Commissioner of State Revenue v Viewbank Properties Pty Ltd [2004] VSC 127

STATUTES INTERPRETATION - Construction - Whether s. 67A(3)(a) of the Stamps Act 1958 to be construed literally according to its plain ordinary and natural meaning - Whether literal construction productive of absurd irrational or capricious results - Stamps Act 1958, ss. 67A(3)(a)(i), (ii) and (iii).

2. This is an application pursuant to s. 148 of the Victorian Civil and Administrative Appeals Tribunal Act 1996 for leave to appeal on a question of law from an order of the Tribunal made on 11 June 2003.

5. The effect of the order was to reduce by $126,500 to nil the duty assessed pursuant to s. 67A of the Stamps Act 1958[1] upon a transfer of land from Pilgrim Court Holding Pty Ltd to Viewbank Properties Pty Ltd, as to one half share, Prilo Pty Ltd, as to one quarter share and AJF Investments Pty Ltd, as to one quarter share, as tenants in common.

8. The Tribunal found that the transfer was executed pursuant to a contract of sale of land entered into by Greg Hargrave as agent for and with the written authority of Viewbank Properties Pty Ltd, Prilo Pty Ltd and AJF investments Pty Ltd and, on that basis, that the transfer came within the exemption in s. 67A(3)(a)(i) of the Act3.

11. The questions of law are in substance whether the Tribunal erred in its construction of the s. 67A(3)(a)(i) and whether it was open to the Tribunal to hold that the exemption applied.

15. The facts as found by the Tribunal were as follows:

"3. On 1 October 1999 Greg Hargrave entered into an agreement with the vendor of the Windsor property. It revealed that the vendor was prepared to sell the property for $2.3 million. There was a special condition that Greg Hargrave was purchasing the property as agent for other parties and that the contracts to be signed, if the matter proceeded, would be entered into with the parties nominated by him. This was the first such deal that Greg Hargrave had participated in. 4. On 8 October 1999 the three effective purchasers - Frank Hargrave, Adrian Field and Russell Small - executed a document authorising Greg Hargrave to enter into a contract of sale to purchase the property in his name but subject to the right to nominate substitute purchasers. The document recorded that 'We, the undersigned, authorise you [Greg] to enter into a contract of sale in your name but subject to the right to nominate substitute purchaser/s to purchase the above-mentioned property' subject to terms and conditions that were stipulated and went on to say that 'as between us the underlying beneficial interests in the property will be in the following proportions' - interests representing the Frank Hargrave family - 50%; interests representing the Adrian Field family - 25%; and interests representing the Russell Small family - 25%. 5. On 12 October 1999 Greg Hargrave executed a contract of sale to purchase the property for $2.3 million. The purchaser was referred to as 'Greg Hargrave and/or nominee'. 6. On 20 December 1999 a sale of real estate nomination form was executed under which Prilo, AJF Investments and Viewbank were nominated as purchasers of the property. The nomination was signed by Greg Hargrave personally, by Russell Small on behalf of Prilo, by Adrian Field on behalf of AJF Investments, and by Greg Hargrave on behalf of Viewbank. 7. On 20 December 1999 a transfer of land was executed by Viewbank, Prilo and AJF Investments as transferees as to one half share, and one quarter share and a one quarter share respectively as tenants in common. 8. On 14 February 2000 the National Australian Bank acting as an agent of the Commissioner with authority to endorse the transfer with the appropriate amount of stamp duty, stamped the transfer with duty of $9,460. On 23 July 2001 the SRO issued an assessment for the amount of $171,987.10 constituted by two lots of duty, $126,500, one part of which had been paid, plus penalty duty of $12,117 and interest of $6,870.10. 9. At the hearing each of the four people involved in the purchase referred to above gave evidence and was cross-examined, together with Mr Efklides. He acted for the Hargrave interests. Kligers acted for the other 'purchasers'. The Hargraves were used to getting advice from Mr Efklides and their accountant and they in turn had a professionally qualified accountant operating in house. 10. One thing that is quite clear from the evidence is that it was never intended that Greg Hargrave would be the purchaser. Another thing that is quite clear is that from a time before the contract of sale was entered into, the property was in substance being brought for the three families in the proportions I have referred to above. It is also clear that there was a lot of discussion between the parties and their various advisers and consultants about the various ways in which the transaction might be structured. It is I think also clear that the parties regarded the corporate or trust structure, or proposals for co-ownership, as incidental - that is, as matters of form rather than substance. Finally, it is clear that the three effective purchasers armed Greg Hargrave with complete moral authority to enter into the contemplated contract on their behalf and on behalf of the corporate entities that would become the legal as distinct from the beneficial owners of the property."

20. On the basis of the findings just set out, the Tribunal held that:

"13. At all times relevant to the assessments, it was the intention of all of the parties engaged in purchasing the property (in addition, I think, to the vendor) that although the contract showed Greg Hargrave as the nominal purchaser, the property would in truth be acquired by interests representing the three families in the proportions I have described. This is what happened. The authority of Greg Hargrave of 8 October 1999 correctly reflected the intentions of the ultimate purchasers and was an adequate and accurate authority to enable Greg Hargrave to enter into the contract that he did in order to achieve the mutually sought after result. 14. It is therefore clear that in entering into the contract of sale, Greg Hargrave did so as the agent for others. He had the authority in writing of the transferees at least in the sense that he had a written authority from each of the three people who could bind 'any interests' representing his family. He had authority from the people who did or would control any relevant corporate entity. To the extent to which he was going to rely on an authority from a corporation, it was more likely than not that any such authority would only be given by an agent of the corporation since corporations normally only act through agents 15. The question then is whether the statutory provision (ss. (3)(a)(i)) should be interpreted literally so that it only applies if the authority is in writing form the transferees directly, or whether it should be interpreted more liberally so that it applies if the authority is in writing from either the transferee or an authorised agent of the transferee (whether or not the transferee had by then been formally created). The first interpretation would not further be (sic) expressed purposes of the law and would not to my mind operate by reference to a rational premise in the context of the extensive and recognised use of corporate and trust entities in the acquisition of real property in this state. The second interpretation would further the expressed purpose of the exemption and is to my mind consistent with the scheme of the exemptions generally, especially the references to companies yet to be incorporated and trusts recorded in writing on or before the entering into the agreement. 16. I do not think it would be right to treat the requirement of written authority in this head of exemption (section 67A(3)(a)(i)) as if it were latter day Statute of Frauds that could and should be invoked in all its strictness - section 127 as well as section 126 of the Instruments Act - by the Crown against its loyal subjects so as to double the levy of tax in circumstances where it is impossible to say that the parliament - the one organ of ours constitutionally capable of making a law to levy a tax - would have intended to do so. This is not in my opinion, an appropriate case for the Crown to put pedantry over equity. Once this statutory requirement of authority in writing of the transferee is interpreted to include an authority from an authorised agent of the transferee - as it appears to me must most usually be the case with corporations - then in my view the exemption is satisfied in this case. 17. The problem arises here not just because of the use of the nominee clause but because of the delay in selecting the appropriate corporate vehicle... 20. In truth, the Parliament chose a very blunt weapon when it passed s. 67A to attack a form of tax-avoidance. Instead of attacking the abuse of the device, it imposed a double tax on the device itself, but gave exemptions to the sort of family arrangements it thought would not be exercises in tax avoidance. Unless those exemptions are sensibly operated, taxpayers may suffer undue collateral damage. In my view the language is sufficiently opaque or openly textured to permit a standard method of interpretation of statutes to be invoked in order to avoid that result. 21. Since the case may not stop here, I will briefly state my views on the other issues. * Greg Hargave was in my view the first purchaser in terms of the law. * I have an open mind on whether apportionment of an assessment of tax can be effected in this context. * The exemption in (a)(iii) does not apply because there was no relevant trust recorded. * The exemption in (d) does not apply because there was no separately dutiable instrument for the purposes of Exemption (17)."

