Bluebottle UK Ltd & Ors v Deputy Commissioner of Taxation & Anor

Supreme Court of NSW|2006-07-14|Before: Gzell J

Background 1 On 11 November 2005, Virgin Blue Holdings Ltd, the second defendant, resolved to pay a final fully franked dividend of 25 cents per ordinary share on 15 December 2005. 2 On 12 December 2005, the first defendant Deputy Commissioner of Taxation issued a notice to Virgin Blue stating that, when required by him, Virgin Blue was to pay the tax due and payable by Cricket SA, and requiring Virgin Blue to retain $72,518,346.06, said to be the amount of the tax, from the amount Virgin Blue had "receipt, control or disposal of, belonging to" Cricket. 3 On the same day, the Commissioner issued a similar notice with respect to Virgin Holdings SA requiring the retention and payment on requisition of $20,839,554.45. 4 It was common ground that Cricket and Virgin Holdings were non-residents for the purposes of the Income Tax Assessment 1936 (Cth). Cricket and Virgin Holdings were companies incorporated in Switzerland. 5 On 13 December 2005, Cricket executed a deed of assignment of its right, title and interest to receive the dividend to Bluebottle UK Ltd, the first plaintiff. Virgin Holdings did likewise. 6 On the same day, Bluebottle gave Virgin Blue an irrevocable direction to pay the dividends to Barfair Ltd, the fourth plaintiff. 7 On 14 December 2005, Cricket and Virgin Holdings gave notice to Virgin Blue of the assignments and of the irrevocable direction. 8 Also on that day, the Commissioner notified Virgin Blue that the amounts specified in his notices with respect to Cricket and Virgin Holdings were required to be paid to him. 9 On 15 December 2005, I granted an injunction restraining Virgin Blue from paying the amount of the dividends with respect to Cricket and Virgin Holdings to the Commissioner. 10 On 16 December 2005, I dissolved the injunction and ordered Virgin Blue to deposit the amount of the dividends into an interest bearing account, to retain that amount and any interest accrued in the account, and not pay it to any person. 11 Bluebottle, Cricket, Virgin Holdings and Barfair seek declarations that the deeds of assignment and the irrevocable direction are valid and effective, that the dividends are payable to Barfair, that the notices of the Commissioner have no force or effect, and that payment under the Commissioner's notices would not give Virgin Blue a good discharge of its obligation to pay the dividends. They also seek an order that Virgin Blue pay the dividends to Barfair. 12 By a cross-claim, Virgin Blue seeks a declaration that it created a dividend with payment to be made on 15 December 2005. The issues 13 The proceedings raise three issues: the dividend provisions of the Corporations Act 2001 (Cth), the law with respect to equitable assignments of future property, and the interpretation and application of the notice provision in the Income Tax Assessment Act 1936 (Cth). The dividend provisions 14 When s 254U and s 254V were introduced to the forerunner of the Corporations Act 2001 (Cth), it was recognised that there was a distinction between the declaration of a final dividend and the declaration of an interim dividend. 15 In Potel v Inland Revenue Commissioners [1971] 2 All ER 504, the directors of a company declared an interim dividend payable on a specified date. It was held, for the purposes of surtax legislation, that the dividends became due on the date for payment. At 511-512, Brightman J cited with approval a statement of Joyce J in Lagunas Nitrate Co Ltd v Schroeder & Co and Schmidt (1901) 85 LT 22 at 23 to the effect that a board of directors might, before an interim dividend was actually paid, acting bona fide, reconsider the question as to whether it ought to be paid at all. Brightman J concluded that, with respect to an interim dividend, the directors of a company could, at or after the time of such resolution, decide that the dividend should be paid at some stipulated future date, and if a date was so prescribed, a shareholder had no enforceable right to demand payment prior to the stipulated date. 16 In Industrial Equity Ltd v Blackburn (1977) 137 CLR 567 at 572, Mason J cited Potel in stating that there was a well recognised distinction between a power to declare a final dividend and a power to pay an interim dividend. The declaration of a final dividend gives rise to a debt payable by the company to the shareholder immediately, or from the date stipulated for payment, whereas a resolution for the payment of an interim dividend does not create such a debt in favour of the shareholder. 17 In Brookton Co-operative Society Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 441 at 455, Mason J said: "The declaration of an interim dividend by directors, whose relevant power under the articles is to pay a dividend, does not create a debt owing by the company to the shareholders ( Industrial Equity Ltd v Blackburn (1977) 137 CLR 567 at 572; Potel v Inland Revenue Commissioners [1971] 2 All ER 504 at 511-512). Consequently, the declaration of an interim dividend may be revoked before payment because it is subject to the will of the directors until payment ( Lagunas Nitrate Co Ltd v Schroder & Co and Schmidt (1901) 85 LT 22)." 18 In Mara Developments Ltd v BW Rofe Pty Ltd [1977] 2 NSWLR 616 a company declared a final dividend without setting a date for payment. Before the dividend was paid, the board decided that its investments in a number of subsidiaries were overstated and wrote them down, applying accumulated unappropriated revenue profits against the capital loss. A shareholder who sued for his dividend was held entitled to judgment. The valid declaration of a dividend created a debt of the company to its shareholders. 19 The explanatory memorandum to the Company Law Review Bill 1998 (Cth) recognised this state of the law. It stated in par 9.154 that the Bill would allow companies to avoid the problems that arise if profits that would have been sufficient to cover a dividend when declared have ceased to exist when the time comes to pay the dividend. It was stated that under the Bill a debt would not arise until the time fixed for payment had arrived unless the company had a constitution that provided for the declaration of a dividend. It stated that directors would be able to revoke a decision to pay a dividend at any time before the time fixed for payment and thus avoid a debt being incurred. In par 9.156 it noted that a directors' resolution to pay an interim dividend did not create a debt and might be revoked or amended before the dividend was paid. It stated that the effect of the Bill would be to extend that rule to all dividends not just interim dividends. 20 The Company Law Review Act 1998 (Cth) introduced s 254U and 254V to the forerunner of the Corporations Act 2001 (Cth). They are in the following terms: "254U Other provisions about paying dividends (replaceable rule - see section 135)

(1) The directors may determine that a dividend is payable and fix: (a) the amount; and (b) the time for payment; and (c) the method of payment. The methods of payment may include the payment of cash, the issue of shares, the grant of options and the transfer of assets. (2) Interest is not payable on a dividend. 254V When does the company incur a debt? (1) A company does not incur a debt merely by fixing the amount or time for payment of a dividend. The debt arises only when the time fixed for payment arrives and the decision to pay the dividend may be revoked at any time before then. (2) However, if the company has a constitution and it provides for the declaration of dividends, the company incurs a debt when the dividend is declared." 21 Vigin Blue adopted the above replaceable rule. Its constitution provided in r 63 as follows: "(a) The Directors may from time to time determine that a Dividend is payable. The Directors may fix the amount, the time for payment and the method of payment of a Dividend. The method of payment may include the payment of cash, the issue of shares, the grant of options and the transfer of assets, including shares or other Securities in another body corporate (or any combination of them).

