Caratti v Commissioner of Taxation

The circumstances surrounding the making of the agreement 11 The applicants' claims arise in the context of a history of dealings and court proceedings involving the Commissioner on the one hand and Ms Tina Bazzo, Mr Allen Caratti and a number of companies with which they are associated on the other hand. 12 Relevantly for present purposes: (1) Ms Bazzo and Mr Caratti were each assessed for income tax liabilities for the 2009, 2010 and 2011 financial years; (2) on 3 September 2015, Ms Bazzo entered into a deed (Bazzo Deed) by which the Commissioner agreed to forbear from taking recovery action on terms which included the provision of certain specified security to the Commissioner as well as a guarantee by one of the applicants, Moonspark Nominees Pty Ltd; (3) on 23 September 2015, Mr Caratti entered into a deed (Caratti Deed) by which the Commissioner agreed to forbear from taking recovery action on terms which included the provision of certain specified security as well as guarantees by two of the applicants, namely Appley Holdings Pty Ltd and Platinum Sky Pty Ltd; (4) the forbearance agreed in the deeds was until the outcome of objections to the tax assessments lodged by each of Ms Bazzo and Mr Caratti; (5) in August 2017, the Commissioner claimed that there had been a breach of the Caratti Deed by reason of a failure to provide a mortgage over additional property with the requisite amount of unencumbered equity as required by cl 3.6(k) of the deed (Clause 3.6(k) Dispute); (6) on 31 May 2017, Siopis J ordered that documents located in a shipping container at an address in Southern River in Western Australia be delivered up to, and held in safe storage by, the Commissioner; (7) numerous parties, including Ms Bazzo and Mr Caratti, were identified as potential owners of the documents and parties who may have privilege claims; (8) in June 2017, judgment was entered against Ms Bazzo in respect of tax liabilities for the 2016 financial year; (9) on 9 January 2018, the Commissioner issued a notice known as a security bond demand to Mr Caratti requiring him to provide security for the due payment of various tax-related liabilities in an amount of $2,500,000 (Security Bond Demand); (10) further proceedings were commenced by the Commissioner in the Supreme Court of Western Australia in respect of tax-related liabilities for years that had not been the subject of the Bazzo Deed or the Caratti Deed (Supreme Court Proceedings); (11) in February 2018, undertakings were given by the Commissioner, on terms, not to take action to enforce judgments obtained in the Supreme Court Proceedings against Ms Bazzo and Mr Caratti pending the outcome of proceedings to challenge assessments issued by the Commissioner (Undertakings); (12) in late February or early March 2018, Mr Caratti granted a mortgage in favour of the Commissioner over certain properties known as the Howick Properties to secure the amount of $2,500,000 the subject of the Security Bond Demand; (13) issues arose as to how to determine the privilege claims in respect of the documents that had been held in the shipping container before the Commissioner could have access to those documents and, on 9 April 2018, I made orders for a referee to inquire and report as to various matters to assist in advancing the resolution of the privilege claims: Commissioner of Taxation v Caratti [2018] FCA 465; (14) at about the same time, Robertson J heard an application by Mr Caratti, Appley Holdings and Platinum Sky for declaratory and injunctive relief on the basis that they were not in breach of the Caratti Deed by reason of the matters the subject of the Clause 3.6(k) Dispute; (15) Robertson J upheld the Commissioner's contention that there was a shortfall in the unencumbered equity provided for the purposes of the Caratti Deed of $5,850,000 and dismissed the claim for declaratory and injunctive relief: Caratti v Commissioner of Taxation (No 2) [2018] FCA 568; (16) Clause 3.6(k) of the Caratti Deed provided that if the valuation procured by the Commissioner of the security provided as required by the deed was less than the valuation provided by Mr Caratti, Appley Holdings or Platinum Sky then 'within 30 days of a written demand from the Commissioner' they were obliged to 'provide a mortgage over additional property which has unencumbered equity of at least half the difference between' the two valuations; (17) the Bazzo Deed and the Caratti Deed only dealt with general interest charges (GIC) on the tax-related liabilities for the 2009, 2010 and 2011 years as at 7 August 2015. It did not deal with future GIC; and (18) the Security Bond Demand was in respect of GIC amounts that had accrued on the tax-related liabilities for the 2009, 2010 and 2011 years since 7 August 2015. 13 By May 2018, issues had arisen between the parties concerning the following: (1) arrangements for access to the documents that had been taken from the sea container in accordance with court orders; (2) the extension of the Undertakings; (3) the provision of the mortgage over additional property required by cl 3.6(k) of the Caratti Deed; (4) liabilities for GIC on the tax-related liabilities for the 2009, 2010 and 2011 financial years after 7 August 2015; (5) the payment of the Commissioner's costs of the proceedings determined by Robertson J; and (6) the payment of other outstanding costs orders. 14 There were without prejudice negotiations between the parties about the resolution of the above matters.

