DPP v Tat Sang Loo [2002] VSC 231

2. Before me is an application filed 6 March 2001 brought against Tat Sang Loo and Bow Ye Investments Pty Ltd (in liquidation) ("Bow Ye") for a declaration under s. 70 of Confiscation Act 1997 ("the Act") that the whole or a specified part of property at 26 Calembeena Avenue, Oakleigh[1]

and at 181 Exhibition Street, Melbourne[2]

10. The property is the subject of a restraining order made by Judge F.B. Lewis in the County Court on 19 January 1998.

13. The restraining order stated the purpose for which the restraint was imposed[3]. In respect of the particular property it was for the purpose of satisfying any pecuniary penalty order that might be made under Part 8 of the Act.[4]

16. The judge could not have made the order unless he considered that there were reasonable grounds for making it.[5] That meant in the particular case that he must have considered that there were reasonable grounds to conclude that the property was property in which the defendant had an interest.

19. The term "Property in which the defendant has an interest" is inclusively defined by s. 10. The concept of "effective control" to which reference is there made takes the reader to s. 9.

22. The first respondent was charged in September 1998 with offences against the Fisheries Act 1995. The offences related to fishing for and dealings with abalone. They were alleged to have been committed in the period between October 1997 and September 1998.

25. Subsequent to the restraining order being made, specifically on 17 March 1999, the first respondent was arraigned and pleaded guilty to 14 charges in the Magistrates' Court at Dandenong. He was sentenced to a period of imprisonment. An order was also made for the forfeiture of certain processing equipment and a motor vehicle.

28. On 14 December 1999 the first respondent's appeal to the County Court was determined in his favour. The sentence then imposed, in substance, was that he pay a fine of $750 on the first charge; and that on all other charges he serve an aggregate term of 18 months imprisonment with a minimum of 12 months before being eligible for parole.

31. In the meantime, upon application filed 21 April 1999 supported by an affidavit sworn that day by Philip Raimondo, a solicitor employee of the Solicitor for Public Prosecutions, the Director of Public Prosecutions applied for:

(1) a forfeiture order under ss. 32 and 33 of the Act;

(2) a pecuniary penalty order in the sum of $1,405,300 under ss. 58 and 59 of the Act; and

(3) the making of the s. 70 declaration that is now the matter in debate.

37. On 11 October 2000 Hedigan J made orders in respect of matters (1) and (2). Concerning the second of them his Honour assessed the benefits derived by the first respondent in relation to the offence in an amount of $978,275. He made an order that the first respondent pay to the State a pecuniary penalty of $978,275. He adjourned the s. 70 application to a date to be fixed.

40. The last aspect of the proceeding was adjourned because it was disclosed to Hedigan J that Bow Ye, the registered proprietor of the Calembeena Avenue and Exhibition Street properties, had recently gone into administration pursuant to the provisions of the Corporations Law. The administrator appointed was Mr R.J. McDermott. It appears that he then carried on his practice at the same premises as those occupied by the respondent's solicitor on the appeal; and that he still does so. That is not to imply that he has ever carried on his duties other than with propriety. In any event, the difficulty at the time was that the application could not be pursued except if leave to proceed was granted under s. 440F of the then Corporations Law.

43. On 14 November 2000 the Director of Public Prosecutions filed an originating motion and affidavit in support seeking leave to proceed with the extant application.

46. On or about 24 November 2000 a meeting of alleged creditors of Bow Ye resolved that the company be placed into liquidation. It seems that no creditor appeared in person. Mr McDermott held the proxy for one of them; and the first respondent's son, Zachary - who had by then replaced his father as sole director of Bow Ye - held proxies for the others.

49. The effect of the resolution was that winding up commenced on the first day of the preceding administration - that is, 14 September 2000.[6]

52. Once the company went into liquidation it was no longer pertinent to obtain an order under s. 440F of the Corporations Law.

55. On 1 December 2000 a Master, although application had been initiated under s. 440F, made an order granting leave to the Director of Public Prosecutions now for then on 14 September 2000 - that is, the date of commencement of the administration - to proceed with the extant proceeding against Bow Ye in respect of the claim for a declaration under s. 70 of the Act.

58. On 6 March 2001 an amended application (though not so described) was filed in the proceeding. This is the hearing of that application.

"EFFECTIVE CONTROL" PROPERTY: LEGISLATION AND AUTHORITIES

62. Section 70(1) of the Act reads relevantly as follows:

"70. Declaration that property available to satisfy order (1) On application by the DPP, a prescribed person or a person belonging to a prescribed class of persons or an appropriate officer, a court may, if in its opinion particular property in respect of which a restraining order has been made - (a) was, on the date when the order was made, subject to the effective control of the defendant; ... make an order declaring that the whole, or a specified part, of that property is available to satisfy a pecuniary penalty order."

66. As in the case of s. 16(I), the reader is taken to the concept of "effective control", dealt with by s. 9 of the Act. That section reads as follows:

"9. Effective control of property (1) For the purposes of this Act, property may be subject to the effective control of a person whether or not the person has an interest in it. (2) In determining whether or not property is subject to the effective control of a person or whether or not there are reasonable grounds to believe that it is, regard may be had to - (a) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property; and (b) a trust that has a relationship to the property; and (c) family, domestic, business or other relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (a) or trusts of the kind referred to in paragraph (b), and other persons."

70. The notion of effective control of property there set out mirrors, though it is not in all respects identical with, the language of s. 9A of the Proceeds of Crime Act 1987 (Cth) and of s. 52A(2) of the Confiscation of Profits Act 1988 (WA).[7]

73. The meaning of "effective control" under the Western Australian legislation arose, in the context of a challenge to a search warrant, in Connell & Anor v Lavender[8]. Because of a legislative error the court was unable to say that s. 52A(2) of the Western Australian Act applied directly to the term "effective control" where found in s. 41(2). But Malcolm CJ, having given meaning to the term where used in s. 41(2), in substance equated it with the meaning it would have borne had s. 52A(2) been directly applicable.[9] His Honour said this:

"In my opinion, the ordinary meaning of `control' is de facto control or control in fact. The question then is: what effect does the adjective `effective' have upon the meaning? Mr Hughes submitted that it necessarily connoted legal control, that is to say control which is exercised by virtue of some legal right or power. This would be de jure control. In my opinion, `effective control' in the context of the statute means de facto control. The expression contemplates control that is practically effective, in the sense that the person concerned has in fact the capacity to control the possession, use, or disposition of the property."[10]

77. The meaning thus given to the term was consistent with the judgment of Seaman J in Walsh[11] on an application made under the Commonwealth Act for an order declaring that property was available to satisfy a pecuniary penalty order.

