GIBBS C.J. In this appeal we are called upon to decide some important 1936 (Cth), as amended ("the Act"). That section is in the following terms:

"(1) The Commissioner may at any time, or from time to time, by notice in writing (a copy of which shall be forwarded to the taxpayer at his last

place of address known to the Commissioner), require -

(a) any person by whom any money is due or accruing or may become due to a taxpayer;

(b) any person who holds or may subsequently hold money for or on account of a taxpayer;

(c) any person who holds or may subsequently hold money on account of some other person for payment to a taxpayer; or

(d) any person having authority from some other person to pay money to a taxpayer,

to pay to the Commissioner, either forthwith upon the money becoming due or being held, or at or within a time specified in the notice (not being a time before the money becomes due or is held) -

(i) so much of the money as is sufficient to pay the amount due by the taxpayer in respect of any tax and of any fines and costs imposed upon him under this Act, or the whole of the money when it is equal to or less than that amount; or

(ii) such amount as is specified in the notice out of each of any payments which the person so notified becomes liable from time to time to make to the taxpayer, until the amount due by the taxpayer in respect of any tax and of any fines and costs imposed upon him under this Act is satisfied,

and may at any time, or from time to time, amend or revoke any such notice, or extend the time for making any payment in pursuance of the notice.

(2) Any person who fails to comply with any notice under this section shall be guilty of an offence.

Penalty: One hundred dollars.

(4) Any person making any payment in pursuance of this section shall be deemed to have been acting under the authority of the taxpayer and of all other persons concerned and is hereby indemnified in respect of such payment.

(5) If the Commissioner receives any payment in respect of the amount due by the taxpayer before payment is made by the person so notified he shall forthwith give notice thereof to that person.

(6) In the foregoing provisions of this section -

"tax" includes -

(a) tax assessed, and a tax of a similar nature to provisional tax notified, under a State income tax law; and

(b) any judgment debt and costs in respect of income tax (including tax referred to in paragraph (a));

"person" includes company, partnership, the Commonwealth, a State and any public authority (corporate or unincorporate) of the Commonwealth or a State.

(7) Any notice to be given under this section to the Commonwealth or a State may be served upon such person as is prescribed, and any notice so served shall be deemed to have been served upon the Commonwealth or a State, as the case may be." (at p7)

2. On 9 July 1979 the first appellant, Peter Clyne, was served with a notice of assessment under the Act for an amount of $236,922.31, which included $118,436.31 income tax assessed in respect of the year ended 30 June 1979 and $50 as a health insurance levy. The amount assessed was stated to be due and payable on 8 August 1979. On 10 July 1979 the Deputy Commissioner of Taxation (the first respondent) served on the Commonwealth Trading Bank of Australia ("the Bank") at its Kings Cross branch two notices under s. 218. The notices were identical in substance and it is sufficient to refer to the material parts of one of them, which read as follows:

"I hereby require you being a person by whom any money is due or accruing or may become due to PETER CLYNE . . . a taxpayer by whom the amount of $118,486.31 is due in respect of tax to pay to me so much of that money as is sufficient to pay the said amount of $118,486.31 due by the taxpayer or the whole of the money if it is equal to or less than that amount and if the money is now due by you to the said PETER CLYNE the payment to me is required to be made forthwith, but if the money becomes due by you to the said PETER CLYNE in the future, the payment to me is required to be made within seven days of the money so becoming due by you."

On that date Mr. Clyne had three interest bearing deposits with the Bank; they totalled $70,000 and were repayable to Mr. Clyne respectively on 21 September 1979, 9 April 1980 and 20 April 1980. On 4 September 1979 Mr. Clyne by deed assigned the three deposits to the second appellant, Patricia Peacock, as security for future advances to be made by her to him and gave notice of assignment to the Bank. The validity of the assignment as between the appellants and the Bank is not in question. The second appellant made application on summons to the Supreme Court of New South Wales for declaratory relief and McLelland J., who heard the application, declared that neither notice constituted a valid or effective requirement under s. 218 to pay to the Deputy Commissioner the proceeds of or interest on the deposits (1979) 10 ATR 249; 79 ATC 4,515 . However, the Court of Appeal allowed an appeal from that judgment and ordered that the summons be dismissed (1980) 2 NSWLR 130; 43 FLR 316; 32 ALR 280; 11 ATR 103; 80 ATC 4,415. . The present appeal is brought from that decision. (at p8)

3. The first submission made before us on behalf of the appellants was that at the time when the notices were given no amount was "due" by Mr. Clyne in respect of any tax, within the meaning of s. 218. It is clear that no tax was payable at that time; by virtue of s. 204 of the Act, the tax was not payable before 8 August. It was submitted on behalf of the appellants that "due" in s. 218(1)(i) must mean "due and payable", first, because under the Act tax cannot be due before it is payable, secondly, because "due" is used elsewhere in s. 218 in the sense of "payable" and it should be assumed to have the same meaning throughout the section and, finally, because one should not impute to the Parliament an intention that the Commissioner should have power to collect tax from persons who owe money to the taxpayer before the tax is payable by the taxpayer himself. (at p8)

4. The word "due" is ambiguous; it can mean owing, although not payable until some future date, or it can mean presently payable. The meaning of the word must be determined by the context. In ss. 204, 205, 206, 207 and 208 of the Act, which deal with the payment of tax, and in s. 170(2), (3), (4) and (6), which deal with the amendment of assessments, the expression "due and payable" is used, and although the expression appears on any view to be tautological, the change of words appears to be intended to indicate a change of meaning, so that "due" in that phrase must mean "owing". In Gordon Edgell and Sons Pty. Ltd. v. Federal Commissioner of Taxation (1949) 9 ATD 43, at p 46 , Williams J. said that the effect of ss. 204 and 208 is to make the debt for tax due at the same time as it is payable. He went on to say (1949) 9 ATD, at p 46 :-

"Service of notice of the assessment does not therefore make the taxpayer legally liable to pay the tax although its payment rests in the future. It is not a case of debitum in praesenti solvendum in futuro. But when the respondent makes an assessment of the amount of the tax and serves notice of the assessment, the taxpayer is bound to pay the tax within the thirty days or incur the penalty provided by s. 207. The Act therefore plainly contemplates and intends that a taxpayer shall pay the tax within the thirty days. I am of opinion that a taxpayer is not taxed until he is served with the notice of assessment . . .".