(b) No Dividend bears interest against the company."

There was no power in the constitution to declare a dividend. -- the directors' resolution 22 The minutes of the directors' meeting of 11 November 2005 did not adopt the language of r 63. The resolutions were as follows: "The Directors discussed the capital structure paper presented and the dividend policy for the Company. IT WAS RESOLVED to adopt the following as the new Dividend Policy: "It is the Company's intention to pay a substantial proportion of its after tax earnings as a dividend each year, subject to the Company identifying alternative investment opportunities and taking into account any other factors the Directors may deem relevant at the time." IT WAS FURHTER RESOLVED THAT in accordance with the Dividend Policy and subject to the Auditors signing an unqualified audit report and the sub-committee confirming it, the directors declared a final, fully frank dividend of 25 cents per ordinary share. The record date for the dividend will be 28 November 2005 with payment being made on 15 December 2005." 23 On 16 November 2005, PriceWaterhouseCoopers signed an unqualified audit report. 24 The total amount of the dividend was $262,077,000. -- Bluebottle's submissions 25 It was submitted that Virgin Blue did not declare a dividend. It had no power to do so under its constitution and a dividend may only be paid in accordance with a company's constitution. In Oakbank Oil Co v Crum (1882) 8 App Cas 65 at 71, Lord Selborne LC said that directors and general meetings of companies could have no powers by implication except such as are incidental to, or properly to be inferred from, the powers expressed in the memorandum and articles of association. His Lordship said their powers were entirely created by the law and by the contract founded upon the law that enables such companies to be constituted. 26 It followed, according to the submission, that since Virgin Blue had no provision of its constitution for the declaration of a dividend, the Corporations Act 2001 (Cth), s 254V(2) could have no operation with respect to the resolution of 11 November 2005. 27 It was submitted that the resolution could be construed as a determination that a dividend would be payable in terms of the Corporations Act 2001 (Cth), s 254U(1). The resolution expressed the intention that a dividend was payable. It fixed the amount and the time for payment. The method of payment could be inferred: a payment of cash as specified in r 63(a) of the constitution. 28 It was submitted that the forgiving test for construction of commercial documents, to give them efficacy, applied to the resolution. 29 In Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1967-1968) 118 CLR 429, the High Court considered an agreement for the supply of bulk electricity. A provision in it provided that if the supplier's costs should vary in other respects than had been provided, the supplier should have the right to vary the maximum demand charge and energy charge by notice in writing. It was held that the clause was not void for uncertainty. The words "supplier's costs" were not meaningless however wide might be the area of possible disagreement as to its denotation in a particular case. At 437 Barwick CJ described the test for construing commercial documents thus: "So long as the language employed by the parties, to use Lord Wright's words in Scammell (G) & Nephew Ltd v Ouston [1941] AC 251 is not "so obscure and so incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention", the contract cannot be held to be void or uncertain or meaningless. In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial agreements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved." 30 Clifton v Mount Morgan Ltd (1940) 40 SR (NSW) 31 involved the question whether a proxyholder's vote was not only his personally, but included the proxies he held. A majority of the Full Court held that they did. Citing Hillas v Arcos (1932) 147 LT 503 at 512-514, Davidson J at 52 said that the House of Lords had pointedly drawn attention to the fact that without violation of legal principles the dealings of men should, as far as possible, be treated as effective by the application of a fair and broad treatment without being too astute or subtle in finding defects. 31 In Dominion Mining NL v Hill (No 1) [1971] ACLC 40-021 at 27,219-27,220 Street J said it was legitimate to construe the words of a proxy with benevolence. To hold otherwise would be to frustrate what could readily be seen to be the intention of the givers of the proxies. 32 In National Roads Motorists' Association Ltd v Parkin (2004) 60 NSWLR 224, employees of the organisation requested its directors to call a general meeting to consider two resolutions. The directors sought a declaration that the resolutions were void for uncertainty or ambiguity. The Court of Appeal held that the constitution of NRMA should be regarded as a business document and should be construed so as to give it reasonable business efficacy, and that the approach of "validating if possible" should be applied. The court concluded that the Upper Hunter approach should be adopted. At [36], Ipp JA with whom the other members of the Court agreed, said that the Upper Hunter test was a forgiving one. He quoted with approval a passage from the judgment at first instance of Campbell J in National Roads Motorists' Association Ltd v Parkin (2004) 49 ACSR 386 at 393-394: "The way this test is applied in practice is that if the court is capable of putting a meaning on the wording of the document, then it is not void for uncertainty - it has the meaning which the court decides it has, no matter how difficult the task of ascertaining that meaning might have been."