80. The circumstances in Walsh had some connection with the circumstances in the present matter. The convicted man had acquired some land and transferred it to a company. He had acquired other property as trustee for a family trust, and had transferred it to a new, corporate trustee of which he was governing director with power to act. There was evidence that he had run the trustee company according to his wishes. He was guardian and appointor under the trust deed. Almost all the trust income derived from his professional practice, in the running of which he committed the relevant offences - that is, extensive Medicare fraud.

"... effective control means that degree of control which results in Walsh being able to treat these properties as his own at the date on which an order under s. 28(3) might be made. However because of s. 9A of the Act that ability is not to be judged by legal coercive power"[12]

"Before his arrest he was in effective legal control of the properties by a combination of his powers under the trust deed and his shareholding and directorship in [the corporate trustee]."[13]

25 Connell was referred to, though incidentally, by Kirby P in DPP v Toro -Martinez[14]. His Honour referred also to Gray v Official Trustee in Bankruptcy[15]. This is what his Honour said:

"The contention in the present case is that the respondent has `effective control' of the property possessed by his mother. `Effective control' is defined non-exhaustively by s. 9A of the Act. In Connell v Lavender (1991) 7 WAR 9 at 22, Malcolm CJ held that `effective control' in the context of the Crimes (Confiscation of Profits) Act 1988 (WA) means de facto control or control in fact. According to his Honour: `... The expression contemplates control that is practically effective, in the sense that the person concerned has in fact the capacity to control the possession, use, or disposition of the property.' In Gray v Official Trustee in Bankruptcy (1991) 29 FCR 166 at 173, Heerey J declined to elaborate the expression `effective control' in an analogous context. It was, he said, to have the `... ordinary meaning of that expression, which is not a term of art, a wide scope unrestricted by any requirement to show a traditional legal or equitable interest in the property'."

91. In Toro Martinez Handley J addressed the issue thus:

"The defendant's remaining point is that mere control over property of another is too tenuous a basis for validity. The submission was not supported by authority and is contrary to authority. Parliament's legislative powers are not confined in a straitjacket imposed by the general law governing property rights and other legal relationships. It may select connecting factors which depend on practical rather than legal considerations. The forfeiture cases are one illustration of this principle."

"There are many reasons why the Parliament would wish to bring controlled property within the reach of restraining orders. Such property may be used by the convicted person after his release from gaol to sustain an expensive lifestyle or finance further crime. Such a person is effectively punished by being deprived of access to such property. Moreover in many cases it may reasonably be supposed that the proceeds of crime have been used to finance the acquisition of such property although this may be very difficult to prove."[16]

The first of those passages, particularly, implicitly accepts the approach of Malcolm CJ in Connell.

98. I refer finally to Logan Park Investments Pty Ltd and Ors v DPP (Cth)[17]. This was another case under the Commonwealth Act. The applicants sought to vary restraining orders previously made so as to have certain properties excluded. Their application being refused, they appealed to the New South Wales Court of Appeal[18]. Some of the property in question was owned by a company of which the sole directors and shareholders over a long period had been the accused man and his then wife; the accused man having the lion's share of the shareholding. The judge at first instance had found that "the man was in a very real sense in control of the company".

"[Counsel] then contended that the defendant as a director of Logan Park owed fiduciary duties to it and since the sum of $1.9 million belonged in equity to the company the defendant could have no lawful right of control over this fund for his own benefit. The company had therefore established that its interest in the fund was not, at the relevant time, subject to his effective control. Effective control is defined in s. 9A and given a wide meaning. Control means de facto control that is control which is practically effective even though it is not supported by any proprietary interest or legally enforceable power: see Gray v Official Trustee (at 73) and Connell v Lavender (1991) 7 WAR 9. In our opinion the judge's approach was not affected by legal error."[19]

105. The court was of a different opinion in the case of property which was both mortgaged and leased.

108. All in all, the Victorian legislation suggests, and the authorities dealing with like legislation show, that effective control means control which is practically effective, even though it is not supported by any proprietary interest or legally enforceable power; control de facto, not necessarily - though it might also be - control de jure. Such control is not denied by the existence of trust arrangements which in ordinary circumstances would yield the trustee a bare legal interest in property.[20]

112. I turn to the facts of the matter. The evidence before me establishes that:

1. Bow Ye is the registered proprietor of each of the Calembeena Avenue and Exhibition Street properties. Calembeena Avenue was acquired by the first respondent and his then wife in February 1990. It was sold by them to Bow Ye at the instance of the first respondent. Transfer was effected after Bow Ye made payments to the first respondent and his wife totalling $249,000 in the latter months of 1997. Exhibition Street was acquired by Bow Ye in May 1997 for about $275,000.

2. Bow Ye was incorporated in February 1997. The first respondent was, at the outset and at the time the restraining order was made, its sole director and shareholder; and as well its secretary.

3. A trust was established by Deed dated 29 January 1997. Prepared by the then solicitor for the first respondent it constituted the Loo Family Trust, of which the specified beneficiaries were the first respondent and his wife. Their children were nominated - but not exclusively - as general beneficiaries. The first respondent was named as guardian and appointor. Bow Ye was named as trustee. The Deed was surely prepared at the instance of the first respondent. It was submitted for assessment of stamp duty, but apparently not until October 1997.

4. In late March 1997 the first respondent set up three bank accounts, two with the National Australia Bank, one with Westpac, in the names of persons to whom he was related or, in one case, with whom he was well-acquainted[21]. The first respondent operated these three accounts under notices of authority. Large amounts passed through each of them in the period March 1997 - June 1998. The evidence disclosed by the affidavit of Paul Dimitros sworn 28 November 2001 is compelling that the deposits represented the proceeds of sale of abalone, notwithstanding that the period to which the charges related did not extend back beyond October 1997. There is also very clear evidence that large numbers of substantial withdrawals of cash were made from these accounts over the period March 1997 - August 1998. With one exception the evidence does not disclose a transaction involving one of those accounts and Bow Ye's account in the period before October 1997. But it does show the availability of funds to the first respondent on a large scale in that period; a period during which, on the face of it, substantial unsecured loans were made to Bow Ye by offshore individuals and a company with whom and which respectively the first respondent had links.