With all respect, not all of this reasoning can be accepted. The tax is imposed by the relevant Income Tax Act, not by the Income Tax Assessment Act, and in s. 6(1) of the Act "income tax" or "tax" is accordingly defined as "income tax . . . imposed as such by any Act, as assessed under the Income Tax Assessment Act 1936, or under that Act as amended at any time." Section 17 of the Act provides that, subject to the Act, income tax at the rates declared by the Parliament is levied and shall be paid upon the taxable income derived during the year of income by any person. These provisions suggest that the tax is due, in the sense of owing, once the taxable income during a year of income has been derived because there then arises a legal liability to pay it, notwithstanding that the extent of the liability remains to be ascertained and that payment is to be made in the future. That this is so, at least for certain purposes, is shown by the decision in Commissioner of Stamps (W.A.) v. West Australian Trustee, Executor and Agency Co. Ltd. [1925] HCA 20; (1925) 36 CLR 98, esp at pp 102, 104, 116, 118 and Re Mendonca; Ex parte Federal Commissioner of Taxation (1969) 15 FLR 256, esp at pp 259-260 , and by statements in the judgments of Knox C.J. in Commissioner of Stamps (W.A.) v. West Australian Trustee, Executor and Agency Co. Ltd. [1926] HCA 17; (1926) 38 CLR 63, at p 66 ; Latham C.J. in Aitken v. Federal Commissioner of Taxation [1936] HCA 53; (1936) 56 CLR 491, at p 497 ; and Kitto and Taylor JJ. (dissenting) in Deputy Federal Commissioner of Taxation v. Brown [1958] HCA 2; (1958) 100 CLR 32, at pp 58, 63-64 . On the other hand it has been said that tax is not due until it is assessed (see George v. Federal Commissioner of Taxation [1952] HCA 21; (1952) 86 CLR 183, at p 207 and per Dixon C.J. in Deputy Federal Commissioner of Taxation v. Brown (1958) 100 CLR, at p 40 ). This may be the correct view for most practical purposes. Certainly a notice under s. 218 could not be given before the taxpayer had been assessed, for until that time "the amount due by the taxpayer" could not be ascertained. However, all the authorities to which I have referred are opposed to the view which Williams J. expressed in Gordon Edgell and Sons Pty. Ltd. v. Federal Commissioner of Taxation and seems to have repeated in Deputy Federal Commissioner of Taxation v. Brown (1958) 100 CLR at p 50 , that tax becomes due only when it is payable. At the latest when tax is assessed it becomes a debt due to the Crown although it is not payable until the later date specified in the notice of assessment. For these reasons when the word "due" is used in the Act, without the accompanying words "and payable", it will prima facie mean simply owing. This distinction between "due" and "payable" is clearly drawn in s. 255(1), which requires a person in receipt or control of money belonging to a non-resident to "pay the tax due and payable by the non-resident" (par. (a)) and "to retain . . . so much as is sufficient to pay the tax which is or will become due by the non-resident" (par. (b)) (see also s. 254(d)). (at p10)

5. The question then is whether a notice can be given under s. 218 in respect of a taxpayer whose tax is due but not payable. There can be no doubt that the word "due", where it appears in par. (a) of s. 218(1), and in the words "forthwith upon the money becoming due" and "not being a time before the money becomes due" in that sub-section, means "presently payable". This is clearly indicated by the fact that par. (a) refers not only to money due, but also to money "accruing", that is, falling due as a result of natural increase, e.g., by way of interest. If "due" simply meant "owing", it would include moneys accruing, and that word would add nothing to the meaning of the paragraph. Paragraph (a) obviously refers to moneys which are, will be, or may be payable. Moreover it would be drastic, and generally speaking unconscionable, to require a third party to pay to the Commissioner money which was owed to the taxpayer but which was not yet payable to him, and doubts might be raised as to the constitutional validity of such a provision. In the event of any ambiguity, s. 218 should be construed to avoid the unjust result that a third party should be required to pay to the Commissioner moneys that were not yet payable to the taxpayer. For all these reasons "due" in the passages mentioned must mean "payable". (at p10)

6. It is then understandably argued that the same meaning should be attached to the word "due" where it appears elsewhere in the section. No doubt there is a presumption that where the same word is used on more than one occasion in a section it is intended to have the same meaning in each case, but this is not a presumption of very much weight; there is no rigid rule; it all depends on the context: see McGraw-Hinds (Aust.) Pty. Ltd. v. Smith [1979] HCA 19; (1979) 144 CLR 633, at p 643 . The context in which "due" appears in par. (a) shows that where reference is made to money "due" by the third party to the taxpayer, what is meant is "payable". No similar context controls the meaning of "due" in the phrase "the amount due by the taxpayer". The word should therefore be given the meaning which it consistently bears in the Act since the context does not require a departure from that meaning. It is true that it is natural to recoil from a construction that will permit the Commissioner to recover the amount of tax from the third party before it is payable by the taxpayer to the Commissioner, although having regard to the provisions of s. 204 the period of acceleration would not be likely to exceed 30 days. However the section is obviously designed to confer exceptional powers on the Commissioner to facilitate the collection of tax, particularly in a case where the taxpayer might otherwise escape payment, and I can see no justification for departing from the ordinary meaning which the word "due" bears in the Act. I should add that in the present case, although the notice was given before the date on which the tax was payable, the times specified by the notice as those by which payment was to be made were after that date. (at p11)

