordingly, objects of the discretionary trusts were not 'beneficial owners' under s 52(1) of the Land Tax Act. The equitable interest of an object is limited to an equitable entitlement to call upon the trustee to administer the trust in accordance with its terms and is a mere expectancy.[40]

(4) Although the interests of the unit holders in the one unit trust may collectively have been the 'beneficial owners' of the land held by the trustee in that capacity, this had no significance to the operation of s 52(1) because the lands held by the trustee under the discretionary trusts were not held for any identifiable 'beneficial owners' within the meaning of that sub-section.[41]

67 Redlich JA expressed his conclusion in the following terms:

Conclusion

The phrase 'beneficial owners' in s 52 has the same meaning as 'the owner of an equitable estate or interest' in s 51. The owner must be entitled, in equity, to the freehold estate in possession in relation to the land the subject of the trust. With the possible exception of the unit holders of the Thornbury unit trust, there were no 'beneficial owners' of land held by the trustee subject to any discretionary trust. The objects of the power of appointment under the trusts did not have any equitable estate or interest in the said lands and were not beneficial owners. The takers in default of appointment under the trusts were not beneficial owners. Accordingly, at each of the relevant dates of assessment, the appellant was not the owner of different lands in severalty in trust for different beneficial owners within the meaning of s 52 of the Land Tax Act.[42]

68 The reasoning in Lygon Nominees as to the nature of the interest of an object of a discretionary trust is consistent with the statements of the High Court in Kennon v Spry.[43]

69 The reasoning in Lygon Nominees is directly applicable to the facts of this case. The judge was correct to hold that 'even if' the first transfer had conveyed the equitable estate in the land to Mr and Mrs Mondous and that transfer had not been 'revoked', s 52(1) would not have supported the trustee's objection. Although those circumstances would have made Mr and Mrs Mondous liable to be assessed for land tax under s 51, the trustee would also have remained liable for that tax under s 52(1). Moreover, as all other lands owned by the trustee were held by the trustee on discretionary trusts in respect of which there were no 'beneficial owners', the trustee remained liable for land tax on the aggregate value of all lands held by it as trustee.

70 In determining whether a finding of fact was legally indispensable to an earlier decision for the purposes of issue estoppel, it is necessary to refer to the decision of Dixon J in Blair v Curran.[44] Dixon J stated that an issue estoppel 'covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of it conclusion',[45] or 'what is legally indispensable to the conclusion'.[46] His Honour then considered the distinction between findings of 'evidentiary facts', which do not give rise to an issue estoppel, and factual findings which are 'fundamental to the decision arrived at', which may give rise to an issue estoppel.[47] His Honour continued:

The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order.[48]

71 Mr and Mrs Mondous contend that the two alternative findings, although expressed by the judge as being determinative of the objection at the first hurdle, did not involve the rejection of an essential ingredient of the equitable transfer objection. Although the judge first considered whether the first transfer effected a conveyance of the equitable interest in the land to Mr and Mrs Mondous and, if so, whether that transfer was revoked,[49] she then proceeded to conclude that it would have made no difference if an equitable assignment had been established and not revoked: because the trustee would nevertheless have remained liable for land tax on an aggregated basis, as assessed.[50] The latter finding, based on Lygon Nominees as to the effect of ss 51 and 52 of the Land Tax Act in similar circumstances, is contended to be the only 'legal foundation' of the judge's rejection of the objection based on those sections. Put another way, it is contended that the alternative findings were not findings on 'an ultimate issue of fact or law which was necessarily resolved as a step' in the judge's reasons for rejecting the objection.[51]

72 I do not accept these contentions. They involve too narrow a reading of the authorities. The approach of Doyle CJ in Mitsubishi Motors Australia Ltd v Harbord[52] should, in my opinion, be applied. In Mitsubishi, Doyle CJ (Matheson and Olsson JJ agreeing) considered whether an issue estoppel was created by findings of a District Court judge in a negligence action brought by a worker against Mitsubishi. The worker alleged that he injured his lower back when he slipped on some oil in the course of his employment, and that the oil was present at his workplace due to Mitsubishi's negligence. The District Court judge rejected the worker's claims for two reasons. First, Mitsubishi did not fail to take proper care to prevent spillages of oil at the workplace and was therefore not negligent. Second, because the worker did not slip on oil in the manner he alleged.[53] In these circumstances, Doyle CJ held that confining the issue estoppel to the judge's finding that there was no negligence was 'too narrow an approach'.[54] Doyle CJ expressed his conclusions in the following way:

It seems to me that the critical issues before the District Court were these. First, whether Mitsubishi failed to take the identified precautions against the presence of oil on the floor. Secondly, whether oil was present on the floor. Thirdly, whether the plaintiff slipped on the oil. Fourthly, whether that slip caused injury to the plaintiff's back_. A failure to establish anyone of these four ultimate facts or groups of fact was sufficient to defeat Mr Kowalski's claim._

In my opinion, as the passages that I have set out from the judgment of the District Court indicate, the judge found against Mr Kowalski on the first matter and on the third matter. He has not found in terms that there was no oil on the floor, only that Mitsubishi did not fail to take proper precautions. Nor has he found in terms that the plaintiff did not somehow sustain a back injury on 9 May 1989.

It seems to me that the two matters which I have identified are 'the actual ground upon which the existence of the right was negatived'. It was not necessary to decide both of them, a decision on either one would have sufficed to defeat the claim. In that sense neither was essential to the conclusion reached. But I think that Dixon J [in Blair v Curran] cannot have intended such a narrow meaning when he referred to 'the essential foundation or groundwork of the judgment'.

Accordingly, I agree with the judge below that the two findings referred to do give rise to an estoppel. The declaration made by the judge, which is incorporated in the formal order of the court, was that Mr Kowalski is estopped from claiming 'that he suffered an injury to his lower back on the 9th day of May 1989 as a consequence of slipping on oil in the rework area whilst in the course of his employment by Mitsubishi ...'. I consider that that declaration was rightly made.[55]

73 In Commonwealth of Australia v Cockatoo Dockyard Pty Ltd,[56] Tobias JA (Giles and Santow JJA agreeing) considered Mitsubishi and summarised its effect in the following terms:

1. In my view, it would be illogical to surmise that an issue estoppel could not arise simply because two complete but alternative routes may be taken to arrive at the relevant conclusion. Each issue found in favour of Mitsubishi constituted an alternative or separate basis for the District Court's decision, and each of those bases was capable of supporting that decision in its own right. Neither was only ancillary to the other; thus, as I have noted above, a decision on either of the two issues so determined would have sufficed to defeat the workers' claim. As a result, while neither was of itself essential to the conclusion reached (in that they were true alternative bases for the decision), both findings were capable of giving rise to an issue estoppel as each was equally indispensable to the worker succeeding.
2. As [Doyle CJ] noted when considering the judgment of Dixon J in Blair v Curran, his Honour could not have intended to give a narrow meaning to what he referred to as 'the essential foundation or groundwork of the judgment'. Accordingly, the fact that neither issue was essential in the narrow sense did not prevent each issue constituting 'the essential foundation' of the District Court's judgment.[57]

74 I accept the reasoning in Mitsubishi and Cockatoo Dockyard, which is apposite to the facts of this case. Here, the essential issues for determination by the judge on the equitable transfer objection were as follows:

(1) Was the first transfer effective to convey the equitable interest in the land to Mr and Mrs Mondous (a question of mixed fact and law)?