25. The Commissioner contends that s. 67A is to be construed according to the plain and ordinary meaning of its terms and on that basis that it was not open to conclude that Greg Hargrave was acting on behalf of the transferees within the meaning of the section. In the Commissioner's submission the evidence showed that the identity of the transferees had not been determined at the time when Greg Hargrave entered into the contract and therefore it could not have been concluded that Greg Hargrave was acting as their agent. The Commissioner accepts that each of Francis Hargrave, Adrian Field and Russell Small had decided that his family would participate in the venture, and had agreed upon the percentage participation which his family would take up in the venture, and signed the authority of 8 October 1999 as evidence of the existence of that arrangement. But the Commissioner contends that, so far as the evidence goes, none had decided by the time of entry into the contract whether his family's share would be held in his name or in the name of a family company or whether instead the land would be placed in a joint operating company or trust in which shares or interests might be distributed among the families or the family companies according to the percentage interest of each family.

28. The Commissioner submits that the position is even plainer in the case of Viewbank Properties Pty Ltd, because that company did not come into existence until after Greg Hargrave had entered into the contract. It was not incorporated until 16 December 1999, months after the contract and only about one month before the transfer was executed.

31. Additionally, the Commissioner argues that even if the circumstances of some of the transferees were such as to engage one or other exceptions provided for in s. 67A(3), that is not so of all of the transferees, and the exceptions are incapable of application unless applicable to all of the transferees.

34. The respondents resist the application for leave to appeal with a number contentions of their own. Their first and principal argument is that regardless of whether the Tribunal was right or wrong in what it said about the construction of s. 67A, the Tribunal was bound in any event to conclude that the transfer was not dutiable under s. 67A and therefore that any appeal would be bound to fail. The essence of that contention is that Greg Hargrave entered into the contract of sale as trustee for interests representing the Francis Hargrave family, the Adrian Field family and the Russell Small family, and consequently in effect as trustee for each of the transferees within the meaning of s. 67A(3)(a)(iii).

37. The respondents next contend that even if s. 67A(3)(a)(iii) is not applicable, they have the benefit of a finding in paragraph 14 of the Tribunal's reasons, which they say was adequately supported by the evidence, that Greg Hargrave:

"...had the authority in writing of the transferees at least in the sense that he had a written authority from each of the three people who could bind `any interests' representing his family. He had authority from the people who did or would control any relevant corporate entity. To the extent to which he was going to rely on an authority from a corporation, it was more likely than not that any such authority would only be given by an agent of the corporation since corporations normally only act through agents."

On that basis the respondents submit that regardless of whether one takes a "liberal" or "literal" view of the meaning of s. 67A(3)(a)(i), Greg Hargrave was properly found to have entered into the contract as agent for the transferees within the meaning of s. 67A(3)(a)(i) and therefore that the transfer was not separately chargeable with duty under the section.

42. Alternatively, the respondents contend that if Greg Hargrave did not have the authority in writing of the transferees to enter into the contract of sale, the transferees have since ratified his actions and thus as a matter of the law of contract (and hence revenue law[3]) he is deemed to have acted with authority of the transferees.

45. Next, the respondents say that if and in so far as it may be thought to have made a difference that Viewbank Properties Pty Ltd was not incorporated until after Greg Hargrave entered into the contract of sale, according to the evidence it is plain that he entered into the contract for the benefit of Viewbank Properties Pty Ltd and that Viewbank Properties Pty Ltd subsequently ratified the contract and became bound by it as a result of s. 131 of the Corporations Law (as it was at the time), or alternatively that Greg Hargrave entered into the contract in anticipation of the incorporation of Viewbank Properties Pty Ltd and that his father, Frank Hargrave, held a bona fide beneficial interest in that company at the time of the transfer, so as to attract the operation of s. 67A(3)(a)(ii).

48. Finally, the respondents contend that even if upon a literal construction of s. 67A(3)(a)(i) any of the foregoing contentions would fail, the Tribunal was correct to eschew the plain and ordinary meaning of the provision (in favour of what the Tribunal conceived to be a more liberal approach to construction) and that as so construed it is enough to attract the operation of the section that an agent who enters into the contract has authority in writing from either the transferee or an authorised agent of the transferee (notwithstanding that the transferee may not have been created at the time of the contract of sale or even identified in terms other than of an interest or interests associated with the authorisor). The respondents submit it is clear that by the time of Greg Hargrave's entry into the contract of sale Frank Hargrave, Adrian Field and Russell Small had reached agreement that the property would be acquired by "interests representing the three families in specified proportions" and that Greg Hargrave held authority in writing from each of those three men, "being people who could bind `any interests' representing his family".

53. It is convenient to begin with the respondents' trust contention, if only because it was put forward on the basis that if accepted it would render unnecessary the consideration of any of the other questions agitated in the course of argument.

