BD Corporation Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 163 | Case summary

Submissions

The Applicant's case, as presented in the written submissions filed prior to the hearing, was that a Deed of Declaration Trust was executed but that, at the time of execution of the Deed, the Rockdale Property "was not vested or to be vested in the Applicant". Reliance was placed on the affidavits sworn by Mr Yi Guang Zhang and Mr Farah Elias.
At the hearing, the Applicant's counsel, Mr Finch, indicated that the Applicant was relying only on the s 58 documents filed by the Chief Commissioner. In particular, the copies of the Unit Trust Deed and the Chief Commissioner's statement in determining the Applicant's objection that the assessment of the Deed as a "declaration of trust" was pursuant to s 8(1)(b)(ii) of the Duties Act.
The Applicant now contends that the Applicant "only has the onus of proving that the Respondent wrongly assessed duty" on the Deed, as a "dutiable transaction". And that the Applicant "has discharged that onus by tendering the written instrument", the Deed, "which clearly is not made (executed) by the Applicant, the person to whom the property 'is to be vested'".
The Applicant further submitted, "if the Respondent contends that there was another 'dutiable transaction' effected by another means (i.e. a declaration of trust made orally or conduct by BD Corporation) it bears the onus of proving that further dutiable transaction". But that "the Respondent has failed to prove an alternate 'dutiable transaction' (declaration of trust)".
The Applicant also submitted that the Chief Commissioner's "case is not assisted by s 10 of the Duties Act". The Applicant conceded that there was a clear intention that the Rockdale Property "would be acquired and held on trust, and that BD Corporation Ltd would be the entity holding the property on trust" but, however, this was not a declaration of trust. And that the Applicant only "acquired an interest in the Rockdale Property as trustee for the Rockdale Unit trust by executing a contract for the sale of land".
The Chief Commissioner rejects the Applicant's submission that the Chief Commissioner had to prove an alternative "dutiable transaction" on the grounds that the contention is made without citing any authority and in any case is "inconsistent with s 100(3) of the Taxation Administration Act 1996 (NSW)" and various well-established judicial principles.
The Chief Commissioner further submitted that the Applicant had to "establish on the balance of probabilities that there was no dutiable transaction within the meaning of s 8(1)(b)(ii) of the Duties Act". And that Applicant "has failed to establish this matter" for the following reasons: " … The taxpayer had adduced no evidence at all. Instead, the taxpayer relies on the s 58 documents. In particular, the taxpayer relies on the trust deed (Trust Deed) executed on 28 August 2010. (Section 58 documents, tab 1.) 12. However, one document cannot satisfy the taxpayer's onus to satisfy the Tribunal there was no declaration of trust. In order to satisfy this onus, the taxpayer must establish that; (a) it did not execute a document in the terms of the Trust Deed - merely tendering one document which has not been executed is insufficient; and (b) it did not otherwise, by its conduct, declare a trust on the terms of the Trust Deed. 13. The taxpayer has no evidence at all with respect to these matters. The taxpayer's failure to call any witnesses on these issues is significant. Applying the principles in Jones v Dunkel, the Tribunal should draw an inference that the witnesses would not have assisted the taxpayer's case. (See discussion in Cornish Investments v Chief Commissioner of State Revenue [2012] NSWADT 204, [32].)
Mr Balafoutis, counsel for the Chief Commissioner, referred to several authorities which establish that a "declaration of trust may be made in writing, orally, by conduct or by a combination of these matters". Counsel, further in his written submissions, submitted that - 17. The question is whether there is language or conduct which shows a sufficiently clear intention to create a trust. In order to infer the relevant intention, the court may look to the nature of the transaction and the whole of the circumstances attending the relationship between the parties. Subsequent conduct is one indication of a declaration of trust. 18. There is no requirement in equity that a declaration of trust be in writing signed by the declarant. For example, a declaration of trust may be implied from entries made by a person in his books of account and memoranda, and from treating his property as a trust property. It is not necessary for a person to use formal words, such as "I declare myself a trustee".