(2) If so, did the equitable transfer have the result that the trustee was not, by operation of ss 51 and 52 of the Land Tax Act, liable for land tax in respect of the land or was liable for land tax on the land on a disaggregated basis?

75 To succeed on its equitable transfer objection, the trustee needed to succeed on both issues. To defeat the objection, the Commissioner needed only to persuade the Tribunal that the trustee had failed to establish one or other of them. In the result, as in Mitsubishi, the losing party (the trustee) lost on both issues. On this basis, I find that the alternative findings in this case were legally indispensable to the judge's decision to reject the equitable transfer objection.

76 I have considered whether the decision of Chernov JA (Winneke P and Charles JA agreeing) in Glen Eira City Council v Kingston City Council,[58] compels me to reach a different result. In my opinion, it does not. I respectfully adopt the analysis of Glen Eira by Tobias JA in Cockatoo Dockyard.[59]

77 Before leaving the legal indispensability issue, I should note two other submissions made by Mr and Mrs Mondous to support their contention that the alternative findings were not legally indispensable to the result in the land tax proceeding.

78 First, reliance was placed upon the obiter dicta comments of Tate JA in the Court of Appeal Reasons that, because the equitable transfer objection was advanced at the hearing before the judge 'without leave', it was entertained by the judge without 'jurisdiction',[60] because s 26(1)(a) of the Land Tax Act provides:

(1) Upon any review or appeal under this Act -

(a) unless the Court or the Tribunal otherwise orders, the taxpayer shall be limited to the grounds stated in the objection and the Commissioner shall be limited to the grounds upon which he has disallowed the objection.[61]

79 On this basis, Mr and Mrs Mondous contend that a decision made in excess of jurisdiction cannot have been legally indispensable to the judge's conclusion. I reject this argument. Although the judge did not formally order that the trustee have leave to amend its grounds of objection, the equitable transfer objection was advanced at the hearing without objection by the Commissioner. In other words, the judge permitted or allowed the equitable transfer objection to be argued by consent of the Commissioner. In my opinion, s 26(1)(a) is procedural and not jurisdictional in nature. By permitting the equitable transfer objection to be raised and argued, and determining the objection, the judge impliedly ordered by consent that the trustee was not limited to the buyer in possession objection contained in the trustee's earlier written form of objection.

80 Second, Mr and Mrs Mondous contend that, because the equitable transfer objection failed on the legal ground that ss 51 and 52 of the Land Tax Act did not operate as they contended, because of Court of Appeal authority standing in their way, the alternative findings could not be appealed because success on such an appeal would not affect the ultimate determination of the objection. Reliance was placed upon the decision of Gleeson CJ in Murphy v Abi-Saab,[62] where his Honour said:

A practical test of whether a decision is fundamental is to ask whether it is possible to appeal against the finding. Since finality of litigation is a primary object of the principle underlying issue estoppel, it would be incongruous if the doctrine operated so as to force a litigant to appeal in order to displace part of the reasoning of a Court whilst having no intention, and perhaps no hope, of displacing the judgment.

81 I do not accept this submission. I agree with Doyle CJ's interpretation of the above-quoted passage from Abi-Saab in Mitsubishi that:

I take [Gleeson CJ] to mean that it would be unjust if a party, in whose favour the Court decided, was estopped as to issues decided against that party. It could be unjust because that party, having an ultimate judgment in the party's favour, was unable to appeal and to challenge the adverse findings made.[63]

82 Even on this basis, Doyle CJ doubted whether Gleeson CJ's statement of a 'practical test' was one which could be universally applied.[64]

83 Further, the trustee in fact appealed against the dismissal of its buyer in possession objection in the land tax proceeding, with the intention of reversing the judge's decision on that objection. In doing so, the trustee contended for a position which was directly inconsistent with the first transfer having effected a conveyance of the equitable interest in the land, which had not been revoked or otherwise reversed. In other words, having advanced two inconsistent objections before the judge, a deliberate decision was made to accept the judge's conclusion on one (the equitable transfer objection) and only appeal on the other (the buyer in possession objection).

84 I turn to consider the privity requirement for the establishment of an issue estoppel.

Were Mr and Mrs Mondous privies of the trustee (ground 2)?

[a] judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.[65]

86 In Ramsay v Pigram,[66] the plaintiff, Mr Pigram, was injured in a motor vehicle collision with a car driven by a police officer in the course of his employment by the Government of New South Wales. He sued the Government for breach of its duty to him by the negligent conduct of its agent, the police officer. The Government appointed Mr Ramsay as 'the nominal defendant' under State legislation. Before Mr Pigram's action was commenced, the police officer had successfully sued Mr Pigram in the District Court for his injuries caused by the collision, and recovered a judgment based on jury findings that Mr Pigram had caused the collision and the police officer had not been guilty of contributory negligence.