56. The authority of 8 October 1999 was in the following form:

"AUTHORITY

Mr Greg Hargrave 850 Whitehorse Road BOX HILL VIC 3129 Dear Greg, Re: 23-27 Wellington Street, Windsor We the undersigned authorise you to enter into a Contract of Sale in your name but subject to the right to nominate substitute purchaser/s to purchase the abovementioned property, subject to the following terms and conditions: (a) For a purchase price of $2.3 million; (b) Payment of a deposit of 15% of the purchase price (ie. $345,000.00); (c) Settlement to be in 29 days; (d) Otherwise on such terms and conditions as you can negotiate. As between us the underlying beneficial interest in the property will be in the following proportions: s Interests representing the Frank Hargrave family - 50% s Interests representing the Adrian Field family - 25% s Interests representing the Russell Small family - 25% DATED this 8th day of October 1999 ...Signed......... Frank Hargrave ...Signed......... Adrian Field ...Signed......... Russell Small"

60. The respondents say that when one looks at the authority there can be no doubt that it provides clearly for each of the essential requirements for a valid trust, namely, a trustee (in the person of Greg Hargrave); sufficiently identified property the subject of the trust (ie 23-27 Wellington Street, Windsor)[4]; and sufficiently identified beneficiaries (ie, interests representing the Frank Hargrave family as to 50%; interests representing the Adrian Field family as to 25%; and interests representing the Russell Small family as to 25%)[5], and that the intention to create the trust[6] is plainly to be inferred from all the circumstances and the language used by the parties and despite what they may or may not have considered to be the effect in equity of their actions and intentions[7]. It follows, in the respondents' submission, it is plain that Greg Hargave entered into the contract of sale as trustee under a trust for the transferees which was recorded in writing on or before the entering into of the contract of sale and therefore that s. 67A(3)(a)(iii) applied.

63. I reject the trust contention. Whether or not the trustee and property were sufficiently identified and the intention to create a trust is properly to be inferred, I do not consider that the beneficiaries of the supposed trust were defined with sufficient precision to constitute a valid trust.

66. Counsel for the respondents submitted that the test for determining whether beneficiaries have been sufficiently defined to constitute a valid trust is the test laid down by Lord Reid and Lord Upjohn in Re Gulbenkian's Settlement Trusts[8] and subsequently followed by Lord Wilberforce and the rest of the majority in McPhail v Doulton[9] and later applied by the English Court of Appeal in Re Baden's Trust Deeds (No 2)[10]. Accordingly, it was said, it is necessary to draw a distinction between conceptual certainty and evidential certainty and, provided there is sufficient conceptual certainty to say that a given beneficiary falls within or without the class of beneficiaries (as it was said there was in the terms of the authority of 8 October 1999), it does not matter that one cannot identify with certainty all of the objects which fall within the class of beneficiaries or that there may be any or all sorts of evidential difficulties in proving that a given beneficiary satisfies the test. Indeed, it was submitted, the High Court's decision in Kinsela v Caldwell[11] shows that a trust is not uncertain merely because the actual persons to whom a distribution is to be made cannot be known in advance of the date of distribution - it is sufficient that the provisions of the trust are such as to enable the beneficiaries to be ascertained as at the date of distribution - and, it was said, there can be no doubt that one would be able to say at the time of any distribution whether or not a potential object was an interest representing one or other of the three signatories to the authority of 8 October 1999.

69. But I do not accept that submission. The test adopted in Re Gulbenkian Settlement, McPhail v Doulton and Re Baden's Deed Trust (No. 2) (scil., the test of criterion certainty) is the test for certainty of beneficiaries in the case of a discretionary trust or power in the nature of a trust. In the case of a fixed trust, which the arrangement of 8 October 1999 would be if it constituted a trust, the requirement has always been that the creator of the trust provide a description of the objects precise enough to enable the whole range of objects to be listed (scil., the test of list certainty). Thus as Professor Ford puts it, although it is not necessary that all persons to benefit be ascertained when a fixed trust commences, it is necessary that there be such a description of the beneficiaries as will enable them to be ascertained in the sense that eventually it will be possible to list them exhaustively[12].

72. Nothing which was said by the High Court in Kinsela is in any way opposed to the idea that for the purposes of a fixed trust it is necessary that the creator define the class of beneficiaries with list certainty. Indeed it stands as express authority for the need for list certainty notwithstanding that one may meet with considerable evidential difficulties in determining which of the possible objects come within the list.

75. I add that even if were possible to say with certainty of any given object that he or she or it was an "interest representing (one of the three named families)", and I take leave to doubt that it would be so[13], it would not be possible to say with certainty either at the date of creation of trust or at any subsequent date of distribution precisely which "interests" were to be included and which were not.

78. I turn therefore to the questions of whether the Tribunal erred in its construction of s. 67A or in finding that Greg Hargrave entered into the contract of sale as agent for the transferees.

83. Construed according to the plain and ordinary meaning of its terms, s. 67A(3)(a)(i) would apply to an agreement for the sale of land which is entered into by a purchaser as agent for another person (scil. "the transferee") with the authority in writing of the transferee to enter into the agreement on behalf of the transferee.

86. The authority would not need to be given directly by the transferee to the purchaser. It might just as effectively be given to the purchaser by a duly authorised agent of the transferee, whether directly or indirectly (as by way of one or more duly authorised intermediate agents). But according to the plain and ordinary meaning of the section, the identity of the transferee would have to be ascertained at the time of entry into the agreement for sale. According to the ordinary meaning of language, one would not speak of a purchaser entering into an agreement for sale on behalf of another person unless by the time of entry into the agreement the purchaser had decided upon whose behalf he was acting, and (subject to s. 67A(3)(a)(ii)) one would not speak of a person who was not in existence at the time of an agreement for sale giving the purchaser authority in writing to enter into the agreement. An agent cannot contract on behalf a principal who is not in existence and ascertainable at the date of the contract.[14]

89. Authority of a kind could be conferred retrospectively, as by the ratification of an agreement purportedly made by a purchaser on behalf of an identified and extant transferee. But even in those circumstances it may not be accurate and it would be straining language to say that "the agreement was entered into by the ...purchaser...with the authority in writing of the transferee". It would be more accurate and I think that it would be more natural to say that the agreement was entered into by the purchaser without the authority in writing of the purchaser and that the purchaser by ratification subsequently conferred its authority, albeit retrospectively, without which the purchaser had contracted[15].

