Commissioner of State Revenue v Mondous & Anor [2018] VSCA 185

ESTOPPEL - Issue estoppel - Privity of interest - Bare trust over land - Legal title transferred to beneficiaries prior to first proceeding - Whether privity of interest between former trustee and beneficiaries - Former trustee party to first proceeding regarding tax liability incurred in respect of trust land - Former beneficiaries parties to second proceeding - Former trustee had personal right of indemnity against former beneficiaries in respect of land tax liability - Right of indemnity survived distribution of trust property - Balkin v Peck (1998) 43 NSWLR 706; Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 considered.

ABUSE OF PROCESS - Relitigation of issue finally determined - Whether administration of justice brought into disrepute - 'Relitigating' parties controlled party to prior proceeding - Relevant issue not determinative of prior proceeding - Reichel v Magrath (1889) 14 App Cas 665; O'Halloran [2000] NSWCCA 528; (2000) 159 FLR 260; Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130 considered.

ABUSE OF PROCESS - Relitigation of issue finally determined - Whether administration of justice brought into disrepute - Denial of privity based on status as potential beneficiaries of discretionary trust - Substantive tax liability argument based on status as beneficiaries of bare trust - Privity established if beneficiaries of bare trust - Successful challenge to prior findings would establish privity so as to prevent same challenge - Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 considered.

ABUSE OF PROCESS - Relitigation of issue finally determined - Whether merits of prior decision to be considered in deciding question of abuse - Abuse doctrine informed by principle of finality - Manifest error in prior decision may be factor in determining abuse in rare cases - Haines v Australian Broadcasting Corporation [1995] NSWSC 136; (1995) 43 NSWLR 404 considered.

PRACTICE AND PROCEDURE - Appeal on error of law - Whether issue open on appeal - Issue agreed between parties at first instance - Whether expedient in interests of justice to permit raising of issue on appeal - Whether issue could have been met by evidence at first instance - Secretary to the Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68; (2009) 22 VR 66; Medical Practitioners Board of Victoria v Lal [2009] VSCA 109; (2009) 23 VR 702 considered.

PRACTICE AND PROCEDURE - Appeal - Abuse of process - Finding of abuse in attempting to relitigate issue already finally determined - Whether intermediate appellate court should consider all grounds of appeal - Where determining substantive issues would perpetuate abuse.

1 In 2014 the Commissioner of State Revenue determined that the respondents had failed to pay adequate stamp duty in respect of a transfer of land from Kameel Pty Ltd ('Kameel') to the respondents dated 4 June 1999. Kameel was the trustee of a discretionary trust whose property included the land, and the respondents were among the beneficiaries of that trust.

2 Duty was assessed at the time of the transfer by reference to a consideration of $120,000 stated in the transfer. While stamp duty was, under the Stamps Act 1958, not payable upon a transfer by a trustee of a discretionary trust to a beneficiary of that trust, this was so only if the transfer took place pursuant to a power of appointment, and not if there was a sale to the beneficiary.[1] The consideration of $120,000 was also stated in a partially executed contract for the sale of the land dated in 1989 (but prepared in 1991), which was provided to the then Comptroller of Stamps in connection with the stamping of the 1999 transfer. The Commissioner decided in 2014 that this contract had not been genuine or legally binding. He also rejected an alternative argument that the land had been transferred in equity to the respondents in 1990 by way of a trust distribution. As a result, the Commissioner decided that the respondents had no beneficial interest in the land before 1999 and stamp duty was assessed based on the value of the land in 1999, namely $2,575,000.

3 The Commissioner issued the 2014 stamp duty assessment after Kameel had challenged its liability to land tax for the years 1991 to 1999. In that context, it was held in the Victorian Civil and Administrative Tribunal ('the Tribunal') that Kameel had owned the relevant land for land tax purposes throughout the period in question. The respondents were not parties to that proceeding. The Tribunal's decision was upheld on appeal to this Court. The Commissioner relied on the Tribunal's finding as part of his 2014 assessment of stamp duty.

4 The respondents unsuccessfully challenged the 2014 stamp duty assessment before a differently constituted Tribunal. A judge in the Trial Division allowed an appeal against that decision and set aside the assessment. The Commissioner seeks leave to appeal on grounds including issue estoppel and abuse of process, in reference to the land tax proceeding. The Commissioner also contends that the respondents had no beneficial interest in the land before the 1999 transfer in any event.

5 For the reasons that follow, leave to appeal should be granted and the appeal allowed.

6 Kameel was appointed as the trustee of the Mondous Family Trust, a discretionary trust, by a trust deed dated 21 September 1986. The trustee acquired various real property for the trust, including land in Berwick, Victoria. The respondents, Mr and Mrs Mondous, are the specified beneficiaries of the trust. Other family members are general beneficiaries. The trust fund and its income are held for the beneficiaries in such proportions as the trustee may appoint or (generally) for the specified beneficiaries if no appointment is made by the vesting day. The trustee is empowered to pay income to any beneficiary as it thinks fit and to convey or transfer the whole or any part of the trust fund or its capital to any beneficiary.

7 Mr Mondous is the 'Guardian' and 'Appointor' under the trust deed. As a result, the power to appoint the trust fund to particular beneficiaries and the power to convey or transfer part of the trust fund or its capital (among other powers) can only be exercised with his consent.

8 From December 1988 until October 2005, the respondents were the only two directors of Kameel and, since then, Mr Mondous has been its sole director. He is also the secretary of Kameel and its only shareholder.

9 The Berwick land was divided pursuant to a plan of subdivision registered in October 1990. By that time, the respondents had begun construction of a family home on what became, pursuant to the plan of subdivision, 18-22 Leemak Crescent, Berwick ('the land'). Once the plan of subdivision was approved and the titles to the land issued, in late 1990, Mr Mondous and his solicitor considered how to transfer the land to the respondents in their own names.

10 At first, Mr Mondous agreed that the transfer should be by way of a distribution from the trust. The solicitor prepared an instrument of transfer of land, under which Kameel transferred the land to the respondents as joint proprietors. This instrument of transfer was dated 28 December 1990 (the 'first transfer'). Consideration for the transfer was stated to be: 'The Transferees' entitlement to a distribution of corpus pursuant to The Mondous Family Trust Deed dated the 21st September, 1986.'

11 The common seal of Kameel as transferor was affixed, and each of the respondents signed the first transfer as directors. It is not clear whether the respondents also signed in their personal capacities as transferees.[2] As it turned out, the first transfer was never lodged with the Titles Office for registration. However, there is an issue between the parties as to whether the first transfer was effective to pass an equitable interest in the land to the respondents. If so, the result would be that the 1999 transfer of the legal interest would be exempt from stamp duty, as the final step in a distribution from the trust to the respondents as beneficiaries.[3]

12 In February 1991, Kameel's solicitor signed a 'Notice of Disposition of an Interest in Land' and lodged it with the Commissioner of Land Tax in order to separate the land from the other real property owned by Kameel for the purposes of land tax assessment. The Commissioner of Land Tax acted on the basis of this notice and, accordingly, the land was not included in Kameel's land holdings for the purposes of land tax for the years from 1991 until 1999. As a result, its land tax liability was substantially reduced over that period. At the same time, the respondents were assessed for land tax in respect of the land.

13 Also around February 1991, the solicitor lodged the first transfer with the Comptroller of Stamps for opinion as to the amount of stamp duty payable on it. In March 1991, Mr Mondous made a statutory declaration in response to the Comptroller's queries, in which he stated that Kameel had acquired the land subsequent to the respondents being specified beneficiaries of the trust, and that the respondents were accepting the land in their own right. The Comptroller determined that the first transfer was not subject to ad valorem stamp duty, being a transfer from a trustee to a beneficiary,[4] and assessed it as a deed requiring only nominal stamp duty of $10.

14 In the meantime, as already mentioned, the first transfer was not lodged with the Titles Office and Kameel remained the registered proprietor of the land.

15 In a letter dated 17 May 1991, Mr Mondous's solicitors wrote to his accountants raising the possibility of adverse capital gains tax consequences following from the first transfer. The first transfer was described in the letter as a 'proposed transfer'.

16 In October 1991 the solicitors sent the first transfer to the bank which held a mortgage over the land. They asked the bank to endorse an order to register on the transfer so that it could be lodged with the Titles Office. In response, the bank noted that it would require new security documentation to reflect the change in ownership of the land. By a letter dated 11 November 1991, the solicitors asked the bank to return the first transfer to them, stating that their client would not be proceeding with it.

17 Mr Mondous gave evidence that, at some time in 1991, his solicitor drew up a contract to the effect that the land had been sold in 1989 (the 'backdated contract of sale'). Inconsistently with the terms of the first transfer, the backdated contract of sale recorded consideration of a total purchase price of $120,000, with a deposit of $12,000 having been paid and the balance to be paid on 28 December 1990 or within five years.

18 As stated above, Kameel had after 1991 not paid land tax in respect of the land, on the basis that it had transferred the land to the respondents pursuant to the first transfer. In 1999, the State Revenue Office ('SRO') discovered that Kameel remained the registered proprietor of the land and made enquiries of Kameel and the respondents.

19 In response, Mr Mondous informed the SRO that the respondents claimed ownership of the land for land tax purposes based on the backdated contract of sale, under which they were given possession of the land on 28 December 1989, and under which the balance of the purchase price was not yet owing and had not yet been paid (so that Kameel was not yet obliged to transfer the title into the respondents' names). Under this argument, the respondents were 'buyers in possession' of the land. This would have meant that Kameel was no longer the owner of the land for the purposes of the Land Tax Act 1958.[5] If the land had been owned for land tax purposes by the respondents, rather than Kameel, it would have attracted a reduced rate of land tax for reasons it is not necessary to explain. This was how the land had been treated until 1999, on the basis of the SRO's mistaken belief that the land was held by the respondents, and it had assessed them for land tax accordingly. The 'buyer in possession' argument was Kameel's attempt to justify this treatment, on a different basis.

20 The SRO's enquiries prompted Mr Mondous to take steps to transfer the legal title from Kameel to the respondents, pursuant to an instrument of transfer of land dated 4 June 1999 (the 'second transfer'). The second transfer was executed by Kameel as transferor, being affixed with its common seal and signed by the respondents in their capacity as officers of Kameel, and the respondents also signed the instrument again, in their personal capacities as transferees. Kameel purported to transfer 'all its estate in fee simple' in the land to the respondents as tenants in common in equal shares for a stated consideration of $120,000. This is the instrument the subject of the present application for leave to appeal.

21 The second transfer was stamped with ad valorem duty of $3,400, calculated on the stated amount of consideration, being $120,000. The stamp duty was paid, the second transfer was registered and the respondents became the registered proprietors of the land in August 1999.

Land tax proceeding: SRO assessments and objections

22 The SRO did not accept Kameel's contention that the respondents were 'buyers in possession', and advised Mr Mondous by letters dated December 1999 and January 2000 that the land tax assessments in the respondents' names would be cancelled, and refunds paid to them, and that assessments for Kameel as owner of the land from 1991 until 1999 would be issued instead. Kameel objected to this course. The Commissioner disallowed the objection on the grounds that it had not been shown that at least 15 per cent of the purchase money had been paid (as required by the 'buyer in possession' provisions of the Land Tax Act). The Commissioner amended the assessments to reflect that a deduction was due to Kameel for land tax paid by the respondents as purported owners of the land. Once the amended assessments were issued to Kameel, it again objected. The objections were again disallowed, in 2005, on the same basis.

Land tax proceeding: Tribunal and Supreme Court

23 Kameel's objections were referred to the Tribunal, which heard them in March 2013.[6] Shortly before the hearing, Kameel added a ground of objection alternative to its 'buyer in possession' ground. This alternative was based on the first transfer and relied on ss 51 and 52 of the Land Tax Act. The details of the ground of objection are not relevant for present purposes, but it relied on the first transfer having conveyed the equitable estate in the land to the respondents.

24 The Tribunal refused Kameel's objections to the land tax assessments.[7]

25 As to Kameel's ground that the respondents were buyers in possession pursuant to the backdated contract of sale, the Tribunal found that the contract was a sham and that, in any event, Kameel had not proved that 15 per cent of the purchase price had been paid.

26 The Tribunal rejected Kameel's contention that the first transfer had conveyed the equitable estate in the land to the respondents. It also found that, even if the first transfer had constituted a conveyance of the equitable estate, that conveyance had been revoked. It is these findings ('the equitable interest findings') that give rise to the issue estoppel and abuse of process arguments now advanced by the Commissioner.

27 The Tribunal also found that, even if the first transfer had conveyed the equitable estate in the land to the respondents, Kameel could not rely on ss 51 and 52 of the Land Tax Act to avoid liability for land tax as an owner of the land. That conclusion was based on this Court's decision in Lygon Nominees Pty Ltd v Commissioner of State Revenue[8] and is now accepted by the respondents as correct. Kameel sought leave to appeal against the Tribunal's decision only on the buyer in possession ground. That leave was refused.[9]

28 After the land tax issue between Kameel and the Commissioner was resolved, the SRO began investigating whether the respondents had paid the correct stamp duty on the second transfer.

Stamp duty proceeding: SRO assessment and objection

29 As noted above, the stamp duty originally assessed and paid on the second transfer was $3,400, based on the stated consideration of $120,000. The Commissioner now decided that the respondents had not held an equitable interest before 1999 and that stamp duty on the second transfer should therefore be assessed based on the value of the land at the date of transfer, 4 June 1999.[10] The Valuer-General valued the land at $2,575,000 as of that date. Consequently, stamp duty on the second transfer was assessed in the sum of $141,625. As $3,400 stamp duty had already been paid on the second transfer, a notice of assessment for the difference, $138,225, was issued on 29 September 2014. The 2014 assessment also included penalties and interest, making a total assessment of $552,900.

30 The respondents objected to the 2014 assessment. Their objection was disallowed. The Commissioner's reasons for disallowing the objection were based in part on the Tribunal's findings in the land tax proceeding between Kameel and the Commissioner. The Commissioner decided that the second transfer was not the result of a pre-existing genuine contract of sale, in part because the Tribunal had found the 1989 contract to be a sham. For that reason, the value of the land for stamp duty purposes was to be assessed as at the date of transfer.

31 As to the date of transfer, the Commissioner said that the respondents could not rely on the first transfer as supplying the relevant date for assessing the applicable stamp duty because the Tribunal had found that the transaction recorded in the first transfer had been abandoned or revoked. The Commissioner said that the transfer described in the first transfer had been abandoned or revoked for the following reasons, drawing heavily on the Tribunal's decision in the land tax proceeding:[11]

(a) Mr Mondous's solicitor informed the bank in October and November 1991 that the first transfer was not proceeding at that time;

(b) contractual relations cannot be made retrospectively, so the first transfer could not have been based on the backdated contract of sale;

(c) the first transfer and the backdated contract of sale could not 'logically or legally co-exist'; and

(d) there was 'no evidence to indicate the basis upon which the [first transfer] is predicated'. Further:

In the absence of any objective evidence that [the land] was distributed as a result of [the first transfer], the Commissioner treats the [first transfer] as having been revoked by the parties and therefore, Kameel ... remained the owner of [the land].