The agreement reached between the parties 15 On 29 May 2018, solicitors acting for Ms Bazzo and Mr Caratti and certain of their associated companies sent a letter to the Commissioner proposing terms for an agreement (May Proposal). The May Proposal included the following: Proceedings CIV 2306 of 2017 (Caratti Supreme Court Proceedings); CIV 1326 of 2017 and CIV 3057 of 2016 (collectively the Bazzo Supreme Court Proceedings); AAT 201612832-2834 (Caratti AAT Proceedings); AAT 201612809-2811 and AAT 201717664 (collectively the Bazzo AAT Proceedings) 22. [25 May 2018 at 4.1]. The Commissioner will forbear on recovery action in respect of the liabilities presently the direct subject of the Caratti AAT Proceedings and the Bazzo AAT Proceedings until the conclusion of the 28th day following the making of final orders in any appeal to the Full Federal Court. 23. [25 May 2018 at 4.2]. Will extend the undertaking the Deputy Commissioner provided in the Caratti Supreme Court Proceedings or the Bazzo Supreme Court Proceedings until the 28th day following the making of final orders in any appeal to the Full Federal Court. Proceedings NSD 149512017 (Security Proceedings) 24. [25 May 2018 at 5]. Mr Caratti agrees not to appeal the orders made by Justice Robertson on 26 April 2018 in the Security Proceedings. We understand that your clients agree to this in the 14 May 2018 Proposal. 25. [25 May 2018 at 6]. Within 30 days of the agreement reached by the parties in accordance with this letter, Mr Caratti provides a mortgage in registrable form over additional property having unencumbered equity of at least $5,850,000, in accordance with the Deed the subject of the Security Proceedings. 26. [25 May 2018 at 7]. Within 60 days of the agreement reached by the parties in accordance with this letter, Mr Caratti provides at his cost a current market valuation of the additional property the subject of paragraph 6, that valuation to be provided by one of the following 3 organisations - CBRE Property Valuers, Colliers International or Opteon Property Group. 27. [25 May 2018 at 8]. Following provision of the security and the valuation in accordance with the preceding paragraphs, the Commissioner will proceed as if there is no past breach of the Allen Caratti Deed and the Tina Bazzo Deed parties proceed on the deed. 28. [25 May 2018 at 9]. Within 30 days of the agreement reached by the parties in accordance with this letter, Mr Caratti pays to the Commissioner, the Commissioner's costs of the Security Proceedings, in the amount of $54,318.57. The references in parenthesis before each paragraph are references to paragraphs in an earlier proposal. 16 The headings are to be noted because they assumed significance for the Commissioner's contentions. The first heading identified the Supreme Court Proceedings and proceedings in the Administrative Appeals Tribunal in which assessments were challenged. So, the first heading directed the attention of the reader of the May Proposal to the Tribunal proceedings in which challenges had been brought by Ms Bazzo and Mr Caratti (which provide the reason for the proposed forbearance) as being the subject matter of cl 22 and cl 23 of the May Proposal. The second heading refers to the proceedings concerning cl 3.6(k) of the Caratti Deed that had been the subject of the proceedings determined by Robertson J. 17 The terms of cl 25 should also be noted. It states that Mr Caratti will provide 'a mortgage in registrable form over additional property having unencumbered equity of at least $5,850,000 in accordance with the Deed the subject of the Security Proceedings'. This is plainly a reference to the security to be provided under the Caratti Deed based upon the determination by Robertson J. It is the security required by cl 3.6(k) of the Caratti Deed. 18 On 8 June 2018, the Australian Government Solicitor responded to the May Proposal (June Response). Relevantly for present purposes the June Response stated: We confirm that if this letter does not otherwise comment on the 29 May 2018 Proposal or the 29 May 2018 Draft Orders, the Commissioner agrees with what is proposed. 19 The June Response set out terms as to various matters in paragraphs numbered 4 to 13. It then set out the following heading: Proceedings CIV 2306 of 2017 (Caratti Supreme Court Proceedings); CIV 1326 of 2017 and CIV 3057 of 2016 (collectively the Bazzo Supreme Court Proceedings); AAT 2016/2832-2834 (Caratti AAT Proceedings); AAT 2016/2809-2811 and AAT 2017/7l664 (collectively the Bazzo AAT Proceedings) - paragraphs 22 and 23 of the 29 May 2018 Draft Orders and Proceedings NSD 1495/2017 (Security Proceedings) - paragraphs 25, 26 and 27 of the 29 May 2018 Draft Orders 20 Again the heading should be noted. It follows the terms of the two headings used in the May Proposal. However, it brings the two headings together and indicates to the reader that the following paragraphs deal with both the issue of forbearance and the security to be provided in order to secure the forbearance. The form of the heading is significant because much of the argument advanced for the applicants was to the effect that there had been an agreement to forbear that arose when the terms in the June Response were accepted and there was a separate obligation to provide a security. However, the headings indicate that the June Response was dealing with those matters together. 21 Under the heading much more detailed terms were proposed by the June Response concerning forbearance and security than those that had been stated in the May Proposal. The terms stated in the June Response refer to the terms stated in the May Proposal as the '29 May 2018 Draft Orders'. The terms as proposed by the June Response were as follows: 14. In the 29 May 2018 Proposal, your clients propose to provide security for half of the amount of the GIC said to be now owing in respect of Mr Caratti's and Ms Bazzo's debts, to be provided at the same time as the $5.85m in security as proposed, noting that the amount in paragraph 25 of the 29 May 2018 Draft Orders may be amended accordingly. 15. In addition to the $5.85m, the Commissioner requires security to be provided for the entire amount of GIC that has since accrued pursuant to: 15.1. the judgments obtained in the Caratti Supreme Court Proceedings and Bazzo Supreme Court Proceedings; and 15.2. the Income tax liability amount of $930,347.00 obtained in proceedings CIV 3057 of 2016 in the judgment made on 27 June 2017. 16. As at 5 June 2018 the total GIC amounts are: 16.1. $3,075,989.76 for Mr Caratti; and 16.2. $3,109,464.57 for Ms Bazzo. 17. It follows that: 17.1. as at 5 June 2018, the debt to be secured is $12,035,454.33; and 17.2. the reference to $5.85 million in paragraph 25 of the 29 May 2018 Draft Orders become $12,035,454.33. 