87 On this basis, the Government (through Mr Ramsay) pleaded issue estoppel as a complete answer to Mr Pigram's claims. Mr Pigram's demurrer to that pleading was upheld in the New South Wales Court of Appeal, on the basis that there was no identity of parties and no relevant privity between the Government and the police officer.[67]

88 An appeal to the High Court was dismissed. Barwick CJ emphasised that an issue estoppel 'must be mutual',[68] in the sense that the estoppel operates for and against each party to the earlier proceeding or their privies. Although he acknowledged that there will rarely be any practicality in drawing the distinction between the duty of the employer and the duty of the employee in a motor vehicle collision context, Barwick CJ nevertheless held it was important to maintain a distinction in that case.[69] As a result, an issue estoppel did not arise because the District Court verdict decided only that the police officer had not breached his personal duty to Mr Pigram, and there were no findings as to any breach by the Government of its duty to him.[70] However, recognising that some people might think this result was 'a very narrow ground'[71] Barwick CJ considered whether the Government was a privy of the police officer:

Of the three classes of privies of blood, of title and of interest, the only one which is submitted and indeed could be submitted to be relevant is that of a privy in interest. But I am unable to conclude that the Government or the Police Department was in this sense a privy of the police officer. The basic requirement of a privy in interest is that the privy must claim under or through the person of whom he is said to be a privy. Here it is quite clear that the Government had no interest in the action between the respondent and the police officer: nor can it be said that the action brought by the police officer was brought by him in any sense on behalf of the Government or that in relation to the defence of contributory negligence the respondent could have been treating the Government as the real 'defendant' to that claim. In every respect the action between the respondent and the police officer was personal to each of them, neither being in any sense in relation to the action or any of the issues involved in it, representative of another. Nor [in the second proceeding] can it be said that the Government in any sense claims under or in virtue of the police officer or of any right of his, or that it derives any relevant interest through him.[72]

89 In Tomlinson v Ramsey Food Processing,[73] the High Court considered whether Mr Tomlinson was privy in interest with the Fair Work Ombudsman in earlier District Court proceedings. The plurality judgment commenced by quoting what was described as the 'pithy'[74] and 'comparatively narrow principle'[75] in Ramsay v Pigram, that the 'basic requirement of a privy in interest is that the privy must claim under or through the person of whom he is said to be a privy',[76] and continued:

1. Consistently with the rationale for the principle, the explanation demonstrates that a party to a later proceeding (A) can be privy in interest with a party to an earlier proceeding (B) on either of two bases. One basis is that A might have had some legal interest in the outcome of the earlier proceeding which was represented by B, or that B has some legal interest in the outcome of the later proceeding which is represented by A. The extent to which the representation by A or B will be sufficient to bind the other is the critical issue which will be explored later in these reasons. The other basis is that, after that earlier proceeding was concluded by judgment, A might have acquired from B some legal interest in respect of which B would be affected by an estoppel which A then relies on in the later proceeding.
2. Other bases on which a person might potentially be privy in interest with a party need not be explored. For present purposes, it is sufficient to focus on one operation of the first basis illustrated by the application of the principle in Ramsay v Pigram: where A has a legal interest in the outcome of the earlier proceeding which was represented by B.
3. Subsequent applications of the principle in Ramsay v Pigram have for the most part correctly emphasised that the interest of the privy must in each case be a legal interest: an economic or other interest on the part of A in the outcome of the earlier proceeding is insufficient. Those applications have also correctly emphasised that, absent a legal interest, such influence as A might have had over the conduct of the earlier proceeding is irrelevant even if that influence amounted to control. Thus, directors of a company, who also held shares in its parent company, were held not to be estopped from pursuing a later action to recover damages to compensate for a loss on their own account in circumstances where they had stood to gain financially from an earlier action by the company claiming damages for loss on the company's account. That was despite the directors having been found to have exercised effective control over the company's conduct of that earlier action. The constraint on the conduct of A in such circumstances lies not in an estoppel but, in an appropriate case, in abuse of process.

1. Traditional forms of representation which bind those represented to estoppels include representation by an agent, representation by a trustee, representation by a tutor or a guardian, and representation by another person under rules of court which permit representation of numerous persons who have the same interest in a proceeding. To those traditional forms of representation can be added representation by a representative party in a modern class action. Each of those forms of representation is typically the subject of fiduciary duties imposed on the representing party or of procedures overseen by the court (of which opt-in or opt-out procedures and approval of settlements in representative or class actions are examples), or of both, which guard against collateral risks of representation, including the risk to a represented person of the detriment of an estoppel operating in a subsequent proceeding outweighing the benefit to that person of participating in the current proceeding.[77]

90 Nettle J delivered a separate concurring judgment. Nettle J stated:

1. It is established by the decided cases that privity of interest exists where party and privy share the same interest, in the sense that they are equally entitled to assert a discrete legal right; or where they share an interest by reason of an established legal or equitable relationship, such as agency or trusteeship; or, in some of the more recently decided cases, where the privy claims 'under or through' or 'on account of or for the benefit of' the party in a manner which is sufficiently analogous to one or other of the same interest or established legal or equitable relationship cases to warrant its inclusion. But the problem is in deciding what is sufficiently analogous.
2. Plainly, 'on account of or for the benefit of' includes cases where a trustee has sued or defended on behalf of a beneficiary and where a party to a proceeding relies on the putative privy's title.

1. The approach in this country, therefore, remains one of identifying characteristics of a relationship between party and privy which, although not amounting to a shared same interest or established legal or equitable relationship like agency or trusteeship, are sufficiently analogous to the established categories of sufficient connection to warrant inclusion in the concept. And, for present purposes, the important characteristics of the established forms of representation which emerge from the decided cases appear to be that a principal is generally able to control the conduct of an agent, and that the imposition of fiduciary duties on certain kinds of representatives has the effect of guiding the representative's conduct and providing remedies to the principal on default.[78]

91 The Tribunal's lack of any legal analysis on the privity issue has been noted. The Commissioner nevertheless contends that the Tribunal's conclusion on the privity issue was correct. For the reasons given below, I do not accept that Mr and Mrs Mondous were privies of the trustee in the land tax proceeding. Nor can it be said that Mr and Mrs Mondous's objections in the stamp duty proceeding amount to claims by them under or through the trustee.

92 The Commissioner's contentions commenced with a 'threshold issue' expressed in its written submissions in the following terms:

In any event, there is a threshold issue here. To the extent that the question of privity is one of fact and degree, or at least not one of law, the ground is incompetent. Mr and Mrs Mondous did not dispute below that there was privity. It is difficult therefore to accuse the Tribunal of any error, let alone legal error. The Tribunal's privity finding was open to it on the evidence. The evidence emphasised by the Tribunal was that [Mr and Mrs Mondous controlled the trustee as] their family trustee company ...[79]

93 I do not accept that there is such a threshold issue. As I have said, the Tribunal member did not in his reasons consider any of the relevant legal principles to be applied in determining whether a person is a privy of a party to a previous proceeding for issue estoppel purposes. The issue is clearly one of mixed fact and law, and the Tribunal member's reasons were obviously wrong. The mere fact that Mr Mondous controlled the trustee at all relevant times during the land tax proceeding is, on its own, plainly insufficient to make him a privy of the trustee for the purposes of the land tax proceeding.[80]