32 The respondents applied to the Tribunal for a review of the refusal of their objection to the stamp duty assessment. That review was the genesis of the present proceeding. The Tribunal, constituted by a different member than in the land tax proceeding, heard the review and confirmed the assessment.[12]

33 In the Tribunal, the respondents contended that the second transfer was exempt from stamp duty under Exemption (10) in the Stamps Act 1958. As already noted, that exemption applies to the conveyance of land comprising trust property from a trustee to a beneficiary of the trust, when certain conditions are met.

34 The issue in the Tribunal was whether the second transfer was a conveyance of the land to the respondents as beneficiaries of the trust and, if so, whether Exemption (10) was attracted in the circumstances of the case. The respondents contended then (and contend now) that the second transfer transferred only the legal title to the land, the equitable interest having been conveyed by way of the first transfer. They contended that the effect of the first transfer was to convey the equitable interest in the land by way of trust distribution to the respondents as beneficiaries, with the result that a bare trust arose over the land in favour of the respondents. The second transfer was said to have completed the trust distribution contemplated by the first transfer, by transferring Kameel's legal title to the land to the respondents (thereby bringing the bare trust to an end).

35 However, the Commissioner contended that there was an issue estoppel arising out of the land tax proceeding, which precluded the respondents from asserting that they were equitable owners of the land by reason of the first transfer. The two findings of the Tribunal in the land tax proceeding that were said to give rise to the issue estoppel were the 'equitable interest findings' referred to at [26] above, namely: first, that the first transfer did not constitute a conveyance of the equitable interest in the land; and secondly that, even if such conveyance were established, it had been revoked.

36 The Tribunal accepted this contention and found that the respondents were estopped from relying on an equitable transfer of the land to them under the first transfer.[13] As part of this finding, it found that Kameel 'is and has been at all material times a privy of the [respondents]'.[14]

37 Although the Tribunal's finding on the issue estoppel was sufficient to dispose of the application to review, it also went on to find that, in any event, the respondents' objection to the assessment should fail. The Tribunal found that there had been no trust distribution or any other conveyance pursuant to the first transfer.[15] It also found that, even assuming that the respondents did obtain an equitable interest in the land by virtue of the first transfer, it was not possible under the Torrens system for the second transfer to have transferred the bare legal title.[16]

38 Lastly, the Tribunal found that the requirements of Exemption (10) on which the respondents relied were not met, since that exemption applied only to transfers to beneficiaries in their character as such and not to transfers on sale.[17]

39 The respondents sought leave to appeal the Tribunal's decision in the Trial Division on a number of grounds and were substantially successful. The judge ordered that the 2014 stamp duty assessment be set aside. The Commissioner now seeks to appeal from that decision.

40 The judge considered five issues on the appeal from the Tribunal:[18]

(1) Were the equitable interest findings by the Tribunal in the land tax proceeding legally indispensable to its decision?

(3) Is challenging the equitable interest findings an abuse of process?

(4) Did the first transfer constitute a distribution in specie?

41 As to the first issue, the judge found that the equitable interest findings were legally indispensable to the Tribunal's decision in the land tax proceeding, such that they could potentially found an issue estoppel. No challenge is now made to that finding.

42 The Commissioner seeks to agitate the remaining issues, all of which the judge decided in favour of the respondents.

43 The judge found that the respondents were not the privies of Kameel,[19] so that there could be no issue estoppel.[20]

44 The Commissioner had submitted as a preliminary issue that, as the respondents had not disputed the question of privity in the Tribunal and as it was a question of fact, they should not be allowed to raise it on appeal to the Supreme Court. The judge rejected that submission, finding that the issue was one of mixed fact and law, that the Tribunal's reasons failed to consider the relevant legal principles, and that those reasons were wrong in any event.[21]

45 On the question of privity, the judge found that the respondents had no legal interest in the outcome of the land tax proceeding. The judge recognised that the question whether the respondents were privies of Kameel in the land tax proceeding might depend on the legal effect of the first transfer or, in other words, on whether the equitable interest findings were correct.[22] The judge found that the equitable interest findings were wrong,[23] for reasons referred to below, and he considered the question of privity first on that basis. The judge found that, even though the equitable interest findings were wrong, so that a bare trust had arisen in respect of the land between 1991 and 1999, Kameel in the land tax proceeding was acting in its capacity as trustee of the discretionary trust. In that capacity it was not representing the interests of the respondents as beneficial owners of the land, but was pursuing the land tax objections for its own benefit, namely to reduce its own tax liability, 'albeit in its capacity as trustee of the trust with fiduciary duties to all potential objects of its power of appointment as a class'.[24] Also, since the land tax proceeding determined only whether Kameel was liable for land tax in respect of the land, the judge found that the decision could have no effect on the respondents' beneficial ownership of the land.[25]

46 The judge then considered the privity question on the basis that the equitable interest findings were correct and found that the same result applied. The effect of the findings was that no bare trust had arisen, so that the respondents were mere objects of a discretionary trust without any legal or equitable interest in its assets. Mr Mondous's control of Kameel was insufficient to give rise to privity in interest, just as control of a corporate litigant, even when coupled with a shareholding in the company, is insufficient for the purpose of making the controller a privy of the company.[26] As to Mrs Mondous, the judge found that there was in any event no evidence that she authorised Kameel to make the objection or otherwise had any role in the manner in which Kameel conducted the land tax proceeding.[27]

47 The judge found that it was not an abuse of process for the respondents to challenge the equitable interest findings made in the land tax proceeding to prosecute their stamp duty objection.

48 The judge found that since the equitable interest findings made in the land tax proceeding were wrong, it would be unjust to prevent the respondents from relitigating those findings where they were neither parties nor privies of Kameel in that proceeding.[28]

49 Further, the judge found that the respondents' contention that Exemption (10) applied was arguable, and that providing them the opportunity to advance that position would not unduly oppress the Commissioner, or bring the administration of justice into disrepute.

50 The judge found that Mr Mondous was deprived of any opportunity to consider the respondents' stamp duty position at the time of the land tax proceeding because the Commissioner had then not yet reassessed the respondents' stamp duty liability. As with the privity ground, there was no evidence that Mrs Mondous had been involved in the land tax proceeding at all.

51 The judge found that the first transfer did constitute a distribution of the land from the trust.

52 First, the judge found that the Commissioner was correct that the respondents had no entitlement to a distribution as mere objects of a discretionary trust. However, he also found that the first transfer ought to be looked at in a common sense way and given a business-like interpretation. Doing so entailed finding that it both recorded Kameel's decision to distribute the land to the respondents, and constituted a transfer of the land to them in registrable form.[29] Otherwise the first transfer made no commercial sense. That finding was supported by the general principle of contractual interpretation that 'parties are unlikely to have intended to agree to something ... legally ineffective'.[30]

53 Secondly, the judge found that a separate recording of or document constituting the exercise of the trustee's power to distribute trust property was, in any event, not required by the trust deed.[31]

54 Thirdly, the judge rejected certain conclusions of the second Tribunal, which it is not necessary to consider further.[32]

55 As to the final issue, the judge found that the second transfer was exempt from stamp duty under Exemption (10). In order to attract the exemption, the respondents must have acquired the land as beneficiaries rather than as purchasers.[33]

56 The judge accepted that Mr Mondous both believed and intended that the second transfer would give effect to the backdated contract of sale, but rejected the submission that this determined the legal nature of the transaction giving rise to the second transfer.[34]

57 The judge also found that Mr Mondous was mistaken in this regard. As explained, the judge had already found that the first transfer constituted a valid conveyance of the equitable interest in the land to the respondents. There had been no re-transfer of the equitable estate to Kameel, as the Commissioner had not identified any instrument signed by the respondents as required by s 53(1) of the Property Law Act 1958 that had accomplished such a transaction.[35] The judge therefore rejected the submission of the Commissioner, and the finding by the Tribunal, that if there had been any transfer of the equitable estate in the land by way of the first transfer then such transfer had been revoked. The judge also rejected an argument that the first transfer was meant as no more than a proposed means of transferring the land. The evidence established a firm intention to proceed with the first transfer until March 1991, that is, after the date of the instrument and the decision it evidenced.[36]

58 As a result, the judge found that Kameel had no interest in the land to sell to the respondents and, as a bare trustee of the land for the respondents, was under an obligation to transfer the legal interest to them for no consideration. It followed that the reference in the second transfer to consideration of $120,000 was irrelevant to its legal operation, and that the purported transfer of the land by way of sale had no legal effect.[37]

59 In deciding this final issue, the judge considered the finding of the Tribunal that it is not possible to transfer only a bare legal interest under the Torrens system of land title registration. The judge accepted that it may not be possible to transfer only the legal interest in land while retaining the equitable interest, but found that where a trustee had already transferred the equitable interest it could, and indeed was obliged to, transfer the bare legal interest to the beneficiary. He found that the second transfer, when registered, gave effect to that obligation and enabled the Registrar of Titles to reflect the respondents' beneficial ownership of the land since the execution of the first transfer.[38]

60 The Commissioner's proposed grounds of appeal, reflecting the above four issues but in a slightly different order, are as follows:

1. Abuse of process: The primary judge erred in failing to find that it was an abuse of process for Mr and Mrs Mondous, by the second proceeding, to re-agitate the finding that they were not the equitable owners of the land made in the first proceeding.
2. Privity: The primary judge erred in interfering with the Tribunal's finding, made without any dispute, that Mr and Mrs Mondous and their family trustee company were privies for issue estoppel purposes.
3. No distribution: The primary judge erred in overturning the Tribunal's decision that Mr and Mrs Mondous were not the equitable owners of the land under a 'distribution'.
4. No exemption anyway: The primary judge erred by failing to recognise that Mr and Mrs Mondous and their company Kameel Pty Ltd were entitled to agree, and did agree, by 1999 if not by 1991 (in writing, if writing be necessary), not to proceed with the [second] instrument, and that the exemption was not engaged by what in fact occurred.

61 Argument proceeded before us on the basis that if each of the four grounds of appeal were rejected, then Exemption (10) would be engaged and no additional stamp duty would be payable by the respondents. As such, the only issue as to the application of the exemption is that contained in proposed ground 4: whether the land was transferred to the respondents pursuant to a trust distribution rather than a sale.[39]

62 The Commissioner submitted that the proposed grounds of appeal were alternatives in that even if he failed on any one of those grounds, the next could still be considered independently. The parties presented their argument in the sequence proposed by the Commissioner, starting with ground 2 and followed by grounds 1, 3 and 4. It is convenient to adopt the same order here.

Parties' submissions: Issue estoppel - privity (ground 2)

63 The Commissioner submitted that, contrary to the decision of the judge, the Tribunal was correct in holding that, owing to the findings in the land tax proceeding, the respondents were estopped from now contending that they had become the equitable owners of the land pursuant to the first transfer. The result was that they were not equitable owners of the land before it was transferred to them in 1999.

64 The Commissioner submitted that the judge erred in finding that no privity existed between Kameel and the respondents for the purposes of an issue estoppel, particularly when the question of privity was not contested in the Tribunal and when it was a matter of mixed fact and law, which may have been the subject of evidence had privity been in issue. The Commissioner submitted that the Tribunal proceeding was run on the basis that privity was conceded by both sides, in circumstances where both sides ran and responded to issue estoppel arguments. Since privity was not in issue before the Tribunal, it could not have been in error for the Tribunal not to have addressed it. The Commissioner also submitted that the notion that Mrs Mondous was in a distinct position from her husband was raised only late in the Supreme Court hearing and should not have been allowed to be argued on that appeal.[40]

65 The Commissioner submitted that if, contrary to his position, the question of privity was capable of being raised on the appeal as a question of law, then privity existed so as to found an issue estoppel.

66 The Commissioner submitted that the relevant issue in the land tax proceeding was whether the respondents had become the equitable owners of the land and so liable for assessment, or whether Kameel had retained ownership of the land for land tax purposes and was so liable instead. The Commissioner submitted that even though the respondents and Kameel had different interests in the sense that one of them would be found liable to pay the land tax attributable to the land (a burden) and the other would not (a benefit), in fact all the relevant interested persons, both Kameel and the respondents, were in favour of the respondents paying the land tax rather than Kameel, because that entailed a significantly reduced amount of land tax for which the family assets, considered as a whole, would be liable. The respondents were therefore said to have an economic interest in the outcome of the land tax proceeding coupled with a legal interest, being the determination of their personal land tax liability.

67 As to the finding of the judge that Mrs Mondous stood separately from her husband because there was no evidence that she, no longer being a director of Kameel, had any role in the land tax proceeding, the Commissioner submitted that this was in error. He submitted that it could readily be inferred, based on Mr Mondous's correspondence over the years,[41] that he was acting at all relevant times with the authority of Mrs Mondous and that she had always, before and after her tenure as a director, knowingly given him the running of trust matters on her behalf.

68 The Commissioner also submitted that Kameel's position, and that of Mr Mondous, had been consistent since 1991, well before Mrs Mondous ceased to be a director in 2005. Mr Mondous had not been said to have gone off on a frolic of his own once Mrs Mondous ceased to be a director. The position that both Kameel and the respondents took, which the Commissioner submitted founded both the land tax proceeding and the present proceeding, was that although there had originally been a transfer instrument indicating a distribution, they had instead proceeded with a sale of the land.[42] The current position taken by the respondents - that the first transfer separated the legal and beneficial interests - was simply a 'lawyer's construct', not reflective of what either Kameel or the respondents had ever intended to do.

69 The respondents submitted that estoppels should not be found lightly, particularly where they are put on the basis of privity, as their effect is to prevent a party from putting their claim to a court. They contended that it was the responsibility of the Commissioner to demonstrate to the Tribunal that privity existed between Kameel and the respondents.

70 The respondents submitted that the trial judge was correct to find that the question of privity was one of mixed fact and law and, as such, was capable of being taken on appeal from the Tribunal. The respondents also submitted that the question of privity was the basis of a ground of appeal before the judge and that the Commissioner had not opposed the issue being raised, nor had he sought to include a ground of appeal in this Court seeking to object to the privity question having been raised before the judge. The respondents also submitted that the Commissioner had not identified any relevant additional evidence he could have brought before the Tribunal on the privity question.

71 The respondents submitted that the judge was correct to find no privity between Kameel in the land tax proceeding and the respondents in the present proceeding. They submitted that the correct question was whether the respondents had claimed under or through Kameel, as privies in interest with Kameel.[43] The outcome of the land tax proceeding was not a decision as to the equitable ownership of the land but one as to whether a tax assessment should be confirmed or set aside. They submitted that Kameel in the land tax proceeding was concerned only with reducing its own tax liability, for the general benefit of the objects of the trust fund. It was therefore pursuing the litigation for its own benefit alone (as trustee) rather than by representing the legal interests of the respondents. On the contrary, they submitted, the respondents' interest in the outcome of the land tax proceeding was opposed to that of Kameel since, if Kameel were successful, they would be exposed to land tax liability in respect of the land.

72 As to the position of Mrs Mondous, the respondents submitted that the judge correctly noted that she was neither a shareholder nor a director of Kameel at the time of the land tax proceeding, and had no control over the running of that

72 proceeding. They submitted that the correspondence from Mr Mondous to which the Commissioner referred did not evidence or give rise to an inference of any grant of authority by Mrs Mondous. In any event, they submitted, the question of control or influence over a corporation by a director or shareholder is not determinative of privity.

73 As to the Commissioner's argument that the claim that Mrs Mondous was in a special position distinct from her husband had not been raised in the Tribunal, the respondents submitted that the Commissioner had sought and failed to persuade the Tribunal that it would be an abuse of process for Mrs Mondous to challenge the equitable interest findings.