5. A bank account in the name of Bow Ye was opened in early February 1997. It prospered. By 3 March 1997 deposits of $80,942 had been made and by 3 March 1997 a further $181,884. In the next month there were no deposits, but in the period to 3 June 1997 a further $40,601.14 was deposited. The account was sufficiently in credit to enable cheques to be drawn in respect of the balance of deposit $23,500, balance of the purchase price $254,778.50 and stamp duty and legal fees $14,889 in connection with the purchase of Exhibition Street. Deposits were made over the period early February to late May by Robert Loh in an amount of $75,892, by Leong Jeet Yu in an amount of $99,992, and by William Tang in an amount of $91,892.

6. In late February 1997 the first respondent instructed his solicitor to prepare loan agreements between Bow Ye as borrower and each of Leong, Tang and a company in Malaysia as lenders. The amount of the loan was in each case to be left blank. Agreements were completed in the case of Leong (dated 12 March 1997, for $100,000), Tang (dated 15 March 1997, for $81,900) and the Malaysian company (dated 1 May 1997, for $75,900 and $40,610). The credits to which I referred in the proceeding paragraph match the Leong and Tang agreements. The credit of $75,892 from Robert Loh matches one of the two amounts specified in the Malaysian company agreement.

7. More loan agreements were located in the course of the investigation which led to the first respondent being charged. They had been signed in blank - one by Leong (or perhaps Gim Kee Teoh) one by Tang, others by Ahamad Bin Shaibi and Gim Kee Teoh. The last two mentioned persons were persons in whose names bank accounts had been established which had been operated by the first respondent under authority. Additional to the above was a further loan agreement dated 1 July 1997, partly completed and signed by Leong, in an amount of $158,000. Such an amount was apparently transferred into the Bow Ye's account on 1 July 1997 by telegraphic transfer from the Bank of Singapore. The customer's copy of the telegraphic transfer, part of exhibit PD12 to Mr Dimitros' affidavit, was surely signed, if not otherwise completed, by the first respondent.

8. Tang was at pertinent times the chief executive and managing director of a Singaporean company, Seawaves Frozen Foods Pte Ltd, with which the first respondent did business - I infer the supply of abalone - in 1998. There is no direct evidence of trading between Seawaves and the first respondent in 1997. But, as I said earlier, it seems very likely that the first respondent had embarked upon trade in abalone by March 1997, that being the month in which the bank accounts operated by the first respondent were opened, through which passed large amounts of money. It is clear that in March 1997 Tang knew the first respondent well enough, if the loan agreement is to be taken at face value, to make an unsecured loan of $81,900 to Bow Ye.

9. The loan agreement with the Malaysian company, Benteng Kiara Sdn Bhd, as I have said earlier, was for two amounts $75,892 and $40,610 the first corresponding with a deposit into the third respondent's account by Robert Loh. According to a company return for the year ended 31 December 1996 the principal activities of the company were marketing services, property investment and rental of property. The return shows that the first respondent was a director of the company, and that he was owed an amount of RM382977. The company, but not Robert Loh, lodged a proof of debt with the third respondent's liquidator. More accurately, the proof was lodged by "Leong Mei Fong, Benteng Kiara Sdn Bhd". Leong Mei Fong was the name of a person whom in 1998 the first respondent requested obtain Ahamad Bin Shaibi's signature on documents which he, the first respondent, had prepared; and also on blank sheets of paper.

10. There is no doubt that moneys were deposited into Bow Ye's account in the period March to May 1997 by Leong, Tang and Loh; and in Leong's name in July 1997. Whether the moneys truly represented loans, having regard to the circumstances which I have outlined, may be doubted.

11. Concerning the purchase by Bow Ye of Calembeena Avenue, I note that four payments totalling $249,000 were made in the period 16 July to 19 December 1997. The last payment was of $149,000. In September 1997 a transfer of $115,000 was effected from one of the accounts operated by the first respondent into Bow Ye's Westpac account. It cannot be said that the particular deposit was used to pay, in part, for the purchase of Calembeena Avenue. On the other hand, the incident shows the way in which the first respondent was able, in controlling a bank account established in the name of another, to add to the property of the trust; a trust of which he was guardian and appointor, and of the corporate trustee of which he was sole director and shareholder.

12. The first respondent very probably used Calembeena Avenue for the processing of abalone at some stage in the period 1997-1998.

13. In the course of a plea before sentence in the County Court the first respondent gave undertakings with respect to Calembeena Avenue and Exhibition Street that he would make available his interest in those properties in satisfaction of any forfeiture and pecuniary penalty orders that might be made.

129. Having regard to the picture which emerges from my conclusions upon matters of fact I have no doubt that the first respondent should be considered to have been in effective control of the trust property constituted by the Calembeena Avenue and Exhibition Street properties at the time when the restraining order was made. He had substantial practical control over the affairs of the trust, a trust constituted at his direction. He was guardian and appointor of the trust, sole director and shareholder of the corporate trustee, and a specified beneficiary of the trust. The trust property was not encumbered. Acquisition of property by the trust was evidently at the instance of the first respondent. Funding of acquisitions was orchestrated by him. There is certainly room for inference that funding in truth derived from unlawful activity concerning the processing and sale of abalone. But it is not necessary to go so far. Again, Calembeena Avenue was very probably used at some stage for processing abalone in the course of the first respondent's illegal operations. Note also that the first respondent, then instructing his present solicitors, was prepared to concede an interest in the two properties for the purposes of his plea; and that his counsel before me did not seek to adduce evidence upon the question of effective control; and submitted that such control seemed to be clearly established.

133. Subject to one matter which remains for consideration, the Director has made out his case for a declaration under s. 70(1) of the Act. The matter is this: according to the submissions of counsel for the first respondent, if I was to make a declaration under s. 70, an operational inconsistency[22] between the pertinent provisions of the Act and of the Corporations Act 2001[23], would arise. I should make no order which would cause such an inconsistency to occur.

136. It might well be thought anomalous that this submission was made on behalf of the first respondent, who is no longer a director and secretary of Bow Ye[24], nor guardian or appointor of the trust, and whose sole remaining connection with the trust property could be as a specified beneficiary; whereas the alleged substantial creditors of Bow Ye, whom I ordered should be given notice of this application, and who were given notice, did not appear. Nonetheless, it was not suggested either by counsel for the Director or Bow Ye that the submission should not be entertained; and I heard argument at length.