92. The position would be different in a case to which s. 67A(3)(a)(ii) applied. It would operate where a purchaser entered into the agreement for sale in anticipation of the incorporation of the transferee and by the time of transfer had come to hold a beneficial interest in the transferee or the holding company of the transferee. In cases of that kind it would not be necessary that the purchaser hold the authority in writing of the transferee at the time of entry into the agreement for sale. But according to the plain and ordinary meaning of the section it would be necessary at the time of entry into the agreement that the purchaser have the unincorporated corporation in contemplation as the transferee and thereafter procure the transfer to the corporation once incorporated, in accordance with the purchaser's original intention.

96. As has been seen, the Tribunal said that the section should be construed more "liberally" so as to apply not only where a purchaser holds the transferee's authority in writing but also where a purchaser holds authority in writing from an "authorised agent of the transferee" (apparently using that expression in a sense sufficiently broad to encompass a case in which the transferee had not been "formally created" at the time of entry into the agreement).

99. So far as appears from the Tribunal's reasons for decision, the Tribunal considered that a literal interpretation of the section would "not further the expressed purposes of the law" and would "not operate by reference to a rational premise in the context of the extensive and recognised use of corporate and trust entities in the acquisition of real property in this state". Contrastingly, in the Tribunal's view, the more "liberal" interpretation which it preferred "would further the expressed purpose of the exemption" and be "consistent with the scheme of the exemptions generally, especially the references to companies yet to be incorporated and trusts recorded in writing on or before the entering into the agreement".

"20. In truth, the Parliament chose a very blunt weapon when it passed s. 67A to attack a form of tax-avoidance. Instead of attacking the abuse of the device, it imposed a double tax on the device itself, but gave exemptions to the sort of family arrangements it thought would not be exercises in tax avoidance. Unless those exemptions are sensibly operated, taxpayers may suffer undue collateral damage. In my view the language is sufficiently opaque or openly textured to permit a standard method of interpretation of statutes to be invoked in order to avoid that result."(Emphasis added.)

106. The reference to a "standard method of interpretation of statutes" relates to an earlier passage in the Tribunal's reasons in which the Tribunal made mention of the observations of Mason and Wilson JJ in Cooper Brookes (Wollongong) v Federal Commissioner of Taxation, at 304, that:

"The propriety of departing from the literal interpretation... extends to any situation in which for good reason the operation of a statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute.... Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended." (My Emphasis).

110. Thus the Tribunal concluded that despite the plain and ordinary meaning of s. 67A(3)(i) and therefore what might be thought a "powerful advantage in ordinary meaning and grammatical sense", the results which that would produce were surely "unintended" for they would put "pedantry over equity", thereby exposing taxpayers to "undue collateral damage", and "would not... operate by reference to a rational premise in the context of the extensive and recognised use of corporate and trust entities in the acquisition of real property in this state".

Did the Tribunal err in its construction of the section?

114. In my opinion the Tribunal erred in its construction of the section. With all respect, it is not pedantry to confine the exemption to cases in which the purchaser has the authority in writing of the transferee at the time of entry into the agreement for sale. It is a means of confining to circumstances that are capable of objective verification such claims as may be made for exemption on the basis that a transfer by or at the direction of a purchaser does no more than give effect to an agreement for sale entered into by the purchaser on behalf of another[16]. Therein lies "the rational premise".

117. So to limit the exemption does not expose taxpayers to risk of undue or I should have thought any serious risk of "collateral damage"; for it is within taxpayers' hands to ensure that if land is to be purchased for the benefit of another, the purchaser be given authority in writing by that other before entering into the agreement.

120. Furthermore, I am unable to see that an exemption so limited unreasonably trenches upon the "recognised use of corporate and trust entities in the acquisition of real property". To the contrary it affords freedom to a taxpayer to purchase real property on behalf of a corporate entity or in trust for another provided only that written authority is first obtained in accordance with s. 67A(3)(i) or the taxpayer is able to bring himself or herself within the exemption for unincorporated entities in s. 67A(3)(ii).

123. It is true as the Tribunal appears to have had in mind that a taxpayer who does not take care to attend to the formalities for which the section provides may fail to bring himself or herself within the exemption. But that is hardly surprising. There are plenty of examples of exemptions or special provisions in revenue law that are dependent as much upon attention to formalities as the substance of the matter. And it is usually for the good reason of providing a decisive practical means of determining which cases do and which do not fall within the provision. As the High Court said of the carry forward loss provisions of the Income Tax Assessment Act 1936:

"The policy manifested by these sections might quite well have led to their being expressed so as to be applicable to loans made or remuneration paid to persons entitled to shares in equity only, as well as to registered members, but evidently the uncertainty resulting from a desertion of the register of members as the sole source of information as to the persons in respect of whom the sections apply was considered a decisive practical reason for not carrying the policy to that length." [17]

127. In much the same way it may be concluded, and I do, that while the policy manifested by s. 67A(3)(a)(i) might have led to it being expressed so as to apply in the broad class of cases envisaged by the Tribunal, the uncertainty resulting from a desertion of the written authority of the transferee as the sole source of information as to the transferees in respect of whom the section applies was considered a decisive practical reason for not carrying the policy to that length.

130. In any event, taxing statutes are technical and frequently complex things and those who seek to take advantage of them, and even more those who seek to avoid them, must know that they will need to approach them accordingly. Despite developments in the law relating to the construction of taxing statutes - so that by and large one is now to approach their construction in the same way as any other statute - the starting point remains the plain natural and ordinary meaning of the words of the legislation and the discernment of the legislative intention from the terms of the legislation viewed as a whole[18]. Within the limits which they impose it is appropriate to construe exemption and exception provisions like s. 67A(3)(a)(i) in favour of those who claim that they come within the exception[19]. But where the words of such a provision are clear, the mere fact that a liberal construction of the provision more closely accords with subjective perceptions of what is "equitable" will rarely if ever be sufficient basis to depart from the plain and ordinary meaning of the language that has been employed[20]. Absent a drafting mistake of the kind which underscored the decision in Cooper Brookes or absurd irrational or capricious results or the use of language which as a matter of natural and ordinary meaning permits of a multiplicity of possibilities, or perhaps extrinsic materials which make plain that the language employed simply fails to achieve the result which was intended, it is not permissible to depart from the plain and ordinary meaning of the words.