94 The Commissioner contends that Mr and Mrs Mondous were privies of the trustee on the following basis:

1. As explained recently by the High Court in Tomlinson, a party to litigation (M) will be privy in interest with a party to earlier litigation (K) if M had some legal interest in the outcome of the earlier litigation that was represented by K; provided that this representation by K was as agent, trustee, tutor or guardian, or as a fiduciary otherwise, or was otherwise representation of such a nature as to have protected M from being subjected to an estoppel unjustifiably. For example, M might have had no opportunity to present evidence or otherwise to exercise control over K's presentation of the claim in the earlier litigation. On the other hand, M might have authorised the assertion of the claim, from which it stood to benefit. In the latter situation, the justice of binding M to an estoppel is apparent - with the benefit of the claim comes the burden of the estoppel.
2. [The trustee] and Mr and Mrs Mondous are privies, in respect of the relevant finding. When the relevant claim was put in the earlier litigation, [the trustee] was a family company owned and controlled by Mr Mondous. It was also trustee of the Mondous family trust, thereby owing fiduciary obligations to the Mondouses. They authorised the claim that was put. It was put by [the trustee] on their behalf. They had the opportunity to give evidence. Mr Mondous in fact chose to do so. Plainly, Mr and Mrs Mondous stood to benefit, legally, from the acceptance of the claim, as the would-be beneficial owners of the land. [the trustee] represented that legal interest. The justice of binding the Mondouses to an estoppel is readily apparent.
3. Incidentally but unnecessarily, acceptance of the claim would also have led to Mr and Mrs Mondous being liable directly for the land tax, as outlined above, albeit tax potentially calculated on a more beneficial basis. [The trustee] represented that legal interest of the Mondouses too.[81]

(1) The Commissioner accepts both the need to identify a legal interest (which includes an equitable interest) of Mr and Mrs Mondous in the outcome of the land tax proceeding, and to establish that such interest was represented by the trustee in that proceeding.[82]

(2) The Commissioner contends that Mr and Mrs Mondous's legal interest was constituted by the following two matters:

(a) They 'stood to benefit, legally, from the acceptance of the [equitable transfer objection], as the would-be beneficial owners of the land';[83] or

(b) The land tax payable by them if the equitable transfer objection succeeded would be 'tax potentially calculated on a more beneficial basis'.[84]

(3) The trustee represented those legal interests because:

(a) it was a trustee of a family discretionary trust controlled by Mr Mondous which owed fiduciary duties to Mr and Mrs Mondous as objects of the discretionary power under the trust deed;[85]

(b) Mr and Mrs Mondous authorised the trustee to make the equitable transfer objection in the land tax proceeding;[86]

(c) Mr and Mrs Mondous had the opportunity to give evidence and otherwise control the trustee's conduct of the land tax proceeding; and

(d) it was therefore just that Mr and Mrs Mondous should be bound by an issue estoppel in respect of the alternative findings because they stood to benefit from acceptance of the equitable transfer objection.[87]

96 I do not accept these contentions. In my opinion, Mr and Mrs Mondous had no legal interest in the outcome of the land tax proceeding. Mr Mondous's control of the trustee's conduct of the land tax proceeding did not make him a privy of the trustee in that proceeding, and there is no evidence that Mrs Mondous authorised the trustee to make the equitable transfer objection or otherwise had any role in the manner in which the trustee conducted the land tax proceeding. My reasons follow.

97 It is first necessary to consider an anterior question, namely, whether the court, in determining the privity issue, is bound to accept the alternative findings made by the judge or should determine the legal effect of the first transfer for itself. In my opinion, the court should determine the issue for itself. However, it does not matter in this case because, as appears below, Mr and Mrs Mondous were not privies of the trustee in the land tax proceeding on either basis.

98 First, the alternative findings were wrong. For the reasons given below, I have concluded that:

(1) The first transfer recorded and constituted both an effective exercise of the trustee's power to distribute the land to Mr and Mrs Mondous in specie and an instrument capable of registration under the Transfer of Land Act.

(2) Upon and following execution of the first transfer, the trustee held the land on a bare trust for Mr and Mrs Mondous.

(3) That legal position could only be altered by an instrument in writing signed by Mr and Mrs Mondous. No such instrument has been identified by the Commissioner. The position could not be 'revoked' by conduct.

99 Second, although the bare trust relationship between the trustee and Mr and Mrs Mondous falls within one of the traditional categories of privity,[88] it cannot be said that the trustee was representing Mr and Mrs Mondous's interests, as beneficial owners of the land, in seeking to expunge or reduce the trustee's land tax liability. The purpose of the objections was to leave Mr and Mrs Mondous in the exact position they had been in during the relevant tax years. Following the Notice of Disposition, they had been assessed as liable for land tax on the land and had paid that tax. The trustee was not seeking to reverse that position. Nor had Mr and Mrs Mondous objected to their land tax assessments. By its objections, the trustee sought only to eliminate or reduce its own liability to pay land tax on the land. Thus, the land tax objections were pursued only for the trustee's benefit, albeit in its capacity as trustee of the trust with fiduciary duties to all potential objects of its power of appointment as a class.

100 Further, the result in the land tax proceeding could have had no effect on Mr and Mrs Mondous's beneficial ownership of the land. The trustee was, therefore, not representing Mr and Mrs Mondous as beneficial owners of the land in any way. It was simply objecting to the basis upon which it had been assessed for land tax.

101 The same result follows if the judge was right in making the alternative findings. The effect of the judge's findings as a whole is that Mr and Mrs Mondous were mere objects of discretionary trust. It is clear that this did not give them any legal or equitable interest in the assets of the trust.[89] In these circumstances, the mere fact that Mr Mondous (and not Mrs Mondous) controlled the trustee's conduct of the land tax proceeding is insufficient to make Mr and Mrs Mondous privies of the trustee in that proceeding. Control of a corporate litigant, even when coupled with a shareholding in the company, is insufficient for the purposes of making the controller a privy of the company.[90] There is no material distinction to be drawn between a case such as the present, where the control is over a corporate trustee of a discretionary trust, and the director and shareholder circumstances discussed by the plurality in Tomlinson v Ramsay Food Processing.[91]

102 An issue estoppel has not been established. Accordingly, I turn to consider the Commissioner's contention, to the effect that the Tribunal Member was correct to dismiss Mr and Mrs Mondous's objections in the stamp duty proceeding on the ground that it would be an abuse of process for them to re-litigate the alternative findings.

Is challenging the alternative findings an abuse of process?