At [88], Ipp JA applied the approach of "validating if possible." 33 Adopting the "validating if possible" approach, since it had been applied to company resolutions and there was no reason in principle why it should not, it was submitted that the resolution could be construed as an exercise of power under r 63(a) of Virgin Blue's constitution and thus a determination that a dividend was payable in fixed amount, time and method of payment. 34 It followed, so it was submitted, that the Corporations Act 2001 (Cth), s 254V(1) was invoked and Virgin Blue did not incur a debt to its shareholders when it passed the resolution on 11 November 2005. In the circumstances that occurred, the resolution not being revoked, Virgin Blue incurred a debt to its shareholders on 15 December 2005, the time fixed for payment. -- the Commissioner's submissions 35 The cross claim by Virgin Blue was initiated because the Commissioner submitted that the resolution of 11 November 2005 was ineffective. 36 The Commissioner pointed to the historical distinction between a declaration of a final dividend and the determination of an interim one. The extension of determination of an interim dividend to final dividends in the Corporations Act 2001 (Cth), s 254U(1) and the terms of r 63(a) Virgin Blue's constitution were highlighted. It was submitted that there was a clear distinction between a determination and a declaration. It was submitted that the resolution of 11 November 2005 constituted a declaration for which the constitution did not confer power with the consequence that the resolution was unauthorised and invalid. 37 The consequence was, so the submission ran, that payment under an invalid resolution would give rise to a deemed debt of Virgin Blue to the recipients of the dividends incurred when the dividends were paid. To the extent that payment of the dividend had not been made, the moneys belonged to Virgin Blue. 38 The submission is curious. The Commissioner maintains that his requisition of 14 December 2005 requiring Virgin Blue to pay the tax was effective, Virgin Blue had the control of money belonging to Cricket and Virgin Holdings. If it were the case that the resolution of 11 November 2005 was invalid and the money retained in the interest bearing account was the property of Virgin Blue, the Commissioner's claim to those funds must fail. 39 The submission that an invalid payment by a company to its shareholders gives rise to a debt due by the company to the shareholder upon payment is, in my view, untenable. If one makes a gift, one does not incur a debt when the gift is made. Nor is there any basis, in my view, for an invalid payment by a company to give rise to a debt due by it to the recipient. If there is no justification for a payment, a would-be recipient can hardly demand receipt of his share. Nor is the company obliged to make payment if it lacks the power to do so. 40 In any event, the question whether a debt arises upon payment of an invalid dividend is not an issue I need to decide in these proceedings. 41 The Commissioner submits that if the resolution of 11 November 2005 was valid, it operated according to its terms as a declaration of a dividend, with the consequence that Virgin Blue incurred a debt to its shareholders on 11 November 2005 in accordance with the Corporations Act 2001 (Cth), s 254V(2). -- the resolution of the issue 42 In my view that submission must be rejected. The Corporations Act 2001 (Cth), s 254V(2) only applies if a company's constitution provides for the declaration of dividends. The constitution of Virgin Blue did not. 43 The central question is whether the resolution can be given effect as an exercise of power under r 63(a) of Virgin Blue's constitution as a determination. In my view it can. Apart from the use of the word "declare", the resolution complied with the rule. A decision was made that a dividend was payable. The directors fixed the amount and the time of payment of the dividend. The rule provided for the method of payment in cash, by the issue of shares, by the grant of options, or by the transfer of assets. If any of these methods of payment, other than payment of cash, had been intended, they would have been specifically mentioned in the resolution. Its silence with respect to the method of payment leads inevitably to the inference that payment of cash was intended. 44 There is no reason why the benevolent approach to the construction of commercial documents should not apply to company resolutions. The authorities support its application to such documents and also the approach of "validating if possible". Applying those approaches, I find that the resolution of 11 November 2005 was a valid exercise of Virgin Blue's power under r 63(a) of its constitution. 45 It follows, in my view, in terms of the Corporations Act 2001 (Cth), s 254V(1) that a debt did not arise from Virgin Blue to its shareholders on 11 November 2005. That debt arose on 15 December 2005 when payment of the dividend was due. Equitable assignments of future property -- the assignments 46 On 13 December 2005, Virgin Holdings lent Bluebottle in Swiss francs the equivalent of the dividend which would become payable to it on 15 December 2005 unless the resolution of Virgin Blue was revoked. The loan was due for repayment on 31 December 2006, but Virgin Holdings had the option to repay principal and interest without penalty or premium at any time. Interest was payable at Swiss minimum rates, half-yearly in arrears, the first interest payment being due on 30 June 2006. 47 On the same day Virgin Holdings assigned to Bluebottle in equity all its Rights capable of assignment. The term "Rights" was defined in cl 1.1 to mean all right, title and interest to receive the dividend determined by Virgin Blue by resolution of the directors on 11 November 2005 that Virgin Holdings had or would have upon them coming into existence against Virgin Blue. Virgin Holdings also assigned to Bluebottle on the date fixed for payment of the dividend all Rights both legal and beneficial not otherwise transferred under the earlier provision. Clause 2.1 of the deed was in the following terms: "(a) On the date of this Deed the Assignor transfers and assigns to the Assignee in equity all Rights of the Assignor which are capable of the assignment. (b) On the date fixed for payment of the Dividend, the Assignor transfers and assigns to the Assignee absolutely all Rights of the Assignor both legal and beneficial which have not otherwise been transferred and assigned under clause 2.1(a). (c) The consideration for the transfers and assignments referred to in this clause 2.1 shall be the sum of CHF 5, 309, 578.53 (being the Swiss francs equivalent of an amount equal to the total aggregate amount of the dividend) and shall remain outstanding on the terms of the Loan Agreement." 48 Similar documents were executed between Cricket and Bluebottle, although a deed of amendment altered the Swiss franc amounts in the deed of assignment and loan agreement to correct the number of shares held by Cricket, the amount of the consideration and of the dividend. 49 Also on 13 December 2005, Bluebottle gave an irrevocable direction to Virgin Blue to pay the dividends assigned to it to Barfair: "With effect from the date of this letter, Bluebottle irrevocably and unconditionally authorises and directs that $65,774,841 as payment from Virgin Blue for the dividend owed to Bluebottle (as announced by Virgin Blue on 16 November 2005) be paid to Barfair Limited or any other entity specified in writing to Virgin Blue by Barfair Limited. Bluebottle undertakes and agrees with Virgin Blue that they will not vary, revoke or alter this irrevocable direction in any way." 50 On 14 December 2005, Cricket and Virgin Holdings gave notice to Virgin Blue of the assignments. -- the legal assignments 51 The deed of assignment and the notice given by Cricket and Virgin Holdings to Virgin Blue of the respective assignments of the future dividend to Bluebottle presupposed that one could, in addition to assigning the right to the dividends in equity, also assign them in law under the Property Law Act 1974 (Qld), s 199(1). It provided, relevantly for the present purposes: "Any absolute assignment by writing under the hand of the assignor…of any…legal thing in action, of which express notice in writing has been given to the…person from whom the assignor would have been entitled to claim such…thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice -(a) the legal right to such…thing in action; and (b) all legal and other remedies for the same; and (c) the power to give a good discharge for the same without the concurrence of the assignor." 52 But that provision is limited to legal things in action. There is a distinction between legal and equitable choses in action. Legal choses in action are those that can be recovered or enforced by action at law as, for instance, a debt, a bill of exchange, a policy of insurance and the benefit of a guarantee (Starke, Assignments of Choses in Action in Australia, Butterworths, Australia, 1972 at [7]). 