Analysis: Issue estoppel - privity (ground 2)

Was it open to the judge to review the Tribunal's finding as to privity?

74 The first question is whether the issue of privity was open to being revisited by the judge on appeal, in circumstances where, the Commissioner contends, it had been the subject of agreement between the parties in the Tribunal. For present purposes, it is convenient to assume that there was such agreement, or at least that the parties proceeded upon the common basis that privity existed.

75 As a preliminary matter, the Commissioner's second proposed ground is broadly expressed so as to extend to this argument. It alleges error by the judge in interfering with the finding 'made without any dispute'.

76 The Commissioner contended that there could be no error of law in the Tribunal deciding a matter on an agreed legal and factual basis. Without an error of law, it was pointed out, there is no basis for an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998. In Hussain v Minister for Foreign Affairs, the Full Court of the Federal Court found that there was 'substance' in a similar submission made in respect of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), which provides for appeal on a question of law from the Administrative Appeals Tribunal to the Federal Court.[44] In that case, the tribunal had proceeded upon the basis of an effective concession by the applicant as to the validity of certain certificates, which he then sought to impugn upon appeal.

77 However, no rigid rule applies in the context of s 44 of the Commonwealth Act.[45] Moreover, this Court has consistently permitted the raising of new points on appeals under s 148 of the Victorian Civil and Administrative Tribunal Act 1998, provided it is in the interests of justice to do so.[46] That is consistent with the view that, if a conclusion reached by the Tribunal is affected by legal error, it cannot lose its character as such merely because the source of the error lay in the submissions of the parties, or their common approach to the issue in question. Those circumstances might explain, but do not deny, the error.

78 While there is no jurisdictional bar, therefore, the question remains whether the unsuccessful party, having contributed to the error, may yet seek to have it corrected on appeal. This is a variation, or perhaps an extreme example, of the situation that arises when an unsuccessful party seeks on appeal to raise an argument not advanced at first instance. Ordinarily, of course, that is not permitted.

79 However, exceptionally, it may be expedient in the interests of justice to permit a party to raise on appeal an argument that was not advanced below. That will require showing at least that the point could not possibly have been met by

80 In the present case, the question of privity was a significant element of the issue for decision in the Tribunal. The respondents challenged the Tribunal's treatment of the point and the Commissioner raised no objection before the judge to that course. Nor did the Commissioner in this Court, or before the judge, seek to establish that, had the respondents contested privity in the Tribunal, the Commissioner could have met the point by evidence. The highest it was put by the Commissioner was that the question of the capacity of Mrs Mondous to influence the land tax proceeding was not explored in the Tribunal.

81 Leaving the position of Mrs Mondous to one side for the moment, the question of privity therefore involved the application of legal principles to facts not in dispute. As formulated on appeal, the question lay at the heart of the dispute between the parties. There was no prejudice to the Commissioner in permitting it to be ventilated on appeal, and considerable prejudice to the respondents if that course were not to be allowed. Moreover, the Commissioner acceded to the point being taken before the judge. For those reasons, the respondents were properly permitted to argue that privity was lacking, and the Commissioner's submissions to the contrary should be rejected.

82 The situation regarding Mrs Mondous is more complicated, because it is conceivable that a fuller exploration of her connection and any involvement on her part in the land tax proceeding would have been undertaken had the respondents contested privity in the Tribunal. However, again, the Commissioner did not object to the privity argument in respect of Mrs Mondous being run before the judge, even though it appears that the point only emerged in reply. The Commissioner might therefore be taken to have acquiesced in the taking of the point by the respondents. In all the circumstances, the better view is that the respondents were properly permitted to raise this argument as well. However, as will appear, the argument makes no difference to the disposition of this ground.

Principles governing privity for the purposes of issue estoppel

83 The question whether the respondents were subject to an issue estoppel in respect of the equitable interest findings made by the Tribunal in the land tax proceeding depends upon whether they were Kameel's 'privies in interest' in that proceeding. The significance of privity is that the prior determination of an issue of fact or law legally indispensable to the decision is held to have disposed of the issue once and for all, so that it cannot be raised afterwards between the same parties or their privies.[48]

84 The essential feature of a privy in interest is that 'the privy must claim under or through the person of whom he is said to be a privy'.[49] In Tomlinson v Ramsey Food Processing Pty Ltd, French CJ, Bell, Gageler and Keane JJ explained:[50]

a party to a later proceeding (A) can be privy in interest with a party to an earlier proceeding (B) on either of two bases. One basis is that A might have had some legal interest in the outcome of the earlier proceeding which was represented by B, or that B has some legal interest in the outcome of the later proceeding which is represented by A. The extent to which the representation by A or B will be sufficient to bind the other is the critical issue which will be explored later in these reasons. The other basis is that, after that earlier proceeding was concluded by judgment, A might have acquired from B some legal interest in respect of which B would be affected by an estoppel which A then relies on in the later proceeding.

It is the first of these bases that is relevant here; the Commissioner contends that the respondents had a legal interest in the outcome of the land tax proceeding which was represented by Kameel as trustee of the family discretionary trust.

85 Their Honours went on to emphasise the need for a legal, rather than an economic interest:[51]

Subsequent applications of the principle in Ramsay v Pigram have for the most part correctly emphasised that the interest of the privy must in each case be a legal interest: an economic or other interest on the part of A in the outcome of the earlier proceeding is insufficient. Those applications have also correctly emphasised that, absent a legal interest, such influence as A might have had over the conduct of the earlier proceeding is irrelevant even if that influence amounted to control. Thus, directors of a company, who also held shares in its parent company, were held not to be estopped from pursuing a later action to recover damages to compensate for a loss on their own account in circumstances where they had stood to gain financially from an earlier action by the company claiming damages for loss on the company's account. That was despite the directors having been found to have exercised effective control over the company's conduct of that earlier action. The constraint on the conduct of A in such circumstances lies not in an estoppel but, in an appropriate case, in abuse of process.

86 In Timbercorp Finance Pty Ltd (in liq) v Collins French CJ, Kiefel, Keane and Nettle JJ said, in respect of estoppel through a privy in interest:[52]

The basic requirement of a privy in interest is that the privy 'must claim under or through the person of whom he is said to be a privy'. The principle underlying the concept of privies is that 'one who claims through another is, to the extent of his claim, subject to ... all estoppels affecting the person through whom he claims'. That principle is in turn informed by the theory that a person who takes a benefit ought also to bear a burden. With the benefit of the claim comes the detriment of the estoppel. But, as explained in Tomlinson, it is a theory which has its limitations. It would be quite unjust for a person whose legal interests stood to benefit by making a legal claim to be precluded if they did not have some measure of control of the proceedings in question.

87 In both Tomlinson and Timbercorp, the High Court gave as an example of a situation in which an estoppel will bind a person represented by another, the relationship of trustee and beneficiary.[53] However, the cases do not decide, and the Commissioner did not suggest, that a relationship of privity in interest necessarily exists between a trustee of a discretionary trust and each of the potential beneficiaries in whose favour a power of appointment might be exercised or in whom part of the capital or income of the trust may one day vest. It is not necessary to consider the position regarding the beneficiaries as a whole, or as a class, as no such privity is in issue in the present case. It suffices to note that the interest of a potential beneficiary of a discretionary trust is confined to an interest in the due administration of the trust (including proper consideration whether and how to exercise the trustee's powers including as to appointment) and does not extend to a beneficial interest in the trust property itself.[54]

88 Of course, the argument for privity in the present case goes beyond the fact of the respondents being beneficiaries of the trust. It relies upon the control of the family discretionary trust, and the trustee, by the respondents - directly in the case of Mr Mondous, and in the case of Mrs Mondous through his alleged agency. The Commissioner relies on this control, as well as the economic interest the respondents have in the fortunes of the trust in their capacity as beneficiaries.

89 However, it is clear from the discussion of the principles in Tomlinson that an economic interest, short of a legal interest, in the outcome of the earlier proceeding will not suffice to establish privity in interest even where the party in the later proceeding held influence over the other party's conduct of the prior proceeding amounting to control of that conduct.[55]

90 That is illustrated by the decision in Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (in liq),[56] which the joint judgment in Tomlinson cited with approval.[57] That case involved a claim of res judicata or cause of action estoppel, which presents the same issue of privity. A company had obtained judgment in the Supreme Court of New South Wales in respect of claims including misleading and deceptive conduct brought against it by another company. The unsuccessful company, along with parties associated with it, subsequently brought proceedings in the Federal Court claiming relief including for misleading and deceptive conduct relying on the same alleged misrepresentations.

91 The additional parties in the second proceeding, who were found not to be privies of the plaintiff company, were the holding company of the plaintiff, a lender to both companies and their directors (two of whom owned a one third interest in the holding company and one of whom owned and was a director of the lending company). The primary judge (Gummow J) held that the applicants other than the director who held no shares in the holding company had participated so actively in the Supreme Court litigation that in substance they assumed the role of actual parties.[58] In the Full Court, Northrop and Lee JJ accepted that it had also been found that those parties had an economic or financial interest in the Supreme Court action and would have gained financially if the plaintiff company had succeeded in that action.[59]

92 It was held that the associated parties were not privies of the unsuccessful plaintiff company because neither party had claimed a title or right or made a claim by virtue of a title or right in the other but each was seeking to enforce rights for their own benefit.[60] Neither their economic interests nor their control of the plaintiff company, including in the conduct of the prior proceeding, sufficed to establish the required right or interest. They were therefore not subject to a cause of action estoppel. Instead, their action would have been more appropriately considered under the law of abuse of process.[61]

93 The economic interest alleged by the Commissioner in the present case is unusual. Kameel's failure to persuade the Tribunal of its case in the land tax proceeding led to the respondents receiving a tax refund. This strongly suggests an absence of privity. But it is desirable to address the Commissioner's argument on the assumption that Kameel was in the land tax proceeding pursuing a course that would have been to the respondents' overall benefit.

94 It follows from the above authorities that, in circumstances where the interest of the respondents in the subject matter of the land tax proceeding was confined to their interest as beneficiaries of a discretionary trust (itself an economic interest at best), the fact of control by Mr Mondous of Kameel and its conduct of the land tax proceeding cannot supply the requisite legal interest to establish privity between him and Kameel. The assumption that Kameel was pursuing a course for the respondents' overall benefit does not take their interest beyond a purely economic one.

95 It further follows that, even if Mrs Mondous were found to have authorised her husband to conduct the land tax proceeding on behalf of Kameel, there would not be privity between her and Kameel either. It is therefore not necessary to decide whether she did so authorise Mr Mondous, or to decide whether the respondents should have been permitted to raise doubts as to that matter before the judge. The Commissioner's case regarding Mrs Mondous, at its highest, depends on making out his case in respect of Mr Mondous and in this the Commissioner cannot succeed.

96 Were that the end of the matter, leave to appeal on proposed ground 2 should be granted but the ground would fail. However, as explained below, the position is made more complicated by a further submission advanced before us by the Commissioner. The effect of that submission was that, if the respondents were to succeed in establishing the incorrectness of the equitable interest findings, as they did before the judge, then it would follow that they were not merely beneficiaries of a discretionary trust but also beneficiaries of a bare trust in respect of the subject land, and that there was privity between them and Kameel after all. That submission is considered in more detail under the abuse of process ground below.

Parties' submissions: Abuse of process (ground 1)

97 The Commissioner submitted that the stamp duty proceeding initiated by the respondents should have been dismissed as an abuse of process and that the judge had erred in finding otherwise.

98 The Commissioner submitted that the doctrines of abuse of process and estoppel were aimed at preventing courts from going into questions on which they might have made a finding different to one previously made. It followed that the judge erred in finding that, because he considered the decision of the Tribunal in the land tax proceeding to be wrong, it would be unjust to prevent the respondents from re-arguing the findings there made.

99 The Commissioner submitted that the two primary considerations in determining whether there is an abuse of process are, first, unfairness to the other party to the litigation and, secondly, the potential for the administration of justice to be brought into disrepute generally, including having regard to the need for finality.[62] The Commissioner contended that the reasons of the judge did not reflect these two considerations, focussing instead on Mr and Mrs Mondous having been deprived of opportunities to agitate the matters they have sought to raise in these proceedings.

100 The Commissioner submitted that, to the contrary, neither of the respondents had been deprived of any opportunities so as to prevent them, in fairness, from being bound by the earlier findings. As to Mrs Mondous, the Commissioner submitted, as he did under the privity ground, that Mr Mondous was at all relevant times acting with the implied or apparent authority of his wife, who had chosen to leave matters in his hands. The Commissioner also submitted that Mrs Mondous had not made any submissions to the effect that Mr Mondous had approached the land tax proceeding incorrectly or that she would have taken a different stance in that proceeding.

101 The Commissioner submitted that the respondents were attempting to reagitate a foundational issue that had been resolved years earlier by the same tribunal, based on substantially the same evidence and argument put by the same counsel. The issue - whether the first transfer had conveyed the equitable interest in the land to the respondents - had been resolved against them, via their family trustee and concerning their family home, in a contest against the same respondent. Further, the Commissioner submitted, the issue was not taken on appeal from that proceeding and was thus admitted to have been resolved correctly. Rather, the respondents (including Mrs Mondous) had, along with Kameel, pursued and maintained their position as having become owners of the land pursuant to the backdated contract of sale both before and after the time that Mrs Mondous ceased to be a director.

102 The Commissioner finally submitted that the respondents had, by way of the Tribunal proceeding in 2016, attempted to raise a claim of exemption that they had conceded in 1999 by paying stamp duty ad valorem (on the second transfer) without objection. It was an abuse of process for them to go back on their tactical decision to frame the second transfer as one giving effect to the backdated contract of sale. As a result, the timing of the sale transaction was the only issue that should have been agitated in the stamp duty proceeding.

103 The respondents submitted that an abuse of process, like an issue estoppel, should not be found lightly. They submitted that the doctrine involves consideration of all the circumstances of the determination of the earlier case and, as such, does not prevent consideration of whether the earlier findings were wrong. The respondents submitted that the authorities emphasised the questions whether the later proceedings would be unjustifiably oppressive to the other party or whether the administration of justice would be brought into disrepute,[63] neither of which were said to be established here.

104 The respondents submitted that, in particular, there would be no abuse of process in litigating an issue already determined if the earlier decision overlooked binding authority.[64] They therefore submitted that the judge was correct to decide that there was no abuse of process, and to decide the question whether the first transfer effected a conveyance of the equitable estate in the land, since the Tribunal in the land tax proceeding had overlooked s 53(1) of the Property Law Act 1958, which precluded its finding that, if there had been a conveyance, it could be revoked in circumstances where that revocation was not in writing.

105 As to the purported points of similarity between the land tax proceeding and the present stamp duty proceeding, the respondents submitted that they did not have the same opportunities to present argument and evidence in each proceeding. They pointed to Mrs Mondous's lack of standing in the land tax proceeding and, as in relation to the privity ground, they submitted that she exerted no control over either the trust or the manner in which Kameel conducted the land tax proceeding, nor did she authorise Mr Mondous to act on her behalf. The respondents also submitted that Mr Mondous was deprived of the opportunity to consider his stamp duty position (as distinct from his land tax position) because the respondents' liability for stamp duty was assessed and increased from $3,400 to $552,900 two years after the trial in the land tax proceeding. In particular, it was not until the current proceeding that the respondents had advanced evidence upon which the judge had found that they and Kameel intended to proceed with the first transfer until 27 March 1991.[65]

106 The respondents further submitted that the arguments put by counsel at each of the proceedings were different. Specifically, the key propositions put by their counsel in the present proceeding - that the distribution created an interest in land that could not be revoked other than in writing signed by the respondents, and that the respondents had an entitlement to the land so that the second transfer could only effect the registration that was Kameel's obligation to perform - were not put in the land tax proceeding.