103 If Mr and Mrs Mondous were not privies of the trustee in the land tax proceeding, the facts may nevertheless indicate that they, or Mr Mondous at least, are acting in an abuse of process by seeking to challenge the alternative findings in the stamp duty proceeding. As noted in the plurality judgment in Tomlinson v Ramsey Food Processing, abuse of process 'is inherently broader and more flexible than [issue] estoppel ... [and] is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.'[92]

104 In this case, the Commissioner contends that it would be an abuse of process for Mr and Mrs Mondous to be permitted to contend in the stamp duty proceeding that the alternative findings were wrong. In summary, the Commissioner contends that Mr and Mrs Mondous's contentions to this effect involve them in re-litigating the issues leading to those findings, in circumstances where:

(1) Mr Mondous was in complete control of the trustee's conduct in the land tax proceeding; and

(2) that conduct included Mr Mondous, presumably on legal advice, instructing the trustee's lawyers to abandon the equitable transfer objection on appeal - and appeal only on the inconsistent buyer in possession objection. This involved an admission that the alternative findings were correct.

105 For the following reasons, I do not accept the Commissioner's submissions in this regard.

106 First, for the reasons given below, the alternative findings were wrong. If that be the case, it would be unjust to now shut out Mr and Mrs Mondous from re-litigating those findings in circumstances where they were not parties to the land tax proceeding or privies of the trustee in that proceeding.[93]

107 Second, the land tax proceeding was heard about 14 years after the second transfer was registered. However, the Commissioner had not then issued an amended stamp duty assessment. Accordingly, in making tactical decisions as to the objections to be pursued by the trustee in the land tax proceeding, Mr Mondous was deprived of the opportunity to consider his and Mrs Mondous's stamp duty position.

108 Third, the trustee paid stamp duty when it acquired the Berwick land from which the land was later subdivided. It acquired that land as trustee of the trust. When the Notice of Disposition was given to the Commissioner, together with a copy of the trust deed, the Commissioner was persuaded that no additional stamp duty was payable by Mr and Mrs Mondous, presumably on the basis that the disposition was a distribution of the land in specie to them by the trustee. In these circumstances, if the first transfer remained effective as at the time the second transfer was lodged for registration, it is arguable that the second transfer is exempt from stamp duty. It would not unduly oppress the Commissioner, or bring the administration of justice into disrepute, to allow Mr and Mrs Mondous the opportunity to have that argument determined by a court.

109 Fourth, the position of Mrs Mondous must be considered separately from that of Mr Mondous in any event. Even if Mr Mondous's control of the trustee's conduct in the land tax proceeding gave rise to an issue estoppel against him, or provided good grounds to conclude that he was engaging in an abuse of process by prosecuting his objection in the stamp duty proceeding, Mrs Mondous's position is in stark contrast. She is currently the owner of a one half share of the land as a tenant in common. The transfer of land to her should be assessed in that context. Given the lack of any evidence of her involvement in the land tax proceeding, it cannot be an abuse of process for her to now seek to have her day in court and dispute the correctness of the alternative findings.

110 Taking all these factors together, I am not satisfied that it would be unjustifiably oppressive to the Commissioner, or bring the administration of justice into disrepute, for Mr and Mrs Mondous to contend in the stamp duty proceeding that the alternative findings were wrong. I find that the prosecution by Mr and Mrs Mondous of their objections in the stamp duty proceeding involves no abuse of process.

Did the first transfer constitute a distribution in specie (ground 3)?

111 This ground of appeal challenges the alternative findings. As I have said, the alternative findings were in my opinion wrong. My reasons follow.

112 The Commissioner contends that the judge in the land tax proceeding, and the Tribunal in the stamp duty proceeding, correctly held that the first transfer did not evidence a distribution of the land in specie to Mr and Mrs Mondous by way of trust distribution, for the following reasons.

113 First, the Commissioner contends that the consideration stated in the first transfer - being Mr and Mrs Mondous's 'entitlement to a distribution of corpus pursuant to the Mondous Family Trust Deed' - was plainly incorrect as a matter of law, because Mr and Mrs Mondous had no such entitlement under a discretionary trust deed. They were mere objects of a discretionary trust.

114 I do not accept this submission. Although I accept that there was no such entitlement in the absence of a decision by the trustee to make a distribution, or transfer, the first transfer must be looked at in a common sense way and given a business-like interpretation. It is a formal instrument executed by the trustee under its common seal affixed in the presence of Mr and Mrs Mondous. In the context of the relevant provisions of the trust deed (set out below), the reference in the first transfer to Mr and Mrs Mondous's 'entitlement' would have been understood by them as recording their decision (as directors of the trustee) to transfer the land to themselves. Read in this way, the first transfer does two things: (1) it records a decision by the trustee to distribute the land in specie to Mr and Mrs Mondous; and (2) it constitutes a transfer of the land to them in a registrable form under the Transfer of Land Act.

115 There was no reason for the trustee to execute the first transfer if no decision had been made to distribute the land to Mr and Mrs Mondous. The Commissioner's interpretation assumes that the stated consideration is intended to be a summary of the entitlements of Mr and Mrs Mondous under the terms of the trust deed. There is no evidence to support that assumption, and it makes no commercial sense.

116 This interpretation of the first transfer is supported by the general principle of contract interpretation, that 'parties are unlikely to have intended to agree to something ... legally ineffective'.[94]

117 Second, the Commissioner contends that the judge was correct in searching for a separate document recording the trustee's decision to distribute the land in specie to Mr and Mrs Mondous. Reliance was placed upon the decision of Mr GAA Nettle (as his Honour then was) in Re Ralara Pty Ltd v Comptroller of Stamps (Vic).[95] The Commissioner contends that this decision stands for the proposition that it is the exercise of a trustee's power of appointment that creates the equitable entitlement in the appointee, which entitlement is then 'given effect to, not effected, by the transfer instrument'.[96] While I accept that there must be a separate decision by the trustee of a discretionary trust to distribute an asset to a beneficiary, Ralara does not stand for the proposition that such a decision must be recorded in or constituted by a document which is separate from the formal transfer instrument (in this case, the first transfer).

118 Further, whether or not a separate document recording or constituting the exercise of a trustee's power is necessary is governed by the terms of the trust deed at issue. In this case, the trust deed permits, but does not require, such a document. The relevant provisions of the trust deed are as follows:

(1) 'the Trust Fund' is defined to include 'property' transferred to the trustee as an addition to the Trust Fund. This clearly includes the land.

(2) A determination by the trustee to pay, apply, set aside or accumulate income in any financial year 'may' be made 'by oral declaration or by written statement whether or not published to any person' (emphasis added) - clause 3(2)(f).

(3) Subject to express provision to the contrary, every discretion vested in the trustee is absolute and uncontrolled - clause 10.