7. The second submission made on behalf of the appellants was that when the moneys became payable by the Bank (i.e. after the deposits matured) they were, because of the assignment, due to the second appellant and not to the taxpayer, and that in these circumstances the notices did not effectively require payment to the Deputy Commissioner. In disposing of this argument, it is not, in my respectful opinion, necessary to have recourse to the doctrine that an assignee of an equitable interest takes subject to the equities and to the infirmities of the assignor's title. The section itself answers the appellant's contentions. The conditions for the giving of a valid notice are laid down in s. 218(1). If those conditions exist at the time when the notice is given there is a valid requirement in respect of the money to which the notice refers, which, in a case under par. (a), will be money which is due or accruing or may become due by the person to whom the notice is given to the taxpayer. The words by which the Parliament grants the power to make the requirement necessarily imply that the person to whom the requirement is given will obey it. Subsequent actions by the taxpayer cannot render the requirement nugatory or ineffective. If that were not so it would be possible for a taxpayer, in a case such as the present in which the notice required payment within seven days of the money becoming due, himself to obtain payment of the money immediately it became due, with the result that when the time came for compliance with the notice there would be no money to which the notice related. It would indeed be possible, in every case in which the money was not payable to the taxpayer at the time when the notice was given, entirely to defeat the purposes of the section. However, once the notice is given, it operates to prevent any subsequent dealing with the money which will prevent compliance with the notice when the time for compliance arrives. An assignment made by the taxpayer after the date of the notice will be ineffective to relieve the person to whom the notice is given of his statutory obligation to pay the money to the Commissioner. Notwithstanding the assignment, the money will be "due" at the time when it would have become payable to the taxpayer if it had not been for the subsequent assignment whose effect is to be ignored. Section 218(4) recognizes that if it had not been for the notice other persons than the taxpayer might have acquired rights to the money, for any payment made in pursuance of the section is deemed to have been made "under the authority of the taxpayer and of all other persons concerned". (at p12)

8. The appellants relied on a decision of Jenkinson J. in Sicree and Watt v. Deputy Federal Commissioner of Taxation [1981] VicRp 51; (1980) 44 FLR 417; 32 ALR 307; 10 ATR 897; 80 ATC 4,302 . That was a decision given under s. 38 of the Sales Tax Assessment Act (No. 1) 1930 (Cth), as amended, which closely resembles s. 218. There a debenture created a floating charge over the company's assets but the charge did not crystallize until receivers were appointed. The debentures were issued before but the receivers were appointed after a notice was given to certain persons who were debtors of the company requiring them to pay to the Deputy Commissioner money which they owed to the company. It was held that the notice did not oblige the debtors to pay anything to the Deputy Commissioner until the debt secured by the debentures had been paid. The case is clearly distinguishable, and although I could not accept all of the reasoning by which the learned judge reached his conclusion, it is unnecessary to consider the correctness of the actual decision. (at p12)

9. For these reasons the notices validly required the Bank to pay the amounts of the deposits and interest thereon (not exceeding $118,486.31) to the Deputy Commissioner, at the times specified, unless of course the tax had been paid in the meantime. (at p12)

MASON J. The facts of this appeal are sufficiently stated in the judgment of McLelland J. (1979) 10 ATR 249; 79 ATC 4,515 . On 9 July 1979 a notice of assessment of income tax was served on the first appellant in respect of the year of income ended 30 June 1979. The tax (excluding provisional tax) assessed was $118,436.31 and the health insurance levy was $50.00. The notice specified 8 August 1979 as the date on which the tax was due and payable. (at p12)

2. On 10 July 1979 two notices by the Deputy Commissioner of Taxation issued under s. 218 of the Income Tax Assessment Act 1936, as amended, were served on the second respondent ("the Bank") at its Kings Cross branch. The notices were in identical terms with the exception that one notice referred to the first appellant as "Peter Clyne" and the other as "Peter Leopold Clyne". (at p13)

3. Each notice required the Bank, "being a person by whom any money is due or accruing or may become due" to the first appellant "a taxpayer by whom the amount of $118,486.31 is due in respect of tax to pay to me so much of that money as is sufficient to pay the said amount of $118,486.31 due by the taxpayer or the whole of the money if it is equal to or less than that amount and if the money is now due by you to" the first appellant "the payment to me is required to be made forthwith, but if the money becomes due by you to" the first appellant "in the future, the payment to me is required to be made within seven days of the money so becoming due by you." (at p13)

4. At the time the first appellant had three interest bearing deposits with the Bank, the respective amounts and maturity dates being: $10,000.00 - 21 September 1979; $25,000.00 - 9 April 1980; $35,000.00 - 20 April 1980. (at p13)

5. On 4 September 1979 the first appellant by deed assigned these deposits to the second appellant as security for future advances to be made by the second appellant "as the parties may from time to time mutually agree". On the same day notice of the assignment was given to the Bank. (at p13)

6. On 13th September 1979 the second appellant made an advance of $10,000.00 to the first appellant as contemplated in the deed of 4 September 1979. (at p13)

7. The second appellant commenced proceedings in the Supreme Court of New South Wales against the respondents, seeking declarations: (1) that on 4 September 1979 she became entitled to the benefit of the right title and interest of the appellant in the three interest bearing deposits; and (2) that she is entitled to payment by the Bank of the amounts of the three interest bearing deposits together with interest on the due dates for payment. She based her claim for relief on two grounds: (1) that s. 218 does not authorize the giving of a notice prior to the date on which the relevant tax falls due for payment and that, accordingly, the notices in the present case were not effective under s. 218; and (2) that a notice under s. 218 cannot impose an obligation upon a debtor to pay to the Commissioner the amount of a debt unless when the debt falls due for payment the debtor's obligation would otherwise be to pay it to the taxpayer, and that, accordingly, so long as the second appellant remains the creditor of the Bank by virtue of assignment the notices in the present case cannot effectively require payment to the Commissioner. Section 218(1) provides:

"The Commissioner may at any time, or from time to time, by notice in writing (a copy of which shall be forwarded to the taxpayer at his

last place of address known to the Commissioner), require -

(a) any person by whom any money is due or accruing or may become due to a taxpayer;

(b) any person who holds or may subsequently hold money for or on account of a taxpayer;

(c) any person who holds or may subsequently hold money on account of some other person for payment to a taxpayer; or

(d) any person having authority from some other person to pay money to a taxpayer,

to pay to the Commissioner, either forthwith upon the money becoming due or being held, or at or within a time specified in the notice (not being a time before the money becomes due or is held) -