107 The respondents submitted that the decision by Kameel not to challenge on appeal the finding in the land tax proceeding that the first transfer did not convey the equitable estate in the land was not an admission that the issue had been correctly resolved. Rather, that finding could not have affected Kameel's land tax liability in any event, meaning that it would have been futile to seek leave to appeal in respect of the finding even if it were wrong.[66]

108 It followed, in the respondents' submission, that whatever the finding in the land tax proceeding as to whether beneficial ownership of the land had passed to the respondents, the outcome would have been the same. That being so, a finding either way on the same issue in the present proceeding could not yield an outcome inconsistent with the earlier proceeding, and as a result there was no abuse of process.

109 The respondents finally submitted that the Commissioner's contention that they had conceded their obligation to pay ad valorem stamp duty in respect of the second transfer was neither referred to by the Commissioner in disallowing the objection nor raised in the Tribunal or before the judge, and could not be relied on for the first time on appeal to this Court.

110 In reply, senior counsel for the Commissioner expanded on the consequences of the bare trust said by the respondents to have arisen as a result of the first transfer and for which they contended. Counsel submitted that, had such a bare trust arisen, then the respondents would have been classic privies of Kameel in its capacity as trustee in respect of the bare trust. The Commissioner contended that the respondents could not now argue that they had been beneficial owners of the land pursuant to that bare trust and simultaneously deny that they were privies of Kameel in the land tax proceeding. It was submitted that advancing fundamentally inconsistent arguments in the stamp duty proceeding in this way constituted an abuse of process. It will be necessary to return to this alternative abuse of process argument in more detail below.

111 In Tomlinson, French CJ, Bell, Gageler and Keane JJ considered the relationship between the doctrines of estoppel and abuse of process. Having explained that the doctrines were both informed in part by considerations of finality and fairness and may have overlapping operation in the context of the raising of issues in successive proceedings, they emphasised that abuse of process was 'inherently broader and more flexible than estoppel'.[67] The joint judgment continued:[68]

Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

112 The tests of unjustifiable oppression and bringing the administration of justice into disrepute have been frequently stated.[69]

113 The broad nature of the abuse of process doctrine means that it can operate where there is no estoppel. In a situation involving successive legal proceedings, it may operate where there is no privity between the parties in the two cases. The joint judgment in Tomlinson put it this way, in words apt to apply to the Commissioner's argument in the present case:[70]

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding ... can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.

114 The principal authority to which the joint judgment referred in stating the second of the above propositions was O'Shane v Harbour Radio Pty Ltd. [71] In that case, Beazley P (with whom McColl JA and Tobias AJA relevantly agreed) canvassed a series of authorities in which it had been sought to relitigate an issue already the subject of finalised proceedings. She observed that those cases either involved the same parties as in the earlier proceeding or, where there was only one party common to both proceedings, that party had lost the issue sought to be relitigated in the subsequent proceeding.[72] The point had been emphasised by Heydon JA in R v O'Halloran,[73] who stated that there 'cannot be "re-litigation" if there has not been litigation'.[74] However, Beazley P did not take Heydon JA to be deciding that the failed party in the earlier proceeding must necessarily be a party to the later proceeding in order for any abuse of process argument to be made. As she pointed out, the categories of abuse of process are not closed.[75]

115 At the same time, as discussed further below, the fact that the party seeking to litigate an issue in later proceedings was not a party in the earlier proceeding where the issue was previously decided will be relevant to identifying whether the later proceedings are an abuse of process and may tend against a conclusion to that effect.[76] That is of course the present case; the respondents seek to raise an issue which, the Commissioner says, was determined in the land tax proceeding but the respondents were not parties to that proceeding.

116 The considerations relevant to determining whether the raising of an issue in successive proceedings gives rise to an abuse of process have been articulated more than once along the following lines:[77]

The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice. Regard may be had to:

(a) the importance of the issue in and to the earlier proceeding, including whether it is an evidentiary or ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;

(f) the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

117 In Haines, the plaintiff had brought a defamation case in which he alleged that the publisher had imputed that he was the type of person who consented to appearing naked on a television program. It was held that the publication was incapable of conveying that imputation. The plaintiff then sought to add a new party against whom he pleaded, relevantly, that it had represented that he had consented to appearing naked on a television program. In that context, Hunt CJ at CL reviewed authorities in which it had been contended that a party seeking to relitigate an issue upon which the same party had previously been unsuccessful was engaged in an abuse of process.

118 The leading case to which Hunt CJ at CL referred in that context was Reichel v Magrath,[78] to which the joint judgment in Tomlinson also referred with approval. That case illustrates that a plaintiff may be prevented, on account of abuse of process, from litigating against one defendant an issue which he or she has already litigated unsuccessfully against another. There, a vicar had brought proceedings against a bishop seeking a declaration that the vicar remained in office. He failed in that proceeding. The succeeding vicar then sued his predecessor for a declaration and injunction as to his own office and entitlements. It was held by the House of Lords that the original vicar could not mount by way of defence the claim that he had unsuccessfully raised against the bishop.

119 Reichel v Magrath shows that the unsuccessful party may be prevented, not only from acting as plaintiff in a later proceeding raising the same issue, but also from seeking to reagitate the issue by way of defence. But it remains in the class of case already referred to, where it is the unsuccessful party in the earlier proceeding who is the subject of restraint in the later proceeding. As such, the case, like Haines, is distinguishable from the present.

120 Leaving aside the question of the correctness of the equitable interest findings, discussed below, the judge's conclusion as to abuse of process can now be considered.

121 There is force in the Commissioner's argument that both the respondents controlled Kameel when it conducted the land tax proceeding. Plainly, Mr Mondous was in a position of control and gave the instructions in that proceeding on behalf of Kameel. Throughout the relevant period, whether or not Mrs Mondous was a director of Kameel, its contention had been the same, namely that it held an equitable interest in the land since at least 1991. There has been no suggestion on the part of Mrs Mondous at any point in the present proceeding, including in this Court, that she would have wished Kameel to pursue any different course. The inference is irresistible that she acquiesced in the conduct of the land tax proceeding by her husband. There is, as the Commissioner submitted, an artificiality in the respondents' argument that she has not had an opportunity to raise for determination the correctness of the equitable interest findings.

122 However, when one contemplates the list of factors to which reference was made earlier, it is plain that the identification of the issue said to be common to both proceedings plays a central role in deciding whether there is an abuse of process in seeking to litigate that issue again. Here both the identified issues were merely findings.[79] They were not ultimate issues in the land tax proceeding, in the sense that they were only steps along the way to the determination of that proceeding.

123 Moreover, the land tax proceeding would have been decided the same way even if the equitable interest findings had been different. That is because, as Kameel ultimately accepted, even if the respondents had been the equitable interest holders during the relevant period, contrary to the equitable interest findings, it would have remained liable to land tax because the statutory provisions on which it relied (ss 51 and 52 of the Land Tax Act) were not attracted in any event.

124 It follows that considerations of finality are correspondingly less significant than they were in cases like Reichel v Magrath and Haines. If no different outcome would be implied in respect of the prior proceedings, it is harder to see that the questioning of findings not critical to that outcome would bring the administration of justice into disrepute or be unfair to the Commissioner.

125 Without more, the above analysis suggests that the judge was right to conclude that no abuse of process arose from the fact that the respondents sought in the stamp duty proceeding to argue that the equitable interest findings made in the land tax proceeding were wrong.

126 However, the Commissioner also put the abuse of process argument in another way before us. This argument concentrated on what was said to be an inherent contradiction in the respondents' case in the stamp duty proceeding, such that it would be an abuse of process for that proceeding to continue.

127 The argument was advanced, by way of reply, that the respondents were arguing that, by the time of the second transfer, they held the equitable interest in the subject land. If so, it was pointed out that the respondents were no longer merely beneficiaries of a discretionary trust, with an attendant interest in the proper administration of the trust, but they were full beneficial owners of the land as objects of a fixed trust. As such, the burden of indemnifying Kameel for land tax liability in respect of the land was not to be borne by the discretionary trust but by the fixed trust. So much appears not to have been in issue; Kameel made the following submission as part of its argument under ss 51 and 52 of the Land Tax Act before the Tribunal:[80]

(a) the land is held by the Applicant as Trustee;

(b) the equitable title is vested in Mr and Mrs Mondous;

(c) the Applicant, as Trustee, has a right of indemnity for any tax paid from the trust fund;

(d) tax liability for the land now held on trust for Mr and Mrs Mondous specifically, must be calculated separately from all other land holdings which are held on trust for the discretionary beneficiaries under the discretionary trust; and

(e) if s 52 applies then the land tax must be calculated separately for [the land] .

128 It followed, the Commissioner submitted, that both the abuse and the privity questions had to be considered against that background. In short, if the respondents were, as they asserted in both proceedings, equitable owners of the land, then they would be privies of Kameel in that capacity. Yet they were denying privity on the basis that they were merely beneficiaries under a discretionary trust.

129 The respondents did not seek to be heard at the hearing in relation to this somewhat belated argument on the part of the Commissioner. However, the Court subsequently invited the parties to file short written submissions in respect of it.

130 In those written submissions, the Commissioner submitted that the finding of the judge in the present case, that Kameel's execution of the first transfer effected an immediate distribution of the land to the respondents, was essential to the respondents' success. The result of that finding was that the land was no longer an asset of the family trust but was held by Kameel as bare trustee for the respondents. It followed that between the date of the first transfer and the date of the second transfer, Kameel was a bare trustee in respect of the land and that the respondents, as beneficiaries of that bare trust, fell within an established class of privies.

131 As trustee of a bare trust, Kameel was entitled to be indemnified by that trust's beneficiaries in respect of expenses it incurred in holding the trust property. Therefore the respondents would benefit from a reduction in those expenses, including a reduction in the land tax for which the trustee was liable. The Commissioner submitted that, when Kameel sought to challenge its land tax liability in respect of the land for the years between 1991 and 1999, it did so for the benefit of the respondents as the only beneficiaries of the bare trust (rather than as two among many objects of the discretionary family trust). It followed, in the Commissioner's submission, that if the bare trust arose as the judge found it did, the respondents were unquestionably Kameel's privies in respect of the land tax litigation.

132 The nub of the Commissioner's argument goes not to privity but to abuse of process. He contends that it is an abuse for the respondents to seek to have it both ways before this Court, arguing that as objects of the discretionary family trust they were not privies of Kameel in the proceeding that related to land tax for the period from 1991 to 1999, but also arguing in the stamp duty proceeding that they were, over the same period, beneficiaries of the bare trust created by the first transfer.

133 To the extent (if any) that these arguments fell outside the scope of his original proposed abuse of process ground, the Commissioner sought leave to add a new ground. The Commissioner submitted that this argument was on a point of law involving no new facts. As such, and since the respondents had been given an opportunity to respond to it, no prejudice would flow to them by it being raised at a late stage.

134 The respondents, in their supplementary written submissions in response, declined to take a position on whether the argument should be allowed to be advanced for the first time on appeal or whether it fell within the existing proposed grounds of appeal. They neither consented to nor opposed an amendment to the proposed grounds.

135 The respondents maintained that the land tax proceeding had been conducted by Kameel in its capacity as trustee of the discretionary trust, so that they were not its privies in respect of that proceeding. The respondents submitted that, in any event, the bare trust arose in 1990 as a result of the first transfer and ended in 1999 when the legal interest in the land was transferred to them. As a result, while the existence of the bare trust went to the substantive stamp duty question in the present proceeding, it was irrelevant to the relationship between Kameel and the respondents during the land tax proceeding in 2013. In their submission, the Commissioner's contention that their arguments before this Court were inconsistent ignored this temporal dimension. The respondents submitted that the historical fact of their having been beneficiaries of the bare trust had no bearing on the judge's decision that there had been no abuse of process.

136 For reasons set out below, the better view is that this argument is encompassed by the existing abuse of process ground, which concerns the reagitation of the equitable interest findings. The argument is a purely legal one and no argument has been advanced against the Commissioner being permitted to raise the point or, if necessary, add a new ground. For the sake of clarity, the Commissioner should have leave to add the following proposed ground:

1A The learned trial judge ought to have rejected the respondents' submissions to the effect that the property was held on a bare trust for them between 1990 and 1999, on the basis that such submissions were inconsistent with the respondents' submissions to the effect that they were not privies of the trustee in earlier litigation in which the contrary was found, and were hence an abuse of process.

137 The Commissioner's argument is that, having successfully argued that they were not the privies of Kameel in respect of the land tax proceeding, the respondents should not be permitted to argue that they were beneficial owners of the land during the 1991-99 period the subject of that proceeding, because to do so would involve accepting that they were privies after all during that period.

138 The respondents submit that the argument overlooks a 'temporal dimension', because the time for asking whether the parties were privies was the time of the land tax proceeding rather than the period of the assessments in issue in that proceeding. By the time of the proceeding, it was not in issue that the respondents were the legal owners of the land (while remaining beneficiaries of the discretionary family trust). So much may be accepted. It may also be accepted that the time for asking the privity question was the time of the land tax proceeding.

139 However, the issue in the land tax proceeding concerned the ownership of the land during the period 1991-99. If, as the respondents now submit, they were equitable owners of the land during that period, the privity question would have been answered differently. That is because, as the Commissioner submits, Kameel would have been entitled to reimbursement from the respondents as equitable owners for any land tax found payable by it in the land tax proceeding. Conversely, as equitable owners of the land, the respondents would have been entitled to receive any amounts of land tax refunded to Kameel in respect of the land, had the proceeding been successful.

140 The 'temporal dimension' to which the respondents point is important because it is necessary to bear in mind that by the time of the land tax proceeding the respondents, and not Kameel, owned the land. Kameel in its capacity as trustee could therefore no longer have direct recourse to the land in order to satisfy its right of indemnity in respect of expenses incurred as trustee of the land. However, if the respondents had been the equitable owners of the land during the period in respect of which liability to pay land tax was attracted, Kameel had a right as against the respondents to claim indemnity from them personally.[81] That right would have survived the distribution of the bare trust's property.[82]

141 If it is now to be contended that the respondents were, prior to 1999, the beneficial owners of the land and that Kameel held it on a bare trust for them during that time, it would therefore follow that the liability to land tax established in the land tax proceeding, to which Kameel was a party, was a liability that the respondents stood ultimately to bear (or at least which was to be borne by the trustee on their account). That would in turn lead to the conclusion that Kameel and the respondents were privies in the land tax proceeding. Yet the respondents argued in this proceeding that they were not privies, being only objects of a discretionary trust, so as to avoid being bound by the equitable interest findings.

142 The effect of the position adopted by the respondents was that they submitted that they were not privies of Kameel, in order to enable them to argue that the Tribunal was wrong in making the equitable interest findings in the land tax proceeding. But if that were to be established, the respondents would have been privies of Kameel and therefore bound by those findings.

