1. The Principal Registrar is directed to make all necessary arrangements for the summonsed documents produced by the Interested Parties to be made available to the applicant electronically.
2. The applicant may claim legal professional privilege in respect of any of the summonsed documents by notice sent to the Tribunal and the respondent by no later than 15 August 2020. The notice must identify the file name, date, author and recipient of each document claimed to be privileged.
3. The Principal Registrar is directed to make all necessary arrangements for the summonsed documents, other than any documents claimed to be privileged in accordance with order 5, to be made available to the respondent electronically on or after 15 August 2020.
4. Access to the summonsed documents is restricted to the parties and their legal advisers and may only be used for the purposes of the current proceeding.
5. Under section 104(4) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal determines that the fees and allowances payable to the Second Interested Party be fixed in the sum of $1,370.60, and orders that the applicant pay that sum to the Second Interested Party within 7 days of the applicant receiving a valid tax invoice from the Second Interested Party.
6. On or before 28 August 2020, the applicants must send the respondent:

(a) a statement of evidence of each witness to be called at the hearing;

(b) a statement of legal contentions; and

(c) any other document upon which the applicants seek to rely as evidence.

1. On or before 2 October 2020, the respondent must send the applicants:

(a) a statement of evidence of each witness to be called at the hearing;

(b) a statement of legal contentions; and

(c) any other document upon which the respondent seeks to rely as evidence.

1. On or before 16 October 2020, the applicants may send the respondent any reply.

Note: The parties are not required to file the material referred to in orders 9 to 11 in advance of the Tribunal Book referred to in order 2.

1. Either party may rely on as evidence in the proceedings the documents lodged with the Tribunal by the respondent pursuant to clause 89(1) of Part 19 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
2. Unless the Tribunal gives leave, neither party may:

(a) present a case at the hearing different from that contained in the material served by the party and included in the Tribunal Book;

(b) call a witness whose statement has not been provided; or

(c) seek to adduce evidence in chief from a witness beyond that contained in the witness's statement.

1. All contact with the Tribunal must include the VCAT case number, and the date of the administrative mention.
2. Liberty to apply.

1. On 9 November 2018, Beaconsfield Parade Pty Ltd (Beaconsfield), which is the trustee of the Beaconsfield Parade Unit Trust (Trust), requested that the Commissioner of State Revenue (Commissioner) refer this matter to the Tribunal for review under section 106 of the Taxation Administration Act 1997 (Vic).
2. The substantive dispute relates to the Commissioner's assessment, made on 11 May 2016, assessing Beaconsfield to duty, together with penalty tax and interest, in respect of the acquisition by Gamila Melhem and Valerie Abdou of a 'relevant interest' in the Trust for the purposes of Chapter 3 of the Duties Act 2000 (Vic). The issue in dispute is whether a duty concession found in section 89E of that Act applies to reduce the amount of duty (and consequential penalty tax and interest) payable.
3. It is relevant, in this regard, to observe that:

(a) Chapter 3 of the Duties Act 2000 (Vic) applies to certain acquisitions (called relevant acquisitions) of interests in companies and trusts which are 'landholders'. The Trust is a landholder because it held the title to a number of units in a property located at 21 Beaconsfield Parade, Port Melbourne; and

(b) Beaconsfield was assessed because, where a relevant acquisition is made in relation to a unit trust, section 85 of the Act provides that the transferee(s) (ie. the person(s) who acquire an interest) and the trustee are jointly and severally liable for any duty.

1. On 28 February 2019, consent orders were made for the exchange and filing by the applicant, and then respondent, of evidence and contentions over the period between April and June 2019, with a view to the matter then being listed for hearing.
2. On 12 July 2019, further consent orders were made at the request of the parties, extending the timetable for the exchange and filing of materials over the period from September to October 2019.
3. Beaconsfield did not produce any material in accordance with those orders.
4. In advance of a scheduled directions hearing on 17 February 2020, Beaconsfield's solicitors filed an application for third party discovery from Mr Gary Trowsdale and SecurInvest Business Advisory & Taxation Pty Ltd (together, the Interested Parties) and the parties filed further consent orders, once again seeking to extend the timetable for the exchange and filing of materials over the period from March to May 2020.
5. On 13 February 2020, the Tribunal again made the consent timetabling orders, but declined to make the requested third party discovery order on the basis that it was open to the applicant to summons the material required.
6. As a result of the pandemic and the closure of the Tribunal's venues, the proceeding was stayed by an order made on 24 March 2020, a week prior to the due date for Beaconsfield to file its materials.
7. On 28 May 2020, a Deputy Registrar of the Tribunal issued a summons (Summons) addressed to The Proper Officer of the Second Interested Party requiring that person to:

appear before the Victorian Civil and Administrative Tribunal at 55 KING STREET, MELBOURNE VIC 3000 at 9.15AM on 29 JUNE 2020 ... to produce the following documents: THE DOCUMENTS REFERRED TO IN ATTACHED SCHEDULE A.