(i) so much of the money as is sufficient to pay the amount due by the taxpayer in respect of any tax and of any fines and costs imposed upon him under this Act, or the whole of the money when it is equal to or less than that amount: or

(ii) such amount as is specified in the notice out of each of any payments which the person so notified becomes liable from time to time to make to the taxpayer, until the amount due by the taxpayer in respect of any tax and of any fines and costs imposed upon him under this Act is satisfied,

and may at any time, or from time to time, amend or revoke any such notice, or extend the time for making any payment in pursuance of the notice." (at p14)

8. Critical to the second appellant's first ground for relief is the meaning of the expression "the amount due by the taxpayer" in par. (i) of sub-s. (1). Does "due" mean "due" in the sense of "owing" or does it mean "due and payable"? McLelland J. held that it meant "due and payable" with the result that he did not proceed to an examination of the second ground for relief. He made a declaration in favour of the second appellant (1979) 10 ATR 249; 79 ATC 4,515 . (at p14)

9. The Court of Appeal came to a different conclusion and allowed the appeal. The members of the Court were unanimous in thinking that "the amount due by the taxpayer" meant "due" not "due and payable". They further held that the consequence of the giving of a valid notice under s. 218 was that it could not be defeated by an assignment of the taxpayer of his right to the moneys, the subject of the notice, before the moneys became due and payable to the taxpayer (1980) 2 NSWLR 130; 43 FLR 316; 32 ALR 280; 11 ATR 103; 80 ATC 4,415. . (at p15)

10. It is common ground between the parties that Isaacs J. was right in Mack v. Commissioner of Stamp Duties (N.S.W.) [1920] HCA 76; (1920) 28 CLR 373, at p 382 when he said:

"'Due' is sometimes used in the sense of 'payable'; that, however, is where the context requires it. But, as Mellish L.J. said with reference to the phrase 'debts due', in Ex parte Kemp; In re Fastnedge (1874) L.R. 9 Ch. 383, at p. 387. , 'prima facie' and if there be nothing in the context to give them a different construction, they would include all sums certain which any person is legally liable to pay, whether such sums had become actually payable or not."

It is also common ground that the word "due" in s. 218(1)(a) in the expression "by whom any money is due or accruing or may become due" means "due and payable". This is because a debt "accruing" signifies a debt which is due but not immediately payable - see the garnishee cases Webb v. Stenton (1883) 11 QBD 518 and Bagley v. Winsome and National Provincial Bank Ltd. (1952) 2 QB 236, at p 240 - and it cannot be that the Commissioner can by notice require a debtor of a taxpayer to pay the money which he owes to the taxpayer before the debt, as between the debtor and the taxpayer, has become payable. It is evident that par. (a) describes a descending order of liabilities. (at p15)

11. The appellants then argue that once this is established to be the meaning of "due" in par. (a) it should be accorded the same meaning in par. (i) on the footing that there is a presumption that in a statute the same word is always used with the same meaning, especially when it is used more than once in the same section. However, it is now settled that presumption readily yields to the context and, as Gibbs J. noted in McGraw-Hinds (Aust.) Pty. Ltd. v. Smith [1979] HCA 19; (1979) 144 CLR 633, at p 643 : "It is well recognized that a word may be used in two different senses in the same section of the one Act". There are statements to the effect that the presumption has little force in Income Tax Acts - see Martin v. Lowry (1926) 1 KB 550, at p 561 ; Littlewoods Mail Order Stores Ltd. v. Inland Revenue Commissioners (1963) AC 135, at p 150 . As these statements appear to be based on the fact that Income Tax Acts deal with a wide variety of topics, they have little value when we are examining the possibility that a word is used in different senses in one section of such an Act. (at p16)

12. There are, however, other considerations which indicate that the meaning of "due" in par. (a) should not be automatically assigned to the word in par. (i). The meaning which the word has in the first paragraph is very much the product of the special context in which it is there found. There is no similar context in par. (i). Par. (a) is referring to the liability on the part of the addressee of the notice to the taxpayer whereas par. (i) refers to the liability of the taxpayer in respect of tax to the Commissioner. (at p16)

13. Then we find that the expression "due and payable" is used in other sections in Pt VI, see ss. 204, 205, 206, 207 and 208. This in itself suggests that the word "due" when used in isolation bears its prima facie meaning unless there is a constraining context. (at p16)

14. A circumstance which lends some support to this the opposite view is the consequence discussed later in this judgment, that if "due" does not mean "due and payable" then the Commissioner by giving a s. 218 notice can require payment of a debt owing to the taxpayer which, but for the notice, would not become payable to him by reason of the supervening rights of a secured creditor, e.g. the crystallization of a floating charge before the debt becomes payable. However, I do not regard this consequence as sufficiently strong to outweigh other factors indicating that "due" in par. (i) bears its prima facie meaning. (at p16)

15. This view did not commend itself to the primary judge who understandably placed great weight on s. 204. This section makes income tax assessed

" . . . due and payable . . . on the date specified in the notice as the date on which the tax is due and payable, not being less than thirty days after the service of the notice, or, if no date is so specified, on the thirtieth day after the service of the notice."

His Honour thought the natural inference to be drawn from the provision was that the tax assessed became due and became payable at one and the same time, that before the date fixed by the section the tax was neither due nor payable. This accords with what Williams J. said in Gordon Edgell & Sons Pty. Ltd. v. Federal Commissioner of Taxation (1949) 9 ATD 43, at p 46 , that: "The effect of ss. 204 and 208 is to make the debt become due at the same time as it is payable." (at p16)