18. We further note that: 18.1. the security will be subject to the same conditions detailed in paragraphs 25 and 26 of the 29 May 2018 Draft Orders; 18.2. the unencumbered equity is ascertained by subtracting the total value of any interest that an existing mortgagee or caveator may be entitled to claim in the property now or in the future, regardless of the circumstances that give rise to that entitlement from the value of the property (as determined by the valuation referred to in paragraph 26 of the 29 May 2018 Draft Orders); and 18.3. the valuation referred to in paragraph 26 of the 29 May 2018 Draft Orders must be on an "as is" basis as at the day of the valuation. 19. If sufficient security is provided: 19.1. the Commissioner will agree to extend the undertakings given in respect of the judgments obtained in the Caratti Supreme Court proceedings and the Bazzo Supreme Court proceedings; 19.2. the Commissioner will not execute on the judgment entered against Ms Bazzo on 27 June 2017 in proceedings CIV 3057 of 2016; 19.3. the Commissioner will not commence proceedings against Mr Caratti to recover the liabilities which were defined as the Taxation Debt in the Deed of Agreement, Guarantee and Indemnity between Mr Caratti and the Commissioner which was executed on 23 September 2015; 19.4. the Commissioner will not commence proceedings against Ms Bazzo to recover the liabilities which were defined as the Taxation Debt in the Deed of Agreement, Guarantee and Indemnity between Ms Bazzo and the Commissioner which was executed on 3 September 2015; 19.5. the Commissioner will not issue any further Notices under section 260-5 of Schedule 1 to the Taxation Administration Act 1953 ("garnishee notices") in respect of the unpaid taxation liabilities of Mr Caratti or Ms Bazzo referred to in paragraphs 19.1, 19.2 19.3 and 19.4, but nor is he obliged to: 19.5.1. withdraw any garnishee notices that have already been issued in respect of those liabilities; 19.5.2. refrain from exercising any rights that he may have against another party for any reason including, but not limited to, circumstances where that other party has failed to comply with a garnishee notice given to them in respect of an amount that they owed to or held for Mr Caratti or Ms Bazzo; 19.6. the Commissioner will retain the right to offset any refund or credit to which Mr Caratti becomes entitled to in the future against his liabilities set out in paragraphs 19.1 and 19.3 above; 19.7. the Commissioner will retain the right to offset any refund or credit to which Ms Bazzo becomes entitled to in the future against her liabilities set out in paragraphs 19.1, 19.2 and 19.4 above; 19.8. where the Commissioner holds a security interest in a property in respect of taxation liabilities owed by Mr Caratti or Ms Bazzo and that property is sold, the Commissioner will be entitled to retain any money he receives in exchange for the release of his security interest and may apply that in reduction of the relevant taxation liability owed by Mr Caratti or Ms Bazzo; and 19.9. the Commissioner may pursue recovery of any liabilities that Mr Caratti or Ms Bazzo owe now or in the future and which are not taxation liabilities referred to in paragraphs 19.1, 19.2, 19.3 and 19.4. 20. The Commissioner's agreement to refrain from taking any of the steps referred to in paragraphs 19.1, 19.2, 19.3, 19.4 and 19.5 if sufficient security is provided will remain open until the 28th day following the making of final orders in any appeal to the Full Federal Court in the Caratti AAT Proceedings and Bazzo AAT Proceedings. 21. In respect of paragraph 27 of the 29 May 2018 Draft Orders, the Commissioner maintains his position that he will not agree to the parties proceeding on the Deeds as if there has been no breach. 22 The terms of the June Response were accepted. 23 Of particular significance are the opening words to cl 19. They state: 'If sufficient security is provided'. Plainly, those words condition the operation of the conditions listed in cl 19.1 to 19.9. They have the character described by Mason CJ in Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537 at 543. Their non-fulfilment did not prevent a binding contract coming into existence. However, the matters the subject of cl 19 (which specified the nature and extent of forbearance by the Commissioner) did not come into effect until the security was provided. In context, the reference to 'sufficient security' is to the security described in the preceding clauses, namely cl 14 to cl 18. 24 Further, even though cl 19 did not specify a time for provision of the 'sufficient security', times were specified in cl 18 (which adopted the time periods detailed in the May Proposal). 25 There is some uncertainty as to precisely who were the parties to the agreement that resulted from the communication of acceptance of the June Response. The identity of the parties can be discerned from the subject matter of the negotiations. They were conducted on behalf of at least Ms Bazzo, Mr Caratti and the other parties to the Caratti Deed, namely Appley Holdings and Platinum Sky. To the extent that other terms (not presently relevant) dealt with the steps to be taken to resolve privilege claims to the documents that had been held in the sea container then the agreement may have included other companies who are parties to those proceedings. 26 The current dispute concerns the provision of security under the terms of the agreement and whether the Commissioner is bound to forbear taking enforcement action against Mr Caratti and Ms Bazzo pending the resolution of matters raised in the Administrative Appeals Tribunal concerning their tax-related liabilities. Those with interests in those matters are all applicants and no doubt has been raised as to whether they were parties to the agreement.

The issues as to the proper construction of the agreement 27 The competing contentions on the present application expose a number of questions as to the proper construction of the agreement reached by acceptance of the June Response. 28 First, when was the agreed mortgage over additional property required to be provided? 29 Second, could the obligation under the agreement to provide a mortgage over additional property be performed by providing a mortgage over the Howick properties which were already the subject of a mortgage in favour of the Commissioner to the extent of $2,500,000? 30 Third, was the mortgage over additional property required to be on the same terms as those expressed in the mortgages in Schedule 2 of the Caratti Deed? 31 Fourth, if the agreed security was not provided within time, was the Commissioner nevertheless bound by an agreed term to forbear? 32 I will deal with each of these issues in turn. Before I do so, I make some general observations concerning the terms that were agreed given the form of the May Proposal and the June Response.