1. Schedule A to the Summons referred to '[a]ll documents: physical, digital or in any other means held whatsoever' related (broadly) to the application for a duty exemption by Beaconsfield and any objections, submissions and other correspondence relating to the assessment issued by the Commissioner.
2. On 29 June 2020, Mr Trowsdale emailed the Tribunal to indicate that he had sought to attend the directions hearing for the return of the Summons, but was declined access to the building. He nevertheless provided the material, contained in 35 separate electronic documents, by way of a USB stick. In his email, he claimed fees and allowances of $1,370.60 broken down as follows:

Time spent Collating information - 3 hours ... $891[.00]

Time to attend VCAT ... including travel - 1 ½ hours ... $445.50

I have handed over the documents to the tribunal member via USB stick but would like to keep a lien over these documents until I have been paid for my services. My total outstanding fees relating to this work is $7,700 in[cluding] GST.

1. As Beaconsfield did not consent to the amount of costs claimed, and denied the existence of any lien, the Tribunal scheduled a directions hearing to consider those matters, as well as any procedural matters necessary to enable the matter to progress to a hearing.

1. VCAT 'possesses a general power to regulate the custody and inspection of documents produced to it pursuant to a summons'.[1] In the current pandemic, inspection may include the provision of documents in electronic form (to which the Interested Parties are not opposed, save for the question of the lien).
2. The submissions of Beaconsfield and the Interested Parties concerning the lien were focused on the existence, or otherwise, of any retainer by which Beaconsfield engaged the Interested Parties. However, this presupposes that any lien is relevant to the question of an order for inspection.
3. I was not referred to, and have not been able to locate, any decision by the Tribunal as to whether, and if so how, any lien may impact on orders to be made regarding inspection of documents produced to the Tribunal in response to a summons.
4. In principle, a lien is not impacted by the production of summonsed documents to the Tribunal or an order allowing a party to inspect such documents. In the ordinary course, a lien over documents would continue to secure the payment of the debt when returned at the end of the proceeding. Of course, inspection (particularly by electronic means) may reduce the value of any lien, but it does not necessarily follow that the Tribunal should exercise its general powers to regulate inspection of summonsed documents to ensure the payment of the underlying debt or to preserve the value of the lien.
5. Turning to the submissions, Beaconsfield filed short written submissions contending that the evidence presented '[does] not establish any professional relationship between Beaconsfield, [Mr] Trowsdale or his corporate entities'.[2]
6. In oral submissions, Mr Aizen (counsel for Beaconsfield) contended that:

(a) there was no specific instruction given by Beaconsfield to the Interested Parties (even if a director of Beaconsfield was copied into some of the communications made by or to the Interested Parties), and so they were not authorised to act for the company;

(b) there was no letter of engagement and, in the absence of any retainer, a lien cannot arise;

(c) no invoice was ever received by Beaconsfield for the services of the Interested Parties, rather the invoices were addressed to the owners corporation for 21 Beaconsfield Parade and sent to the address of Mr Faris Melham (presumably the spouse or relative of Ms Gamila Melham), who was not a director of Beaconsfield;

(d) the communications with the Commissioner show that the Interested Parties were acting for the benefit of the transferees when seeking to ameliorate the duty payable; and

(e) Beaconsfield does not accept that it received any benefit from the services provided by the Interested Parties and, even if it did, it is not correct to assert that a liability to pay the fees of the Interested Parties arises from such benefit.