16. However the correct view in my opinion is that income tax is due when it is assessed and notice is served of that assessment and that the tax does not become payable before the date fixed by s. 204. Dixon C.J., McTiernan, Williams, Webb and Fullagar JJ. in George v. Federal Commissioner of Taxation [1952] HCA 21; (1952) 86 CLR 183, at p 207 said that "tax is only due after it is 'assessed' (see, for example, s. 204)". I recognize that on other occasions members of this Court have said that "tax is a debt due and owing, although not payable, notwithstanding that no assessment has been made", in the words of Gibbs J. in Re Mendonca; Ex parte Federal Commissioner of Taxation (1969) 15 FLR 256, at p 259 . This approach can be traced back to the majority decision of this Court in Commissioner of Stamps (W.A.) v. West Australian Trustee, Executor and Agency Co. Ltd. (Mortimer Kelly's Case) [1925] HCA 20; (1925) 36 CLR 98, esp at pp 105, 116 and 118 . I think that the decision is to be explained on the footing that it was held that a debt for income tax not assessed until after the deceased's death was a "debt due by the deceased" for the purposes of Acts imposing death and probate duties. The decision was so explained by Taylor J. (dissenting) in Deputy Federal Commissioner of Taxation v. Brown [1958] HCA 2; (1958) 100 CLR 32, at pp 63-64 and this explanation derives support from the judgments of Higgins and Starke JJ., if not from the judgment of the third member of the majority, Knox C.J., in Mortimer Kelly's Case. (at p17)

17. Section 206 which enables the Commissioner to grant an extension of time for payment or to permit payment to be made by instalments and provides that the tax shall be due and payable accordingly, is more easily accommodated to the view that tax is due no later than the time when the notice of assessment is served on the taxpayer than to the appellant's interpretation which makes tax due when it becomes payable. (at p17)

18. For all these reasons I consider that "due" in par. (i) of s. 218 means "due" in its primary sense, not "due and payable". (at p17)

19. The effect of the assignment of the term deposits by the first appellant to the second appellant hinges on the nature of the obligation imposed by s. 218 on the Bank. The curious feature of the section is that it does not in terms create any obligation on the recipient of the notice to comply with the requirement expressed by the Commissioner's notice. But sub-s. (2) makes it an offence to fail to comply with a notice under the section. It is evident that subs. (1), when it says that the Commissioner may require a person to pay money to him, is giving statutory backing to that requirement so as to impose an obligation on the recipient to pay money that falls within the statutory description. The section only imposes an obligation to pay in accordance with its terms. Mr. Handley for the Commissioner concedes that it does not purport to create a charge over, or interest in, the moneys in favour of the Commissioner. It may be doubted whether this concession is rightly made. On this question - see for example Stapleton v. F.T.S. O'Donnell, Griffin & Co. (Q.) Pty. Ltd. [1961] HCA 70; (1961) 108 CLR 106, at pp 113, 117 . (at p18)

20. Mr. Bainton for the appellants relies on the statement by Jenkinson J. in Sicree and Watt v. Deputy Federal Commissioner of Taxation [1981] VicRp 51; (1980) 44 FLR 417, at p 423; [1981] VicRp 51; 32 ALR 307, at p 314; [1981] VicRp 51; 10 ATR 897, at p. 901; 80 A.T.C. 4,302, at p. 4,306. :

"The obligation to make the payment does not arise until money becomes 'due' to a taxpayer or is 'held' for or on account of a taxpayer, or on account of some other person for payment to a taxpayer . . . . In my opinion service of the notice . . . does not impose on a debtor whose debt is not at the time of service due and payable any immediate obligation, nor attach to the debt any immediate right or interest in favour of the Commissioner or of the Crown in right of the Commonwealth."

Jenkinson J. was there dealing with s. 38 of the Sales Tax Assessment Act (No. 1) (Cth) 1930, as amended. This section is in all material respects similar to s. 218. His Honour held that service of s. 38 notices did not operate to give the Commissioner a prior claim to moneys owing to the taxpayer company which were the subject of a floating charge which crystallized on the appointment of receivers. It was decided that the appointment of the receivers perfected an assignment of the moneys giving them the character of moneys due and payable not to the taxpayer but to the secured creditor of the taxpayer. The charge was given before the Commissioner served his s. 38 notices and the receivers were appointed before payment was made by the taxpayer's creditors to the Commissioner. (at p18)

21. His Honour saw "no reason to imply, a grant to the Commissioner or to the Crown" of "any interest in, or right over a debt or a fund" mentioned in s. 38(1) (1980) 44 FLR, at p 425; 32 ALR, at p 315; 10 ATR, at p 903; 80 A.T.C., at p. 4,307. . Later, after noting that the expression "'upon the money becoming due or being held' merely fixes the time at which the obligation to pay arises," he observed (1980) 44 FLR, at p 425; 32 ALR, at p 316; 10 ATR, at p 903; 80 A.T.C., at p. 4,308. that it was not to be supposed in the absence of express provision "that the section imposes an obligation to make a payment other than one measured by the payer's obligation to make payment to the taxpayer and by the taxpayer's obligation under the Act, or that the section imposes an obligation to make a payment at a time when, in consequence of the occurrence of a supervening event, money is no longer due to the taxpayer". His Honour concluded his discussion on the construction of the section by saying that the obligation to pay "the money" is to be ascertained at the time of payment and that is achieved by construing the expression where it last occurs in subs. (1) "as meaning an amount equal to the amount then due and payable by the person served with notice to the taxpayer". Acknowledging that the risk of evasion would be diminished if the contrary interpretation were accepted, his Honour thought that the gross disturbance of the relationship between creditor and debtor was a reason for rejecting that construction when it rested on a process of implication. (at p19)

22. The members of the Court of Appeal dealt with this question more summarily. They thought that the rights of the Commissioner were to be ascertained at the time of the giving of the s. 218 notice and they attached much weight to the prospect of evasion of the Commissioner's requirement if the construction favoured by the taxpayer were to prevail. This comment suggests that the object of the provision was to prevent a taxpayer from making away with his assets so as to defeat the Commissioner. Although it may be stating the case too highly to say that this was the object of the section, I think that the effect of the service of a s.218 notice is to prevent a taxpayer from thereafter assigning a debt, the subject of the notice, so as to defeat the Commissioner's right to payment in accordance with the section. In this respect I do not agree with the comments made by Jenkinson J. and I regard the effect of the notice as similar to that of a garnishee order. Indeed, the similarity between s. 218 and the provisions for garnishee orders in Rules of Court is quite striking. (at p19)

23. This effect may be seen as the end result of the principle that an assignee of a chose in action takes it subject to all the equities that the debtor or fund-holder has against the assignor, as at the time of the notice of the assignment, and subject also to all the infirmities and defects in title of the assignor. The assignment by the first appellant to the second appellant was an assignment under s. 12 of the Conveyancing Act 1919 (N.S.W.), as amended. The assignment, though expressed to be "As and by way of security" was of the "investments and all moneys held for" the first appellant by the Bank at its Kings Cross branch

" . . . and all receipts and documents relating to such moneys and investments and all interest accruing upon such moneys and investments and all his the assignor's right title and interest in and to the said moneys and investments and interest accruing thereon at law or in equity to and unto the assignee for the assignee's own and separate use and benefit absolutely."