(4) The discretion of the trustee is limited by the need to obtain the consent of the Guardian (Mr Mondous) before exercising the 'restricted powers' contained in sub-clauses 6(1), (2) and (3) - clause 10(3), read together with the definition of 'restricted powers' in clause 10(7).

(5) By clause 6(1), the trustee had a discretion, subject only to the consent of Mr Mondous as Guardian, to 'convey or transfer the whole or any part of the Trust Fund ... to any beneficiary for his own use and benefit' (emphasis added).

(6) By clause 17(2), any exercise by the trustee of any power, discretion or authority conferred by the deed:

may be made (but without derogating from anything contained in clause 3(2)(f) hereof) -

(a) in writing signed [by the trustee]; or

(b) by a resolution duly passed at a meeting of [the trustee] or;

(c) in the case of a sole corporate Trustee in the manner set out in sub-clause [17(4)] ... (emphasis added)

(7) Clause 17(4) provides that a corporate trustee, as in this case:

may exercise or concur in exercising any discretion or power hereby conferred on the Trustee by a resolution of such corporation or company or by a resolution of its Board of Directors or governing body ... (emphasis added)

119 In my opinion, there is nothing in the trust deed which requires the trustee to make or record the exercise of its power and discretions by a document which is separate from an instrument or other document giving effect to the decision to exercise a power or discretion. It may do so, but it is not required to do so. In any event, the exercise of the trustee's power and discretion to transfer the land to Mr and Mrs Mondous was made in writing and signed by the trustee when it affixed its common seal to the first transfer, as contemplated by clause 17(2)(a) of the trust deed.

120 This application for leave to appeal is not, however, an application for leave to appeal from the alternative findings made by the judge. It is an application for leave to appeal from the decision of the Tribunal in the stamp duty proceeding. While the Tribunal member summarised the alternative findings in his reasons,[97] and found that Mr and Mrs Mondous were estopped from asserting against the Commissioner that they obtained equitable interests in the land under the first transfer,[98] the Tribunal member nevertheless gave his own reasons as to why the first transfer did not convey beneficial ownership in the land to Mr and Mrs Mondous. The Tribunal member's further reasons were as follows.

121 First, the first transfer was mistakenly expressed as a transfer by the trustee to Mr and Mrs Mondous of 'all his estate or interest' in the land.[99] The obvious mistake is of no significance. It provides no reason for denying the legal effect of the first transfer.

122 Second, the Tribunal member reasoned that the operative words of the first transfer - 'the [trustee] for the consideration expressed transfers to the transferee all his estate and interest in the fee simple in the land described' - were 'inapt to express the trustee's creation rather than transfer of beneficial interests under the [trust deed]'.[100] In the Tribunal member's view:

When pursuant to clause 6 of the [trust deed] the trustee makes a distribution of trust corpus, and interest in trust corpus is created rather than transferred.[101]

123 In my opinion, this reason does not withstand scrutiny. Clause 6 of the trust deed expressly states that the trustee has the power to 'convey or transfer the whole or any part of the Trust Fund'. The suggested distinction between creation and transfer or beneficial ownership of the land appears to coincide with the judge's approach in the land tax proceeding, namely, that it was necessary to have documentary proof of the trustee's decision under clause 6(1) which was separate and distinct from the first transfer. For the reasons given above, there is no requirement for there to be a separate document.

124 Third, the Tribunal member stated that: 'Nothing was transferred in the 28 December 1990 distribution transaction. No relevant interest existed or was previously owned by the trustee.'[102] The Tribunal member cited two authorities for these reasons: DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW)[103] and Ford & Lee: The Law of Trusts.[104] I have read the DKLR and the extract from Ford & Lee. Neither supports the propositions contended for by the Tribunal member as quoted above. The pinpoint reference to DKLR is from the dissenting judgment of Brennan J. It does not support the Tribunal member's reasons. Nor can I find any support for those reasons in the referenced paragraphs from Ford & Lee. Doing the best I can to interpret the Tribunal member's brief reasons in this regard, they appear to relate to the suggested distinction between creation and transfer of beneficial ownership.

125 I conclude that the Tribunal member erred in law in concluding that the first transfer did not convey beneficial ownership of the land to Mr and Mrs Mondous.

Is the second transfer exempt from stamp duty (ground 5)?

126 Exemption (10) is set out above. As I have said, there is no issue in this case that Mr and Mrs Mondous were beneficiaries of the trust when the trustee acquired the Berwick land, from which the land is derived by subdivision, and paid stamp duty on the related transfer of land. However, in order to fall within Exemption (10), the conveyance of the land to Mr and Mrs Mondous must have been to them in their capacity as beneficiaries, and not in their capacity as purchasers.[105]

127 In Re Ralara, Mr GAA Nettle (as his Honour then was) decided that:

As I now read Exemption (10) it is capable of applying to a transfer from a trustee to any beneficiary, provided the transfer is effected in accordance with a power of appointment contained in the trust instrument or in satisfaction of a beneficial entitlement created by the trust instrument. Thus I consider that Exemption (10) is capable of applying to a transfer from a trustee to the object of a discretionary trust if the transfer is made pursuant to a power of appointment in favour of the object.[106]

128 Earlier in his reasons, his Honour decided that Exemption (10) has no application to 'conveyances on sale' by a trustee to a beneficiary.[107] On this basis the Tribunal member reasoned that Exemption (10) had no application to the second transfer because the second transfer did not, on its face, state that it was a transfer to Mr and Mrs Mondous as 'beneficiaries'. The absence of those words on the second transfer, combined with the fact that a consideration of $120,000 was stated, meant that Exemption (10) did not apply.[108]

129 On appeal, the Commissioner accepts that it is unnecessary for the second transfer to specifically state that it is a transfer of land to Mr and Mrs Mondous in their capacity as 'beneficiaries'. However, the Commissioner contends that the stated consideration of $120,000 in the second transfer is consistent only with it being a transfer of land based on an agreement by the trustee to sell the land to Mr and Mrs Mondous, rather than a distribution to a beneficiary; and the evidence shows that Mr Mondous believed and intended that the second transfer was giving effect to the backdated contract of sale. The Commissioner's submissions involved the following steps.

130 First, in order for Mr and Mrs Mondous to succeed in their objection based on Exemption (10), they need to establish that the consideration stated in the second transfer is mistaken. In effect, that involves a claim for rectification of the document. Such a claim could not succeed, given that Mr Mondous was on both sides of the transaction and he believed and intended that the second transfer was giving effect to the backdated contract of sale.