1. Beaconsfield relies on the High Court decision in Hewitt v Court[3] for the propositions that:
   • an equitable lien arises by operation of law, as a doctrine of equity;[4]
   • the existence of a lien is based on the relationship between the parties;[5] and
   • the lien will operate to secure an indebtedness.[6]
2. In the present case, Beaconsfield contends it had no professional relationship with the Interested Parties and, as such, was not indebted to them for the fees claimed. Accordingly, a lien does not arise as 'a matter of law'.
3. Mr Trowsdale concedes that he did 'not have specific direct instructions from Beaconsfield ... to attend to the matter relating to the [State Revenue Office] investigation', but says that he was contacted by Mr Paul Bunting (Beaconsfield's accountant) when the Commissioner commenced his investigation and it was agreed by Mr Bunting, in emails to which Mr Farag (a director of Beaconsfield) was copied, that because of his knowledge of the Trust and the underlying property held by it, that Mr Trowsdale should prepare the response.[7]
4. After the Commissioner issued an assessment, Mr Trowsdale says he was asked to prepare an objection and, in doing so, engaged a barrister to assist.
5. While Mr Trowsdale also concedes that the invoices for the work were issued to the owners corporation rather than Beaconsfield, he explains that he was requested to do so at a meeting at which Mr Farag was present (with Mr Melham and Mr Ehab Abdou, the latter presumably being the spouse or relative of Ms Valerie Abdou).[8] He contends that Beaconsfield was aware of the work being done, for its benefit, and notes that the services provided by him and/or his entities 'led to a reduction of $29,127 in stamp duty'.[9]
6. Mr Nekvapil (counsel for the Commissioner) indicated that, while he has 'no specific interest' in this matter, the Commissioner is seeking to inspect the documents concerned.
7. For the reasons which follow, I have decided that Beaconsfield should be permitted to inspect the summonsed documents, on an unconditional basis.
8. Assuming the existence of a lien is relevant, the first issue to be addressed is whether there was a professional relationship between Beaconsfield and the Interested Parties. While there was no written engagement, I consider that there was an implied retainer established by the email correspondence on 28 September 2015 between Mr Bunting and Mr Trowsdale[10] by which it was agreed that Mr Bunting would advise the State Revenue Office that Mr Trowsdale was dealing with their investigation.
9. Although in the context of a solicitor, in Pegrum v Fatharly,[11] the Court found that a solicitor had an implied retainer with a lender who was relying on his advice, even though there was no written agreement and the solicitor was formally engaged and paid by the borrower.
10. The second issue to be addressed is whether, by reason of the implied retainer, Beaconsfield was indebted to the Interested Parties.
11. Mr Trowsdale's evidence is that it was agreed that his invoices were to be issued to the owners corporation for 21 Beaconsfield Parade at a meeting held with Mr Farag, Mr Melham and Mr Abdou.
12. An owners corporation is a body corporate, which is incorporated on registration of a plan of subdivision[12] to manage common property and undertake the other functions provided under the Owners Corporation Act 2006 (Vic). It can sue or be sued.[13] Its committee members are immune from personal liability 'for anything done or omitted to be done in good faith - in the exercise of a power or the carrying out of a function' under the relevant owners corporation legislation.[14]
13. It follows that an owners corporation is a separate legal entity to its members, and the entry into an obligation by an owners corporation does not bind its members in their own right.
14. Having agreed that they would look to the owners corporation for payment of fees, and in the absence of any evidence of some agreement to the contrary, the Interested Parties cannot now argue that the members of the owners corporation personally bear some liability for those fees because of the failure by the owners corporation to attend to payment.
15. In those circumstances, I find that there is no indebtedness owed by Beaconsfield to the Interested Parties and so no lien could have arisen as against Beaconsfield because there is nothing to secure.
16. Even if there was an indebtedness to support the claimed lien, I would have declined to make a conditional order for inspection in circumstances where:
    • the work undertaken by the Interested Parties was for the benefit of three parties, Ms Abdou, Ms Melham and Beaconsfield (and noting that - absent any breach of trust - Beaconsfield, as trustee, may well be entitled to look to Ms Abdou and Ms Melham as unitholders of the Trust to defray any liability), such that it would be inappropriate to exercise the Tribunal's powers to impose an obligation for Beaconsfield to provide security for the whole of the fees; and
    • the Interested Parties have sat on their hands, not taking any formal steps[15] to recover the debt even though it is now over four years overdue. Rather, when I asked about this, Mr Trowsdale indicated that he had only sent reminders and requests for payment to the parties.
17. A remaining issue relates to the Commissioner's request for inspection.
18. My cursory examination of the summonsed materials suggests that it includes correspondence between Mr Trowsdale and the barrister engaged to assist with the Commissioner's investigation and subsequent process of objection to the assessment raised. Some of this material is likely to be privileged.
19. Any privilege that exists would presumably be for the common benefit of the clients of Mr Trowsdale, namely Beaconsfield, Ms Abdou and Ms Melham.
20. Accordingly, in permitting inspection by the Commissioner, I have provided for the exclusion of any documents which Beaconsfield claims to be privileged. Either party has liberty to apply if there is disagreement as to the documents claimed to be privileged, which they are unable to resolve.

1. Beaconsfield contends that the fees and allowances sought by the Interested Parties are excessive.
2. In relation to the time for identifying and collating documents, Beaconsfield submits the work could have been done by a clerk and, as such, only $264 should be allowed, being three hours of time at $88 per hour (inclusive of GST) for a clerk.[16]
3. A similar objection is taken in respect of attendance at VCAT, for which Beaconsfield says that only $176 should be allowed (noting that it appears that Beaconsfield has allowed two hours).[17]
4. No objection is taken in relation to the claimed costs for transport and a USB stick.