(cl. 4 of the deed). By cl. 6 the first appellant irrevocably authorized and directed the Bank to pay the investments upon their respective maturity date or upon such earlier date as the Bank may agree and all interest thereon to the assignee or in accordance with the assignee's directions. The effect of the deed was to give the second appellant the right as against the Bank to the proceeds of the term deposits and to the payment of interest in the meantime. Because the second appellant acquired the right title and interest of the assignor by way of security only, in the event that the loans were repaid she would come under an obligation to refund to the first appellant the proceeds of the term deposits. (at p20)

24. None the less, within the context of s. 12 the assignment was "absolute". An "absolute assignment" in the section signifies one which is unconditional. Consequently it has been held to embrace an assignment notwithstanding that the document effecting the assignment provides or implies the need for a re-assignment or reconveyance on the happening of a future event, e.g. the repayment of a loan for which the assignment is being held as a security - see W. R. Warren, Choses in Action (1899), pp. 163-167; Burlinson v. Hall (1884) 12 QBD 347 ; Tancred v. Delagoa Bay and East Africa Railway Co. (1889) 23 QBD 239, at pp 242-243 ; Durham Brothers v. Robertson (1898) 1 QB 765, at p 772 . In Durham, Chitty L.J. said that an unconditional assignment of a debt by way of mortgage to secure repayment of a loan would be an absolute assignment within the statutory provision notwithstanding that it is subject to an equity of redemption. (at p20)

25. The rule that an assignment is subject to equities has been described as a paramount rule (Redman v. Permanent Trustee Co. of N.S.W. Ltd. [1916] HCA 47; (1916) 22 CLR 84, at p 92 . The effect of the rule is that an assignee of a non-negotiable chose in action acquires no greater right than was possessed by his assignor and simply stands in the shoes of the latter. The assignee cannot expect to be in a better position than his assignor was prior to notice of the assignment. (at p20)

26. The word "equities" is not used in its technical sense as meaning an equitable interest or something in the nature of an equitable interest. It is a general expression calculated to comprehend defences which would have been available to the debtor in an action brought against him by the assignor as well as set-off and counterclaims. The assignee takes subject to any defence or set-off available to the debtor at the time when notice of assignment is given, unless the right of set-off is excluded by the contract between the assignor and the debtor - see Phoenix Assurance Co. Ltd. v. Earl's Court Ltd. (1913) 30 TLR 50, at p 51 ; Halsbury's Laws of England, 4th ed., vol. 6, par. 64. (at p21)

27. In Re Harry Simpson & Co. Pty. Ltd. and Companies Act 1936 (1964-65) NSWR 603 Jacobs J. held that where the chose in action assigned was a debt due by a company to a shareholder for dividends declared but not paid, it was nevertheless affected by s. 200(1)(g) of the Companies Act 1936 (N.S.W.), as amended, which in a liquidation postponed to the claims of ordinary creditors sums due to a member of a company in his capacity as member. To the argument that, by reason of the assignment the debt was no longer owing to the member but to the assignee who was not a member, Jacobs J. returned the answer that s. 200(1)(g) gave rise to an equity against the assignor to which the assignment was subject. His Honour said (1964-65) NSWR, at p 605 : "the word 'equities' has to be given a wide meaning and it has been said that the assignee can be in no better position than the assignor was, prior to the assignment". (at p21)

28. The decision of Stirling J. in Christie v. Taunton, Delmard, Lane & Co. (1893) 2 Ch 175 is an illuminating illustration of the application of the principle; it shows how it should be applied so as to provide a solution to the problem which arises in the present case. In March 1890 T, a debenture-holder, deposited debentures with a bank to secure an overdraft. The debentures were payable on 31 December 1890 or in the event of winding up. T also held shares in the company which issued the debentures. On 3 November a call was made on T's shares, payable on 20 November. On 6 November the bank gave notice to the company of the assignment to it. On 12 November the bank commenced a debenture-holder's action against the company, and on 19 November the company went into liquidation. Further calls were made on T. The question was whether the liquidator could set off against the bank's claims on the debentures the amount due from T on (1) the call made on 3 November and (2) the later calls. (at p21)

29. Stirling J. held that although the claim on the calls was entirely independent of the claim on the debentures, with the consequence that a set-off could not be upheld in accordance with the principle in Government of Newfoundland v. Newfoundland Railway Co. (1888) 13 App Cas 199 , the company was entitled to a set-off in respect of the call made on 3 November, but not in respect of the later calls. The basis of the decision in respect of the earlier call was that it was made before notice of the assignment was received. It created a "debt which accrued due on the 3rd November (the date of the call), but did not actually become payable until the 20th of November" (1893) 2 Ch, at p 183 . His Lordship distinguished Watson v. Mid Wales Railway Co. (1867) LR 2 CP 593 , and Wilson v. Gabriel (1683) 4 B & S 243 [1863] EngR 657; (122 ER 450) . In Watson no debt had accrued due at the date of the notice of assignment; in Wilson the debt was due and payable at the date of the notice. (O. R. Marshall, in Assignment of Choses in Action (1950), p. 191, doubts the validity of the distinction made in respect of Watson, noting that the rent there was constantly accruing due though not payable until a fixed day and suggesting that a set-off of part of the rent might have been allowable. This is not a point of present concern.) (at p22)