Inconsistency: the relationship between s. 72(1) and (2)

140. In order to understand some aspects of the submissions advanced by all counsel it is necessary to notice that the effect of an order made under s. 70(1) is set out partly within s. 70 - by sub-s. (2) - and partly by s. 72. By s. 72(2), on the making of a declaration under s. 70(1), a charge is created on all the property to which the declaration applies to secure the payment of the pecuniary penalty. The operation of such a charge is described in s. 72(4) - (8).

143. Counsel for the first respondent conceded that, if a pecuniary penalty order and a declaration under s. 70(1) were made before a company having de jure title to the property the subject of the declaration went into liquidation, then s. 70 and the machinery provisions of the Act would not come into conflict with the winding up provisions of the Corporations Act. But it was otherwise, he submitted, if the liquidation commenced before the s. 70(1) declaration was made; and that was here the case.

146. Counsel for the first respondent further conceded that if a charge was created by operation of s. 72(1) before a liquidation commenced there would be no collision between the operation of the Act and the pertinent provisions of the Corporations Act. But here no such charge had been created before 14 September 2000. That was so for two reasons. First, the pecuniary penalty order was not made until after the liquidation was deemed to have commenced. Second, in any event a s. 72(1) charge does not attach to what might be called effective control property. Those submissions illuminated the fact that a charge may be created in one of two ways: by the operation of s. 72(1); and by the making of a declaration under s. 70(1), this bringing s. 72(2) into play.

149. There was considerable debate concerning the interrelationship of s. 72(1) and (2). That said, the present application was made in reliance on s. 70(1); and the Director from beginning to end asserted the need for the declaration sought. It was never contended for the Director that by operation of s. 72(1) a charge had been created over "effective control" property as would render otiose the making of a declaration under s. 70(1).

152. Counsel for the Director submitted, in this connection, that when Hedigan J made a pecuniary penalty order on 11 October 2000 a s. 72(1) charge was created over all properties the subject of the restraining order. She submitted, however, that it remained pertinent to obtain a s. 70(1) declaration in respect of Calembeena Avenue and Exhibition Street because the charges created by operation of s. 72(1) and (2) have different consequences.

155. The need for a 70(1) declaration being constantly asserted for the Director it would nonetheless be pertinent were it the case that a charge was created over effective control property on the making of Hedigan J's order. The inconsistency argument would need to be considered in two statutory contexts.

158. Be that as may, I do not accept the submissions of counsel for the Director - supported in part by the submissions of counsel for Bow Ye - that a charge was created over, inter alia, effective control property in consequence of the orders made by Hedigan J on 11 October 2000. I consider that the necessary starting point of the submissions - that the phrases "property of a person" and "property of that person" in s. 72(1) include property subject to the effective control of a person - is unsound.

161. The initial identification of the subject matter of s. 72(1) is found in paragraph (a), that is, "a restraining order in respect of ... the property of a person." Under s. 16(1)(c) the Director may apply for a "restraining order in respect of property in which the defendant has an interest...". By extension, that includes, see s. 10(a), property subject to a defendant's effective control; and by s. 10(b), in some circumstances property gifted by a defendant to another person. But it does not follow that s. 16 `property in which the defendant has an interest' is to be equated with s. 72(1) `property of a person'. The language itself is different.[25] The difference is not obliterated by the reference in s. 72(1) to the creation of a charge "on all the property of that person to which the restraining order applies". That is not the equivalent of a reference to all the property in which a defendant has an interest to which a restraining order applies. Further, s. 70(2) provides that if a declaration is made "the order may be enforced as if the property were property of the defendant" (my emphasis). That sub-section strongly suggests that there is a difference, corresponding with the real-life situation, between the property of a person and property in which, by statutory extension, a person is taken to have an interest. The existence of such a statutorily recognised difference is emphasised by s. 70(3), which requires that notice of a sub-s. (1) application be given both to the person against whom the order is sought and the defendant. It does not follow from the fact that a restraining order may be made in respect of effective control property that such property will necessarily be subject-matter of the statutory charge created by s. 72(1).

164. Counsel for the Director submitted that there was a need for a s. 70(1) declaration, although a charge had been created by operation of s. 72(1) on effective control property, by reason of the different consequences of charges created under that sub-section and under s. 72(2). The only consequence of a s. 72(1) charge, counsel argued, was that the State may, if the situation falls within s. 72(5)(b), register the charge, this having notice implications under s. 72(3)(a). In the case of a s. 72(2) charge, however, the State may record the particulars of a s. 70 declaration on a register of title, this including the lodging of a caveat under s. 98 of the Transfer of Land Act 1958.[26] In a connected submission counsel argued that the disjunctive "or" in s. 72(3)(4) and (5) was "not a mutually exclusive `or'". It showed only that charges created by s. 72(1) and (2) shared some common characteristics.

167. It is certainly the case that s. 72(7)(8)(9) permit action in respect of charges created under s. 72(2) which is not available in respect of s. 72(1) charges. In my opinion that circumstance does not assist a conclusion that s. 72(1) charges may embrace property the subject of a s. 72(2) charge. It is consistent either with effective control property being susceptible of inclusion in a s. 72(1) change; or of the converse. In either situation it is understandable that provision should be made for lodging a document such as a caveat in the case of such property, the title to which might well reveal nothing of the defendant's interest therein.

170. Use of the disjunctive "or" in s. 72(3)(4)(5) is also, in my opinion, unhelpful in determining whether the property comprehended by sub-s.1 includes effective control property. On the one hand it might be said that if it did include such property there would really be no need for reference in sub-ss. (3)(4) and (5) to a sub-s. (2) charge - since in each case the consequences are the same. But, as against that, a specific charge in respect of effective control property would be needed by reason of s. 72(7)(8) and (9); and given the existence of s. 72(2) in such circumstances, it would be understandable that sub-ss. (3)(4) and (5) should refer to sub-s. (2), in case it was otherwise thought that those sub-sections only referred to sub-s. (1) charges.

173. Then it might be said that s. 72(1) only applies when paragraph (b) is satisfied; but that s. 70(1) does not require the earlier making of a pecuniary penalty order - for a declaration is, by the closing words of s. 70(1), no more than a declaration that particular property "is available to satisfy a pecuniary penalty order". So, s. 72(2) could be given work to do.