53 A future chose in action is not a legal chose in action but can be assigned in equity. It does not fall within the purview of the Property Law Act 1974 (Qld), s 199(1). At the time the notice was given, Bluebottle's right to the dividends was not a legal chose in action and I reject the submission on behalf of Bluebottle that the giving of the notice of 14 December gave rise to an assignment in law deemed by that provision to be effectual from the date of service of the notice, namely 14 December 2005. 54 When the time fixed for payment of the dividends arrived on 15 December 2005, debts arose for the payment of the dividends which were legal choses in action that could then be assigned under the Property Law Act 1974 (Qld), s 199(1) by notice in writing. But if the only assignments occurred on that date, the Commissioner's notices of 12 December 2005 and 14 December 2005 would have taken effect. 55 In my view, Bluebottle's case depends upon earlier effective assignments in equity of the right to the dividends. -- the equitable assignments 56 Bluebottle submitted, correctly in my view, that since there was no debt due by Virgin Blue to Cricket or Virgin Holdings upon the passing of the resolution of 11 November 2005, the assignments of 13 December 2005 were of future property. 57 In Norman v Federal Commissioner of Taxation (1962-1963) 109 CLR 9, the High Court held that future interest and future dividends, as mere expectancies or possibilities, could not be effectively assigned without consideration. In the course of his judgment, Windeyer J described the effect of an assignment of future property for valuable considerable. At 24 his Honour said: "If we turn from attempted gifts of future property to purported dispositions of it for value, the picture changes completely. The common law objection remains. But in equity a would-be present assignment of something to be acquired in the future is, when made for value, construed as an agreement to assign the thing when it is acquired. A court of equity will ensure that the would-be assignor performs this agreement, his conscience being bound by the consideration. The purported assignee thus gets an equitable interest in the property immediately the legal ownership of it is acquired by the assignor, assuming it to have been sufficiently described to be then identifiable. The prospective interest of the assignee is in the meantime protected by equity." 58 That proposition is not contentious and was not challenged by the Commissioner. Indeed, reference was made on his behalf to Federal Commissioner of Taxation v Everett (1978) 38 FLR 26 at 50 where Deane J cited with approval from Jordan's Chapters on Equity in New South Wales, (6th ed) at 51-52: "… a purported assignment of a mere expectancy (in the sense of the chance of becoming entitled under the will or intestacy of a person who is still living), or of property to be acquired in the future, is inoperative as an assignment, and has no effect unless made for valuable consideration. If there be consideration, it will operate as an agreement to assign the property when acquired, or to hold it in trust (the latter if the whole of the consideration has been satisfied) and this agreement will be binding on the parties as from its date and binding on the property in equity (although not at common law), if and when it is acquired by the assignor, if it is of such a nature and so described as to be capable of being identified. In the interval between the making of the agreement and the acquisition of the property by the assignor, the interest of the assignee is not contractual merely, but he has, as between himself and the assignor, a prospective interest in the property to be acquired which has some of the incidents of a proprietary right." 59 The decision of the Full Court of the Federal Court was upheld on appeal, Federal Commissioner of Taxation v Everett (1980) 143 CLR 440. At 450, in a joint judgment, their Honours said it is, of course, well established that an equitable assignment of, or a contract to assign, future property or a mere expectancy for valuable consideration will operate to transfer the beneficial interest to the purchaser immediately upon the property being acquired, but not before. 60 The authorities on equitable assignments of future property establish that once the property comes into existence the equitable title to the property arises without any further step and eo instanti in the assignee and the assignor holds as bare trustee. 61 In Holroyd v Marshall (1862) 10 HLC 191 (11 ER 999), Lord Westbury LC said that in equity, a contract for valuable consideration by which it was agreed to make a present transfer of property, passes at once the beneficial interest, provided the contract be one of which a court of equity would decree specific performance. The vendor then becomes a trustee for the purchaser. 62 In Tailby v Official Receiver (1888) 13 App Cas 523 at 546, Lord Macnaghten said that long before Holroyd it was well settled that an assignment of future property for value operated in equity by way of agreement binding the conscience of the assignor and so binding the property from the moment when the contract became capable of being performed on the principle that equity considered as done that which ought to be done. 63 In In Re Lind; Industrials Finance Syndicate Ltd v Lind [1915] 2 Ch 345 at 365-367, Phillimore LJ said that it was well and long settled that the right of the assignee is a higher right than the right to have specific performance of a contract, that the assignment creates an equitable charge which arises immediately upon the property coming into existence. 64 These statements of principle were accepted by the High Court in Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1. In that case the defendant company manufactured shoes. It entered into an agreement with the plaintiffs whereby the company agreed to sell to the plaintiffs all boots and shoes manufactured by it. The agreement provided that the company should, on behalf of the purchasers, obtain orders and sell boots and shoes to customers and each week render to the purchasers a statement of the value of the boots and shoes supplied to customers. The purchasers agreed to pay the company the invoice value of the boots and shoes less a percentage. The agreement also provided that the company should within 48 hours of receipt, pay all moneys received by it on account of boots and shoes to the credit of the purchasers' bank account. Having referred to the above cases, Dixon J at 27 said: "As the subject to be made over does not exist, the matter primarily rests in contract. Because value has been given on the one side, the conscience of the other party is bound when the subject comes into existence, that is, when, as is generally the case, the legal property vests in him. Because his conscience is bound in respect of a subject of property, equity fastens upon the property itself and makes him a trustee of the legal rights or ownership for the assignee. But, although the matter rests primarily in contract, the prospective right in property which the assignee obtains "is a higher right than the right to have specific performance of a contract," and it may survive the assignor's bankruptcy because it attaches without more eo instanti when the property arises and gives the assignee an equitable interest therein." 65 In Booth v Federal Commissioner of Taxation (1987) 164 CLR 159 Mason CJ accepted the analysis in Palette and the discussion by Windeyer J in Norman. At 165-166 his Honour said: "The principles of law which govern the transfer of rights apply to proprietary rights, including choses in action. Although rights other than existing proprietary rights are not capable of immediate transfer, they may be dealt with by contract. If they are dealt with by contract, the contract may eventually operate in equity to effect a transfer of them, but only in so far as they consist of future proprietary rights and as and when those rights come into existence. When the property comes into existence the assignor eo instanti becomes trustee of it for the assignee, the prospective right in property which the assignee obtains being a higher right than the right to have specific performance of a contract, as Dixon J noted in Palette Shoes Pty Ltd v Krohn ( 1937) 58 CLR 1 at 27. A purported present transfer or assignment of future property, including a future chose in action, is construed in equity as a contract to transfer or assign the property when it is acquired. In this way a would-be present assignment of a future chose in action operates as an assignment of that property when it comes into existence: see the discussion by Windeyer J in Norman v Federal Commissioner of Taxation (1963) 109 CLR at 24-25."