30. Stirling J. observed that if the company had been sued by the bank it would be "entitled to be placed in the same position as it occupied relatively to Taunton on the 6th of November, 1890, on which day Taunton was indebted to the company for calls payable on the 20th of November, while the company was indebted to Taunton on the debentures, which did not become payable until a later date" (1893) 2 Ch, at p 183 . (at p22)

31. He concluded that if no winding up had intervened and had T or the bank in T's name sued on the debentures the debt accruing due on 3 November could have been set off. (at p22)

32. The present case is indistinguishable. It is of no consequence whether one regards the Bank's obligation to pay under s. 218 as creating a defence or a right of set-off by reason of the deemed authority of the taxpayer for which s. 218(4) makes provision. The assignee by virtue of the assignment takes subject to the right of the Bank to set off the moneys payable to the Commissioner under s. 218 which accrued due before the notice of assignment, although they were not payable until the term deposits matured. (at p22)

33. Had there been no assignment the Bank would have been able to resist a claim for a payment of the term deposits by the first appellant before they became payable on two grounds, (a) that the debts were not then payable; and (b) that the giving of the s. 218 notice imposed an obligation on the Bank to pay at maturity to the Commissioner with an implied obligation not to make any inconsistent payment in the meantime. (at p22)

34. Here the suggested answer to the application of this rule is that the moneys, the subject of the notice, were not at maturity moneys then due and payable to the first appellant (the taxpayer) and that the statutory obligation attaches only to moneys which satisfy the general description. I do not agree. The section relates to moneys owing to the taxpayer when the notice is given, it imposes an obligation to pay forthwith moneys which are then payable; it imposes an obligation to pay moneys which become payable at a future time when that time arrives. It does not explicitly prescribe as a condition preliminary to the creation of the obligation to pay that the moneys owing to the taxpayer at the date of the notice shall continue to be owing to him when they become payable. It merely requires the recipient to pay to the Commissioner when they become payable moneys owing to the taxpayer at the date of the notice. The obligation attaches to the recipient on service of the notice, though it cannot be performed until a future date. The effect of imposing the obligation is to make it unlawful for the recipient to pay the moneys to anyone but the Commissioner after service of the notice. Although this might otherwise expose the debtor to liability of the suit of the taxpayer the debtor is protected by s. 218(4) which provides that the payment is deemed to be made with the authority of the taxpayer and indemnifies the debtor. (at p23)

35. There will be cases when a party other than the taxpayer by virtue of an antecedent security asserts in priority to the Commissioner rights to moneys not payable when the notice is served where the security is perfected after service of the notice and before the debt becomes payable. Sicree was such a case. Whether the decision can be supported, as Mr. Handley suggests, on grounds other than those stated by Jenkinson J. is a question which need not be answered now, though I admit to some difficulty in perceiving how this can be so conformably with what I have already said. (at p23)

AICKIN J. I have had the advantage of reading the reasons for judgment of my brother Mason in this appeal. I am in agreement with those reasons and there is nothing I can usefully add. I would therefore dismiss this appeal. (at p23)

WILSON J. I have had the advantage of reading the reasons for judgment prepared by Mason J. I am in agreement with those reasons, and would therefore dismiss the appeal. (at p23)

BRENNAN J. Section 218(1)(a) of the Income Tax Assessment Act 1936 (Cth) authorizes the Commissioner by notice in writing to require "any person by whom any money is due or accruing or may become due to a taxpayer" to pay the money or so much of it as pars. (i) and (ii) mention "to the Commissioner, either forthwith upon the money becoming due . . . or at or within a time specified in the notice (not being a time before the money becomes due . . . )". "Due" in the phrases cited clearly means "due and payable", so that a requirement to pay money to the Commissioner does not have to be met before the time when the money would have been payable in any event. (at p24)

2. Paragraphs (i) and (ii) quantify the amount or amounts to be paid by reference to "the amount due by the taxpayer in respect of any tax". "Amount due" in this phrase does not mean "amount payable", but the amount which the taxpayer is legally liable to pay though the date for payment has not arrived. I have had the benefit of reading what my brother Mason has written, and I agree with his Honour's reasons for holding that income tax is due in the relevant sense when it is assessed and notice of assessment is served. (at p24)

3. The section enables the Commissioner to recover the amount of tax due out of money due and payable to the taxpayer by the person to whom the notice is given (whom I shall call the third person). The power of the Commissioner to require the third person to pay money in accordance with a notice is complemented by subs. (2). That sub-section creates an offence of non-compliance and prescribes a penalty, but the duty upon the third person to comply with the notice does not stem solely from the provision of a criminal sanction for non-compliance. Indeed, I do not think that that subsection applies to some of those whom sub-s. (6) brings within the ambit of s. 218. Sub-section (6) defines "person" to include the Commonwealth or a State or any public authority (corporate or unincorporate), and there is "the strongest presumption against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature" (Cain v. Doyle [1946] HCA 38; (1946) 72 CLR 409, at p 424 , per Dixon J.). (at p24)

4. A duty to comply arises by implication. The power conferred upon the Commissioner by sub-s. (1) is to "require" by notice in writing the payment of money, and an obligation to pay the money specified in the notice must be implied unless the requirement is a mere brutum fulmen which a third party not subject to the risk of prosecution under sub-s. (2) is at liberty to disregard. However the duty may be thought to arise, the third person is obliged upon receipt of a notice given under the section to comply with it, and the Commissioner is entitled to insist upon compliance; and there is no reason why the Commissioner's right, reciprocal to the third party's obligation, should not be enforced by proceedings other than prosecution under sub-s. (2). (at p25)

5. If the Commissioner's rights were infringed only by conduct which constitutes an offence under sub-s. (2), it might be argued that the section does not confer upon him any rights other than those which arise when the time for payment, ascertained in accordance with subs. (1) and the terms of the notice, arrives. On this approach, if the taxpayer, after the giving of the notice but before the time for compliance arrives, were to assign to another his interest in the money to which a notice relates - as occurred in the present case - the notice would be ineffectual, for the money would not be due and payable to the taxpayer when the time for compliance arrives. But the Commissioner's rights with respect to the money specified in the notice are not defined, in my view, by sub-s. (2). Rather those rights are to be found by implication in sub-s. (1). (at p25)