The agreed terms concerning further security 33 Clauses 14, 15, 16 and 17 of the June Response dealt with the amount for which the Commissioner required security to be provided. The paragraphs explained the steps by which an amount of $12,035,454.33 was calculated. It comprised the outstanding amount of $5,850,000 to be provided under cl 3.6(k) of the Caratti Deed, plus additional GIC amounts due by each of Mr Caratti and Ms Bazzo. The resultant total was $12,035,454.33. 34 Then in cl 17.2 the June Response stated: the reference to $5.85 million in paragraph 25 of the 29 May 2018 Draft Orders becomes $12,035,454.33. 35 The GIC amounts that were added by the terms of the June Response as amounts for which security was to be provided were not amounts payable under the Caratti Deed. 36 As to the provision of security, the June Response stated that the security will be subject to the 'same conditions' detailed in cl 25 and cl 26 of the May Proposal. Those paragraphs contemplated two steps. The first step was the provision within 30 days of a mortgage 'in registrable form' over additional property. The second step was the provision by Mr Caratti within 60 days of a current market valuation, at his cost. 37 The applicants submitted that this structure, proposed by them, gave rise to a 'chicken and egg problem'. It was said that until the valuation was undertaken it would not be known whether the unencumbered equity in the additional property the subject of the mortgage had the requisite value. They pointed to the terms of an email dated 15 May 2018 (sent before the May Proposal) in which they made the following comments on an earlier proposal from the Commissioner: Further to the email below it has come to our attention that the process contemplated in paragraphs 2.11 to 2.12 of the letter to Birman and Ride dated 4 May 2018 will need to be amended to make it more practicable. A difficulty would have been providing security before knowing what valuation was subscribed to the proposed property. It is instead proposed to advise which property or properties are contemplated within the 30 day period and to provide mortgages, to be held in escrow at that time, and within the 55 day period (or such short additional period that your listed valuers require to finalise the valuations) to take out of escrow such mortgages as are necessary to give the $5.85million security. 38 It was submitted for the applicants that the terms of the May Proposal must be read in the context of the matters raised in the email of 15 May 2018. It was said that the terms proposed must be understood to allow until after the valuation had been provided for the obligation to provide the mortgage over additional property to be performed. This, it was submitted, was necessary to deal with 'the chicken and egg problem'. 39 It was also submitted for the applicants that the terms of cl 3.6(k) in the Caratti Deed were consistent with such a mechanism because they allowed for the provision of additional security after a valuation process in respect of the original security had been undertaken. Therefore, cl 3.6(k) allowed, in effect, for a top-up in security. 40 There are a number of difficulties with the claim that the matters raised in the 15 May 2018 email or what was described as the 'chicken and egg problem' should bear upon the construction of the relevant terms of the agreement. 41 First, the parties were resolving, amongst other things, the dispute concerning the interpretation of cl 3.6(k) of the Caratti Deed that had been determined by Robertson J with the result that there was an obligation to provide a mortgage over additional property with an unencumbered equity of $5,850,000. There was no agreed procedure in the Caratti Deed for a further valuation to measure the value of that top-up security. It either met the required obligation or it did not. Nor was there any agreed step whereby further security might be provided to cover a shortfall exposed by a valuation undertaken after the top-up security had been provided. Importantly, the introduction by the terms of settlement being considered in May and June 2018 of a further valuation and a subsequent top-up would invite a further dispute of the kind determined by Robertson J. It was a dispute as to whether the additional security had the requisite value that was determined by Robertson J and was part of the matters being resolved by the agreement. In that context, it is commercially unlikely that the parties would agree a mechanism that could result in a replay of aspects of that dispute. 42 Second, despite the applicants having identified the issue, no words were included in their May Proposal to allow for the provision of additional security after the valuation to be undertaken within 60 days. The words in the May Proposal were advanced on behalf of Ms Bazzo, Mr Caratti and the companies related to them. They chose not to deal explicitly with any deferment of the obligation to provide security until after the valuation had been obtained. 43 Third, on proper analysis there is no inherent 'chicken and egg problem'. The parties may agree that a mortgage over additional property must be provided by a specified date with the requisite level of unencumbered equity without deferring compliance until the level of the unencumbered value had been assessed by an independent valuer. If there was a dispute as to whether any mortgage that was provided was in respect of the requisite level of unencumbered equity then there may be a need to resort to valuations to resolve the dispute. However, in that event, it would be a matter for the party providing the mortgage (and performing the obligation) to ensure that the mortgage was over a property in which the requisite level of unencumbered equity could be demonstrated, if required. It may be prudent for the party receiving the benefit of the agreed mortgage to provide for a valuation to be provided at the cost of the party providing the mortgage as a means to verify compliance. However, the obligation to provide a mortgage over property in which the mortgagor had the requisite level of equity could be performed without a formal valuation being obtained. 44 Fourth, the terms of cl 26 of the May Proposal diverge from the terms of cl 3.6(k) of the Caratti Deed by proposing the addition of an obligation to provide a subsequent valuation (some 30 days after the provision of the mortgage over additional property). Indeed, the terms of the June Response address with some particularity the conditions to apply to the provision of the additional security in the form of the mortgage. In addition to the conditions proposed in the May Proposal, they add terms as to how the unencumbered equity is to be valued (cl 18.2 and cl 18.3). An implied obligation that would defer performance of any obligation to provide the security until after the valuation had been obtained (or that would allow top-up security after that point) would be contrary to the express terms as to when the mortgage was to be provided. 45 It is also necessary to have regard to the sequence of offer and counter-offer followed by acceptance. Aspects of the May Proposal are altered by the June Response. The sequence was as follows. 46 There was an offer by the May Proposal to provide within 30 days a mortgage in registrable form having unencumbered equity of at least $5,850,000 which was to be provided in the manner required by the Caratti Deed. It is convenient to set out again the terms proposed as to provision of security: 25. Within 30 days of the agreement reached by the parties in accordance with this letter, Mr Caratti provides a mortgage in registrable form over additional property having unencumbered equity of at least $5,850,000, in accordance with the Deed the subject of the Security Proceedings. 26. Within 60 days of the agreement reached by the parties in accordance with this letter, Mr Caratti provides at his cost a current market valuation of the additional property the subject of paragraph 6, that valuation to be provided by one of the following 3 organisations - CBRE Property Valuers, Colliers International or Opteon Property Group. 47 The words 'in accordance with the Deed the subject of the Security Proceedings' in cl 25 were a way of describing the obligation to be performed under cl 3.6(k) of the Caratti Deed. It stated: In the event that a valuation procured by the Commissioner (whether by the Taxpayer's preferred valuer or, in the event that the Taxpayer has forfeited his right to nominate a valuer, by a valuer selected by the Commissioner) indicates that the valuation of the Property is less than the valuation provided by the Taxpayer or Guarantor, the Taxpayer shall, within 30 days of a written demand from the Commissioner, provide a mortgage over additional property which has unencumbered equity of at least half the difference between the Commissioner's valuation and the valuation provided by the Taxpayer or Guarantor. 