At 177-178, Toohey and Gauldron JJ approved the discussion by Deane J in Everett of Jordan's Chapters on Equity in New South Wales and at 178 adopted the approach in Palette : There being a promise for consideration to assign future property, the promise bound the property itself from the moment when the contract became capable of being performed as equity considered as done that which ought to be done and when the property was acquired by the assignor he forthwith held it in trust. 66 In Abbey National Building Society v Cann [1991] AC 56 the House of Lords held that where a purchaser relied on a financial institution loan for completion of his purchase, the transactions of acquiring the legal estate and granting a charge were one indivisible transaction, at least where there had been a prior agreement to grant the charge on the legal estate when obtained. There was no scintilla temporis during which the legal estate vested in the purchaser free of the charge and an estoppel affecting the purchaser could be "fed" by the acquisition of the legal estate so as to become binding on, and take priority over the interest of, the chargee. 67 In my view similar considerations apply to the eo instanti creation of the equitable interest in the assignee under an equitable assignment of future property when the property comes into existence. There is no moment in time when the assignor holds the property freed from the equitable interest of the assignee. The assignor holds the bare legal title as a bare trustee. 68 Counsel for Bluebottle submitted that there was a nanosecond on 15 December 2005 when the dividend became payable and the equitable assignment was perfected. I did not understand him to mean that in that nanosecond the assignor acquired full legal title to the dividend and thereafter equitable obligations were imposed. On the contrary, his submission was consistent with Cann that there was no scintilla temporis during which the legal estate vested in the assignors free of the equitable interests of Bluebottle. 69 The nature of a bare trust was considered by Gummow J in Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 281. His Honour described it as one under which the trustee held property without any interest in it, other than that existing by reason of the office and the legal title as trustee, and without any duty or further duty to perform except to convey it upon demand to the beneficiary or beneficiaries or as directed by them, for example, on sale to a third party. -- the assignor as a necessary party 70 Another aspect of equitable assignments of future property is relevant, whether the assignor or the assignee can enforce the payment of the dividends against Virgin Blue. The Commissioner submitted that the assignors could sue: Bluebottle submitted that it could. 71 In the case of an absolute equitable assignment of the whole of an equitable chose in action, the assignee alone is regarded as having an interest in the subject matter of a suit against a debtor or fund holder. Accordingly, the assignee is entitled to sue alone and the assignor should not be joined as a party (Redman v Permanent Trustee Co of NSW Ltd (1916) 22 CLR 84 at 95). 72 On the other hand, an equitable assignment, whether absolute or not, of the whole of a legal chose in action does not entitle the assignee to sue alone. The assignor, or the legal personal representative, must be a party to the suit, either as plaintiff or defendant (Imray v Griffin (1889) 10 LR (NSW) (L) 114 at 130-131, McIntyre v Gye (1994) 51 FCR 472 at 480). The rationale for the joinder is to protect the debtor against claims by the assignor or by a purchaser for value without notice of the assignment (Performing Right Society Ltd v London Theatre of Varieties Ltd [1924] AC 1 at 14). 73 In Holt v Heatherfield Trust Ltd [1942] 2 KB 1 at 4, Atkinson J said that an equitable assignee may sue in his own name provided that he makes the assignor a party to the action, as plaintiff if he consents, and as defendant if he does not. 74 This is not a case of an absolute equitable assignment of an equitable chose in action. It is an equitable assignment of a future legal chose in action. There is no reason, in my view, why the protection afforded to the debtor in the case of an equitable assignment of an existing legal chose in action should not also apply to this case. 75 Reference was made to William Brandt's Sons & Co v Dunlop Rubber Co [1905] AC 454 as authority for the proposition that an equitable assignee alone could recover from a debtor. In that case merchants agreed with the appellant bank that goods sold by them should be paid for by remittance direct from purchasers to the bank. The bank gave notice to the purchasers that the merchants had made over to the bank the right to receive the purchase money. It was held that there had been an equitable assignment of the debt and the bank could recover from the purchasers. Lord Macnaghten did observe, however, at 462, that the merchants, or their trustee in bankruptcy, should have been brought before the court. But he said that no action was dismissed for want of parties and the trustee in bankruptcy had no real interest in the matter and the debtor had disclaimed any wish to have them present. 76 Furthermore, in Performing Right Society the equitable assignee of a copyright sought an injunction to restrain infringement. The action was dismissed because the legal owner of the copyright was not a party. At 29 Lord Sumner said that the matter of practice of joining the legal owner should not be disturbed, or at any rate, only very sparingly. 77 I am, in consequence, of the view that Cricket and Virgin Holdings are necessary parties to any suit by Bluebottle against Virgin Blue to enforce payment of the dividends. The notice provision -- the operation of s 255(1) 78 The Income Tax Assessment Act 1936 (Cth), s 255(1) was in the following terms: "With respect to every person having the receipt control or disposal of money belonging to a non-resident, who derives income, or profits or gains of a capital nature, from a source in Australia or who is a shareholder, debenture holder, or depositor in a company deriving income, or profits or gains of a capital nature, from a source in Australia, the following provisions shall, subject to this Act, apply: (a) he shall when required by the Commissioner pay the tax due and payable by the non-resident; (b) he is hereby authorized and required to retain from time to time out of any money which comes to him on behalf of the non-resident so much as is sufficient to pay the tax which is or will become due by the non-resident; (c) he is hereby made personally liable for the tax payable by him on behalf of the non-resident to the extent of any amount that he has retained, or should have retained, under paragraph (b); but he shall not be otherwise personally liable for the tax; (d) he is hereby indemnified for all payments which he makes in pursuance of this Act or of any requirement of the Commissioner." 79 The provision has been considered recently in two judgments of the Federal Court. In Commissioner of Taxation v Wong (2002) 121 FCR 60, Lindgren J considered the situation in which the defendant had the receipt control or disposal of moneys in an Australian bank belonging to a relevant non-resident, but he ceased to hold those funds before the notice under the above provision was served upon him. His Honour found that since the defendant did not have receipt control or disposal of money belonging to the non-resident when the Commissioner gave his notice, he was not required to retain money nor did he incur a personal liability for the amount of tax due and payable by the non-resident. At [23] his Honour construed s 255(1)(a) as the "trigger" that activated the operative provisions: "In my opinion, the notice provided for in par (a) is the "trigger" which activates the operative provisions of s 255(1). The word "he" at the beginning of par (a) refers back to the prefatory words "a person having the receipt control or disposal of money belonging to a non-resident". It seems to me that the fallacy in the Commissioner's construction is to link the prefatory words of the subsection directly with pars (b), (c) and (d), and thus to ignore what I perceive to be the key role of par (a)." 80 The other recent decision was that of Edmonds J in Elsinora Global Ltd v Healthscope Ltd 2006 ATC 4061. Healthscope announced a takeover bid for the Gribbles Group Ltd. EC Medical Investments NV, a company incorporated in Belgium, beneficially owned in excess of 194 million shares in Gribbles. They were held by ANZ Nominees Ltd as trustee for ECMI. ANZ Bank was the mortgagee of the shares. ECMI proposed that if Healthscope agreed to acquire 44 million of its Gribbles shares at a stated price and increased its bid price to that figure, ECMI would procure the acceptance of Healthscope's takeover bid for the reminder of its shares. Healthscope accepted the offer. ECMI sold 44 million of its shares and discharged the mortgage to ANZ Bank. The remaining shares were transferred from ANZ Nominees to Carr Sheppard Crosthwaite. ECMI entered into five share sale agreements with Elsinora Global Ltd and others who agreed to on-sell them to Healthscope. CSC was appointed custodian by the purchasers. CSC was instructed to release the shares to Healthscope. 81 The Commissioner of Taxation assessed ECMI on the basis that it had derived a capital gain from the sale of the shares. Thereafter he issued a series of notices under the Income Tax Assessment 1936 (Cth), s 255(1). His Honour concluded that none of the notices was valid. At [51] his Honour concluded that it is not necessary for the person to whom a notice is addressed to have the receipt, control or disposal of money belonging to the non-resident at the time of the service of the notice. The operative provisions will be triggered if and when the person subsequently has that receipt control or disposal. His Honour at [53] agreed with Lindgren J in Wong that notice under s 255(1)(a) is the trigger that activates the operative provisions. His Honour then went on to consider in what circumstances money in the receipt control or disposal of a person belonged to a non-resident. At [57] his Honour concluded that there must be an obligation annexed to the relevant money itself in favour of the non-resident. 82 The Commissioner relied upon Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1. As it then stood, the Income Tax Assessment Act 1936 (Cth), s 218(1)(a)(i) empowered the Commissioner to serve a notice upon any person by whom any money was due or accruing or might become due to a taxpayer, requiring that person to pay to the Commissioner either forthwith or upon the money's becoming due, or at or within a time specified in the notice, so much of the money as was sufficient to pay the amount due by the taxpayer in respect of any tax and of any fines and costs imposed upon him under the Act, or the whole of the money when it is equal to or less than that amount. 83 The Commissioner served a notice of assessment on the appellant that included an amount in excess of $100,000 as income tax. On the next day the Commissioner served on a bank notices under the Income Tax Assessment Act 1936 (Cth), s 218 requiring it to pay to the Commissioner up to the amount of the tax. On that day the taxpayer had three interest bearing deposits with the bank, repayable to the taxpayer on three future dates. Before the first of those dates arrived, the appellant assigned the deposits to a third party as security for future advances to be made by the assignee to the appellant. Notice of the assignment was given to the bank. It was held that the notices bound the bank to pay the amount of deposits and interest not exceeding the amount of the tax to the Commissioner on their respective maturity dates, unless the tax had been paid in the meantime. It was held that the effect of the service of the notice was to prevent any subsequent dealing with the money that would prevent compliance with the notice when the time for compliance arrived. Subsequent actions by a taxpayer could not render the requirement nugatory or ineffective. The assignee took subject to the bank's right to set off the moneys payable to the Commissioner. 84 The Commissioner submitted that the Income Tax Assessment Act 1936 (Cth), s 218 was similar in its operation to s 255(1) and Bluebottle took the assignments from Cricket and Virgin Holdings subject to Virgin Blue's right to set off the moneys payable to the Commissioner under s 255(1)(b). 85 But the Commissioner's reliance upon the Income Tax Assessment Act 1936 (Cth), s 255(1) depended upon Virgin Blue being liable to pay the dividends to Cricket and Virgin Holdings when the notice was served. That situation, in turn, depended upon the resolution of 11 November 2005 being a declaration of a dividend. Since I have rejected that proposition and concluded that Virgin Blue did not incur a debt until the date for payment of the dividend, 15 December 2005, the Commissioner's reliance upon s 255(1) must fail. -- the operation of s 255(2) 86 The Income Tax Assessment Act 1936 (Cth), s 255(2) deems a person to fall within the provisions of s 255(1) in certain circumstances. It provides: "Every person who is liable to pay money to a non-resident shall be deemed to be a person having the control of money belonging to the non-resident, and, subject to subsection (2A), all money due by him to the non-resident shall be deemed to be money which comes to him on behalf of the non-resident."