143 In effect, the respondents sought to impugn findings which, if they were to succeed in doing so, were binding on them by virtue of their privity with Kameel. That involved an attempt impermissibly to relitigate the findings. To permit a party to argue that findings in an earlier proceeding were incorrect, with the result that those findings were none the less binding on that party, would bring the administration of justice into disrepute. For that reason, the respondents' attempt to reagitate the equitable interest findings was an abuse of process.

144 It should be noted that the judge made reference to the bare trust relationship between Kameel and the respondents and the fact that this fell within a traditional category of privity.[83] He considered that it could still not be said that Kameel was representing the respondents' interests, as beneficial owners of the land, in seeking to expunge or reduce its land tax liability. It does not appear that the significance of the trustee's right of indemnity was raised before the judge.

The merits of the decision in the prior proceeding

145 The above reasons suffice to uphold the Commissioner's abuse of process argument. But it is also desirable to say something about the proper approach to the merits of a prior decision when it is alleged that a subsequent proceeding involves an impermissible reagitation of those merits.

146 The judge referred to the bare trust relationship between Kameel and the respondents in the course of determining the privity question. As explained above at [45]-[46], the judge approached this question on the basis that the equitable interest findings were wrong, but found, alternatively, that the conclusion on privity would be the same if they were correct.

147 In determining the abuse of process question, however, the judge relied on his assessment that the making of the equitable interest findings in the land tax proceeding had been 'wrong'.[84] In support of the taking into account of that assessment, the judge referred to Haines.[85] In this Court, the Commissioner argued that it was not permissible to enter into an assessment of the issue already determined in order to decide whether it would be an abuse of process to argue the issue afresh; to do so, it was submitted, would facilitate the abuse and defeat the purpose of the doctrine. Alternatively, it was said, Haines should be understood as confined to cases where the earlier conclusion was obviously wrong, such as where binding authority had been overlooked.

148 In Haines, Hunt CJ at CL made the following observations upon which the judge in the present matter relevantly relied:[86]

There are obviously limitations to striking out pleadings or causes of action as an abuse of process upon the basis stated in Reichel v Magrath and elaborated in the cases to which I have referred. The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former. The principle does not work in reverse to enable the party who won the issue in the earlier case to prevent it being litigated in the later proceedings by someone who was not a party in the former. It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result. It must have been properly argued - by which I mean that it is readily apparent from whatever records there are of the earlier case that the tribunal which decided it was an appropriate one to do so, that the parties were appropriate contradictors and that the issue was regarded by them as one of importance in that case. In normal circumstances, the decision disposing of the issue must have been a final one - by which I mean that it is not subject to appeal. (The filing of a notice of appeal may clearly be seen in some circumstances as merely seeking to delay the inevitable.) There may also be circumstances in which, notwithstanding the absence of an appeal, it is clear that the earlier decision has overlooked some binding authority, or that it has caused the unsuccessful party a manifest injustice. As most of the cases have emphasised, all the circumstances of the determination in the earlier case may be considered, and there can be no definitive statement of the circumstances which will inevitably lead to a finding of abuse of process.

149 Hunt CJ at CL went on to state that the earlier decision 'was, moreover, clearly right'.[87] Evidently, that consideration was not critical to his conclusion that there was an abuse of process.

150 This Court was not taken to any previous case in which it has been held, in the course of deciding an abuse of process claim based on successive legal proceedings, that the decision in the earlier proceeding had been wrong.[88] As a matter of principle, it must be a rare case indeed where the decision is so plainly incorrect that it would be manifestly unjust to permit it to stand. Such a consideration could, moreover, only be one factor to be weighed in deciding whether the later proceeding was an abuse of process. The principle of finality, which partly informs the doctrine, is necessarily undermined by paying regard to an argument that the earlier decision was wrong. Such a course, if taken too freely, is calculated to undermine the doctrine.

151 The preferable view of what was said in Haines is that Hunt CJ at CL was contemplating that, given the range of circumstances in which an abuse of process argument might be raised, there 'may' be circumstances in which the error in the previous decision is so clear or manifest that the interests of justice weigh against treating the attempt to argue for the correct result as an abuse of process. In circumstances where no case until the present appears to have applied that reasoning, it is evident that the possibility of such circumstances arising must be very limited.

152 In light of the detailed and careful arguments raised by the parties in the present matter regarding the equitable interest findings, it must be concluded, with respect to the primary judge, that this was not such a case. The correctness of those findings turned on factual as well as legal considerations as to which there was extensive dispute. Moreover, the argument that both findings were wrong because the operation of s 53 of the Property Law Act was overlooked must fail. Even if the finding that the equitable transfer had been revoked were to be set aside on that basis, this was only an alternative finding in the land tax proceeding. The finding that there was no equitable transfer in the first place would remain intact.

153 In the result, leave should be granted on grounds 1 and 1A and the appeal must be allowed.

Effect of 1991 transactions (grounds 3 and 4)

154 The High Court has made it clear that, although there is no universal rule, it is important for intermediate appellate courts to consider whether to deal with all grounds of appeal and not just the decisive ground or grounds.[89] The question arises whether, having found that the respondents' attempt to persuade the Court that they held the equitable interest in the subject land at the time of the second transfer amounts to an abuse of process, the Court should none the less proceed to enter into the merits of that issue on the footing that the abuse of process conclusion might subsequently be displaced by the High Court.

155 The case presents an unusual difficulty. The remaining grounds, which may be characterised as raising the substantive issue of the correctness of the Tribunal's stamp duty decision, were fully argued both before the primary judge and in this Court. But if the Court is of the opinion that such argument on the part of the respondents amounts to an abuse of process, to deal with the substance of the argument would perpetuate the abuse.

156 That is so, even though the Court would not be giving effect to any conclusion it reached on the substantive issue - by virtue of the abuse of process finding, the appeal must be allowed in any event. The determination of the disputed issues by

the Court would amount to an informal determination of the legal effect of the first and second transfers, to which determination it has been held that the respondents are not entitled. The same is true of the privity question in ground 2, the outcome of which turns on the determination of grounds 3 and 4. The position would be acute if this Court were to express the conclusion that the respondents held the equitable interest in the land at the time of the second transfer, contrary to the assessment of the Tribunal which would, by the Court's orders, be upheld. Such an outcome would bring the administration of justice into disrepute.

157 For these reasons, this is a case where it is not desirable for the Court to enter into the merits of arguments advanced on the appeal but which it is unnecessary to decide.

158 Leave to appeal should be granted and the appeal allowed. The order of the Tribunal rejecting the respondent's objection should be restored.

159 I have had the benefit of reading in draft the reasons for judgment of McLeish JA. I agree that there was no issue estoppel precluding the respondents from contending in the review of their stamp duty assessment that they held an equitable interest in the Berwick land ('land') under the instrument of transfer of land dated 28 December 1990 ('first transfer'). As will appear, my reasons for that conclusion differ from those given by McLeish JA and more closely accord with those of the primary judge.[90]

160 I also agree with McLeish JA that the respondents' reliance in the stamp duty proceeding on the first transfer as constituting an in specie distribution of trust property to them, rather than an acquisition by purchase, constituted an abuse of process. However, I have reached that conclusion for reasons that differ from his Honour.[91]

161 For the reasons given by McLeish JA, it is inappropriate to resolve grounds 3 and 4.

162 I would grant leave to appeal on grounds 1, 1A and 2 and allow the appeal.

163 The recitation of the facts by McLeish JA makes it unnecessary to set out all the facts, save to the extent necessary to explain my reasons.

164 On 28 December 1990, the first transfer was executed under the common seal of Kameel Pty Ltd ('Kameel') and it was premised on a distribution of corpus pursuant to the Mondous Family Trust Deed.

165 Two steps were taken to give effect to that instrument. First, in February 1991, Kameel's solicitor signed a 'Notice of Disposition of an Interest in Land' and lodged it with the Commissioner of Land Tax. The Commissioner of Land Tax (later, the Commissioner of State Revenue ('Commissioner')) acted on the basis of that notice by treating Kameel as having disposed of its interest in the land with the effect of reducing substantially the land tax payable by Kameel.

166 Second, the first respondent, Mr Mondous, made a statutory declaration in which he declared that the respondents were accepting the land in their own right pursuant to the distribution. Ad valorem stamp duty was thereby avoided and nominal stamp duty of $10 paid.

167 What then followed was a process of inconsistent dealing which purported to reverse or revoke the steps just described. Sometime in 1991, a backdated contract of sale was executed, which recorded a contract date of 28 December 1989 and a purchase price of $120,000, with $12,000 having been paid as a deposit and the balance payable on 28 December 1990 or within five years ('backdated contract of sale').

168 Notwithstanding this inconsistent course of conduct, the Commissioner was not advised that the respondents had purported to acquire the land by purchase rather than by way of trust distribution, nor was he advised that Kameel remained the registered proprietor of the land.

169 Subsequently, in 1999, as a result of the Commissioner becoming aware that Kameel remained the registered proprietor, enquiries were made by the State Revenue Office ('SRO') of both Kameel and the respondents. Those enquiries appear to have prompted action on the part of Kameel and the respondents.

170 The respondents executed an instrument of transfer of land dated 4 June 1999 ('second transfer') and in doing so relied on the backdated contract of sale. Mr Mondous, on behalf of the respondents on the one hand and on behalf of Kameel on the other, submitted to the SRO that, notwithstanding that Kameel had remained as registered proprietor during the period 1991 to 1999, it was not liable to pay land tax because the respondents were 'buyers in possession' of the land and therefore Kameel was no longer the owner of the land for the purposes of the Land Tax Act 1958.

171 Importantly, the second transfer was stamped with ad valorem duty in the amount of $3,400 calculated on the basis of the consideration stated in the second transfer. In August 1999, the respondents became the registered proprietors of the land.

172 By letter dated 14 December 1999, having considered a submission from Kameel that it had entered into a contract of sale of the land as vendor with the respondents as purchasers, the SRO advised Kameel that there was 'insufficient evidence to assess the property for land tax other than in the name of the registered owner Kameel.' It advised that the SRO would cancel all assessments for the land issued in the name of the respondents and issue assessments for Kameel as owner.

173 Subsequently, on 25 January 2000, amended assessments were issued to Kameel which included the land within the landholding of Kameel ('amended land tax assessments'). On 20 March 2000, Kameel objected to the assessments by way of a handwritten objection written by Mr Mondous.

174 On 20 March 2001, Mr Mondous's solicitors wrote a letter to the SRO with the subject heading 'Re: Kameel Pty Ltd ... and S & N Mondous'. That letter advised that the respondents had taken physical possession of the land in 1989 to commence construction of their principal place of residence. The following appeared in the letter:

We are instructed that the common intention was to distribute the property from the trust to S and N Mondous and documents were prepared to give effect to this intention. However, once the company's/trust accountants became aware of the transaction, they pointed out that as the trust in fact owed money to S and N Mondous, the transaction would result in the trust disposing of an asset whilst retaining a liability to S and N Mondous. It was therefore agreed to proceed by way of sale and that the sale price would be off-set against the loan accounts. There was no question of money having to exchange hands whether by way of deposit or otherwise as the trust owed money to S and N Mondous. The sum of $20,000 deposit was offset against the loan accounts on or before signing the contract.

175 On 29 January 2003, the solicitors wrote to the SRO on behalf of Kameel stating that their client formally objected to the amended land tax assessments which, it will be recalled, were issued on the basis that Kameel was the owner of the land. The letter further stated that the land was sold by way of a contract of sale dated 28 December 1989 and possession was given to the respondents with at least 15 per cent of the purchase price having been paid.

176 Kameel's objection was referred to the Victorian Civil and Administrative Tribunal ('first Tribunal'). In a witness statement dated 28 December 2012, Mr Mondous on 'behalf of Kameel' said that he was the manager of Kameel. The statement went on to say:

1. There is an existing stamped transfer in favour of S&N Mondous by distribution which was not acted on.
2. There is an existing contract of sale which pursuant to the contract, it is obliged to pay the deposit by 31 December 1989.

iv. There is a deposit paid exceeding 15% of the purchase price.

v. There is physical control and possession by the purchaser.

vi. There is a house being build [sic] and occupied by the purchaser.

177 It was then said 'all those facts comply with [ss 48 and 49] of the [Land Tax] Act.'

178 Kameel's statement of legal contentions in the first Tribunal proceeding commenced with the statement that the land 'should be exempt from land tax on the basis it was sold to S&N Mondous and possession taken since 1988.' The document went on to state that a deposit of $20,000 had been paid by way of deduction from the loan account between the respondents and Kameel.

179 In a later document filed in the Tribunal, titled 'Applicant's contentions and documents relied on', Kameel contended that the land was first transferred from Kameel to the respondents on 28 December 1990 by way of trust distribution. It was said that Kameel 'legally lost the ownership of the land from that date.' Kameel then advanced two alternative contentions: first, that Kameel had 'delivered the possession of the land and lost ownership' on signing the first transfer or, alternatively, when it entered into the backdated contract of sale.

180 It was said that Kameel 'in entering the contract of sale between Kameel Pty Ltd and [the respondents] ... acted only on Kameel Pty Ltd's accountant['s] advice only for accounting purposes.' However, the document went on to say that the contract was 'still on foot' and it 'was completed before the settlement due date'.

181 The document also included the following statement:

S&N Mondous could and will argue on the basis that S&N Mondous have a transfer executed by Kameel Pty Ltd and enforceable from the date it was stamped by the SRO dated 1990. Since that date, Kameel Pty Ltd has lost the right of the ownership of that land and the legal owner of that land became S&N Mondous it does not need to enter into a contract of sale at all to have full possession and ownership of the land.

182 Notwithstanding that the contention that the first transfer was valid and operative fell outside the terms of the objection lodged by Kameel, it was considered by the first Tribunal. As McLeish JA noted in his reasons, the first Tribunal found that the first transfer was ineffective or had been revoked[92] and that the backdated contract of sale was a sham on a number of bases, including that it had not been signed by Kameel as vendor and was not signed on the date which it bears and that there was no evidence the deposit had been paid.[93] Thus both of Kameel's alternative contentions failed.

183 Kameel sought leave to appeal to this Court. In its written submissions in support of leave, Kameel contended that there was an oral agreement between it and the respondents for the sale of the land and that the respondents occupied the land pursuant to that oral agreement. Those submissions record that:

Mr Mondous' evidence and admitted facts in the case establish that ... [his] subjective intention ... was that at some time prior to 31 December 1991, [Kameel] sold the land to him and his wife for a price of $120,000 with an initial deposit of $20,000 to be paid by reductions in debt owed by [Kameel] to [the respondents] and the balance to be paid on terms.

184 Importantly, the submissions go on to say that although Mr Mondous had testified that the land had also been distributed in specie as a trust distribution on or before April 1991, 'the Tribunal found that any such distribution had been immediately revoked. [Kameel] accepts this finding.'

185 The application for leave to appeal was thus predicated on the sole ground that the respondents were buyers in possession of the land for the purposes of ss 48 and 49 of the Land Tax Act.