133. In my opinion s. 67A(3)(a)(i) is to be construed according to the plain ordinary and natural meaning of its terms. That means that it will not apply unless the purchaser enters into the contract as the agent of another person and with the authority in writing of the transferee. I see nothing in the results of such a construction that should be regarded as absurd or irrational or capricious or otherwise contrary to the legislative purpose of the provision, either as it is to be perceived from the Act as a whole or from any relevant extrinsic material. To the contrary, that meaning of the section appears to me to accord precisely with what was said in the Second Reading Speech to be the intended meaning of the section:

"The provisions which relate to sub-purchases of real property and the use of nominee clauses upon the purchase of real estate will be clarified. The amendment will prevent the use of nominee clauses as a device to avoid stamp duty. However, the genuine use of a nominee clause to enable the purchase of real property on behalf of a family member, a family company or a company related to the purchaser will not be affected."[21]

138. Despite the error which I discern in the Tribunal's construction of the section, I do not consider that the Tribunal erred in holding that s. 67A(3)(a)(i) applied to AJF Investments Pty Ltd and Prilo Pty Ltd. I do not accept that it is an irresistible conclusion that that none of the three men had decided by the time of entry into the contract of sale whether his family's share would be held in his name or in the name of his family company. That is a possible view of the evidence, and it may be the view to which I would have come if I had been deciding questions of fact. But I consider that it was open to the Tribunal to find that Greg Hargrave entered into the contract of sale as the agent of Prilo Pty Ltd and AJF Investments Pty Ltd, and that at the time he did so he had the authority in writing of those companies (as the Tribunal appears to have found in paragraph 14 of the reasons for decision).

141. Granted, the only authority in writing which Greg Hargrave held was the authority of 8 October 1999, and that it did not refer explicitly to either AJF Investments Pty Ltd or Prilo Pty Ltd, the authority was signed by Adrian Reid and Russell Small, apparently in each case on behalf of interests associated with his family, and each man gave sworn evidence that he believed that he had the power to and that he did sign the authority on behalf of his family company. Thus in his witness statement, which was adopted on oath, Adrian Field said:

"1. I am a director of AJF Investment Pty Ltd...and have been since its registration on 4 June 1999.. ... 6. ...The Authority was signed by Frank, Russell and myself. In so far as my family 25% interest in the Property was concerned, I was signing the Authority not in my personal capacity but on behalf of the entity to purchase my family's 25% interest in the Property. I had already incorporated AJF Investments which was registered on 4 June 1999 and it was my intention that my family's 25% interest in the Property would be acquired by AJF Investments. I believed the Authority I was signing on 8 October 1999 was facilitating that. ... 8. Neither I nor any other entity in my Group has purchased real estate since the incorporation of AJF Investments on 4 June 1999. AJF Investments made all real estate purchases as this was the specific and intended purpose of AJF Investments. 9. My understanding was that the three parties were buying the Property as co-owners. AJF Investments was buying a 25% interest in the Property with entities representing the Hargrave and Small interest buying the balance..."

145. Similarly, Russell Small deposed, by the adoption of his witness statement, that:

"... 6. ...In so far as my family's 25% interest in the Property was concerned, I was signing the Authority not in my personal capacity by on behalf of the entity to purchase my family's 25% interest in the Property. It was always the case that my family's 25% interest in the Property would be acquired by Prilo. I believed the Authority I was signing on 8 October 1999 was facilitating that. Prilo has be my family's investment vehicle for all investments since its incorporation in 1992..."

149. Some of the cross examination of those witnesses could be taken as suggesting that the probability that the family companies would be used had been overstated. For example, Mr Small conceded in cross examination that he did not remember the dates and Mr Field said that he could not now honestly recall what was in his mind at the time. Mr Efklides was also a little vague at some points about the detail. And there is a suggestion that Mr Efklides circulated a memorandum on 18 November 1999, well after the contract had been entered into, in which various ways of structuring the investment were still in contemplation. So I find it a little surprising that the Tribunal should have accepted all of the evidence in chief. But so to say falls a long way short of concluding that the evidence should have been rejected. It was open to the Tribunal to accept the contents of the statements based upon its assessment of the credibility of the witnesses and that is what it appears to have done.

152. I am also a little surprised that the Tribunal was satisfied on the basis only of the evidence of Mr Field and Mr Small that each man had authority generally or specifically to bind AJF Investments Pty Ltd or Prilo Pty Ltd to the contract of sale. One might have expected that the authority which was asserted would have been verified by the production of the Articles of Association of the family companies or resolutions conferring the authority in question. But despite the absence of that sort of objective evidence, and given that the Commissioner does not appear to have made much of an issue of it below, I conclude that it was open to the Tribunal to infer the existence of authority, as it appears to have done. Again, it is not to the point that I may have adopted a different view of the matter.

155. The Commissioner argued that even if it were open to the Tribunal to find that Mr Field and Mr Small had authority to bind AJF Investments Pty Ltd and Prilo Pty Ltd to the authority of 8 October 1999, and even if that is what they intended to do, they still did not do so in terms, in as much as the authority of 8 October 1999 did not mention the name of either company, and hence, according to the Commissioner, the authority of 8 October 1999 could not have amounted to the authority in writing of AJF and Prilo within the meaning of s. 67A(3)(a)(i). In the Commissioner's contention, an instrument is incapable of constituting an authority in writing for the purposes of s. 67A(3)(a)(i) unless it bears ex facie the name of the transferee whose authority it is. Otherwise, the Commissioner says, it would be altogether too easy for a purchaser to evade the operation of s. 67A by the device of entering into a contract under cover of a general authority in writing drafted in terms so broad as to permit of later nomination of any of a host of possible transferees and then claiming that he had entered into the contract with the authority in writing of the chosen transferee.