Section 255(2A) does not apply in the instant circumstance. 87 In Elsinora at [59], Edmonds J held that the provision should be construed strictly as a deeming provision. His Honour said: "But like all deeming provisions, they have to be construed strictly and only for the purpose to which they are resorted: Ex parte Walton; re Levy (1881) 17 Ch D 746 per James LJ at 756; Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96 per Fisher J. In other words, it does not operate to deem a person to have the control of money belonging to a non-resident save where the person is liable to pay money to that non-resident. So if a person [A] is liable to pay money to a non-resident [B], and B is liable to pay the same amount of money to another non-resident [C], A is not, by virtue of subs 255(2) deemed to have the control of money belonging to C. Nor in such a case, will A have the control of money belonging to C on the analysis in [57] supra." -- the rival submissions 88 The Commissioner submitted that in the nanosecond in which the legal titles to the dividends came into existence on 15 December 2005, they vested in Cricket and Virgin Holdings in order that they might assign them. It was submitted that Cricket and Virgin Holdings could sue for the dividends. The notices issued by the Commissioner had effect because in that nanosecond, the Income Tax Assessment Act 1936 (Cth), s 255(2) was attracted. Virgin Blue was then liable to pay money, namely the dividends, to Cricket and Virgin Holdings and was thus a person deemed to have the control of money belonging to Cricket and Virgin Blue and the dividends were deemed to be moneys that had come to Virgin Blue on behalf of Cricket and Virgin Holdings. Thus the operative provisions of s 255(1) were met and Virgin Blue was obliged to retain the dividends and pay them to the Commissioner. 89 It was common ground that Bluebottle, while it was a non-resident, did not fall within the prefatory words to the Income Tax Assessment Act 1936 (Cth), s 255(1). 90 It was submitted on behalf of Bluebottle that Virgin Blue was not liable to pay the dividends to Cricket or Virgin Holdings. As a result of the equitable assignments, Virgin Blue was obliged to pay the dividends at the direction of Bluebottle to Barfair. Bluebottle could sue for the dividends. In the nanosecond that the debt to pay the dividends arose, all Cricket and Virgin Holdings obtained was the bare legal titles as bare trustees and the equitable title to the dividends arose eo instanti without any scintilla temporis in Bluebottle. Thus Virgin Blue was not obliged to pay money to Cricket and Virgin Holdings and the Income Tax Assessment Act 1936 (Cth), s 255(2) was not attracted. -- the resolution of the issue 91 In my view the Commissioner's submissions should not be accepted. For the reasons expressed above, I am of the view that there was no moment in time when the legal title to the dividends vested in Cricket and Virgin Holdings free from the equitable interest that had been created in Bluebottle. It follows that neither Cricket nor Virgin Holdings could sue for a debt due to them. True it is that Cricket and Virgin Holdings were necessary parties to an action by Bluebottle to enforce payment of the dividend to it. But Bluebottle was entitled to commence those proceedings and join Cricket and Virgin Holdings as defendants. The debt was due to Bluebottle and Virgin Blue was liable to pay money to it. It was not liable to pay money to Cricket or Virgin Holdings for the purposes of the Income Tax Assessment Act 1936 (Cth), s 255(2). -- further reason 92 There is another reason why the Commissioner's notice may have been ineffective. The Income Tax Assessment Act 1936 (Cth), s 255(1)(b) authorises retention of moneys by the person served with a notice "out of any money which comes to him on behalf of the non-resident". That may have restricted Virgin Blue's obligation to withhold, to moneys paid to it by a third party on behalf of Cricket and Virgin Holdings. There was no third party receipt in this case. The dividend was to be paid from the moneys of Virgin Blue itself. -- historical analysis 93 This limitation accords with the original purpose of the provision. The Income Tax Assessment Bill 1935 contained a cl 256 in similar terms to the present s 255. It was as follows: "(1) With respect to every person having the receipt control or disposal of money belonging to a non-resident, who derives income from a source in Australia or who is a shareholder, debenture holder, or depositor in a company deriving income from a source in Australia, the following provision shall, subject to this Act, apply: (a) he shall when required by the Commissioner pay the tax due and payable by the non-resident; (b) he is hereby authorized and required to retain from time to time out of any money which comes to him on behalf of the non-resident so much as is sufficient to pay the tax which is or will become due by the non-resident; (c) he is hereby made personally liable for the tax payable by him on behalf of the non-resident to the extent of any amount that he has retained, or should have retained, under the last preceding paragraph; but he shall not be otherwise personally liable for the tax; (2) Every person who is liable under any contract to pay money to a non-resident shall be deemed to be a person having the control of money belonging to the non-resident, and all money due by him under the contract shall be deemed to be money which comes to him on behalf of the non-resident." 94 The explanatory memorandum showing alterations contained in the Bill of 11 March 1936 contained the following note: "Sub-section (2) has been inserted for the protection of the revenue in cases where persons are liable under contracts to pay money to non-residents. See also note on clause 257." 95 Clause 257 was in the following terms: "(1) Every person who is liable under any contract to pay money as or by way of royalty to a non-resident shall, before making any payment to or on behalf of that non-resident, furnish to the Commissioner a statement of the amount of royalty due to the non-resident, whether such royalty became due either before or after the passing of this Act, and ascertain from the Commissioner the amount, if any, to be retained in respect of tax due, or which may become due, by the non-resident. (2) The last preceding section shall apply in respect of payments of royalty referred to in this section." 96 There was a note to that clause as follows: "Difficulty has been experienced in the past in issuing assessments and collecting the tax on royalties received by non-residents from persons in Australia. Large sums are paid to non-residents in respect of royalties on copyrights, machinery, etc, used by taxpayers in Australia in the production of their income. These royalties form part of the manufacturing expenses of the taxpayer using that machinery, etc, and are frequently not shown separately in the accounts submitted to the Department. Clause 257 will ensure that particulars of royalties payable to non-residents are notified to the Commissioner so that where tax is payable assessments may be issued." 97 It is clear that the primary focus of cl 256 of the Income Tax Assessment Bill 1935 was directed to royalties payable to non-residents on moneys received for the exploitation of intellectual property rights. Hence the limitation to contractual rights of non-residents to royalty payments from moneys received from end-users of the intellectual property. What was contemplated was a flow of moneys on behalf of the non-resident to the Australian licensee of the intellectual property. That is the concept still recognised by the Income Tax Assessment Act 1936 (Cth), s 255(1)(b). 98 By 1942, the provision had become the Income Tax Assessment Act 1936 (Cth), s 255. The Income Tax Assessment Bill (No 2) 1942 by cl 27 proposed the deletion of the words "under any contract". The explanatory memorandum to the bill stated that the amendments were consequent upon the amendment of s 256. It was formerly s 257. The following explanation was given for the deletion of the words "under any contract" from that provision as well: "Under section 256 of Principal Act every person who is liable under any contract to pay royalty monies to a non-resident is required to furnish to the Commissioner a statement of the royalties due to the non-resident and to retain the amount of income tax due by the non-resident in respect of those monies. As the use of patents for war purposes may be authorized notwithstanding the terms of the patent laws or any relevant contracts, patents may now be used in Australia otherwise than under contract. As it is customary in such cases to require the user to pay to the patent owner any royalties due under the patent, cases will arise where royalty monies will be payable to non-residents otherwise than under contract. The proposed amendment is designed to bring these patent users within the terms of section 256."