48 So, cl 3.6(k) required a 'mortgage' to be provided with unencumbered equity of a specified amount (being terminology that had been construed by Robertson J in making his decision). It required the security to be provided within 30 days of a written demand, but that did not apply because the express words in the May Proposal were that it would be provided within 30 days of agreement. The term 'mortgage' was not defined in cl 3.6(k). Again the May Proposal dealt with that point by requiring 'a mortgage in registrable form'. Therefore, in context, the only matter to which the words 'in accordance with the Deed the subject of the Security Proceedings' was directed was the requirement for the mortgage to be 'over additional property having unencumbered equity' in the specified amount. A reading to that effect is also consistent with the ordinary grammatical structure of cl 25 whereby the words at the end of the paragraph qualify the immediately preceding words, 'additional property having unencumbered equity'. 49 In addition the May Proposal provided separately for the provision of a valuation of the additional property at Mr Caratti's cost within 60 days. I note that cl 26 of the May Proposal refers to 'paragraph 6', but that is plainly a reference to cl 25 (which was formerly numbered paragraph 6 in the earlier proposal). 50 So, the May Proposal was for the provision of the mortgage in 30 days with the requisite level of unencumbered equity followed by a valuation to demonstrate compliance. 51 Finally, by the May Proposal it was only after the matters stated in cl 25 and cl 26 were performed was there to be a forbearance (see the terms of cl 27). There was a separate and independent obligation to pay the costs of the proceedings before Robertson J (cl 28). So, the terms proposed by the applicants in the May Proposal conditioned any agreement by the Commissioner as to forbearance upon the provision of the security and the valuation. This reinforces a construction whereby the purpose of the valuation was to verify that the security was adequate and only then was the forbearance to take effect. 52 The June Response increased the amount of security to be provided, but maintained the 'same conditions' as had been stated in cl 25 and cl 26 of the May Proposal that required the mortgage in registrable form within 30 days and valuation within 60 days: see cl 14 to cl 18 of the May Proposal. Importantly, the June Response gave greater detail as to how the 'unencumbered equity' was to be determined, thereby specifying matters in addition to those stated in cl 3.6(k) of the Caratti Deed (as construed by Robertson J). In doing so, it dealt specifically with that matter. The result was that the words 'in accordance with the Deed the subject of the Security Proceedings' no longer applied to what was meant by unencumbered equity. They applied only to what was meant by 'additional property'. 53 The June Response then specified precisely the nature of the forbearance that would be extended if sufficient security was provided. 54 The result was that the words 'in accordance with the Deed the subject of the Security Proceedings' applied only to incorporate the requirement that the mortgage had to be 'over additional property' in cl 3.6(k) of the Caratti Deed.

First Issue: When was the mortgage to be provided? 55 Clause 25 of the May Proposal required the mortgage over additional property to be provided within 30 days 'of the agreement reached by the parties in accordance with this letter'. That part of cl 25 was unchanged by the June Response and therefore by cl 2 of that response was agreed (a matter confirmed by later acceptance of the June Response). 56 So, the agreement was concluded by acceptance of the June Response on 12 June 2018. It was confirmed in a letter from the Australian Government Solicitor to solicitors acting for the applicants on 14 June 2018. 57 However, other agreed provisions contemplated the making of consent orders concerning the process for determination of privilege claims as to documents that had been in the sea container as a condition to the agreement taking effect. The consent orders were made on 20 July 2018. It is common ground that the parties proceeded on the basis that the agreement did not take effect until the consent orders were made. Therefore, the agreement was reached on 20 July 2018. It follows that the mortgage over additional property was required to be provided within 30 days of that date. 58 For reasons I have given, the obligation to provide the mortgage was not to be deferred until the specified time for the provision of the valuation, being within 60 days of the agreement being reached. The 'chicken and egg problem' is not a problem. A reasonable person in the position of the parties would not read the agreed terms as to when things were required to be done as allowing 60 days to provide the mortgage over the additional property. It had to be provided in 30 days. If the security was insufficient, measured according to unencumbered value as described in cl 18.2 of the June Response, then there was a failure to provide the mortgage within time.

Second Issue: What was meant by 'additional property'? 59 The agreement required the mortgage to be provided 'over additional property'. In context, the expression 'additional property' is taken from cl 3.6(k) of the Caratti Deed. As I have noted, the words 'in accordance with the Deed the subject of the Security Proceedings' direct attention to that provision. Although it came to be applied to an amount that was greater than the $5,850,000 required to be provided under cl 3.6(k) (as evident from the determination by Robertson J), it was still to be additional property 'in accordance with the Deed the subject of [those proceedings]'. 60 When used in cl 3.6(k) the words 'additional property' referred to property in addition to that which was to be the subject of the mortgages which were to be provided under the terms of the Caratti Deed. Those mortgages were to be provided over specified land and were to be for all of the unencumbered equity then subsisting (although the mortgages were to be subject to the terms of cl 3.4 which provided that the extent of security given was limited to the amount of the specified 'Taxation Debt'). They were also to be provided on specific terms. The obligation to provide a mortgage over additional property arose if and when the valuation process provided for in the Caratti Deed produced a shortfall. Therefore, the context in which the words 'additional property' were used in the Caratti Deed indicated that the words were used to refer to property that would afford the required additional accessible unencumbered equity to the Commissioner so as to cover the shortfall in security being property not already mortgaged under the terms of the Caratti Deed. 61 The proper construction of the words 'additional property' as used in the agreement reached by the exchange of the May Proposal and the June Response must also have regard to the terms of cl 18.2 of the June Response. As I have noted, it describes how the requisite amount of unencumbered equity is to be ascertained for the purposes of meeting the requirement to provide a mortgage over additional property. It says that it is to be calculated by subtracting 'the total value of any interest that an existing mortgagee or caveator may be entitled to claim'. 62 Therefore, on its proper construction the additional property was to be property that was not the subject of an existing interest protected by a mortgage or caveat. 63 As I have noted, the Howick properties were the subject of an existing mortgage for the amount of $2,500,000 in favour of the Commissioner. 64 The applicants claim there is an overlap between the GIC amounts that formed the basis for the determination of the amount of $2,500,000 the subject of the mortgage provided over the Howick properties in response to the Security Bond Demand and the calculation of the amount of $12,035,454.33 specified in the June Response. 65 In those circumstances, an issue arises as to whether the security over additional property required to be provided is additional to the mortgage provided over the Howick properties. 