131 Second, Mr Mondous's own evidence, when read as a whole, demonstrated that the first transfer was not preceded by a binding decision by the trustee to transfer the land to Mr and Mrs Mondous. Instead, the court should infer that the first transfer was executed and submitted to the Comptroller of Stamps for opinion 'in case [Mr Mondous] decided to go down that path', or to be 'held in escrow on the possibility' that the first transfer would be lodged for registration.

132 Third, consistent with the judge's reasoning in the land tax proceeding, the evidence establishes that Mr Mondous intended to revoke, renounce or abandon any effective distribution of the land in specie to Mr and Mrs Mondous under the first transfer.

133 Fourth, accepting that the backdated contract of sale was a legally ineffective sham, the second transfer was nevertheless consistent with the existence of a prior oral agreement between the trustee and Mr and Mrs Mondous (in effect, an agreement by Mr Mondous with himself and his wife) for the sale of the land at a purchase price of $120,000. That was the case advanced by the trustee, on Mr Mondous's instructions, in the unsuccessful application to the Court of Appeal for leave to appeal in the land tax proceeding. I note that the Court of Appeal did not determine this issue because it had not been raised at first instance before the judge.[109] Further, the judge's finding in the land tax proceeding that the backdated contract of sale was a sham was not challenged by the trustee in this application for leave to appeal.

134 I do not accept these contentions. My reasons follow.

135 First, I do not accept that the legal nature of the transaction giving rise to the second transfer should be determined by Mr Mondous's belief and intention. That belief and intention is not in dispute. However, it is clear that Mr Mondous's belief and intention were erroneous, for the following reasons:

(1) For the reasons given above, the first transfer constituted a valid conveyance of the equitable interest in the land to Mr and Mrs Mondous.

(2) In these circumstances, in the absence of a re-transfer of the equitable interest in the land back to the trustee, constituted by a document effecting such a re-transfer which was signed by the trustee,[110] the trustee had no interest in the land to sell to Mr and Mrs Mondous. To the contrary, as a bare trustee of the land for Mr and Mrs Mondous, the trustee was under an obligation to transfer the legal interest to Mr and Mrs Mondous for no consideration.

(3) In these circumstances, the reference in the second transfer to a transfer consideration of $120,000, although consistent with a sale, does not reveal the legal operation of the second transfer.

136 In Commissioner of Stamp Duties (Queensland) v Hopkins,[111] the High Court considered whether a written instrument constituted a 'settlement' for the purposes of stamp duty legislation. The majority (Rich and Dixon JJ) held that it did. Latham CJ dissented. But all three judges agreed that extrinsic evidence is admissible to determine the real nature of the underlying transaction to which a dutiable instrument relates, for the purposes of ascertaining the amount of stamp duty which is payable on that instrument.

137 Dixon J accepted that the court can 'look outside the instrument' to ascertain its operation for stamp duty purposes.[112] He accepted the statement of the rule in Halsbury's Laws of England that:

The question whether an instrument is duly stamped, or as to what stamp is required, is in general determined by what appears upon the face of it to be its legal operation when first executed so as to capable of that operation, but the court is not bound by the apparent tenour of an instrument, and will decide according to the real nature of the transaction, receiving, if necessary, extrinsic evidence.[113]

138 Rich J agreed. He stated that the instrument in question:

does not stand by itself, and to treat it as doing so would give a wrong idea of the nature and course of the transaction of which it formed only a part. To understand the transaction, it is necessary to take into account certain matters extrinsic to the document.[114]

It is true that...S_tamp Duty Acts_ impose duties upon instruments and not upon transactions. It is obvious that you can stick a stamp or impress a stamp upon an instrument, but not upon a transaction. But, in order to determine whether an instrument is dutiable, it is nevertheless necessary to ascertain the legal operation of the instrument, i.e., to determine the nature of the transaction which it accomplishes. Thus, for example, if a person purported to make a conveyance or settlement of land in which he had no interest whatever, the instrument would not be dutiable as a conveyance or settlement, because it would not produce any legal effect whatever in relation to the property with which it purported to deal...[115]

140 In this case, for the reasons given, the second transfer accomplished only a transfer of the trustee's legal interest in the land to Mr and Mrs Mondous. That transfer was in accordance with the trustee's obligation arising from the execution of the first transfer. The fact that Mr Mondous may have believed, for land tax purposes, that the trustee was entitled to sell the legal and beneficial interests in the land to him and his wife is not to the point. In the absence of a re-transfer of the equitable estate by Mr and Mrs Mondous to the trustee, the purported transfer of the land by way of sale, as recorded in the second transfer, had no legal effect.

141 Second, I reject the Commissioner's contention that, because from March 1991 Mr Mondous commenced giving consideration to not proceeding with the first transfer, and later decided not to do so, the court should infer that the first transfer does not evidence a binding decision by the trustee to transfer the land to Mr and Mrs Mondous under clause 6(1) of the trust deed. The evidence clearly establishes that there was a firm intention to proceed with the first transfer until March 1991, and reconsideration after that time cannot support an inference that, at the time it was executed, the first transfer was meant to be no more than a possible means of transferring the land to Mr and Mrs Mondous by way of trust distribution.

142 Third, Mr Mondous's intention to abandon the trust distribution under the first transfer and, instead, proceed with the backdated contract of sale in order to support the trustee's buyer in possession objection to the amended land tax assessment, does not alter the legal position as to beneficial ownership of the land. As I have said, that result could only have been accomplished by a re-transfer of the equitable interest in the land to the trustee by an instrument signed by Mr and Mrs Mondous. The Commissioner did not identify any such instrument.

143 Fourth, I do not accept that the court should infer that there was an oral agreement between the trustee and Mr and Mrs Mondous for the sale of the land at a purchase price of $120,000 and that the second transfer gave legal effect to that prior oral agreement. Taking the evidence as a whole, it is clear that Mr Mondous believed the second transfer was giving effect to the backdated contract of sale as varied. For the reasons given, that belief and intention is of no legal consequence for the legal operation of the second transfer. Any oral agreement to the effect of the backdated contract of sale would not alter this position.

144 Before stating my conclusion on this ground of appeal, I should note a finding of law by the Tribunal that it is 'not possible to transfer only a bare legal interest under the Torrens system',[116] and that, accordingly, a 'construction' of the second transfer as conveying only the 'bare legal title' was 'not sustainable'.[117] This aspect of the Tribunal's reasons was not debated on this application, and none of the authorities cited by the Tribunal were included in the book of authorities provided by the parties. I have, however, considered them. Although I accept that it may not be possible for the beneficial owner of land under the Torrens system to transfer only 'the bare legal interest', while retaining the equitable interest,[118] that is not what has happened in this case. The trustee acquired the land as trustee of the trust. By the first transfer, the trustee transferred the equitable estate to Mr and Mrs Mondous and, as a result, thereafter held the land upon a bare trust for them. By transferring the legal estate to Mr and Mrs Mondous under the second transfer when registered under the Transfer of Land Act, the trustee merely fulfilled its equitable obligation to do so.