Counsel for the Chief Commissioner next drew attention to the liability to duty under the Duties Act was in respect of transactions in contrast to instruments under previous stamp duty legislation. In particular, counsel cited the following passage in Gardiner v Chief Commissioner of State Revenue (NSW) (2004) 59 NSWLR 549 [17], where his Honour Gzell J said - Unlike earlier stamp duty legislation, it was the transaction and not the instrument that gave rise to the charge to duty. Section 10 provided that it was immaterial whether or not a dutiable transaction was effected by a written instrument.
Next, counsel sought to argue that in the present matter, "there is substantial evidence to support a conclusion that a declaration of trust was made". It was submitted that it was "made by implication from the conduct of the parties", which included "oral conversations and preparation and execution of various documents".
Reliance was placed by counsel on seven matters for his contention - 1. First, on the statement of Mr Zhang in his affidavit that he had a conversation with Mr Elias in early August 2010 when it was agreed that both of them would, as partners, acquire and develop the Rockdale Property and "that the property should be owned by the Rockdale Unit Trust and for the trustee to be BD Corporation Pty Ltd". It was submitted that this "conversation itself constitutes a declaration of trust". 2. Second, on the Unit Holders Agreement, which was executed on the same date as the Trust Deed to regulate the rights of the parties under the Trust Deed. In particular, Recital A and Clause 2.1 demonstrate "that the clear intention of the parties was that the Rockdale Property be vested in BD Corporation as trustee for the unit holders". 3. Third, "the Trust Deed itself" which states, "that the deed is between the persons named in schedule one as the trustee and unit holders". It was executed by Mr Elias and Mr Zhang "in their capacity as directors of the unit holders". Mr Elias was also the sole director of the Applicant at the relevant time. 4. Fourth, on "the contract entered into by BD Corporation on 31 August 2010 for the purchase of the Rockdale Property", which "contained a notation that BD Corporation purchased the Rockdale Property atf Rockdale Unit Trust". 5. Fifth, "the fact that the Trust Deed was stamped on 1 November 2010". An inference can made that the parties "intended to abide by its terms" and it "constituted a declaration of trust". 6. Sixth, "the unit trust documents" which were attached to Mr Elias' affidavit". 7. Seventh, "the communications with the Office of State Revenue between August and November 2011", in particular an application by the Applicant "pursuant to s 54(3) of the Duties Act for exemption of a transfer of the property from duty" which was made "on the basis that BD Corporation was a trustee under the Unit Trust".

Consideration and Reasons

In this matter, the Applicant has taken a very unusual approach by relying entirely on a copy of the Unit Trust Deed and a statement made by the Chief Commissioner in correspondence with the Applicant; both documents are in the bundle of the s 58 documents. Essentially, the Applicant's case is that, because no director has on behalf of the Applicant signed the Unit Trust Deed, the Applicant has discharged the onus of proving its case that the Unit Trust Deed was "not made (executed) by the Applicant, the person to whom the property 'is to be vested'". It was further contended that if there was another dutiable transaction effected by another means, the Chief Commissioner "bears the onus of proving that further dutiable transaction". As noted by the counsel for the Chief Commissioner, no authorities were cited by the Applicant to support these contentions.
The purpose of the Tribunal's review is to produce the correct and preferable decision, following a fresh hearing of the matter on the merits having regard to all the evidence and information before it.
In view of the rather novel approach taken by the Applicant, it is necessary first to consider the burden of proof that the Applicant was required to discharge in order to succeed in these proceedings.
Essentially, the question for determination is whether the Applicant has discharged the onus placed on the Applicant under s 100(3) of the the Administration Act, which provides that the "applicant has the onus of proving the applicant's case in an application for review" before this Tribunal.