66 For reasons I have given, the concept of additional property takes its meaning from its use in cl 3.6(k) of the Caratti Deed. In that context it was additional to the property already the subject of mortgages provided under the terms of the Caratti Deed. Then, by the terms of cl 18.2 of the June Response it came to be qualified by reference the agreed terms of 'unencumbered equity'. 67 Therefore, the reference came to be to additional property not already mortgaged under the Caratti Deed with an unencumbered equity ascertained by subtracting the total value of any interest that an existing mortgagee or caveator may be entitled to claim in the property now or in the future. 68 The Howick properties were not mortgaged under the Caratti Deed, but they had equity to the extent of $2,500,000 that was encumbered to the Commissioner. The real issue is not whether the Howick properties are 'additional property', but rather the amount of the unencumbered equity to be calculated. Can the applicants point to the $2,500,000 in equity that is the subject of the mortgage over the Howick properties provided in February 2018 as an amount that is not included in the words of cl 18.2 of the June Response? Is the $2,500,000 to be subtracted from the value of those properties in determining the unencumbered interest? 69 The principles to be applied in construing the terms of commercial instruments are well established. It is necessary to ask what a reasonable businessperson would have understood the terms to mean. Consideration must be given to the language used, the surrounding circumstances known to them and the commercial purposes or objects secured by their contract: Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at [35]. As there is an ambiguity as to whether the words 'existing mortgagee or caveator' include the Commissioner, the issues reserved in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 do not arise. No submission was advanced to the effect that there should not be regard to the circumstances concerning the Security Bond Demand and the mortgage to the extent of $2,500,000 over the Howick properties. 70 The object to be secured by the agreement reached between the parties was to settle the disputes between them so as to facilitate the resolution of the challenges brought to the tax-related liabilities. The question is whether having regard to that object, in the context of the matters commonly known to the parties, a reasonable businessperson reading the words in cl 18.2 explaining how unencumbered equity is to be ascertained would consider those words to exclude the existing mortgage granted to the Commissioner in respect of $2,500,000 because the earlier mortgage was to secure part of the amounts used to calculate the amount of $12,035,454.33. 71 I note the following matters that bear upon that question. 72 First, the description of the value of the interest to be subtracted states 'regardless of the circumstances that gave rise to the entitlement'. 73 Second, the words 'existing mortgagee or caveator' would include the Commissioner. 74 Third, in agreeing to the terms of the June Response, the applicants could have specified that the amount for which unencumbered equity was to be provided was not the agreed amount of $12,035,454.33 but a lesser amount to take into account the $2,500,000 of security provided in February in response to the Security Bond Demand. Alternatively, they could have specified that the provision of the mortgage for $2,500,000 was to be taken into account in determining whether the agreed amount of security had been provided. 75 Fourth, the terms of the Security Bond Demand recite many facts relating to failures to meet tax-related liabilities to support the demand for security. The amount of $2,500,000 is not specifically identified as being security for the GIC amounts, although the demand does appear to rely upon those amounts as the basis for specifying the amount to be provided. The demand was made pursuant to s 255-100 of the Tax Administration Act 1953 (Cth). Neither the demand nor the mortgage provided in response to the demand is confined to being security for the GIC amounts. It is a general security in respect of tax-related liabilities. 76 In the above circumstances, a reasonable businessperson would expect any allowance for the amount of $2,500,000, if intended by both parties, to be a matter that would be dealt with by way of adjustment to the amount of $12,035,454.33. It is not a case where the context of the mortgage provided in response to the security demand indicated a different reading of the key provisions set out in the June Response which was accepted without demur or qualification. 77 It was contended for the Commissioner that the reference to additional property required the security to be over property that had not been the subject of any security provided to the Commissioner and therefore did not include the Howick properties because they were subject to the mortgage for $2,500,000. I do not accept that submission. The word additional meant no more than it had to be additional to the property otherwise agreed to be provided under the terms of the Caratti Deed. Property that had been otherwise encumbered to some extent in favour of the Commission under arrangements made outside the terms of the Caratti Deed could be 'additional property'.

Third Issue: What were the required terms of the mortgage? 78 Under the terms of the Caratti Deed there was no provision in cl 3.6(k) or otherwise as to the form or terms of the mortgage to be provided over additional property. There was no provision in the May Proposal or the June Response as to those terms. The only provision was that the mortgage had to be in registrable form. 79 Necessarily implicit in the requirement to provide the mortgage was that it was not provided on terms that were inconsistent with the agreed terms.

Fourth Issue: When did the obligation to forbear arise? 80 For reasons I have given, the agreed forbearance did not arise unless the security was provided in accordance with the agreed timing, namely within 30 days of the agreement. 81 Both the May Proposal and the June Response took the form of providing that the forbearance would take effect if the security was provided. The opening words of cl 19 of the June Response qualified the agreed forbearance. In context, the words '[i]f sufficient security is provided' referred to the security specified in cl 18.1, which in turn referred to 'paragraphs 25 and 26' of the May Proposal. Therefore, the provision of sufficient security required both the mortgage to be provided within 30 days and the valuation verifying the sufficiency of the security within 60 days. 82 I note that the word 'sufficient' does not incorporate a requirement for timeliness. It is focussed upon the amount of the security. Nor is cl 19 of the June Response expressly conditioned upon compliance within the specified periods of 30 and 60 days. Nevertheless, the provisions of the agreement in relation to the provision of security are themselves the subject of express time stipulations. In particular, the mortgage in registrable form over additional property was required to be provided within 30 days of the agreement. A time stipulation of that kind in a commercial instrument is usually construed as a condition in the sense that compliance with the specified time is essential to performance: Bunge Corporation New York v Tradax Export SA Panama [1981] 1 WLR 711 (noting the comment in Ankar Pty Ltd & Arnick Holdings Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; (1987) 162 CLR 549 at 562). It was a term at the heart of the agreement being reached. The provision of the security was the basis upon which the forbearance was to be agreed. The security was the essence of the commercial exchange for the Commissioner agreeing not to enforce the tax-related liabilities while the challenges to them proceeded. It is a question of construction as to whether the provision of the security within 30 days was essential: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 at [68]. In the circumstances I have described, the requirement to provide the security was a condition. 83 As to the agreed forbearance, it was expressed as a contingent obligation. It was not the source of the obligation to provide the security. It simply took the form of providing for forbearance if the contingency was satisfied. 84 The consequence was that there was an essential term that required the provision of the security within 30 days and if that essential term was not performed the contingency for the agreed forbearance was not met and the forbearance did not come into effect.