158. There is some force in the argument. No doubt it would make it harder to evade the section if it were necessary to specify in the authority in writing the name of the proposed transferee. But the short answer to the Commissioner's point is that if the section is to be construed literally according to its plain and ordinary meaning, it does not require that the name of the transferee appear in the authority. It requires that the purchaser hold the authority in writing of the transferee and there are a number of ways in which an instrument can be made to constitute an authority in writing without condescending to the name of the principal. To take an example which I think that the Commissioner was prepared to concede, if a corporation authorises one of its officers to authorise a purchaser to enter into a contract on behalf of the corporation and the officer authorises the purchaser to enter into the contract without disclosing that the officer is acting on behalf of the corporation, there is still sufficient at law to constitute an authority in writing of the corporation for the purchaser to enter into the contract on behalf of the corporation. Despite such juridical difficulties as may attend the common law doctrine of undisclosed principal[22], the law is settled that the corporation may intervene and take the officer's place if the corporation can show that the officer was acting throughout as the corporation's agent. It is irrelevant that the purchaser entered into the contract in ignorance of the corporation. An undisclosed principal may sue or be sued on a contract made on his behalf or in respect of money paid or received on his behalf by his agent acting within the scope of his actual authority[23]. Evidence is admissible to show who is the real principal in order to charge him or entitle him to sue on the contract[24].

161. I also think that the difficulties identified by the Commissioner are not as great as feared. While it might make it harder to evade the section if it were necessary that the name of the transferee be specified in the authority in writing, an authority in writing which does not specify the name of the transferee will not suffice unless it is demonstrated that the maker of the authority not only had the authority of the transferee to execute the authority on behalf of the transferee but also intended in executing the authority to do so on behalf of the transferee. Therefore, absent a document in writing in the name of the transferee that authorises the maker directly or indirectly to authorise the purchaser to contract on behalf of the transferee, the only sort of case in which the requirements of the section are likely to be satisfied is that of a corporate transferee of which an officer with constitutional or delegated power to commit the corporation to the contract has exercised that power for the purpose and with the intention of authorising the purchaser to enter into the contract. In the case of a corporate transferee of which there is no officer with constitutional power of that sort, there will need to be a resolution of the corporation directly or indirectly authorising the purchaser to enter into the contract. Therefore, as a rule it should be possible to establish with relative ease whether someone who alleges that he has executed an authority on behalf of a corporation, although not in the name of the corporation, had the power to do so and intended to do so. Indeed since the burden of proof lies upon the taxpayer, it will ordinarily fall to the taxpayer to satisfy the Commissioner and ultimately the Tribunal or the court that it was so.

164. In any event, I do not consider that the sorts of problems of enforcement identified by the Commissioner warrant a conclusion that Parliament must have intended that the exception in s. 67A(3)(a)(i) be construed differently to its plain and ordinary meaning. To the contrary, and to the extent that there may be any doubt about the construction of the exception, I think this is one of those cases where it remains appropriate to adopt the plain and ordinary meaning as the construction that favours those whose claims are based upon the exception[25].

167. What I have said about s. 67(3)(a)(i) does not apply to Viewbank Properties Pty Ltd. For the reasons already expressed, I do not consider that the section is capable of application to a transferee if the identity of the transferee has not been ascertained by the time of entry into the agreement for sale, or if the transferee has not come into existence by the time of the agreement for sale. As has been seen, Viewbank Properties Pty Ltd was not incorporated until months after the date of the contract of sale.

170. It was argued on behalf of Viewbank Properties Pty Ltd that it was able to engage the operation of s. 67A(3)(a)(i) through the common law doctrine of ratification or pursuant to s. 130 of the Corporations Law, in each case upon the premise that s.67A(3)(a)(i) must be taken to have been enacted against the background of the general law[26]. But I reject both of those submissions. The doctrine of ratification does not apply to undisclosed principals[27]. As Lord Macnaghten put it in Keighley Maxsted[28] the doctrine only applies where one has made a contract openly and avowedly on behalf of another. And the same is in effect true of s. 131 of the Corporations Law. A pre-incorporation contract can only be ratified by a company under that section if the contract has been made in anticipation of the incorporation of the company and the company is reasonably identifiable as such. That requires that the company be identified to or be identifiable by the other party to the contract at the time of formation of the contract or at least that what is identified to the other party at that time is reasonably identifiable with the company.[29] It may also be that the exception expressly provided for in s. 67A(3)(a)(ii) impliedly covers the field of pre-incorporation contracts for the purposes of s. 67A, according to the maxim expressum facit tacitum cessare.

173. In my view the Tribunal was in error in holding that s. 67A(3)(a)(i) applied in the case of Viewbank Properties Pty Ltd.

177. Section 67A(3)(a)(ii) gives rise to different considerations. The Tribunal did not make an explicit finding as to whether Greg Hargrave entered into the agreement for sale in anticipation of the incorporation of Viewbank Properties Pty Ltd or as to whether he or a relative held a beneficial interest in it or a holding company at the time of the transfer. But as has already been noted, the Tribunal did observe at paragraph 17 of the reasons for decision that:

"17. The problem arises here not just because of the use of the nominee clause but because of the delay in selecting the appropriate corporate vehicle."

181. On one view of the matter that could be taken as a finding that Greg Hargrave was not acting in anticipation of the incorporation of Viewbank Properties Pty Ltd but instead in no more certain state of mind than that the contract would be (as to 50%) for an as then unidentified and undefined interest "representing the Frank Hargrave family". If so, s. 67A(3)(a)(ii) could not apply. But I do not take paragraph 17 as a finding of that kind. There was just too much evidence the other way to suppose that that was the Tribunal's conclusion.

184. Francis Hargrave gave uncontradicted evidence in the form of a witness statement which he adopted on oath that:

"6. This was the first acquisition of property I was making jointly with Russell Small and Adrian Field and so as not to expose the other properties owned by my family Group it was considered prudent to purchase my family's interest in the Property through a separate entity. This was discussed with my son Greg. 7. 8. I recall signing the `Authority' now shown to me dated 8 October 1999 authorising Greg to buy the Property for the purchasers. The Authority was signed by Russell Small, Adrian Field and myself. I cannot speak for Russell Small and Adrian Field, but in so far as my family's 50% interest in the Property was concerned, I was signing the Authority not in my personal capacity but on behalf of the entity to purchase my family's 50% interest in the Property. It was my understanding at the time that a new company was being set up for that purpose. However, I cannot recall the details as I left all that to my son Greg to arrange in conjunction with my Group's solicitors, GWP Aarons & Co."