Section 256(2) still provided that s 255 applied in respect of payments of royalties referred to in s 256(1). 99 There is a lot to be said for the view, therefore, that the requirement for retention of money under the Income Tax Assessment 1936 (Cth), s 255(1)(b) is limited to moneys coming to the person served with a notice on behalf of the non-resident and that this is integral to the structure and purpose of the provision notwithstanding the repeal in 1986 of s 256. 100 The consequence would be that for a second reason the operative provisions of the Income Tax Assessment Act 1936 (Cth), s 255(1) were not enlivened by the notice served on Virgin Blue by the Commissioner on 12 December 2005. 101 This aspect of the matter was not, however, argued by either party. It should stand over to another day. Conclusion 102 A plaintiff bears the onus of proof. In my view, Bluebottle, Cricket, Virgin Holdings and Barfair have discharged that onus and the two strands to the Commissioner's case have failed. 103 As to the first, that Virgin Blue was liable to pay a dividend to Cricket and Virgin Holdings on 11 November 2005, I am of the view that the resolution was not a declaration of dividend with the consequence that the Corporations Act 2001 (Cth), s 254V(2) did not operate to cause Virgin Blue to then incur a debt. Hence the operative provisions of the Income Tax Assessment 1936 (Cth), s 255(1) were not invoked upon the service of the Commissioner's notice on 12 December 2005. 104 As to the second, that the operative provisions of the Income Tax Assessment Act 1936 (Cth), s 255(1) were enlivened on 15 December 2005 when the dividend was paid because the legal title to the dividend vested in Cricket and Virgin Holdings to enable the assignment of equitable interest to Bluebottle to take effect and hence the deeming provision in s 255(2) was attracted, I am of the view that there was no moment in time in which legal title to the dividends vested in Cricket and Virgin Holdings free from the equitable interests of Bluebottle. 105 Virgin Blue was not liable to pay money to Cricket and Virgin Holdings as bare trustees. They could not sue for the dividend and the fact that they were necessary parties in a suit by Bluebottle did not make them persons to whom Virgin Blue was liable to pay money within the meaning of the Income Tax Assessment Act 1936 (Cth), s 255(2).