Relevant events concerning provision of security 85 As I have noted, agreement was reached between the parties on 20 July 2018. Within 30 days of the agreement being reached the mortgage in registrable form was to be provided. 86 The parties proceeded with steps to more fully document the agreed terms in a deed of settlement. However, at the same time, the Commissioner pressed for performance of the agreed terms. The correspondence shows that Mr Caratti and Ms Bazzo proceeded on the basis that the Commissioner required the security to be provided as agreed even though the parties were also negotiating the terms of a deed to record the agreement more fully. 87 On 17 August 2018, a mortgage was provided on behalf of Mr Caratti and Ms Bazzo but it was provided on the basis that the $2,500,000 already mortgaged could be counted as part of the 'unencumbered equity'. It was also expressed to be subject to number of conditions that did not reflect the terms of the agreement, including that it replaced the mortgage provided for $2,500,000, a caveat in respect of that mortgage had to be removed and the mortgage would cease to have effect if the required valuation was not provided. 88 On 21 August 2018, solicitors for the Commissioner responded stating that the Commissioner would not agree to the proposed mortgage. Reference was also made to the separate obligation under the agreement to pay certain costs orders. A deadline was set of 23 August 2018 for compliance. The letter concluded: If your clients fail to do so, the Commissioner considers that he is not required to forbear from any recovery action and will take whatever steps he considers necessary in respect of the recovery action without further notice to you, or your clients, after 5pm on Thursday 23 August 2018. 89 On 27 August 2018, the solicitors for Mr Caratti and Ms Bazzo provided a number of mortgages. Detailed terms were set out as applying to the mortgages. They recited the existence of a dispute between the parties and the provision of the mortgages on terms relating to resolution of the dispute. By reason of those terms alone, the mortgages did not meet the requirements of the agreement. The mortgage also referred to a form of common provisions that was not registered. The consequence was that the mortgage was not then in registrable form. 90 On 30 August, 2018 the Commissioner responded. A number of concerns were raised about the terms of the mortgage. The letter concluded: 4. We remind you that: 4.1. the requirement to provide $12,035,454.33 in security is less than the unsecured portion of the taxation debts of Mr Caratti and Ms Bazzo and that further GIG has accrued since that figure was calculated as at 5 June 2018; and 4.2. your clients have failed to provide the security, as required, within 30 days of the consent orders made on 20 July.2018, or by the extended deadline of 5pm on 23 August 2018. The Commissioner is therefore not now obliged to enter into any security or forbearance agreement with your clients on any terms, let alone the unacceptable terms you have proposed. Your response 5. Notwithstanding paragraph 4.2 above, the Commissioner may agree to forbear on any recovery action if, by no later than 10am on Thursday 30 August 2018, you: 5.1. provide mortgages in accordance with the agreement reached between the parties and in light of our comments above; and 5.2. execute and return the enclosed revised Deed of Agreement. We also enclose a tracked version of the Deed of Agreement, showing the changes made to the version provided to Birman & Ride on 11 July 2018. The Commissioner has also generously allowed your clients to pay the costs of the other proceedings by 30 August 2018. 91 On 31 August 2018, the Commissioner commenced recovery action in respect of the tax-related liabilities the subject of the forbearance set out in the agreement. 92 Also on 31 August 2018, solicitors for Mr Caratti and Ms Bazzo wrote to the solicitors for the Commissioner addressing various terms that had been proposed to resolve the issues that had been raised between the parties concerning the performance of the agreement and the documentation of its terms in a deed of settlement. The terms included proposed arrangements in relation to the provision of security. However, the letter and enclosed revised deed of settlement did not tender further mortgages by way of performance of the agreement. 93 On 3 September 2018, the solicitors for the Commissioner wrote to the solicitors for Mr Caratti and Ms Bazzo in the following terms: 1. We refer to your emails dated 31 August 2018 in response to our letter dated 28 August 2018. Further revised mortgage and revised deed 2. Your clients first proffered security on the last business day before the expiration of the 30 day period following the making of the orders on 20 July 2018 in proceedings WAD 235 of 2017. That security contained unacceptable conditions which had not formed part of the agreement reached between the parties. 3. Your clients then proffered security beyond that 30 day period which again contained unacceptable conditions, including conditions which the Commissioner had previously informed your clients' solicitors were unacceptable. 4. Your clients were then invited to provide security pursuant to the Commissioner's draft deed by 10am on 30 August 2018. Your response was issued more than 24 hours after the expiration of that deadline and accompanied by unacceptable proposed security, as well as many unacceptable amendments to the deed. Commissioner's position 5. For the sake of clarity, the Commissioner does not accept that you have complied with the contemplated agreements and does not wish to engage in further negotiations on similar terms. 6. The Commissioner advises that he may now commence recovery action, unfettered by any of the restrictions or undertakings of forbearance that were contemplated during the negotiations, namely those referred to in paragraph 19 of our letter dated 8 June 2018. 94 On 17 September 2018, the solicitors for Mr Caratti and Ms Bazzo tendered executed mortgages for a number of properties including the Howick properties and valuations for those properties. The Commissioner provided a schedule stating the unencumbered equity value of those properties. After some initial uncertainty, the accuracy of the schedule was accepted by counsel for the applicants. It ascribed a value to the Howick properties of $20,365,000. The interest of Mr Caratti in those properties is a 50% interest and the mortgage provided only extends to that 50% interest, leaving a value of $10,182,500 without making any adjustment for reduction in value associated with having to deal with a 50% interest. As to that value, as I have noted, there was an existing mortgage in favour of the Commissioner for $2,500,000. Therefore, at best, the unencumbered value of the interest of Mr Caratti in the Howick properties was $7,682,500. The value of all other properties the subject of the mortgages was $4,344,783.10. Therefore, the mortgages did not provide the required amount of unencumbered equity. 95 In response to the tender of the mortgages, the Commissioner maintained that there had been a failure to comply with the agreement and refused to engage in further negotiations as to the documentation of the agreement in a deed. 96 Submissions were advanced for the applicants to the effect that certain aspects of the position being adopted by the Commissioner were not consistent with the terms of the agreement. None of those matters were advanced on the basis that they prevented or interfered with the performance of the obligation under the agreement to provide further security. Rather, they were said to place the applicants 'in an invidious position'. Therefore, it is not necessary to deal with those matters on the present application in which the applicants seek relief on the basis that they have performed the agreement, alternatively they should be relieved from any respect in which they have not performed the agreement, alternatively they are entitled to perform the agreement by delivering mortgages in the future and therefore are entitled to expect the Commissioner to forbear in the terms agreed.