176. Such a basis for distinguishing the operation of s. 72(1) and (2) would not withstand scrutiny. The framework of Part 8 of the Act strongly suggests that application for, and the making of a s. 70 declaration is to be a step subsequent to the making of a pecuniary penalty order. It is highly improbable that the section would contemplate the court being asked to make a declaration in connection with a pecuniary penalty order that might never be made; and the size of which, if it was to be made, could only be conjectured. Moreover, what could be the sense of the court being able to make a declaration only in respect of a limited class of property when a pecuniary penalty order had not been made?

179. Counsel for the first respondent submitted, in effect, that a s 72(1) charge could not have been created when the pecuniary penalty order was made - whatever property it embraced - because the creation of such a charge may constitute a disposition of property made after the commencement of the winding up. He referred by analogy to s. 468(1) of the Corporations Act. He contended, alternatively, that such a charge would in any event - by reason of s. 72(4)(a) of the Act - be subject to prior encumbrances constituted by the trustee's lien over trust assets (that is, the assets of Bow Ye) in respect of its own costs and expenses, by the liquidator's lien over company assets to secure his costs and expenses of the liquidation, and by the claims of creditors[27] upon trust assets. Equity, he submitted, deems the creditors entitled to the rights of the trustee against the trust fund, and as subrogated accordingly[28].

182. Because, in my opinion a s. 72(1) charge does not embrace effective control property, it is unnecessary to presently consider those submissions. They bear, however, upon another aspect of the inconsistency argument, and in that connection I shall refer to them later.

The nature of the alleged inconsistency; competing submissions

186. According to the submissions of counsel for the first respondent any declaration which I might make under s. 70(1) would create an operational inconsistency between pertinent provisions of the Confiscation Act and the Corporations Act. Not so, according to the submissions of counsel for the Director and for the liquidator of Bow Ye. What, if anything, does the pertinent legislation say about inconsistency?

189. Part 1.1A of the Corporations Act is headed "Interaction between Corporations legislation and State and Territory laws." It comprises ss. 5D-5I. Counsel for all parties referred to this Part in the context of the inconsistency argument, and particularly to ss. 5E and 5G.

192. Counsel for the first respondent submitted that the present case is one of direct inconsistency between Commonwealth and State legislation: "The present application seeks to invoke rights, derived from the State laws, which are intended to be invoked in substitution for the rights of the liquidator and the other participants in the liquidation as created and defined by Chapter 5 of the Corporations Act." So, the intention expressed by s. 5E(1) must yield to the exception expressed by s. 5E(4); and although the State legislation was a "pre-commencement provision" for the purpose of s. 5G(3), item 1, yet neither of sub-s. (4) or (11) operated to preserve the State legislation.

195. Counsel for the Director submitted that the court should favour a construction of pertinent legislation which permits the Commonwealth and State laws to have concurrent operation, and that the laws are capable of such operation. Alternatively, if direct inconsistency was nominally present, actual inconsistency would be avoided by operation of sub-s. (4) and/or (5) and/or (11) of s. 5G. Such a reading of the Commonwealth Act is consistent with the history of referral of powers which spawned the Corporations Act, that history giving rise to what text writers have called an intended "roll back" of Commonwealth law.

199. The background to the legislation is well-known. It was the consequence of agreement between the States and the Commonwealth concerning a referral of power. The agreement was legislatively expressed in a "tabled text" to which the provisions of the referring legislation adverted.[29] The tabled text included what is now Part 1.1A of the Corporations Act 2001.

202. Against that background the scheme of Part 1.1A has been expressed this way:

"Part 1.1A appears to be designed to preserve, perhaps only approximately, the status quo under the previous national scheme legislation; that is, to preserve special state legislation governing bodies such as co-operatives and incorporated associations, also to preserve existing state legislation which was expressed to prevail over the Corporations Law, and to permit the state legislatures to continue to legislate in such manner. It does so by: [diamond] permitting the concurrent operation of state and territory laws, where they are capable of operating concurrently (s 5E); [diamond] excluding from the application of the Corporations legislation matters declared by state or territory law to be excluded matters (s 5F); [diamond] avoiding direct inconsistency between the Corporations legislation and state and territory laws by providing, if specified conditions are satisfied, that the Corporations legislation yields to the state or territory law: s 5G."

"Section 5.G contains a series of complex provisions, the general purpose of which is to allow state and territory laws which would otherwise be directly inconsistent with the Corporations legislation to prevail over the Corporations legislation in defined circumstances. Section 5G is expressed to have effect despite anything else in the Corporations legislation, but it does not apply where the relevant state or territory law is capable of concurrent operation with the Corporations legislation, for in the latter case the operation of the state or territory law is preserved by s 5E, discussed above. Section 5G applies only where the relevant state or territory law (`the State provision') satisfies the criteria established by s. 5G(3). The criteria differ depending upon whether the state provision commenced before or after the commencement of the Corporations legislation, which began on 15 July 2001." [30]

Other text writers have expressed the scheme of Part 1.1A somewhat more broadly. Govey and Manson in their "Measures to address Wakim and Hughes: How the Reference of Powers will Work" say this:

"Another important technical feature of the Corporations Act 2001 is that it has been designed to leave each of the States with the flexibility to deal legislatively with certain State-specific issues in light of the operation of s 109 of the Constitution. This is necessary to accommodate some existing and future variations in the operation of the new federal legislation in particular States, many of which are historically based and all of which would have been accommodated by the previous Corporations Law scheme. If the Commonwealth had simply covered the field of corporate regulation by means of its new law, any inconsistent State laws in that field would have been invalid by operation of s 109 of the Constitution. That was unacceptable to the States. The Corporations Act 2001 includes three mechanisms to address State concerns in this regard. First, the Bill explicitly allows for the operation of State legislation that is capable of operating concurrently with the new Commonwealth law. Secondly, it provides an automatic `roll-back' mechanism to accommodate certain kinds of State and Territory legislation. Thirdly, it includes a regulation-making power to `roll-back' additional aspects of the Commonwealth law to accommodate State laws if that should prove necessary or appropriate." [31]

Again, Professor Saunders, in an article entitled "A New Direction for Intergovernmental Arrangements", expressed the problem and its solution as follows:

"One of the main perceived disadvantages of enabling the Commonwealth itself to enact the Corporations Law was the potential effect of s 109 of the Constitution on other State legislation in the event of conflict or perceived conflict. Arguably, the problem was exacerbated in relation to the Corporations Law because of its range and the extent to which it has become intertwined over a period of 150 years with the rest of the corpus of State legislation and administration. Potential for conflict between the Corporations Law and other State laws existed also under the previous regime. The nature of actual inconsistency was more limited and its consequences less severe, however. In the absence of overriding Commonwealth law, inconsistency was handled by interpretation provisions in the State application laws and understandings in the Corporations Agreement. The danger that Commonwealth legislation might inadvertently cover an unsought State field is relatively easily overcome through a statement of intention. Section 5E of the Corporations Law accordingly denies any intention `to exclude or limit the concurrent operation of any law of a State'. Direct inconsistency is another matter, which is tackled through a suite of provisions. Section 5F of the Corporations Law enables the States to exclude its operation in relation to a matter, in whole or in part, subject to Commonwealth counter-exclusion by regulation. Section 5G provides for the roll-back of the Corporations Law in certain circumstances, including those in which State legislation would previously have operated despite the Corporations Law. Section 51 enables the roll-back to be extended by Commonwealth regulation to other cases of potential inconsistency."[32]

212. Pausing for a moment, under the legislative regime operative before July 2001 the provisions of ss. 70 and 72 of the Act were not precluded from impacting upon the winding-up of a corporation. It would be, I think, a strange and unintended consequence if the referral of power, culminating in the Corporations Act 2001, precluded such an impact, by contrast with provisions of the Commonwealth's confiscation legislation.

The scheme of Part 1.1A

217. The scheme of Part 1.1A, whatever be its precise limits, is clear enough. By s. 5E(1) the Corporations legislation is not intended to exclude or limit the concurrent operation of a state law. Later I refer to limits on the operative effect of legislatively expressed intention. In any event, the sub-section does not address direct inconsistency between the Corporations legislation and a State law, a topic first dealt with by s. 5E(4). That sub-section provides that in a case of direct inconsistency between the Corporations legislation and a State law the ameliorating effect of the section is not to apply to the State law.

220. In a case of direct inconsistency the position of a State law would thus be hopeless were it not for s. 5G, sub-s. (1) of which provides that the section has effect "despite anything else in the Corporations Legislation". To emphasise the point made by the heading to the section, sub-s. (2) provides that the section does not apply to the type of matter dealt with, albeit by expression of intention, in s. 5E(1). It is concerned with instances of direct inconsistency. The section, by sub-s. (3) item 2, applies to a "pre-commencement (enacted) provision" of a State law, a term defined by sub-s. (13). It was not in debate that the relevant provisions of the Act meet that definition.

223. Section 5(G)(4)-(11) provides what should happen if a pre-commencement provision has operation or effect which is directly inconsistent with the operation or effect of a provision of the Corporations law. Sub-sections (4)-(10) deal with specific situations. Sub-section (11) is in terms unconfined.

Resolution of the matter assuming direct inconsistency

227. The framework of Part 1.1A is such that the strongest argument for the first respondent must have as its starting point the presence of direct inconsistency between provisions of the Corporations legislation and the Act. Let such an inconsistency be assumed. Counsel for the first respondent submitted that none of the s. 5G(4)-(10) could apply in the present case; and that sub-s. (11) should be read ejusdem generis so as to cut down its apparent breadth. So read, it did not embrace this case. Counsel for the Director submitted, to the contrary, that sub-ss. (4) and (8) applied; and that sub-s. (11), which should be read either literally or expansively in light of the overall intent of Part 1.1A, also applied.

230. The circumstances in which the Corporations Act came into existence were unlike those which apply in the case of most Commonwealth legislation. Part 1.1A reflects the agreement between the Commonwealth and States which by referral of power provided for the enactment of the Corporations Act and for the inclusion therein of a mechanism for resolving potential problems of inconsistency. I see every reason, in the circumstances, for giving s. 5G an operation which its words permit. I doubt the validity of the starting point of the argument for the first respondent, that is, that a genus is discernible. But even if that be wrong I do not accept that sub-s. (11) should be confined by application of the maxim ejusdem generis. In terms, the sub-section is capable of preserving the operation of ss. 70 and 72 of the Act. I consider that it should be given that effect. Counsel for the first respondent submitted that it would be extraordinary to interpret s. 5G(11) to give it the effect of suspending the operation of Chapter 5 of the Corporations Act in Victoria so as to permit the pertinent provisions of the Act to have effect. I do not agree. I consider that the very opposite is the case. I should add that whilst the meaning I place on s. 5G(11) is expansive, it is nonetheless limited in its operation by the terms of s. 5(G)(3).

233. The construction I place upon s. 5G(11) is enough to conclude the argument which assumes a direct inconsistency - and thus the inconsistency argument. But for completeness I should say something very shortly about s. 5G(4) and (8), upon which counsel for the Director also relied in the direct inconsistency context.

236. The application of sub-s. (4) must depend upon there being a provision of the Corporations legislation prohibiting the forfeiture of company property to a State in preference to the satisfaction of liabilities and a distribution to members. Counsel for the Director did not identify any such provision.

239. The applicability of sub-s. (8) in the circumstances of this case seems to depend upon whether the operation of a pecuniary penalty order, in conjunction with a section 70 declaration and a s. 72(2) charge, this leading to a company being deprived of its property, could be regarded as a scheme of arrangement, receivership, winding up or other external administration of a company carried on in accordance with the law of a State. Whilst a pecuniary penalty order, a s. 70 declaration and a s. 72(2) charge may impact upon a company which is being wound up - the situation in the present case - I do not consider that the pertinent sections of the Act meet the description of a State law set out in s. 5G(8). The problem of so characterising the State provisions is made the more apparent by the fact that they may also impact upon a company which is not being wound up, or subject to any of the other regimes set out in s. 5G(8).

Inconsistency: are the Commonwealth and State laws capable of concurrent operation?

243. Because, if concurrent operation of the Commonwealth and State laws was impossible, there would be direct inconsistency, and because the operation of s. 70 of the Act would be preserved by operation of s. 5G(11) of the Corporations Act in such a case, it is strictly unnecessary to consider whether - as counsel for the Director and for Bow Ye asserted was the case - the two laws are capable of concurrent operation. But for completeness sake I should say something about the concurrency argument.