As noted by the Appeal Panel in Cornish Investments Pty Ltd v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [31] - There is surprisingly little authority defining an 'applicant's case" in the context of reviews under s 96 of the TAA. In B & L Linings v Chief Commissioner of State Revenue [2008] NSWCA 187 (the Judgment); [2008] NSWCA 187; (2008) 74 NSWLR 481 Allsop P (Giles and Basten JJA agreeing) at [104] held that the requisite standard of proof in such cases is the "balance of probabilities". At [87] of the Judgment Allsop P said: The Appeal Panel correctly stated that the appellants bore the onus of proof of establishing the facts on which they rely in objecting to the assessments.
The lacuna in the jurisprudence relating to the burden of proof in State revenue matters is adequately provided for by well-settled legal principles relating to similar provisions found in Commonwealth taxation legislation. Two relevant principles are: 1. There is no onus on the Chief Commissioner under s 100 of the Administration Act to establish at a review before this Tribunal that the relevant assessment was correctly made. This was made clear by Mason J when considering a similar provision in the Commonwealth income tax law in Gauci v Federal Commissioner of Taxation [1975] 135 CLR 81 at 89 - "The Act does not place any onus on the Commissioner to show that the assessments were correctly made. Nor, is there any statutory requirement that the assessments should be sustained or supported by evidence". More recently this view was approved by the Full High Court in Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614. 2. As noted in Dalco at p621, by his Honour Brennan J - The burden which rests on a taxpayer is to prove that the assessment is excessive and that burden is not necessarily discharged by showing an error by the Commissioner in forming a judgment as to the amount of the assessment.
It is also important to note that the Tribunal is required, in effect, by s 63 of the Review Act, to put itself in the position of the Administrator in carrying out its review and, in the light of the material before the Tribunal and not the material before the administrator, to make its own decision in place of the administrator. Section 63 is in the following terms - 1. In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: 1. any relevant factual material, 2. any applicable written or unwritten law. 1. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. 2. In determining an application for the review of a reviewable decision, the Tribunal may decide: 1. to affirm the reviewable decision, or 2. to vary the reviewable decision, or 3. to set aside the reviewable decision and make a decision in substitution of the reviewable decision it set aside, or 4. to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
In applications for review by the Tribunal made pursuant to s 96 of the Administration Act, the Tribunal has the following further powers under s 101(1) of the Administration Act - 1. The court or tribunal dealing with the application for review may do any one or more of the following: 1. confirm or revoke the assessment or other decision to which the application relates, 2. make an assessment or other decision in place of the assessment or other decision to which the application relates, 3. make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid, 4. remit the matter to the Chief Commissioner for determination in accordance with its finding or decision, 5. make any further order as to costs or otherwise as it thinks fit.
In an application for review before the Civil and Administrative Tribunal these powers pursuant s 101(2) do not limit the application of the following provisions - 1. Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997, 2. Section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
The nature of a review pursuant to s 96 and 97 of the Administration Act was fully explained by his Honour White J in Metricon Qld Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 982 at [26] - The Chief Commissioner's decision that is the subject of review under s 96 or s 97 is the decision that was the subject of objection, not the decision on the objection (Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 at [28] and [53]; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] 74 NSWLR 481 at [123], 506). The court or tribunal reviewing the initial decision conducts a de novo review that is not limited to the materials before the Chief Commissioner. The parties are not bound by the grounds of objection or reasons for the decision on the objection. The taxpayer is not required to show that the Chief Commissioner had erred on the materials before the Chief Commissioner, or that the exercise of any discretion by the Chief Commissioner was vitiated by a mistake of law, or failure to have regard to a consideration to which regard was required to be had, or having regard to extraneous considerations (Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 245 CLR 446 at [13]-[22], 452-455). On the de novo review the court or tribunal is not confined to confirming or revoking the assessment. It can make an assessment in place of the Chief Commissioner's assessment, and can make an order for payment of any amount of tax that is assessed as being payable but has not been paid, including tax that is assessed by the court or tribunal as being payable (Taxation Administration Act, ss3, 101(1)(b) and (c)).
It is also important to note that the Tribunal, subject to the rules of natural justice and a few exceptions not relevant to this matter, "is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit". (S 38(2) of the Tribunal Act).