145 I conclude that the legal operation of the second transfer was to do no more than transfer the land into Mr and Mrs Mondous's names as registered proprietors for the purposes of the Transfer of Land Act. In other words, it enabled the Register of Titles to reflect Mr and Mrs Mondous's beneficial ownership of the land since the execution of the first transfer.

(1) The Tribunal erred in law in finding that Mr and Mrs Mondous were privies of the trustee. The issue estoppel finding cannot stand.

(2) The Commissioner's alternative contention based on abuse of process has not been established.

(3) The Tribunal erred in law in finding that the first transfer did not effect a transfer of the equitable estate in the land to Mr and Mrs Mondous.

(4) The Tribunal erred in law in finding that the second transfer gave effect to a sale of the land to Mr and Mrs Mondous.

(5) The Tribunal erred in law in failing to find that the second transfer constituted a conveyance of the land to Mr and Mrs Mondous in their capacity as beneficiaries of a bare trust, which trust arose from the transfer of the equitable estate in the land to them under the first transfer, and that Exemption (10) therefore applied.

147 Leave to appeal is granted. The appeal is allowed. In lieu of the Tribunal's decision, it will be ordered that Mr and Mrs Mondous's objection to the notice of stamp duty assessment no. 6974401 and dated 29 September 2014 will be allowed; with the result that the second transfer is exempt from stamp duty. I will hear the parties as to the precise form of orders and as to costs.

[1] Victorian Civil and Administrative Tribunal Act 1998 s 148(1).

[2] Witness statement, Sohail Mondous, 5 June 2016. After the conclusion of argument, the Court was informed that Mr Mondous had been cross-examined on this statement, but the transcript was not in the appeal book or referred to in the submissions of any party; and counsel for Mr and Mrs Mondous relied on it without objection in his submissions.

[3] Kameel Pty Ltd v Commissioner of State Revenue (Unreported, Court of Appeal, Hansen and Tate JJA, 29 August 2013) [5] ('Court of Appeal Reasons').

[4] Kameel Pty Ltd v Commissioner of State (Review and Regulation) [2013] VCAT 1320 [15(a)] ('the Land Tax Reasons').

[9] Ibid [80], citing Lygon Nominees Pty Ltd v Commissioner of State Revenue [2007] VSCA 140; (2007) 23 VR 474.

[10] Transcript of Proceedings, Mondous v Commissioner of State Revenue (Supreme Court of Victoria, 2016/04090, Hargrave J, 13 June 2017) 13.24-13.29.

[11] Court of Appeal Reasons [23], [30].

[12] VCAT Reasons [89], [87(e)], [87](h)].

[17] Mondous v Commissioner of State Revenue (Review and Regulation) [2016] VCAT 1343 ('Stamp Duty Reasons').

[21] Ibid [18], [29]-[31], citing Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 531.

[22] Ibid [27], citing Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 532.

[35] Ibid [78]-[82] citing Lygon Nominees Pty Ltd v Commissioner of State Revenue [2007] VSCA 140; (2007) 23 VR 474.

[36] [2007] VSCA 140; (2007) 23 VR 474.

[43] (2008) 238 CLR 366, 393-4 [74]-[78] (French CJ), 408 [125] (Gummow and Hayne JJ), 417-8 [160] (Heydon J).

[44] [1939] HCA 23; (1939) 62 CLR 464.

[51] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 517 [22] (emphasis added).

[52] (1997) 69 SASR 75.

[56] [2006] NSWCA 322 [205]-[210].

[58] [2001] VSCA 150.

[59] [2006] NSWCA 322 [211]-[223].

[62] (1995) 37 NSWLR 280, 288 (citations omitted).

[63] (1997) 69 SASR 75, 94 (emphasis added).

[65] [1939] HCA 23; (1939) 62 CLR 464, 531 (emphasis added).

[66] [1968] HCA 34; (1968) 118 CLR 271.

[73] [2015] HCA 28; (2015) 256 CLR 507.

[76] Ibid 515 [17], quoting Ramsay v Pilgrim [1968] HCA 34; (1968) 118 CLR 271, 279.

[77] Ibid 521-2 [33]-[35], 524 [40]. (emphasis added) (citations omitted).

[78] Ibid 539 [95]-[96], 540 [98] (emphasis added).

[79] Commissioner's Written Submissions [41] including the footnote.

[80] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 522 [35].

[81] Commissioner's Written Submissions [38]-[40] (emphasis added) (citations omitted).

[88] Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 524 [40] (plurality), 540 [98] (Nettle J).

[89] Kennon v Spry (2008) 238 CLR 366, 393-4 [74]-[78] (French CJ), 408 [125] (Gummow and Hayne JJ), 417-8 [160] (Heydon J).

[90] Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 522 [35]; Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 319 ALR 709, 730-2 [102]-[111].

[91] Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 522 [35].

[92] Ibid 518-19 [25]. See also Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (in liq) [1993] FCA 342; (1993) 43 FCR 510, 543 (Burchett J).

[93] Cf Haines v Australian Broadcasting Corporation [1995] NSWSC 136; (1995) 43 NSWLR 404, 414.

[94] Bank of Credit and Commerce International SA v Ali [2001] UKHL 8; [2002] 1 AC 251, 269 (Lord Hoffmann), quoted in Lewison, The Interpretation of Contracts (Sweet & Maxwell, 6th ed, 2015) at 425, para [7.16].

[95] (1992) 24 ATR 1133.

[96] Commissioner's Written Submissions [46] (emphasis in original).

[99] Ibid [34], [38] (emphasis added).

[103] [1982] HCA 14; (1982) 149 CLR 431, 474 (Brennan J).

[104] Online and loose-leaf, Thomson Reuters 2016, at [1.8750]-[1.8850].

[105] Re Ralara Pty Ltd v Comptroller of Stamps (Vic) (1992) 24 ATR 1133, 1140-2 [16]-[21].

[106] Ibid 1142 [22] (emphasis added).

[108] Stamp Duty Reasons [53]-[55].

[109] Court of Appeal Reasons [25]-[26].

[110] Property Law Act 1958 s 53(1)(a).

[111] [1945] HCA 14; (1945) 71 CLR 351.

[118] DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14; (1982) 149 CLR 431, 442 (Gibbs CJ), 463 (Aickin J), 473-4 (Brennan J).