Alleged compliance with the agreement by the applicants 97 The 'sufficient security' as required by cl 19 of the June Response has not been provided. The applicants have not complied with the provisions of the agreement as to when the security was to be provided. The result is that the contingency that must be satisfied in order for the agreed forbearance to come into effect has not been satisfied. Therefore, the claim to relief on the basis that the Commissioner is obliged to forbear is not made out.

Alleged right to perform the agreement in the future 98 The applicants advance an alternative claim to the effect that they remain entitled to perform the agreement by providing 'sufficient security' in the future. They say that the Commissioner has not terminated the agreement and it remains on foot. They also say that time was not agreed to be essential and there has been no notice making time of the essence. Therefore, it is said, the Commissioner remains bound to forbear if the mortgages are provided. They seek relief requiring the Commissioner to forbear upon provision of the required security. 99 These contentions proceed from the false premise that the time stipulation in respect of the provision of security was not essential. They assume that there could be performance of the agreement in accordance with its terms if there was to be provision of some form of security at a later time. The assumption is not valid. The time stipulation of 30 days was a condition. 100 The applicants contend that there has been no rescission of the agreement. However, that submission cannot be made out on the facts. The letter of 21 August 2018 made clear that if the security was not provided by 23 August 2018 the Commissioner would proceed on the basis that he was not required to forbear. In that context, the letter of 3 September 2018 from the solicitors for the Commissioner was an exercise of the right of rescission. It said that the Commissioner did not accept that the agreement had been complied with and said that there would be no further negotiation of the terms of the deed to further document the agreement (described in the letter as contemplated, but accepted at the hearing to be a concluded agreement brought into existence by the acceptance of the June Response). Importantly, the letter then said that the Minister may commence recovery action 'unfettered by any of the restrictions or undertakings of forbearance that were contemplated'. The Commissioner then took recovery action. 101 The rights of the parties fall to be evaluated in circumstances where the Commissioner has maintained since 3 September 2018 that there is no binding agreement to forbear. 102 Accordingly, relief cannot be granted on the basis that the agreement is on foot. The Commissioner is entitled to treat the agreement as having been rescinded. 103 In any event, even if I had been satisfied that the agreement was still on foot despite the failure to provide the security, it has not been demonstrated that at the time of the commencement of the present proceedings the applicants (or Mr Caratti and Ms Bazzo in particular) were ready and willing to perform the obligations under the agreement. In particular, it has not been demonstrated that they could provide mortgages of property with unencumbered equity of the required level. It was for the applicants to prove that readiness and willingness to perform: Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604 at 620 and 640-641.

Relief against forfeiture and unconscionability 104 Where, as here, an order for specific performance is sought when a party is out of time then it must be demonstrated that there is a basis for equity to relieve against compliance with the time stipulation that is a condition of the contract. 105 The issue is whether there can be reliance upon the essential time stipulation as to the provision of the security to found rescission: Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315 at [12]-[13]. If it is unconscionable to rely upon breach of a condition then equity will allow specific performance. However, there is no unconscionability where, as here, it has not been shown that there was conduct on the part of the Commissioner that in some significant respect caused or contributed to the breach of the essential time stipulation: Tanwar Enterprises at [58]. 106 The claim that there should be some form of relief against forfeiture or relief on the basis of unconscionability was otherwise ill formed. There was no identified property held by the applicants that would be forfeited. It was not clear how there could be a free standing claim to relief against forfeiture beyond the issue whether equity would grant orders by way of specific performance despite a breach of the agreement (dealt with above). A general claim to relief based upon unconscionability remained unparticularised. 107 Submissions were advanced to the effect that the court could simply treat the breach as not serious and not prejudicial to the Commissioner, irrespective of whether the Commissioner caused or contributed to the failure to perform. For reasons I have given, I do not accept those submissions.

Conclusion 108 The application should be dismissed with costs. I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.

SCHEDULE OF PARTIES WAD 398 of 2018 Applicants Fourth Applicant: PLATINUM SKY PTY LTD (ACN 126 519 935) Fifth Applicant: MOONSPARK NOMINEES PTY LTD (ACN 114 932 651) Sixth Applicant: GHT (WA) PTY LTD (ACN 167 091 269) ATF THE GUCCE HOLDINGS TRUST Seventh Applicant: MARNBU PROJECTS PTY LTD (ACN 611 618 083) AS TRUSTEE FOR THE MARNBU TRUST Eighth Applicant: ASHWOOD ASSETS PTY LTD (ACN 611 617 915) AS TRUSTEE FOR THE ASHWOOD ASSET TRUST Ninth Applicant: NOBILE DEVELOPMENTS PTY LTD (ACN 602 751 913)