106 The consequence is that Bluebottle is entitled to declarations in its favour as is Virgin Blue on its cross claim. I will hear the parties on the appropriate terms of those declarations, and I will hear the parties on costs. I direct the parties to bring in short minutes of order reflecting these reasons.

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.

Company Law Review Act 1998(Cth)

CITATION : Bluebottle UK Ltd & Ors v Deputy Commissioner of Taxation & Anor [2006] NSWSC 706

Potel v Inland Revenue Commissioners [1971] 2 All ER 504 Lagunas Nitrate Co Ltd v Schroeder & Co and Schmidt (1901) 85 LT 22 Industrial Equity Ltd v Blackburn (1977) 137 CLR 567 Brookton Co-operative Society Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 441 Mara Developments Ltd v BW Rofe Pty Ltd [1977] 2 NSWLR 616 Oakbank Oil Co v Crum (1882) 8 App Cas 65 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1967-1968) 118 CLR 429 Clifton v Mount Morgan Ltd (1940) 40 SR (NSW) 31 Hillas v Arcos (1932) 147 LT 503 Dominion Mining NL v Hill (No 1) [1971] ACLC 40-021 at 27,219-27,220 National Roads Motorists' Association Ltd v Parkin (2004) 60 NSWLR 224 National Roads Motorists' Association Ltd v Parkin (2004) 49 ACSR 386 Norman v Federal Commissioner of Taxation (1962-1963) 109 CLR 9 Federal Commissioner of Taxation v Everett (1978) 38 FLR 26 Federal Commissioner of Taxation v Everett (1980) 143 CLR 440 Holroyd v Marshall (1862) 10 HLC 191 (11 ER 999) CASES CITED : Tailby v Official Receiver (1888) 13 App Cas 523 In Re Lind; Industrials Finance Syndicate Ltd v Lind [1915] 2 Ch 345 Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1 Booth v Federal Commissioner of Taxation (1987) 164 CLR 159 Abbey National Building Society v Cann [1991] AC 56 Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 Redman v Permanent Trustee Co of NSW Ltd (1916) 22 CLR 84 Imray v Griffin (1889) 10 LR (NSW) (L) 114 McIntyre v Gye (1994) 51 FCR 472 Performing Right Society Ltd v London Theatre of Varieties Ltd [1924] AC 1 Holt v Heatherfield Trust Ltd [1942] 2 KB 1 William Brandt's Sons & Co v Dunlop Rubber Co [1905] AC 454 Commissioner of Taxation v Wong (2002) 121 FCR 60 Elsinora Global Ltd v Healthscope Ltd 2006 ATC 4061 Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 Starke, Assignments of Choses in Action in Australia, Butterworths, Australia, 1972 Jordan's Chapters on Equity in New South Wales, (6th ed)

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