188. Greg Hargrave gave evidence from his witness statement, consistent with his father's, that:

"7. ...I accepted Peter Efklides' recommendation and told him to proceed accordingly. Peter Efklides was aware that a new company to act as trustee of another family trust representing my father's family interest needed to be set up and it was my understanding following my discussion with him that he would proceed and set up such company and trust. ... 16. I do not believe I discussed the structuring issue further with Peter Efklides. In my mind, we had already resolved that the acquisition would proceed as a co-ownership as discussed with Peter Efklides on or about 28 September 1999."

192. Similarly in cross-examination, Greg Hargrave said:

"Q. Well, you say here in your witness statement," we had already resolved that the acquisition would proceed as a co-ownership as discussed with Peter Efklides on or about 28 September?---Yes. Q. So in your mind it was already decided?---Yes."

196. Mr Efklides confirmed that that was the case. In the course of his cross-examination he swore as follows:

"... There was never any doubt that a new structure would be incorporated for their acquisition. The only issue was whether it will be a unit trust or a discretionary family trust and that was then resolved on 28 September when I had the meeting with him.

"Q. So that was the last time that he asked you to incorporate a company - it was on 28 September?---Well, we might have discussed the incorporation subsequent to that but on 28 September there was no doubt in my mind that a company needed to be incorporated, it would act as trustee of a discretionary family trust, unless he came back to me and said, `Look I've thought about this partnership issue further and I totally don't want to go ahead with that, so please come up with another alternative'."

201. So, in summary the evidence was that: it had been decided that a company would be incorporated to hold the Hargraves' interest in the property; Francis Hargrave signed the Authority of 8 October 1999 in anticipation of the incorporation of that company; Greg Hargrave entered into the contract of sale in anticipation of the incorporation of that company; and, as matters came to pass, the company, Viewbank Properties Pty Ltd, was incorporated and took the Hargrave family's 50% interest upon completion of the contract. There was also evidence that at the time of execution of the transfer Francis Hargrave held 10 issued shares in the capital of Viewbank Properties Pty Ltd and, as the Commissioner accepted for the purposes of this application, that holding constituted a bona fide beneficial interest in the company within the meaning of s. 67(3)(a)(ii).

204. Given the favourable view which the Tribunal appears to have taken of the respondents' evidence on other matters, it is probable that the Tribunal would have been just as favourably disposed to the respondents on this issue. Therefore, and against the background of the evidence I have set out, I read paragraph 17 of the Tribunal's reasons as meaning no more than that the name and perhaps also the members and constitution of the Hargrave family company remained to be decided.

207. In my view it was open to the Tribunal to find that s. 67A(3)(a)(ii) applied to Viewbank Properties Pty Ltd, and it is probable that that the Tribunal would have so held if it had been considered that it was necessary to decide that question.

211. I turn finally to the Commissioner's contention that the exceptions provided for in s. 67A(3)(a) to (e) are incapable of applying to anything except all of the land the subject of a transfer of land and so, in a case like the present, where there is a contract of sale entered into on behalf of co-purchasers and there is a transfer to the co-purchasers as tenants in common according to their respective interests, there can be no exemption under any of the exceptions provided for in s. 67A(3)(a) to (e) unless the circumstances of each transferee attract the operation of the same exception. More specifically, it is said, if an exception fits the circumstances of only one or some but not all of the co-purchasers, the exception is incapable of applying to any of them and, if one exception fits the circumstances of one or some but not all of the co-purchasers and another exception or exceptions fits of fit the circumstances of the remainder, none of those exceptions capable of applying to any of the purchasers.

214. The basis for this remarkable proposition is attributed to some remarks which I once chanced to make about the operation of Exemptions (10) and (17) under Heading VI of the Third Schedule to the Stamps Act 1958 and to the judgment of Hansen J in Commissioner of State Revenue v Pattison[30] upon the meaning of the same provisions. As it appears to me, however, nothing said about Exemptions (10) and (17) is in any way applicable to s. 67A. In any event, I reject the severance contention.

217. Section 67A(1)(b) makes plain that the section is directed to a transfer of "the whole or any part of the rights and interest under the agreement of the first purchaser of the real property" and ss. 67A (1)(c) and (d) leave no doubt that where the section applies duty is to be assessed on both the value of the land the subject of the contract and the value of the land conveyed to each transferee. It follows in my view that the case of each transferee under the section is to be considered separately, even where one transfer is employed to convey the land the subject of one contract to a multiplicity of transferees.

220. The opening words of s. 67A(3) are not as well matched to that objective as perhaps they might have been. At first sight they could be mistaken as meaning that a transfer may only be dealt with on a global basis for the purposes of the section. But such a requirement would be productive of absurdities, and hence the section must be made to work consistently with its terms in the fashion which it is to be supposed that Parliament intended it to work. Where therefore s. 67A(3) provides that a conveyance is not required to be separately and distinctly charged with duty if one of the exceptions applies, the section is in my opinion to be read as meaning that duty is not to be separately and distinctly charged under s. 67A(1)(d) in respect of the value of so much of the real property as is conveyed to a transferee to whom that exception applies and, axiomatically, if all of that real property is conveyed to one or more transferees to each of whom at least one of the exceptions applies, that duty is not to be separately charged under s. 67A(1)(c) in respect of the value of the real property the subject of the contract.

224. For the reasons given, I consider that the Tribunal erred in the construction which it attributed to s. 67A(3), and in holding that s. 67A(3)(a)(i) applied to Viewbank Properties Pty Ltd. But I do not consider that the Tribunal erred in holding that s. 67A(3)(a)(i) applied to AJF Investments Pty Ltd and Prilo Pty Ltd and I am of opinion that it was open to the Tribunal to hold that s. 67A(3)(a)(ii) applied to Viewbank Properties Pty Ltd.

227. In the result, the application for leave to appeal will be refused. I shall hear counsel on the question of costs.

[1] Section 67A provides that: (1) If--

(a) a person ("the vendor") agrees to transfer any real property ("the agreement") to Duty in respect of 2 or more transactions2another person ("the first purchaser") (whether or not the agreement provides for that other person to nominate another person as purchaser); and

(b) the conveyance of the real property executed by the vendor conveys the whole or any part of the real property not to the first purchaser but to another person ("the transferee") who has acquired, whether directly or indirectly, the whole or any part of the rights and interest under the agreement of the first purchaser in the real property--

the conveyance shall not be charged with duty in respect of the transfer from the vendor to the transferee but shall be separately and distinctly charged with duty in respect of--

(c) the value of the real property in the agreement (whether or not the agreement has been discharged by performance, novation or agreement or has otherwise ceased to exist); and

(d) the value of the real property conveyed to the transferee; and

(e) if the transferee did not acquire those rights and interest directly from the first purchaser, the value of the real property in each other transaction or agreement as a result of which the rights and interest of the first purchaser in the real property were acquired.