246. The starting point is clear. If the Commonwealth and State laws are capable of concurrent operation, they are to have such operation. Whilst the Commonwealth's expressed intention in that connection is not decisive, it should not be ignored, perhaps particularly having regard to the history of the Corporations legislation.[33]

249. At the heart of the argument for the Director was the proposition that the making of a declaration under s. 70 of the Confiscation Act would do no more than impose additional obligations upon the liquidator, to be dealt with in the ordinary way.[34] The effect of a declaration, counsel submitted, is to create a charge over the property to which the declaration applies: s. 72(2). The charge is subject to prior encumbrances: s. 72(4). In the present case, the charge would be subject to the liquidator's right to reasonable remuneration and expenses. That would be regarded as "a prior interest of some kind".[35] But whether the alleged creditors of Bow Ye could establish any prior right was another question.[36]

[diamond] First, though it must be obvious, the forfeiture order made by Hedigan J on 11 October 2000 did not include as its subject matter either Calembeena Avenue or Exhibition Street.

[diamond] Second, the amount payable pursuant to the pecuniary penalty order which his Honour then made is for all purposes taken to be a civil debt due by the person to the Crown; and enforceable as if it were an order made in civil proceedings brought by the Crown against the defendant: s. 74(1) and (2). The import of s. 74 is that the making of a pecuniary penalty order at once creates a civil debt due to the Crown and an order enforceable by execution. That is so although the facts giving rise to the order may have occurred a considerable time earlier. It is not an answer to the import of s. 74 to say that a pecuniary penalty order is made where a restraining order is already in place; and that such an order may in some circumstances be registered: see s. 28(1) and (2). It is the making of the pecuniary penalty order which creates the debt, and which may trigger an application under s. 70(1). Absent a pecuniary penalty order, the existence of a restraining order would be pertinently irrelevant.

[diamond] Third, by s. 71 a court is given wide power to give directions necessary to effectuate a pecuniary penalty order. It may also make an order directing a specified person to take control of property upon which there is, inter alia, a s. 72(2) charge.

258. The consequence of the legislative framework to which I have just referred is that a charge created by s. 72(2) in some measure secures the Crown's position deriving from the pecuniary penalty order. The Crown's position is "in some measure" protected because:

[diamond] the property the subject of a s. 70 declaration may have a value less than the amount of the pecuniary penalty order;

[diamond] the charge created by s. 72(2) is subject to prior encumbrances; and,

[diamond] it seems that a s. 72(2) charge only takes effect, vis-à-vis prior encumbrances, from the date when the s. 70 declaration is made.

264. In the present case an enforceable debt due by the first respondent to the Crown was established by the pecuniary penalty order made by Hedigan J on 11 October 2000. If a s. 70 declaration is made, it will give rise to a charge securing a debt due by the first respondent. The debt and the security will each postdate the commencement of the winding up[37] The charge will be subject to all prior encumbrances to which Calembeena Avenue and Exhibition Street were subject.

267. I should mention ss. 553 and 553B of the Corporations Act. The former provides, in short, by sub-s. (1), that all debts payable by and claims against a company, "being debts or claims the circumstances giving rise to which occurred before the relevant date", are admissible to proof against the company. The "relevant date", by s. 9 of the Corporations Act, is ordinarily the day on which the winding up is taken to have begun.

270. I turn to s. 553B. It provides:

"(1) Subject to subsection (2), penalties or fines imposed by a court in respect of an offence against a law are not admissible to proof against an insolvent company. (2) An amount payable under a pecuniary penalty order, or an interstate pecuniary penalty order, within the meaning of the Proceeds of Crime Act 1987, is admissible to proof against an insolvent company."

274. The terms "interstate pecuniary penalty order" and "corresponding law" are defined by s. 4(1) of the Proceeds of Crime Act 1987 (Cth). Regulations 3 and 4 of the Proceeds of Crime Regulations 1987 respectively show that the Act is a corresponding law and that a pecuniary penalty order made under Part 8 of the Act is an interstate pecuniary penalty order.

277. In light of the definitions in the Proceeds of Crime Act 1987 (Cth) and the Regulations thereto, s. 553B of the Corporations Act will operate so that a debt created by a pecuniary penalty order in favour of the Crown and against a company will in some circumstances be provable in a company winding up. There is thus an area in which the Corporations Act provisions relating to winding up and the provisions of the Confiscation Act can operate concurrently, an area limited by the legislature's apparently continuing belief that it is difficult to justify penalising creditors for a wrong committed by a company[38].

280. In the present case, however, s. 553B(2) can have no direct application; because the pecuniary penalty order was made against the first respondent, not Bow Ye. That is not to say that it could apply if the pecuniary penalty order had been made against Bow Ye. A question would arise whether a pecuniary penalty order made after the date of commencement of the winding up would fall within that sub-section because the necessary content of the order - the "value of the benefits derived by the defendant in relation to the offence"[39] involved circumstances which occurred before the date of commencement of the winding up

283. I have serious doubt whether the language of s. 553(1) should be read to encompass that situation. It would require the court to treat circumstances not giving rise to a debt in ordinary circumstances to be given a different colour by reason of the making of a pecuniary penalty order. It would, moreover, give s. 553B(2) an expansive operation, contrary to the intention disclosed by the legislature in 1992, and apparently carried on into the Act of 2001.

286. The effect of the pecuniary penalty order in the present case was, as I have said, to create a debt due to the Crown by the first respondent. That debt was and is enforceable against him. None of that involved Bow Ye. The effect of my making a s. 70 declaration would be that Bow Ye's assets would become security for the first respondent's indebtedness - though the security would be subject to existing encumbrances. Those encumbrances, it appears, would not include Bow Ye's alleged unsecured creditors who have proved for substantial amounts. Counsel for the liquidator made it very clear that his client was not contending that his right of indemnity from the corpus of the trust included the amounts allegedly owed by Bow Ye to those persons.

289. Where the legislature has restricted the circumstances in which penalties and fines are provable in a liquidation, I think it is difficult to conclude that a provision of a State Act rendering a corporate asset security for a pecuniary penalty order made after the date of commencement of a winding up against a person other than the company is capable of concurrent operation with the liquidator's statutory duties to get in and then apply company assets in an orderly way - the core obligation in that connection being set up by s. 501 of the Corporations Act. Potentially, the liquidator may be deprived of assets of the company which would otherwise be available to meet the claims of unsecured creditors. Other than in respect of prior encumbrances a s. 72(2) charge is able to operate in such a way. Further, although not squarely relevant, the import of ss. 468(4) and 500(1) of the Corporations Act is not readily compatible with the regime established by a State Act by which company property is secured in connection with a statutory debt susceptible of execution.