In this matter the Applicant had the onerous task of establishing that the relevant parties had made no declaration of trust in respect of the Rockdale Property and that the Applicant was not a trustee of any such trust. As noted by his Honour Brennan J in Dalco, the "manner in which a taxpayer can discharge that burden varies with the circumstances". In this matter the issue was not confined to merely a legal question. The issue was essentially one of fact.
In McEvoy v McEvoy [2012] NSWSC 1494 his Honour Pembroke J usefully, by way of a summary, set out the relevant legal principles to determine the existence of a trust as follows: [3] Where the existence of a trust is in issue, the principles are well established. The question is whether there is language or conduct which shows a sufficiently clear intention to create a trust. No formal or technical words are required: Registrar of the Accident Compensation Tribunal v FCT [1993] HCA 2; (1993) 178 CLR 145 at 165-166. Any apt expression of intention will be sufficient. In order to infer the relevant intention, the court may look to the nature of the transaction and the whole of the circumstances attending the relationship between the parties: Associated Alloys Pty Ltd v ACN 001 452 Pty Ltd (in liq) [2000] HCA 25; (2000) 202 CLR 588 at [33]-[34]. Subsequent conduct can be just as much an indicator of the coming into existence of a trust as it may be of the existence of an agreement: Reitano v Reitano [2012] NSWSC 1127 at [25]; Hyhonie Holdings Pty Ltd v Leroy [2004] NSWCA 72 at [46] (Hodgson JA, Mason P and Handley JA agreeing); Owens v Lofthouse [2007] FCA 1968 at [51] (Weinberg J); Strang v Strang [2009] NSWSC 760 at [68] (Nicholas J); Stillisano v Adami [2010] SASC 351 at [70] (White J). [4] The overall question is whether in the circumstances of the case, and on the true construction of what was said or written a sufficient intention to create a trust has been manifested. It is not necessary that the creator of the trust should know that the particular relationship intended to be created is in law a trust. A trust will be created whether or not the creator is precisely aware of so doing, provided that, in substance, the creator intends that his or her actions should have the legal effect of creating the relationship which is known in law as the trust. If the language and conduct is such that an intention to create such a legal effect is manifested, then a trust will be created whether or not the words "trust" or "trustee" are used: Jacobs' Law of Trusts in Australia, 7th ed (2006), p 56; Owens v Lofthouse at [49]; Stillisano at [30]. [5] The objective nature of the question was emphasised in Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253, where Heydon and Crennan JJ said at [114]: The intention referred to is an intention to be extracted from the words used, not a subjective intention which may have existed but which cannot be extracted from those words. This is as true of unilateral declarations of alleged trusts as it is of bilateral covenants to create an alleged trust. It is as true of alleged trusts which are not wholly in writing as it is of alleged trusts which are wholly in writing. In relation to alleged trusts which are not wholly in writing, the need to draw inferences from circumstances in construing the terms of conversations may in practice widen the extent of the inquiry, but does not alter its nature.
The Applicant sought to discharge the onus by simply pointing to the fact that the Applicant did not sign the Unit Trust Deed as evidenced by the copies of the Unit Trust Deed in the bundle of s 58 documents produced by the Chief Commissioner and the Chief Commissioner's decision on objection.
The way the Applicant sought to discharge the onus was contrary to all other relevant facts and circumstances, in particular the sworn statements made by the two key persons who had first hand knowledge of what actually occurred at the relevant time. Mr Finch, counsel for the Applicant, indicated at the hearing that the Applicant did not place any reliance on these statements. But, as they had been filed and before the Tribunal, the Tribunal was, in my opinion, required to have regard to these statements in reaching the correct and preferable decision. As directed by s 63 of the Review Act the determination of review must be made "having regard to the material then before it".
Mr Yi Guang Zhang in his sworn statement confirmed that the parties had "agreed that the property should be owned by the Rockdale Unit Trust and for the trustee to be BD Corporation Pty Ltd" and that on 28 August 2010 he "signed a deed of declaration of unit trust" and "signed a Unit Holders & Management Agreement".