(2) ...

(3) A conveyance referred to in sub-section (1) is not required to be separately and distinctly charged with duty in accordance with that sub-section if--

(a) the agreement was entered into by the first purchaser--

(i) as agent for another person and with the authority in writing of the transferee to enter into the transaction on behalf of the transferee; or

(ii) in anticipation of the incorporation of the transferee and, at the time of the transfer, the first purchaser or a relative of the first purchaser holds a bona fide beneficial interest in the transferee or in a holding company (within the meaning of the Corporations Law) of the transferee; or

(iii) as trustee for the transferee under a trust recorded in writing on or before the entering into of the agreement; or

(b) the transferee is a body corporate and the first purchaser was a director of the body corporate when the agreement was entered into; or

(c) the transferee is a relative of the first purchaser; or

(d) the first purchaser was a related corporation of the transferee when the agreement was entered into; or

(e) a conveyance executed in respect of the agreement would be exempt from duty under another provision of this Act.

(4)...

(5)...

(6) For the purposes of this section but without limiting the ways in which a person may be taken to acquire the rights and interest of another person in real property, a person who has rights or an interest in real property ("the first person") acquires the rights and interest of another person ("the second person") in that real property if, as a direct or indirect result of an agreement, arrangement or understanding involving those persons (with or without other persons)--

(a) the second person acquires rights or an interest in the real property; and

(b) the rights or interest of the first person in the real property are increased.

(7) In this section--

'relative', in relation to a natural person, means a person who is--

(a) a child or remoter lineal descendant of the person or of a spouse of the person;

(b) a parent or remoter lineal ancestor of the person or of a spouse of the person;

(e) a brother or sister of a parent of the person or of a parent of the spouse of the person;

(f) a child of a brother or sister of a parent of the person or of a parent of the spouse of the person;

(g) the spouse of the person or a spouse of any person referred to in paragraph (a) to (f);

[3] See Federal Commissioner of Taxation v Sara Lee Household & Body Care [2000] HCA 35; (2000) 201 CLR 520 at p. 533

[4] Jacobs' Law of Trusts in Australia, 6th Ed. at [105]; Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at pp. 277-280; 88 ATC 4495

[5] Jacobs' Law of Trusts in Australia, 6th Ed. at [106]; Ford & Lee, Principles of the Law of Trusts, Chapter 5; The Public Curator of Queensland v The Union Trustee Co of Australia Ltd (1922) 31 CLR 66 at pp. 74-5

[6]. Jacobs' Law of Trusts in Australia, 6th Ed. at [107]; Ford & Lee, [2010]; Tito v Waddell (No.2) [1977] Ch 106 at p. 216; Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at pp. 277-280; 88 ATC 4495; Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 at p. 422; Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (In Liq) (2000) 202 CLR 588 [33]

[7] Darling Island Stevedoring & Lighterage Co Ltd [1956] HCA 8; (1956) 95 CLR 43 at 67; Bahr v Nicolay (No. 2) [1988] HCA 16; (1988) 164 CLR 604 at p. 618

[8] [1970] AC 518, at pp. 521 and 525

[9] [1970] UKHL 1; [1971] AC 424 at 444

[11] [1975] HCA 10; (1975) 132 CLR 458 at p. 462

[12] Ford & Lee, supra at [5030]; see also Jacobs at [252] and Handbuy and Maudsley, Modern Equity, 10th Ed. at p. 167 and 168

[13] cf Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86 at p. 100; Re Armstrong [1960] VicRp 34; [1960] VR 202 at pp. 205 - 206

[14] Summergreen v Parker [1950] HCA 13; (1950) 80 CLR 304 at pp. 313, 318, 323; Vickery v Woods [1952] HCA 7; (1952) 85 CLR 336 at p. 348

[15] Davison v Vickery's Motors Ltd (in liq) [1925] HCA 47; (1925) 37 CLR 1 at pp. 21-3

[16] Cf. Dalgety Downs Pastoral Co Pty Ltd v Federal Commissioner of Taxation [1952] HCA 54; (1952) 86 CLR 335 at pp.341-2; Federal Commissioner of Taxation [1976] HCA 67; (1976) 140 CLR 247 at p.294

[17] Dalgety Downs Pastoral Co. Pty Ltd v Federal Commissioner of Taxation [1952] HCA 54; (1952) 86 CLR 335 at pp. 341-2; Federal Commissioner of Taxation v Patcorp Investments Ltd [1976] HCA 67; (1976) 140 CLR 247 at p.294

[18] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at p.320, per Mason and Wilson JJ

[19] Burt v Federal Commissioner of Taxation [1912] HCA 74; (1912) 15 CLR 469 at p.482, per Barton J_; Diethelm Manufacturing Pty Ltd v Federal Commissioner of Taxation_ [1993] FCA 437; (1993) 116 ALR 420 at 426

[20] Deputy Federal Commissioner of Taxation v Sheahan 86 ATC 4718 at p. 4728, per Tadgell J

[21] Hansard, 10 November 1994 (Assembly) at p.1688

[22] Keighley Maxsted & Co v Durant [1901] AC 240 at 256; Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199 at p.207; Bowstead & Reynolds on Agency, 16th Ed, at 8-069, Rule 1; Dal Pont, Law of Agency, at [19.31]

[23] Siu Yin Kwan v Eastern Insurance Co Ltd, ibid

[24] Bowstead & Reynolds, at [8-069] (3)

[25] Burt v Federal Commissioner of Taxation, supra; Pearce & Geddes, supra at [9.41]

[26] cf. Federal Commissioner of Taxation v Sara Lee Household & Body Care [2000] HCA 35; (2000) 201 CLR 520 at p.533

[27] Keighley Maxsted & Co v Durant, supra at p. 247; Bowstead & Reynolds, at [8-071]

[28] See also Davison v Vickery's Motors Ltd (in liq) [1925] HCA 47; (1925) 37 CLR 1 at pp. 21-3

[29] Ford & Ramsay, Australian Corporation Law at [2.5.0090]

[30] [2001] VSC 113