186 On 29 August 2013, the Court refused leave to appeal.[94] In the course of refusing leave to appeal, Tate JA, with whom Hansen JA agreed, observed that in order to come within the exemption relied upon by Kameel, Kameel would need to establish an agreement for the sale of the land.[95] With respect to that requirement, her Honour observed that:

There was no challenge to the finding that the document dated 28 December 1989 was back-dated and could not have been executed on 28 December 1989 because the title particulars to which the contract referred were not known at the time. Nor was there any challenge to her Honour's finding that in 1990 the land was transferred to Mr and Mrs Mondous as a trust distribution, not a sale and it was only afterwards that the accountant suggested that the disposition should have been structured instead as a sale. The document dated 28 December 1989 was thus seeking, retrospectively, to convert a trust distribution into a contract of sale.[96]

187 With respect to her Honour, the first Tribunal did not conclude that the land had been transferred as a trust distribution but, in my view, nothing turns on that. It is clear that Kameel put its case in the Court of Appeal on the basis that there was an unwritten sale agreement between Kameel and the respondents and that the respondents were buyers in possession pursuant to that unwritten agreement. Leave to appeal was refused on the basis that this contention had not been advanced before the Tribunal.[97]

188 Once leave to appeal had been refused and the land tax proceedings completed, the issue of Kameel's liability for land tax for the years 1991 to 1999 had been conclusively determined.

189 No issue arose in the reviews of the amended land tax assessments as to the liability of the respondents for land tax.

190 Turning then to the question of stamp duty. The second transfer was liable to be stamped as an instrument for the conveyance of real property. Unless the conveyance fell within Exemption (10) under heading VI in sch 3 of the Stamps Act 1958,[98] duty would have been payable based on the value of the real property conveyed. In the case of a conveyance by sale, that value would be determined by either the consideration for the sale or the amount for which the real property might reasonably have been sold, free from encumbrances, in the open market on the date of sale, whichever of these two amounts was the greater.[99] Paragraph (b) under heading VI in sch 3 provides that in any other case, the value would be the amount for which the property might reasonably have been sold, free from encumbrances, in the open market on the date of the conveyance.

191 On 13 December 2013, the SRO advised the respondents that it had commenced an investigation into their compliance with the Stamps Act. To that point, they had paid nominal duty on the first transfer and $3,400 stamp duty on the second transfer.

192 By assessment dated 29 September 2014 issued under s 33 of the Stamps Act, and relying on the result of the first Tribunal proceeding, the Commissioner assessed the respondents on the basis that the first transfer and the backdated contract of sale were each ineffective. The Commissioner assessed stamp duty by reference to the second transfer instrument on the basis of a transfer by way of sale. The Commissioner declined to rely on the consideration stated in the backdated contract of sale and relied instead on a valuation of the land by the Valuer-General.

193 By letter dated 27 October 2014, under the hand of Mr Mondous, the respondents objected to the assessment. In their objection, the respondents contended that the first transfer was genuine and was stamped based on the correct dutiable value of the land in 1989; that the respondents had taken possession of the land under the first transfer and had built a private residence; and that in 1990, the respondents had entered into a 'vendor terms sale contract' with Kameel in respect of the land, with the transfer and settlement to occur in 1999. It follows that the respondents relied on the backdated contract of sale which they described as a 'vendor terms sale contract'. The respondents' objection failed and the assessment was upheld.

194 In the reasons for denying the objection, the delegate concluded that the first transfer was ineffective because it had been 'abandoned' for reasons that reflected, but which were not attributed to, the decision of the first Tribunal. The delegate further concluded that the second transfer was not as a result of a sale of the land because the backdated contract of sale was a sham. Again, the reasons largely reflected, but were not attributed to, the decision of the first Tribunal. As a result, the delegate concluded that the second transfer was a conveyance of real property, did not fall within Exemption (10), and was not by way of sale. The value of the land was therefore calculated in accordance with para (b) under heading VI in sch 3 of the Stamps Act.

195 The respondents sought review of the refusal of their objection in the Tribunal ('second Tribunal'). Before the second Tribunal, the respondents contended that the first transfer had been effective to transfer an equitable interest, and that Kameel had thereafter held the land as bare trustee until the registration of the second transfer in 1999.

196 In summary, in the first Tribunal proceeding (between Kameel and the Commissioner), the Tribunal found that there had not been a conveyance of an equitable interest under the first transfer as a step to concluding that Kameel remained liable as owner for land tax between 1991 and 1999.

197 In the second Tribunal proceeding (between the respondents and the Commissioner), the respondents, who had been assessed for stamp duty, sought to avoid the burden of the first Tribunal's finding and contend again that there had been a transfer of an equitable interest and that the legal and equitable interests were united by means of the registration of the second transfer.

198 The critical question is whether the respondents can, in the second Tribunal proceeding, run a case that Kameel had run and failed on in the first Tribunal proceeding. I will turn first to consider the Commissioner's second ground of appeal which relates to whether the respondents are estopped from challenging the first Tribunal's findings. I will then deal with the Commissioner's first ground which relates to abuse of process.

199 It is convenient to begin by examining the position of Kameel.

200 It was not in contest before us that issue estoppel and abuse of process can apply to the Tribunal[100] and can apply in the context of reviews of assessments for tax.[101] It is also not in contest, and was found by the primary judge, that the first Tribunal's findings that the first transfer was ineffective or had been revoked and that the backdated contract of sale was a sham were indispensable to the Tribunal's reasoning in affirming the amended land tax assessments. I proceed on that basis.

201 In the first Tribunal proceeding, Kameel was assessed for land tax on the basis that it was the registered proprietor and therefore owner of the land for the period 1991 to 1999. On that basis, Kameel would be estopped from re-litigating as against the Commissioner the effect of either the first transfer or the backdated contract of sale. Its liability for land tax had been fixed and that process necessarily involved a determination of whether, and in what way, Kameel was the 'owner' of the land for the purposes of the Land Tax Act.

202 The respondents would be bound by reason of issue estoppel by the findings in the first Tribunal proceeding if there was a privity of interest between them and Kameel in respect of that proceeding.

203 Relevantly, in the context of successive proceedings, privity will be established if A has some legal interest in the outcome of a proceeding which was represented in the proceeding by B.[102] There are two aspects that need to be examined. The first is whether the person said to be privy had a legal interest in the outcome. The second is whether the proceeding was conducted in a representative capacity.

204 The first aspect is to be considered by reference to the orders that are sought in the proceeding. It is the legal effect of those orders that is critical. An economic or other interest falling short of a legal interest is insufficient.[103]

205 The second aspect requires that B represent the legal interest of A in the conduct of the proceeding. The question whether B represented the legal interest of A is to be answered by reference to all of the circumstances, including whether A authorised the claim to be made on its behalf and the nature of the subsisting relationship between the two. The authorities recognise that the representative character will generally be present in a number of established cases. These include the relationship of trustee and beneficiary and principal and agent.[104]

206 Both aspects may be demonstrated by some of the examples examined in Tomlinson v Ramsey Food Processing Pty Ltd ('Tomlinson').[105] First, directors of a company, who also held shares in its parent company, were held not to be estopped from pursuing a later action to recover damages to compensate for a loss on their own account in circumstances where they had stood to gain financially from an earlier action by the company claiming damages for loss on the company's account.[106] That was despite the directors having been found to have exercised effective control over the company's conduct of that earlier action.

207 In Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd,[107] it was held that a mere economic interest was not sufficient to establish privity. That case was concerned with whether guarantors were privies of the guaranteed party (Trawl) on the basis that if Trawl had succeeded in its earlier claim, its success would have resulted in an award of damages which might have gone in reduction of Trawl's indebtedness to its bank and thereby ameliorated the guarantors' liabilities to the bank. Trawl and the guarantors shared a mutual economic interest in the success of Trawl's earlier claim, but mutual economic interests were insufficient to establish privity.[108]

208 Tomlinson itself provides another relevant example. In that case, the Fair Work Ombudsman brought a proceeding against an employer alleging an underpayment of amounts owing to employees under an industrial instrument. The Ombudsman sought an order that the amount of underpayment be paid to the appellant employee. The plurality found that, notwithstanding the form of order sought, the Ombudsman was not making a claim on behalf of the employee.[109] Their Honours did not make an express finding as to whether the employee had a legal interest in the outcome of the Ombudsman's proceeding. Given that the Ombudsman did not represent the employee's interest, and that the employee did not bring the action under or through the Ombudsman, it was unnecessary to determine that point.

209 In his reasons for judgment, Nettle J stated that it is necessary that a party and putative privy share the same legal interest. His Honour held that the employee 'did not have the same legal interest [as the Ombudsman] in the ... claim.'[110] In that regard, his Honour observed that the Ombudsman's statutory entitlement to seek an order for payment of the underpayment 'arose separately and distinctly' from the employee's statutory and contractual entitlement to be paid by his employer. Notwithstanding that the employee had a direct economic interest in the outcome of the Ombudsman's claim (in that the Ombudsman's success would have resulted in an order in his favour in the amount of the underpayment), the employee and the Ombudsman stood in a quite different legal relationship in relation to the amount owing by the employer.[111]

210 In order to address the question of whether the respondents had the same legal interest as Kameel in the outcome of the first Tribunal proceeding, it is necessary to pay close attention to the statutory scheme in which the decision arose.

The scheme of the Land Tax Act

211 The structure of the Land Tax Act follows a relatively familiar pattern adopted in taxing statutes. It was described by Bell and Gordon JJ in Commissioner of State Revenue (Vic) v ACN 005 057 349 Pty Ltd.[112] The Land Tax Act provided for both the imposition and assessment of land tax on the 'owner' of land. The issue of an assessment crystallised the amount of land tax payable by a land owner. The Act provided also for a system of objection and review, including review before the Tribunal.

212 The Commissioner's powers to issue assessments under the Land Tax Act were governed by ss 17 to 19 of that Act. Those powers included the power to issue assessments and amended assessments from time to time. Section 20 provided that the production of an assessment was 'conclusive evidence of the due making of the assessment' and that 'the amount and all the particulars of the assessment are correct'. Section 21 obliged the Commissioner to serve a notice in writing of the assessment.

213 A taxpayer dissatisfied with an assessment could object to the Commissioner under s 24A. In the event that the taxpayer was dissatisfied with the decision of the Commissioner on the objection, he or she was empowered to request the Commissioner to refer the decision to the Tribunal or to treat his or her objection as an appeal and to cause it to be set down for hearing in the Supreme Court.[113] Upon any review in the Tribunal, the burden of proving that the assessment was excessive lay upon the taxpayer.[114] The fact that a review was in train did not, in the meantime, interfere with or affect the assessment and tax could be made, levied and recovered on the assessment in the same manner as if no objection had been received and no appeal pending.[115]

214 Section 51 provided that, subject to other provisions of the Land Tax Act, the owner of any equitable estate or interest in land shall be assessed and liable in respect of tax as if the estate or interest was a legal estate or interest. However, that section provided for a deduction of any tax paid in respect of the land by the legal owner. Correspondingly, s 52 provided that where land was vested in a trustee, the trustee shall make returns and be assessed and liable as if the trustee were beneficially entitled to the land. Section 52(2) provided that the trustee shall be entitled to be repaid, by the owner of the equitable estate or interest, the amount he or she had paid and, in addition, shall have a right to be recouped out of relevant trust property.

215 It follows from the scheme of the Land Tax Act that a trustee could be assessed for and liable to pay land tax notwithstanding that the trustee owned the legal interest on behalf of a beneficiary. Having paid that land tax, the trustee was entitled to be repaid by the owner of the equitable estate or by way of an indemnity from the trust property, either through the operation of s 52 or in accordance with ordinary equitable principle.

Analysis: Ground 2: Issue estoppel - privity

216 The question for the first Tribunal on Kameel's objection to the amended land tax assessments was whether the assessments were excessive. The answer to that question determined the liability of Kameel to pay land tax in that amount to the Commissioner.

217 There would appear to be little doubt that the first Tribunal's findings in respect of Kameel's objection to the amended land tax assessments would have had an impact on the respondents as beneficiaries. The extent of the impact on the respondents of a liability being imposed on Kameel as trustee depended on the terms and nature of the trust on which Kameel held the land.

218 In the case of a discretionary trust in which a beneficiary has no entitlement to any trust property but only to the due administration of the estate, the impact on the beneficiaries will be indirect in that a liability imposed on the trustee will reduce the size of the corpus of the estate in the amount of the indemnity. On the other hand, the impact of a liability is more immediately apparent in the case of a bare trust in which the beneficiary has an entitlement to call for the trust property and the trustee's duty is to hold the property until the beneficiary calls for it. In the case of a bare trust, the trustee has a right to seek an indemnity not just from the trust assets but also from the beneficiaries personally.[116]

219 In my view, regardless of whether the respondents were objects of a discretionary trust or the beneficiaries of a fixed or bare trust, they were not relevantly privy in the determination by the first Tribunal of Kameel's objection to the amended land tax assessments. I do not regard the respondents as having, in either scenario, the necessary legal interest in the outcome of those reviews. In this respect, there was no error on the part of the primary judge.[117]

220 I respectfully differ from the analysis adopted by McLeish JA in the context of considering the abuse of process ground where his Honour concluded that, had there been a bare trust, privity would have been established.[118] This difference does not have any effect on the conclusion that we have both reached that there was no privity of interest between Kameel and the respondents in the first Tribunal proceeding. However, it is relevant to the analysis in respect of the abuse of process ground which I consider further below.

221 The liability to pay land tax was a personal liability of the trustee Kameel. Its right of indemnity ameliorated the economic burden on it as trustee, but that indemnity did not alter the legal character of the assessment. The ability to call on the trust property and, in the case of a bare trust, to call on the beneficiary was an economic consequence and was not a legal obligation imposed by the assessments themselves.

222 Even if I were wrong in finding that the respondents had no legal interest in the first Tribunal proceeding, I am of the view that Kameel was not, in conducting its reviews, representing the legal interest of the respondents. Kameel claimed that it held the land on trust for the respondents as a result of the distribution of trust corpus or, alternatively, that the land was, during the relevant period, subject to the backdated contract of sale and that the respondents were in possession under that contract. On the second scenario, Kameel as vendor did not hold the land on trust for the respondents as purchasers but rather the purchasers had an equity in the rights conferred by the contract.[119]

223 However, Kameel did not represent the legal interest of the respondents when it conducted the reviews. It was concerned to minimise its own liability to pay land tax through review processes available to it as the taxpayer to whom the Commissioner had issued the amended land tax assessments. Of course, it was obliged to act in the best interests of the beneficiaries, however, it did so by minimising its own land tax liability. The fact that, as a consequence, the Commissioner might later impose land tax on the respondents on the basis that they held a beneficial interest in the land or on the basis that they were buyers in possession did not mean that Kameel was not acting appropriately as trustee.

224 It follows that the respondents did not have the same legal interest in the findings of the first Tribunal which was represented in that proceeding by Kameel. The respondents were therefore not bound by the first Tribunal's findings by reason of an issue estoppel.

225 The conclusion that there was no privity, and therefore no issue estoppel, does not entail that there could be no abuse of process arising from the attempt to re-litigate the legal effect of the first transfer. Abuse of process is a broader concept than issue estoppel but it shares common foundations of finality and a recognition that re-litigation may work an injustice to opposing parties.