6. The appellants submit, however, that the taxpayer is at liberty to dispose of his interest in the money to which a notice relates despite the requirement expressed in the notice. (at p25)

7. The appellants' submission was pressed in argument with the support of some observations made by Jenkinson J. in Sicree and Watt v. Deputy Federal Commissioner of Taxation [1981] VicRp 51; (1980) 44 FLR 417; 32 ALR 307; 10 ATR 897; 80 ATC 4,302 . His Honour there considered the operation of s. 38 of the Sales Tax Assessment Act (No. 1) 1930 (Cth), a provision similar to s. 218 but not identical with it, upon money subject to a floating charge created before the notice was given. His Honour expressed the view (1980) 44 FLR, at p 423; 32 ALR, at p 314; 10 ATR, at p 901; 80 A.T.C., at p. 4,306. that service of a notice "does not impose on a debtor whose debt is not at the time of service due and payable any immediate obligation, nor attach to the debt any immediate right or interest in favour of the Commissioner or of the Crown in right of the Commonwealth." This approach construes s. 218(1)(a) as imposing an obligation no wider than that imposed by sub-s. (2), namely, to pay to the Commissioner the money due to the taxpayer when the time for compliance with the notice arrives, and it necessarily predicates of the statutory obligation that it arises only when the time for payment to the Commissioner arrives. Again, if this approach be right, an assignment by the taxpayer before the money becomes due and payable to him avoids the effect of the requirement in the notice, for the taxpayer ceases to be entitled to payment before the statutory obligation arises. (at p25)

8. It is convenient to consider first the manner in which the statutory obligation is finally discharged, and then to consider whether the section imposes any intermediate obligation upon the third person between the time when the notice is given and the time when the obligation is finally discharged. If the money is due and payable to the taxpayer when the notice is given, and the notice does not specify a later time for payment, the money must be paid forthwith to the Commissioner. But the third person cannot be required to pay the Commissioner before the money becomes due and payable; the notice does not accelerate the time for payment. He must pay the money to the Commissioner either when it becomes due and payable or at such later time as is specified in the notice. The obligation is finally discharged by payment at one or other of those times. The third person is deemed to have been acting "under the authority of the taxpayer" (sub-s. (4)) in making the payment to the Commissioner. The obligation upon the third person is to make, with the deemed authority of the taxpayer, a payment to the Commissioner in satisfaction of the taxpayer's liability for tax assessed of money which would, but for the operation of the section, be due to the taxpayer. (at p26)

9. The statute thus works an assignment of the moneys to be paid to the Commissioner as though the taxpayer had charged the moneys otherwise payable to him with payment of his tax liability. Statutory charges are no novelty, although a statute which creates a charge usually describes it as such and defines the chargee's remedies. An example of a statutory charge which created a security in favour of a charge over moneys due by a third party to the chargee's debtor was to be found in The Contractors' and Workmen's Lien Acts 1906 to 1921 (Q.), considered by this Court in Stapleton v. F.T.S. O'Donnell Griffin & Co. (Q.) Pty. Ltd. [1961] HCA 70; (1961) 108 CLR 106 . (at p26)

10. The critical question, however, is whether the taxpayer may so dispose of his interest in the money before the time when the third party's obligation is to be discharged that the Commissioner's claim to the money is defeated. When a notice is given pursuant to the section, it takes effect according to its tenor. The third person is immediately bound to comply with it, though his obligation is not to be discharged until some time later. Between the time when the notice is given and the time when the obligation is to be discharged, the third person is not at liberty to pay to the taxpayer the money falling within the terms of the notice; the third party is obliged to retain it in order to discharge the obligation to pay the money to the Commissioner in compliance with the requirement expressed in the notice. (at p26)

11. The notice precludes the taxpayer from receiving money to the payment of which he would otherwise be entitled or become entitled, and it requires the third person in whose hands the money is or into whose hands it comes to pay it to the Commissioner at some time, but not earlier than when it would otherwise be due and payable. The giving of the notice thus affects the rights of the taxpayer who, once the notice is given, is statutorily divested of his right to payment of the whole or a part of the money specified in the notice. Whether the money is property in existence when the notice is given or whether it is property which comes into existence thereafter, the third party is obliged to hold and dispose of it in accordance with the notice. A notice of assignment would ordinarily bind the third party to pay money in his hands or coming into his hands to an assignee (see Tooth v. Brisbane City Council [1928] HCA 20; (1928) 41 CLR 212, at p 222 ) but an obligation to obey the assignor's direction cannot prevail over an earlier statutory requirement to pay the money to the Commissioner. (at p27)

12. The taxpayer is thus unable to effect a disposition of the money so as to defeat the Commissioner's right to payment once the statutory notice is given. Accordingly, a subsequent assignment of the taxpayer's interest in the money does not create in the purported assignee a right to payment superior to the right conferred upon the Commissioner. As between the Commissioner and the assignee, the Commissioner's right to payment prevails. (at p27)

13. The Commissioner's right to payment out of the money in the hands of the third person distinguishes him from a garnishor of a debt who obtains no proprietary interest in the debt owing to the judgment debtor, though he may obtain execution against the garnishee (Hall v. Richards [1961] HCA 34; (1961) 108 CLR 84, at p 92 , per Kitto J.). But even a garnishor is not defeated by the judgment debtor's assignment of the debt after service of the garnishee order nisi, for a judgment debtor loses the right to assign his debt free of the garnishee order once the order nisi is served (Galbraith v. Grimshaw (1910) AC 508, at p 511 , per Lord Loreburn L.C.). The taxpayer's right to assign free of the requirement in the notice is likewise lost when the notice is given. (at p27)

14. As the first appellant assigned his interest in the moneys on fixed deposit and in the interest thereon to the second appellant subsequently to the giving of the notices, the second appellant took the assignment of those moneys subject to the Commissioner's right to payment of those moneys. The assignment neither destroyed nor impaired the Commissioner's right to be paid those moneys by the Bank. (at p27)

15. I would dismiss the appeal with costs. (at p28)