He further drew attention in his sworn statement that the parties had agreed under the Unit Holders & Management Agreement "to undertake business to develop real estate at Rockdale and to own and operate a Unit Trust under the name Rockdale Unit Trust established by a declaration of trust dated 28 August 2010 and for this purpose the corporate trustee shall be BD Corporation Pty Ltd (defined in the Agreement as the Trustee Company)."
Both Mr Yi Guang Zhang and Mr Farah Elias have claimed that a Unit Trust Deed was executed on 28 August 2010, although a stamped copy provided to the Chief Commissioner indicated 28 September 2010 as the date of the Deed.
It is clear that a director of the Applicant did not sign the copies of the Unit Trust Deed in the Chief Commissioner's s 58 bundle of documents. But that, by itself, is not sufficient for any conclusive finding that the Applicant was not a trustee of the Unit Trust and a party to a declaration of trust. Mr Farah Elias, the sole director and shareholder of the Applicant, signed the Unit Trust Deed, although in his capacity as director of Auspat International Pty Limited. In his sworn statement he accepts that a Declaration of Trust was executed with the Applicant as the corporate trustee.
In the absence of any other evidence, the sworn statements of both Mr Yi Guang Zhang and Mr Farah Elias clearly acknowledge that the Applicant was, at the relevant time, the trustee of the trust.
Neither Mr Yi Guang Zhang nor Mr Farah Elias was produced to give evidence to support the rather bare statement made by counsel on behalf of the Applicant. There was no evidence to show that the Applicant was not a party in relation to a declaration of trust in respect of the Rockdale Property prior to contract to purchase the Rockdale Property.
There was also some confusion as to the date of the Deed and name of the Trust. The Applicant did not seek to clarify these matters.
The Tribunal can, in these circumstances, only draw the inference that neither Mr Yi Guang Zhang nor Mr Farah Elias would have assisted in establishing that the Applicant was not a trustee or a party to a declaration of trust in respect of the Rockdale Property at the relevant time.
In this matter, the Applicant had to establish, on the balance of probabilities, that it was not a party to any dutiable transaction within the meaning of s 8(1)(b)(ii) of the Duties Act at the relevant time that is prior to the contract to purchase the Rockdale Property. Absence of a signature on Unit Trust Deed of a director on behalf of the Applicant might have been a step towards discharging the onus. But the Applicant had to go further and establish that it was not a party to any declaration of trust in respect of the Rockdale Property at the relevant time.
Section 10 of the Duties Act, as noted by his Honour Gzell J in Gardiner, places a liability on transactions rather than only instruments in writing. It provides that the transaction can be "effected by a written instrument or by any other means, including electronic means". In this matter, the Applicant had to produce evidence from the relevant parties to establish that it was not a party to any dutiable transaction, whether in writing or orally or by a combination of both means.
The approach taken by counsel for the Applicant was clearly contrary to all well settled principles as to how the burden placed under s 100(3) of the Administration Act should be discharged. It was not sufficient for the Applicant to show some error on the part of the Chief Commissioner in making the assessment. The Chief Commissioner was also not required to establish that the Applicant had made a declaration of trust. It was a task for the Applicant to establish both the positive and negative aspects of its case.
Although this matter can be determined on the basis that the Applicant failed to discharge the burden of proof, I should make the observation that the sworn statements before the Tribunal confirm that the Applicant was a party to a deed of declaration of trust. It was not necessary for the Chief Commissioner, or on review the Tribunal, to find conclusively the existence of a declaration of trust of the Rockdale Property as the identified property vested or to be vested in the Applicant at the relevant time.
I think ultimately the Applicant, in taking a rather novel approach to discharge the onus, has only denied itself of a proper review.
Having considered the nature of these proceedings, in particular the various powers of inquiry and the onus which the Applicant bore in satisfying that the Applicant was not a party to a declaration of trust, I am satisfied that the Applicant has failed to establish a case to disturb the assessment. The assessment is accordingly confirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2015

BD Corporation Pty Ltd v Chief Commissioner of State Revenue

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