1. Mr Trowsdale defends the amounts claimed on the basis that:
   • he had to undertake the process of identifying and collating the documents himself as he was the person that worked on the matter and some of the material was contained in his personal email account; and
   • he was required to attend VCAT under the terms of the Summons and was not aware that access to VCAT's premises would be denied.
2. It is well established that the power to require the payment of fees and allowances under section 104 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) extends to amounts claimed for loss of business time relating to the work of collating and copying documents, as well as attendance.[18] Amounts may be awarded even if attendance proves not to have been necessary.[19] Ultimately, it is for the Tribunal to determine what is fair and reasonable.[20]
3. I accept the evidence given by Mr Trowsdale that, given his familiarity with the matter, he was the appropriate person to undertake the task of collating and copying the documents. His hourly rate is not unreasonable. Subject to one comment below about GST, I find that the amount claimed is fair and reasonable.
4. Given that the Summons was directed to Mr Trowsdale (a director and therefore Proper Officer of the Second Interested Party), and required his attendance at VCAT, he is also entitled to a fair and reasonable amount to compensate for the inconvenience of doing so. In circumstances where he wished (and was entitled) to raise an issue about inspection of the summonsed documents, it was not appropriate for him to send a clerk. Accordingly, subject to the issue of GST, the amount claimed is fair and reasonable.
5. The hourly rate that the Interested Parties have claimed includes GST. Broadly speaking, GST is payable by a registered supplier in respect of the supply of goods, services and other things for consideration.
6. The Federal Commissioner of Taxation (CoT) has ruled that a Court or Tribunal order for the payment of costs is not subject to GST because, while there may be a supply, the supply is not for consideration.[21] Similar logic might suggest that no GST applies to fees and allowances determined to be payable by order of the Tribunal for the production - to the Tribunal - of documents under summons.

1. However, there is a GST interpretation issued by the CoT indicating that GST can apply to the payment of conduct moneys for compliance with a subpoena.[22] Accordingly, in the absence of any argument to the contrary, I consider it is appropriate to allow the amounts claimed for GST, subject to the Second Interested Party producing a tax invoice for the fees and allowances, so that the Second Interested Party neither gains a windfall, nor suffers a detriment.

1. The Commissioner seeks orders for the filing and exchange of materials by the parties between August and September 2020, with a view to the parties advising if the matter is ready to be listed for hearing by way of an administrative mention to be scheduled in early October 2020.
2. Beaconsfield contends that it would be premature to make such orders, pending the Tribunal's decision on inspection of the documents and before it has had an opportunity to consider the material produced. Instead, Beaconsfield suggests that the matter be listed for an administrative mention following the decision, for the parties to then propose a timetable.
3. In pressing for timetabling orders to be made, the Commissioner points to the long history of delay on the part of Beaconsfield as set out in the background section above.
4. As indicated to the parties at the hearing, the Tribunal has modified its approach to questions of timetabling (partly as a response to the closure of VCAT's premises during the pandemic), including for state tax matters.
5. Generally, at the first directions hearing after a matter is referred, the Tribunal will hear from the parties as to the proposed timetable and then make orders listing an administrative mention at the end of the period for the parties to make a joint request for the matter to be listed, and contingent on the parties filing a joint Tribunal Book containing all of the material (including written submissions and key authorities) to be relied upon at the hearing.
6. The Tribunal will not, normally, include orders requiring the filing of any material in advance of that time, or even specify dates for the exchange of material between the parties. This is intended to empower the parties to set, and then discuss and agree any changes to, the timetable in good faith between themselves. It prevents the need for the Tribunal to supervise such matters, or issue new orders with revised timetables to reflect what has been agreed between the parties.

1. The Tribunal may, of course, determine that timetabling orders are appropriate. Where a party has a long history of delay, such orders may well be needed. In the present case, I consider that such orders should be made, although I have allowed for a slightly lengthier timetable than proposed by the Commissioner.

[1] Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2010] VCAT 269.

[2] Submissions of Beaconsfield dated 20 July 2020, 3.

[3] (1983) 46 ALR 87; [1983] HCA 7.

[7] Email submissions from Mr Trowsdale dated 21 July 2020.

[10] Attached to Mr Trowsdale's submissions.

[11] (1996) 14 WAR 92.

[12] Subdivision Act 1988 (Vic), s 28(1).

[13] Ibid, s 28(2).

[14] Owners Corporation Act 2006 (Vic), s 118(1)(a).

[15] For example, by application in the Tribunal's Civil Claims List.

[18] Ong v Quickbuild Pty Ltd [2013] VCAT 1335.

[19] Darmos v Yarra CC [2003] VCAT 1462.

[20] Roberts v Monash CC [2002] VCAT 129.

[21] CoT, GST Ruling GSTR 2001/4 'Goods and Services Tax: GST consequences of court orders and out-of-court settlements' [145]-[149].

[22] CoT, GSTA TPP 064 'Goods and services tax: are conduct moneys paid to a recipient of a subpoena for the production of documents or evidence in an Australian court subject to GST?'.