226 The abuse of process doctrine guards against the possibility of inconsistent decisions because they undermine finality and are oppressive to the party that has earlier obtained success. As Lord Pearce observed in Connelly v Director of Public Prosecutions, 'in civil cases the court has constantly had to guard against attempts to relitigate decided matters'.[120]

227 Finality is an essential feature of the administration of justice in courts and tribunals. Its importance in the context of tribunals is well-established.[121] It is reflected in the doctrines of res judicata, Anshun estoppel, issue estoppel, and in aspects of abuse of process. Relatedly, it underpins witness immunity[122] and advocates immunity,[123] and the restrictions on a court setting aside its own judgments.[124] It is not based on an assumption as to the objective correctness of the first decision.

228 I agree with McLeish JA for the reasons he gives that it is open to the Commissioner to rely on this ground in the appeal. It was not in dispute that the principles relating to abuse of process apply in respect of the Tribunal, a matter which is reflected in s 75 of the Victorian Civil and Administrative Tribunal Act 1998 itself.

229 The primary judge concluded there was no abuse of process for four reasons. The first was that the findings made by the first Tribunal concerning the first transfer were, in his Honour's opinion, wrong and that it would be unjust to shut the respondents out from litigating them in the stamp duty context.[125]

230 Second, the stamp duty assessment came some time after the second transfer was registered and after the first Tribunal decision and, in those circumstances, 'in making tactical decisions as to the objections to be pursued by the trustee in the land tax proceeding, Mr Mondous was deprived of the opportunity to consider his and Mrs Mondous's stamp duty position.'[126]

231 Third, duty had been paid on the first transfer on the basis that it was a distribution of the land in specie to the respondents by Kameel. If the first transfer remained effective at the time the second transfer was lodged for registration, it is arguable that the second transfer was exempt from stamp duty. It would not unduly oppress the Commissioner, or bring the administration of justice into disrepute, to allow Mr and Mrs Mondous the opportunity to have that argument determined by a court.[127]

232 Fourth, in relation to Mrs Mondous, there was no evidence of her involvement in the first Tribunal proceeding, and it could not be an abuse of process for her to now seek to have her day in court and dispute the correctness of the first Tribunal's findings concerning the first transfer.[128]

233 I have, with respect, come to a different conclusion to the primary judge. In my view, the respondents' reliance in the second Tribunal proceeding on the first transfer as passing an equitable interest to them constituted an abuse of the process of the Tribunal. As it applies in the present case, the essence of the abuse of process lies in the potential for two inconsistent decisions by the Tribunal on the operation of the first transfer in circumstances that are liable to bring the administration of justice into disrepute.

234 The inconsistency that the doctrine seeks to avoid is apparent in this case by comparing the findings of the first Tribunal in relation to the first transfer with the findings of the primary judge. The first Tribunal found that Kameel had not passed a beneficial interest to the respondents pursuant to the first transfer or that, by reason of later conduct, they could not rely on it as a basis for asserting an equitable interest in the land. As discussed above, the decision of the first Tribunal was the subject of an unsuccessful application for leave to appeal on a question of law.

235 By contrast, the primary judge found that there was an error of law on the part of the first Tribunal in relation to the first transfer and that the decision of the Tribunal was wrong.[129] The decision of the primary judge represented a collateral attack on the decision of the Tribunal for error of law in circumstances where an application for leave to appeal had failed. The issue is whether such an inconsistency would constitute an abuse of process.

236 The assessment of whether there is an abuse of process involves a balancing of a variety of factors and considerations.[130] In the case of re-litigation, it is necessary to consider the importance of the point to the first proceeding and how it was resolved, including whether the parties had both the opportunity and interest in fully litigating the issue. Given that, unlike in the case of issue estoppel, the parties will not be the same in the two proceedings, it will be important to examine the nature of interest that the parties to the second proceeding had in the earlier proceeding and the role played by them in that proceeding.[131]

237 In this case, the relevant factors, in my view, include the following:

(a) First, the issue that was settled by the first Tribunal was central to the question of ownership of the land and the nature of the instruments by which ownership moved from Kameel to the respondents.

(b) Second, the respondents were in control of both the first and second Tribunal proceedings.

(c) Third, although, in my view, the respondents did not have a legal interest in the outcome of the first Tribunal proceeding, in a more general sense the proceeding was brought for their benefit.

(d) Fourth, the respondents have advanced inconsistent and contradictory positions before the Commissioner, the Tribunal and this Court. That approach reflected a considered and deliberate course of conduct by the respondents and compounds the vice of inconsistent decisions.

(e) Finally, holding the respondents to the way the case was run and decided before the first Tribunal works no injustice to the respondents.

There is commonality of issue between the Tribunal proceedings

239 Turning to the first factor, the issue in the first Tribunal proceeding related to the ownership of the land, and attendant liability for land tax, during the years 1991 to 1999. The central issue in the second Tribunal proceeding was the legal effect of the second transfer, being the instrument that was liable to be assessed under the Stamps Act. The nature and effect of the transactions between the related parties (which, relevantly, were entered into under the control of the respondents) was central to both proceedings.

240 The primary judge held that the first Tribunal's findings concerning the first transfer, although steps along the way to the ultimate question of whether the amended land tax assessments were excessive, were central to the Tribunal's decision.[132] There is no challenge to that finding. There was no argument that the findings were merely incidental or collateral to the jurisdiction conferred on the Tribunal.[133]

241 In considering the centrality of the findings concerning the first transfer, it is relevant to note that the outcome of the first Tribunal proceeding would not have been any different even if the findings made by the primary judge had been made by the first Tribunal. Even if the first Tribunal had found that the first transfer was effective to distribute trust property and transfer beneficial interest to the respondents, Kameel would still be liable to pay land tax as owner under ss 51 or 52 of the Land Tax Act. The basis for the liability would have been different, but the amended land tax assessments would still have been upheld.

242 It would appear that Kameel, under the control of Mr Mondous, relied on the first transfer as part of its alternative case that there had been a transfer in specie. Its primary case was that it had sold the property to the respondents who were buyers in possession of the land. However, by tendering both issues for determination, Kameel was bound by the result.

243 In the second Tribunal proceeding, the respondents contended that the first transfer was valid and operative in order to establish that Kameel had held the land as bare trustee over the period 1991 to 1999. The issue concerning the effect of the first transfer was the same issue that Kameel had (unsuccessfully) agitated before the first Tribunal. The respondents did not tender any fresh evidence on this issue in the second Tribunal proceeding.

244 The decision of the New South Wales Court of Appeal in Rippon v Chilcotin Pty Ltd ('Rippon') is instructive.[134] In that case, the purchasers of a business sued the vendor in contract and in misrepresentation. They were unsuccessful in their misrepresentation case, and were awarded only modest damages in respect of the contract claim. The purchasers subsequently sued the accountants for what were, in substance, the same misrepresentations alleged in the first proceeding.

245 Handley JA (with whom Mason P and Heydon JA agreed) held that the proceeding against the accountants was an abuse of process because it 'threaten[ed] the integrity of the administration of justice and raise[d] the prospect of conflicting judgments.'[135] Handley JA found that the issue of the purchasers' reliance on certain financial statements was an ultimate issue in the first proceeding.[136] His Honour noted that the purchasers had not tendered any fresh evidence (in the technical sense) in the proceeding against the accountants, and that their claim turned on the evidence of a person who effectively controlled the purchasers and whose evidence had not been accepted in the first proceeding.[137]

246 Some analogy may be drawn between the facts in Rippon and the circumstances in this case. Here, the legal effect of the first transfer was central to the first Tribunal's decision and the respondents did not seek to tender any fresh evidence on this issue before the second Tribunal. Although the first and second Tribunal proceedings were brought by different applicants (Kameel and the respondents respectively), the respondents (particularly Mr Mondous) exercised control over the corporate trustee, Kameel.

The respondents exercised control over both Tribunal proceedings

247 The evidence clearly established that the conduct of the first Tribunal proceeding was controlled by Mr Mondous, and that he fully availed himself of the opportunity to put evidence and submissions on the transfer of ownership of the land and the instruments by which that transfer was said to have been effected. I refer, in particular, to Mr Mondous's witness statement of 28 December 2012 made on 'behalf of Kameel', the fact that he gave evidence for Kameel at the Tribunal hearing, and the earlier correspondence passing between him (and his solicitors) and the SRO, including his handwritten objection to the amended land tax assessments.

248 The position of Mrs Mondous might arguably be different in that there is little evidence that she actively made any decisions in the proceeding. However, I would comfortably draw the conclusion that, at the least, she was aware of the proceeding, that it was advanced in her interest, and that she acquiesced in that course.

The respondents controlled the relevant transactions and the first Tribunal proceeding was brought for their benefit

249 Relatedly, it is significant that the respondents were in control not only of both proceedings but also of both sides of the relevant transactions which, it may be safely inferred, were structured in a way as to maximise their overall benefit to the respondents. The decision to abandon the trust distribution before legal title had passed and to proceed by way of sale was made for fiscal reasons, having regard to the potential impact of Commonwealth taxation law. That decision was deliberate and put into effect by the preparation of the backdated contract of sale and the second transfer which was stamped (on the basis of a sale) and registered.

250 For the reasons given above at [219] and [221], I have found that the respondents did not have a legal interest in the outcome of the first Tribunal proceeding. However, as beneficiaries of the trust, they did have an economic interest in minimising Kameel's land tax liability. That was so even though a finding in Kameel's favour might have resulted in the Commissioner imposing a land tax liability on them.

251 On its application for leave to appeal, Kameel did not seek to allege any legal error on the part of the first Tribunal in relation to its conclusion as to the legal effect of the first transfer. Its failure to do so might have been explained on the basis that even if this Court had overturned that conclusion, it would not have produced any effect to reduce the land tax liability of Kameel on the proper construction of ss 51 and 52 of the Land Tax Act.

252 In those circumstances, to preclude the respondents from challenging that aspect of the first Tribunal's reasons might be thought unfair. However, it is to be borne in mind that the respondents controlled the conduct of the first Tribunal proceeding and that that proceeding was brought for their benefit. Kameel affirmatively ran its case before this Court on a basis that it accepted the findings of the Tribunal in relation to the first transfer. It was, in my view, an abuse of process for the respondents to re-litigate those findings in the second Tribunal proceeding.

The respondents have deliberately advanced inconsistent and contradictory positions

253 From time to time, the respondents have sought to advance contradictory positions in relation to transactions between them and the corporate trustee controlled by them, and they did so with an eye to the taxation implications. There is nothing untoward in that course but it is, in my view, relevant to the assessment of whether it was an abuse of process for the respondents to re-litigate the issue of the first transfer.

254 In the course of considering whether Exemption (10) had been made out, the primary judge noted the finding of the first Tribunal to the effect that Mr Mondous 'intended to revoke, renounce or abandon any effective distribution of the land in specie to Mr and Mrs Mondous under the first transfer.'[138] His Honour concluded that the subjective belief and intention of Mr Mondous was irrelevant to the question of whether the first transfer constituted a valid conveyance of the equitable interest in the land to the respondents.[139]

255 That much can be accepted. However, the subjective intention of the respondents to not proceed by way of accepting the trust distribution but by way of purchase under contract, and to advance a case by way of evidence and submissions on that basis before the first Tribunal and the Court of Appeal, is relevant to whether there is an abuse of process. Specifically, it is relevant to the question of whether it would be unjust to preclude the respondents from reverting to their alternative case, rejected by the first Tribunal, that there was a distribution of trust.

256 The extent to which the respondents proceeded in contradictory fashion is evidenced further in the conduct of their submissions on this application for leave to appeal. In seeking to overcome the argument as to privity, the respondents asserted that at the time of the first Tribunal proceeding they were no more than objects of a discretionary trust. Once that hurdle was overcome, they asserted that they were in fact, and had been since the first transfer, the holders of a beneficial interest in respect of which Kameel was a bare trustee. Unlike McLeish JA, I have concluded that there was no privity on either basis, however, the conduct of the argument demonstrates a willingness to present mutually contradictory positions as to both fact and law for the purposes of advancing their own position. In my view, this aspect of their inconsistent dealing is part of the matrix of factors that demonstrate that the attempt of the respondents in the second Tribunal proceeding to re-litigate was an abuse of process.[140]

257 Advancing alternative positions does not necessarily evidence an abuse of process. However, once the legal effect of the first transfer had been settled by the first Tribunal, to continue to re-litigate that issue would, in my view, constitute an abuse of process. To have the second Tribunal unwind the findings of the first Tribunal and proceed on an entirely different basis would engender a strong sense of injustice and impermanence in the decision of the first Tribunal.

258 In my view, holding the respondents to the result in the first Tribunal and in this Court works no injustice on them.

259 The extent to which injustice flows is not measured by an assessment of the correctness of the first Tribunal's decision, particularly in circumstances where the respondents took the opportunity to put evidence and submissions on behalf of Kameel in the first Tribunal proceeding.

260 The primary judge considered that, with the effluxion of time, the issue of stamp duty would not have been in the forefront of the respondents' minds when Kameel was prosecuting its land tax proceeding, and the respondents were therefore deprived of the opportunity to consider their stamp duty position when making tactical decisions in that proceeding.[141] However, neither Kameel nor the respondents are able to dismiss the evidence that was advanced before the first Tribunal, and the submissions made on that evidence, as simply tactical. Rather, as I have noted above, the respondents have deliberately sought to advance contradictory positions from time to time with an eye to the taxation implications.

261 Moreover, the measure of injustice to the respondents is not to be assessed by considering whether they could, if permitted, successfully impugn the findings of the first Tribunal concerning the first transfer. Such an approach gives insufficient weight to the principle of finality that underpins the doctrine of abuse of process and the spectre of inconsistent decisions. It would suggest that the outcome of the first Tribunal proceeding was a lottery.[142]

262 If the respondents were allowed to re-litigate that point, it would permit them to advance the position that they had deliberately and unequivocally abandoned when they took steps to execute and rely on the backdated contract of sale and to execute the second transfer and submit it as a conveyance by sale.

263 In my view, that course would constitute an abuse of process.

264 For the reasons given by McLeish JA, it is inappropriate to resolve these grounds.

265 The Commissioner should have leave to appeal, and the appeal should be

allowed. I agree with the disposition proposed by McLeish JA.

[1] Stamps Act 1958 sch 3 heading VI exemption (10) ('Exemption (10)'); Re Ralara Pty Ltd v Comptroller of Stamps (Vic) (1992) 24 ATR 1133, 1140-2 [16]-[23] (Member Nettle) ('Ralara').

[2] The judge in the Trial Division found that they had: Mondous v Commissioner of State Revenue [2017] VSC 416 [11] ('Reasons'). However, the version provided to us did not include these signatures. Counsel for the Commissioner suggested there may have been a page missing from that version. In any event, no party contended that it mattered whether the respondents also signed the transfer in their personal capacities.

[6] No explanation for the delay between the disallowance of the objections in 2005 and the VCAT hearing in 2013 was provided.

[7] Kameel Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2013] VCAT 1320 ('Land Tax Reasons').

[8] [2007] VSCA 140; (2007) 23 VR 474.

[9] Kameel Pty Ltd v Commissioner of State Revenue (Unreported, Supreme Court of Victoria, Court of Appeal, Hansen and Tate JJA, 29 August 2013).

[10] Stamps Act 1958, sch 3 heading VI.

[12] Mondous v Commissioner of State Revenue (Review and Regulation) [2016] VCAT 1343 ('VCAT Reasons').

[20] Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 531 (Dixon J).

[26] Reasons [101], citing Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 522 [35] (French CJ, Bell, Gageler and Keane JJ) ('Tomlinson'); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 319 ALR 709, 730-2 [102]-[111] (Murphy JA).