292. I am conscious of the fact that, in the present case, the alleged unsecured creditors of the company very largely consist of persons whose claims may be considered dubious - persons who did not appear before me, despite being put on notice. I am conscious also that a charge created by s. 72(2) protects prior encumbrances - here, most obviously, the liquidator's claim to remuneration and expenses[40]. I should say also that I do not agree with the submission for the first respondent that the making of a declaration and/or the creation of a charge would constitute a "disposition of property" forbidden by an extrapolation of s. 468(1) of the Corporations Act.[41] In no real sense could a declaration whose effect was to secure a pecuniary penalty order be described as a disposition of property of the company.[42] The company might ultimately be deprived of some of its property; but that is another matter. Again, I recognise the force of the arguments that it cannot be said that the grant of a declaration would create an operational inconsistency between s. 70 of the Confiscation Act and Chapter 5 of the Corporations Act because the validity of the claims of the large unsecured creditors await determination on another day; and that it is conceivable that a s. 70 declaration could be granted in a form which would effectively protect a company's unsecured creditors - that is, by limiting the property which was to become available to meet a pecuniary penalty order. Even so, I consider that it is strongly arguable, in the circumstances of this case, that to make the order sought would give rise to an operational inconsistency between ss. 70 and 72(2) and provisions of Chapter 5 of the Corporations Act. Because, however, the conclusion which I reached concerning direct inconsistency is enough to resolve the matter, I refrain from expressing a final opinion upon the concurrency argument.

296. Subject to anything that counsel may wish to say[43] I shall make orders in accordance with the following minutes:

(1) Declare pursuant to s. 70 of the Confiscation Act 1997 that there is property available to satisfy the pecuniary penalty order made against the first respondent by Hedigan J on 11 October 2000, such property consisting of the proceeds of sale of the property known as 26 Calembeena Avenue, Oakleigh, Certificate of Title Vol 4789 Folio 683 and the proceeds of sale of the property known as 181 Exhibition Street, Melbourne, Certificate of Title Vol 10292 Folios 032 and 164, but excepting from the proceeds of sale of the properties the expenses incurred in the sale thereof and the reasonable remuneration and expenses of the liquidator of and incidental to the winding up of the second respondent.

(2) Direct, pursuant to s. 71 of the Confiscation Act 1997, that within 28 days of the settlement of the sale of the last of the two properties referred to in paragraph 1 hereof, or within 14 days of these orders (whichever last occurs) the liquidator of the second respondent pay to the Asset Confiscation Office, Victoria, PO Box 36A Melbourne 3001, the proceeds of sale of the properties after deduction of the expenses and remuneration referred to in paragraph 1 hereof, and provide to the Director of Public Prosecutions a copy of the statement of adjustments and settlement statement in respect of each property, and an itemised account of his fees and expenses of and incidental to the winding up of the second respondent.

(3) Reserve liberty to any party to apply on 48 hours written notice to all other parties.

---

[1] Certificate of Title Vol. 4789 Folio 683.

[2] Certificate of Title Vol 10292 Folio 032, Vol 10292, Folio 164.

[6] See s. 513B(b) and 513C(b) of the Corporations Law, re-enacted as the same provisions of the Corporations Act 2001.

[7] There has been similar legislation in operation in other States and in the Northern Territory for more than a decade now. It is unnecessary to consider the pertinent provisions in that other legislation.

[8] (1992) 7 WAR 9. Reasons for judgment were given by Malcolm CJ, Pidgeon and Rowland JJ agreeing therein.

[11] (1989) 43 A Crim R 266. The case was not referred to in Connell.

[15] (1991) 29 FCR 166 at 173.

[17] [2002] FCA 690; (1994) 122 FCR 1.

[18] Constituted by Meagher, Handley and Sheller JJA.

[20] These conclusions are in line with the Second Reading Speech of what is now the Confiscation Act: Hansard, Assembly, 13 November 1997, p. 1149.

[21] See exhibit PD17 to Mr Paul Dimitros' affidavit sworn 28 April 2001.

[22] See, eg, Commonwealth of Australia v The State of Western Australia and Ors [1999] HCA 5; (1999) 196 CLR 392 at 417 per Gleeson CJ and Gaudron J.

[23] All counsel agreed that the latter Act was the applicable legislation in the context of the present argument.

[24] Though he remains a shareholder, I think.

[25] Highlighted in the present case by the fact that the restraining order was made against both the first respondent and Bow Ye; whereas the pecuniary penalty order was made only against the first respondent - a matter relied upon by counsel for the first respondent to show that the cumulative requirements of s. 72(1)(a) and (b) were not satisfied.

[27] For example, the alleged substantial lenders.

[28] citing Jacobs' Law of Trusts in Australia, 6th Ed, paragraphs 2102, 2112. The limits to the rights of creditors are set out in the second of these paragraphs.

[29] See, for example, s. 4 of the Corporations (Commonwealth Powers) Act 2001.

[30] Ford's Principles of Corporations Law, Butterworths, 2000, pp 3206-3207.

[31] 12 Public Law Review, December 2001, at p 262.

[32] 12 Public Law Review, December 2001, p 284.

[33] Counsel for the Director and the first respondent made common cause that the Commonwealth did not legislate to cover the field; see paragraphs 11 and 13 of the outline of submissions of the firstnamed respondent dated 12 March 2002 and paragraphs 12-14 of the submissions for the Director also dated 12 March 2002. As to legislatively expressed intention, both counsel referred to The Queen v The Credit Tribunal; ex parte General Motors Acceptance Corporation, Australia [1977] HCA 34; (1977) 137 CLR 545 per Barwick CJ at 552; see also per Mason J at 563-564 and per Murphy J at 565-566.

[36] T.125 line 29 - T126 line 8, T.127 line 28 - T.128 line 17.

[37] See paragraphs13 and 14 of these Reasons.

[38] See McPherson, The Law of Company Liquidation, 4th ed, pp. 543-544.

[39] See ss. 59(1)(a), 63(1)(a) and 67 of the Act.

[40] And perhaps, the liquidator would wish to say, amounts necessary to meet the claims of the Monash City Council ($783.40) and Commissioner of State Revenue ($149.53).

[41] As to which see McPherson, op cit pp. 229-230.

[42] See McPherson, op cit pp. 223-224.