[28] Reasons [106], referring to Haines v Australian Broadcasting Corporation [1995] NSWSC 136; (1995) 43 NSWLR 404, 414 (Hunt CJ at CL) ('Haines').

[30] Reasons [116], citing Bank of Credit and Commerce International SA v Ali [2001] UKHL 8; [2002] 1 AC 251, 269 (Lord Hoffmann), quoted in Lewison, The Interpretation of Contracts (Sweet & Maxwell, 6th ed, 2015) 425 [7.16].

[31] Reasons [118]-[119], citing provisions including cl 17(2) of the trust deed, which permitted the trustee to exercise powers in writing signed by the trustee or by resolution.

[32] Reasons [121]-[124]. Those conclusions are either not pressed by the Commissioner or replicate reasoning of the first Tribunal already canvassed.

[33] Reasons [105], citing Ralara (1992) 24 ATR 1133, 1140-2 [16]-[21] (Member Nettle).

[34] In support of this finding, the judge cited High Court authority to the effect that material extrinsic to an instrument can be considered in determining the legal operation of that instrument: Reasons [136]-[139], citing Commissioner of Stamp Duties (Qld) v Hopkins [1945] HCA 14; (1945) 71 CLR 351, 360 (Latham CJ), 369 (Rich J), 378 (Dixon J).

[37] Reasons [135], [140]. That was found to be true irrespective of whether there was also an oral contract for the sale of the land: [143].

[39] The exemption is set out at Reasons [52] and discussed at Reasons [126]-[128]. At trial, too, it was accepted by the parties that the only issue in respect of Exemption (10) was whether the second transfer was a conveyance of the land to the respondents in their capacity as beneficiaries of the trust: see Reasons [53], [59].

[40] Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ).

[41] The Commissioner's solicitor wrote to Mr and Mrs Mondous in 1999 (during Mrs Mondous's tenure as a director) and stated what the solicitor believed both respondents to have been asserting in respect of their ownership of the property, based on what Mr Mondous had told the solicitor that day, namely that they 'owned' the land for land tax purposes pursuant to a sale; an objection was lodged on 27 October 2014 on the letterhead of both respondents, arguing in favour of the sale contention; and letters dated 29 January 2003 letters from Comito & Co, one as solicitors for the trustee, and the other as solicitors for the respondents, indicated that Mr Mondous alone was representing not only Kameel, despite Mrs Mondous still being a director at that time (in one letter), but also both the respondents (in the other).

[43] Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271, 279 (Barwick CJ); Tomlinson [2015] HCA 28; (2015) 256 CLR 507, 521-3 [31], [33], [35]-[38] (French CJ, Bell, Gageler and Keane JJ); Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212, 231 [36], 236 [54], 239-40 [68] (French CJ, Kiefel, Keane and Nettle JJ) ('Timbercorp'); Timbercorp Finance Pty Ltd (in liq) v Collins [2016] VSCA 128 [160]-[172] (Warren CJ, Santamaria and McLeish JJA) ('Timbercorp'). See also Reasons [88]-[90].

[44] [2008] FCAFC 128; (2008) 169 FCR 241, 256-7 [41], 258 [50] (Weinberg, Bennett and Edmonds JJ). See also Federal Commissioner of Taxation v Raptis [1989] FCA 381; (1989) 19 ALD 726, 728 (Gummow J).

[45] Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 35 ALR 186, 193-4 (Bowen CJ); Comcare v Fiedler [2001] FCA 1810; (2001) 115 FCR 328, 338 [39] (Drummond, Kiefel and Dowsett JJ); Repatriation Commission v Warren [2008] FCAFC 64; (2008) 167 FCR 511, 529-30 [78] (Lindgren and Bennett JJ); Toia v Minister for Immigration and Citizenship [2009] FCAFC 79; (2009) 257 ALR 237, 247-8 [52]-[58] (Stone and Jacobson JJ).

[46] See, eg, Secretary to the Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68; (2009) 22 VR 66, 75 [24] (Beach J); Medical Practitioners Board of Victoria v Lal [2009] VSCA 109; (2009) 23 VR 702, 713 [41] (Maxwell P, Weinberg JA and Kyrou AJA). See also Transport Accident Commission v Bausch [1998] 4 VR 249, 263-6 (Tadgell JA, Batt and Buchanan JJA agreeing); Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422, 434 [41] (Warren CJ, Maxwell P and Osborn AJA).

[47] See, eg, Harplex Pty Ltd v Konstandellos [2018] VSCA 67 [66]-[67] (McLeish and Hargrave JJA and McDonald AJA), citing Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ) and Vlahos Pty Ltd v Vlahos [2017] VSCA 166 [49]-[51] (Kyrou JA, Tate and McLeish JJA agreeing).

[48] Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 531 (Dixon J); Tomlinson [2015] HCA 28; (2015) 256 CLR 507, 517 [22] (French CJ, Bell, Gageler and Keane JJ).

[49] Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271, 279 (Barwick CJ); Tomlinson [2015] HCA 28; (2015) 256 CLR 507, 515 [17] (French CJ, Bell, Gageler and Keane JJ).

[50] Tomlinson [2015] HCA 28; (2015) 256 CLR 507, 521-2 [33].

[51] Ibid 522 [35] (citations omitted).

[52] (2016) 259 CLR 212, 236 [54] (citations omitted), quoting Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271, 273-4, 279 (Barwick CJ).

[53] Tomlinson [2015] HCA 28; (2015) 256 CLR 507, 524 [40] (French CJ, Bell, Gageler and Keane JJ), 539 [95]-[96] (Nettle J); Timbercorp (2016) 259 CLR 212, 233-4 [45] (French CJ, Kiefel, Keane and Nettle JJ).

[54] Kennon v Spry (2008) 238 CLR 366, 393-4 [74]-[78] (French CJ), 408 [125] (Gummow and Hayne JJ), 417-18 [160]-[161] (Heydon J).

[55] Tomlinson [2015] HCA 28; (2015) 256 CLR 507, 522 [35] (French CJ, Bell, Gageler and Keane JJ).

[56] [1993] FCA 342; (1993) 43 FCR 510 ('Effem Foods').

[57] Tomlinson [2015] HCA 28; (2015) 256 CLR 507, 522 [35].

[58] Effem Foods [1993] FCA 342; (1993) 43 FCR 510, 520 (Northrop and Lee JJ).

[60] Ibid 526, 528 (Northrop and Lee JJ), 542 (Burchett J).

[62] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 256 (Mason CJ); Tomlinson [2015] HCA 28; (2015) 256 CLR 507, 518-19 [24]-[26] (French CJ, Bell, Gageler and Keane JJ), 526 [48] (Nettle J).

[63] Tomlinson [2015] HCA 28; (2015) 256 CLR 507, 518-19 [24]-[26] (French CJ, Bell, Gageler and Keane JJ); Timbercorp [2016] VSCA 128 [2]-[8] (Warren CJ, Santamaria and McLeish JJA).

[64] Haines [1995] NSWSC 136; (1995) 43 NSWLR 404, 414 (Hunt CJ at CL).

[65] See [57] above.

[66] See [27] above.

[67] [2015] HCA 28; (2015) 256 CLR 507, 518 [24]-[25].

[68] Ibid 518-19 [25], citing Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256, 262 [1], 265 [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ) ('Batistatos') and PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384, 385-6 [3] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

[69] See, eg, D'Orta-Ekeniake v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, 28 [74] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Batistatos [2006] HCA 27; (2006) 226 CLR 256 [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

[70] [2015] HCA 28; (2015) 256 CLR 507, 519 [26] (citations omitted).

[71] [2013] NSWCA 315; (2013) 85 NSWLR 698, 722-4 [99]-[111] ('O'Shane'). The Tomlinson judgment referred also, as being to similar effect, to: Reichel v Magrath (1889) 14 App Cas 665 and Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46; [2014] AC 160, 185 [25] (Lord Sumption JSC) (explaining Johnson v Gore Wood & Co [2002] 2 AC 1).

[72] [2013] NSWCA 315; (2013) 85 NSWLR 698, 724 [109].

[73] [2000] NSWCCA 528; (2000) 159 FLR 260, 289-92 [101]-[109] ('O'Halloran').

[75] [2013] NSWCA 315; (2013) 85 NSWLR 698, 724-5 [112].

[76] O'Halloran [2000] NSWCCA 528; (2000) 159 FLR 260, 289 [98] (Heydon JA, Spigelman CJ and Mason P agreeing); O'Shane [2013] NSWCA 315; (2013) 85 NSWLR 698, 724-5 [109]-[112] (Beazley P).

[77] See eg, Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130, 154-5 [97] (Robson AJA, Neave and Harper JJA agreeing); Timbercorp [2016] VSCA 128 [228] (Warren CJ, Santamaria and McLeish JJA); Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198, 204 [32] (Handley JA, Mason P and Heydon JA agreeing); O'Halloran [2000] NSWCCA 528; (2000) 159 FLR 260, 291 [107] (Heydon JA, Spigelman CJ and Mason P agreeing); State Bank of NSW v Stenhouse Ltd [1997] Aust Torts Reports [81-423] 64,077, 64,089 (Giles CJ).

[78] (1889) 14 App Cas 665.

[79] See [26] above.

[81] Hardoon v Belilios [1900] UKPC 66; [1901] AC 118, 123-4 (Lord Lindley); Balkin v Peck (1998) 43 NSWLR 706, 713 (Mason P, Priestley JA and Sheppard AJA agreeing); JW Broomhead (Vic) Pty Ltd (in liq) v JW Broomhead Pty Ltd [1985] VicRp 88; [1985] VR 891, 936-7 (McGarvie J); JD Heydon and MJ Leeming, 'Jacobs' Law of Trusts in Australia' (8th ed, 2016) 514-5; A Terzic, 'Subrogation to the Trustee's Personal Right of Indemnity' (2017) 91 ALJ 736, 737-8.

[82] Balkin v Peck (1998) 43 NSWLR 706, 714 (Mason P, Priestley JA and Sheppard AJA agreeing).

[85] [1995] NSWSC 136; (1995) 43 NSWLR 404.

[88] Haines has been relied upon as authority for taking into account the merits of the prior decision in cases where that decision has been said to be correct (as happened in Haines itself): Stoops v Lefus [2016] VSC 350 [82], [112] (Cavanough J); Davey v Ron Farris Real Estate Pty Ltd [2000] WASCA 58 [5], [25] (Templeman J, McKechnie J agreeing); Erratt v Grills [2015] NSWSC 594 [98]-[99] (Lindsay J).

[89] Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260, 300-1 [105] (Gleeson CJ, Gummow, Heydon and Crennan JJ); Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1, 6 [12] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (rcvrs and mgrs apptd) [2011] HCA 18; (2011) 244 CLR 1, 20 [56] (Gummow, Heydon, Crennan, Kiefel and Bell JJ).

[90] See [219]−[221] of my reasons.

[91] See [233]−[263] of my reasons.

[92] Kameel Pty Ltd v Commissioner of State Revenue [2013] VCAT 1320 [93]−[96].

[94] Kameel Pty Ltd v Commissioner of State Revenue (Unreported, Supreme Court of Victoria, Court of Appeal, Hansen and Tate JJA, 29 August 2013).

[96] Ibid [24] (emphasis in original) (citations omitted).

[98] As explained in the reasons of McLeish JA, Exemption (10) applies to the conveyance of land comprising trust property from a trustee to a beneficiary of the trust when certain conditions are met.

[99] Stamps Act 1958, sch 3 heading VI para (a).

[100] Walton v Gardiner (1993) 177 CLR 378, 395 (Mason CJ, Deane and Dawson JJ), 406 (Brennan J), 421 (Toohey J); Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434, 443 [25] ('Coffey'); Stoops v Lefas [2016] VSC 350 [66]−[70] ('Stoops').

[101] See Hoysted v Federal Commissioner of Taxation [1925] UKPCHCA 3; (1925) 37 CLR 290; Queensland Trustees Ltd v Commissioner of Stamp Duties (Qld) [1956] HCA 75; (1956) 96 CLR 131, 138 (Dixon CJ), 144−5 (Webb J), 151−2 (Kitto and Taylor JJ); IEL Finance Ltd v Federal Commissioner of Taxation [2006] FCA 267; (2006) 62 ATR 165, 201−6 [71]−[81], 209−11 [89]−[92]. Cf Caffoor v Commissioner of Income Tax, Colombo [1961] AC 584; Spassked v Federal Commissioner of Taxation [No 2] [2007] FCAFC 205; (2007) 165 FCR 484.

[102] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 521−2 [33] (French CJ, Bell, Gageler and Keane JJ).

[103] Ibid 522 [35] (French CJ, Bell, Gageler and Keane JJ).

[104] Ibid 524 [40] (French CJ, Bell, Gageler and Keane JJ).

[106] Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (in liq) [1993] FCA 342; (1993) 43 FCR 510, cited in Tomlinson [2015] HCA 28; (2015) 256 CLR 507, 522 [35] (French CJ, Bell, Gageler and Keane JJ).

[107] [1992] FCA 272; (1992) 36 FCR 406.

[109] Tomlinson [2015] HCA 28; (2015) 256 CLR 507, 525−6 [44]−[46] (French CJ, Bell, Gageler and Keane JJ).

[112] (2017) 91 ALJR 349, 355−9 [24]−[46].

[113] Land Tax Act 1958 s 25(1).

[116] Balkin v Peck (1998) 43 NSWLR 706, 713 (Mason P, Priestley JA and Sheppard AJA agreeing).

[117] See Mondous v Commissioner of State Revenue [2017] VSC 416 [99]−[101] ('Reasons').

[118] Reasons for judgment of McLeish JA at [131], [139],[141].

[119] See Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489, 523 (Deane and Dawson JJ); Mercier Rouse Street Pty Ltd v Burness [2015] VSCA 8 [94]−[97] (Santamaria JA).

[120] [1964] AC 1254, 1361.

[121] Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ), citing Reichel v Magrath (1889) 14 App Cas 665, 668; Coffey [1999] FCA 375; (1999) 86 FCR 434, 443 [25]; Stoops [2016] VSC 350 [66]−[70].

[122] Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, 139 (Rich ACJ).

[123] Giannarelli v Wraith (1988) 165 CLR 543, 558 (Mason CJ), 574 (Wilson J), 594−5 (Dawson J); D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, 17−18 [34]−[36], 20−1 [45] (Gleeson CJ, Gummow, Hayne and Heydon JJ).

[124] Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12; (2018) 92 ALJR 399, 416 [69].

[130] _Walton v Gardiner (_1992) 177 CLR 378, 395−6 (Mason CJ, Deane and Dawson JJ).

[131] State Bank of NSW v Stenhouse Ltd [1997] Aust Torts Reports [81-423] 64,089 (Giles CJ).

[133] Cf Re Jackson; Ex parte the Amalgamated Engineering Union (Australian Section) [1937] NSWStRp 53; (1937) 38 SR (NSW) 13, 17 (Jordan CJ); Cachia v Isaacs (1985) 3 NSWLR 366, 389 (McHugh JA); The Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 [33]−[38], [56] (Meagher JA, with whom Leeming and Simpson JJA agreed).

[134] [2001] NSWCA 142; (2001) 53 NSWLR 198.

[137] Ibid 200 [8], 203−4 [30], 204−5 [34]−[35].

[140] Reasons of McLeish JA [142]−[143].

[142] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 267 (Brennan J).