Eskander v Chief Commissioner of State Revenue

Jurisdiction, applicable law and the decision under review

1. This Tribunal has jurisdiction to review the Chief Commissioner's decision. Our jurisdiction arises because that decision has been the subject of a notice of objection by Dr Eskander, being her objection made on 5 August 2021 and because she is dissatisfied with the Chief Commissioner's response to that objection and his decision to issue the determination letter. The Tribunal's jurisdiction arises under section 96 of the Administration Act, section 9 of the ADR Act and section 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. The decision under review here is as described in [3] above. It is not his decision to disallow Dr Eskander's objection: Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 at [28], per Basten JA.
3. In conducting that review I am required to determine the correct and preferable decision, having regard to the materials before me and the applicable law: section 63 of the ADR Act.

Uncontested facts

1. The facts described at paragraphs [1] to [4] above are uncontested.
2. In addition the following facts, most of which are asserted in Dr Eskander's statutory declaration of 30 July 2021 and which provide useful background to the payment of the purchase price, are uncontested: 1. the Contract for Sale was entered into on 21 February 2017; 2. Mr Shady Eskander was identified on the Contract for Sale as the purchaser of the Property; 3. the deposit required by the Contract for Sale, $79,000, was paid by a cheque drawn on a Commonwealth Bank account, with an account number ending in '4365' (the Business Bank Account), in the name of North Richmond Family Practice Pty Ltd (the Service Company), which was described by Dr Eskander as the service company for her medical practice; 4. at all relevant times Dr Eskander was the sole shareholder and director of the Service Company; 5. on 18 May 2017 when the Purchase settled the balance of the purchase moneys required on settlement ($834,122.08) was withdrawn from the Service Company's funds held in a term deposit account with ANZ Banking Corporation having an account number ending in '5737' (the Term Deposit Account) and transferred to an account controlled by Mr Shady Eskander (the apparent purchaser), who is Dr Eskander's son; and 6. the purchase was completed on the same day, 18 May 2017.

Preliminary issue: representation of Dr Eskander

1. At the hearing Dr Eskander was accompanied by her daughter Ms Julia Eskander who sought to address the Tribunal on her mother's behalf and generally to provide assistance to her. As I understand it, Ms Eskander is not an Australian legal practitioner. Dr Eskander asks that Ms Eskander be allowed to speak on her behalf and to provide her with support and assistance generally. There was no objection to that course of action subject to Counsel for the Chief Commissioner retaining the right to cross examine Dr Eskander herself on her evidence. That seemed reasonable and on that basis I granted leave under section 45 of the NCAT Act for Julia Eskander to represent the Applicant.

The onus of proof

1. It is of fundamental importance that in a review of this nature the applicant taxpayer has the onus of proving their case: section 100 (3) of the Administration Act, Gauci v Federal Commissioner of Taxation (1975) 135 CLR 181; (1975), B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSW LR 481; Levitch Design Associates Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 215 (Levitch)
2. In Levich at [27], the Tribunal provided a useful summary of the elements of the taxpayer-applicant's onus. 1. The onus requires the applicant to prove their case; that is, to prove or establish on the balance of probabilities all matters necessary to enable a tribunal to answer the statutory question in their favour and all the facts on which they rely in order to claim any exemption. 2. That burden lies solely on the applicant: the legislation places no onus on the Chief Commissioner to demonstrate that the assessments were correctly made, or that they are sustained or supported by evidence. 3. That burden is not necessarily discharged by demonstrating that there has been an error by the Chief Commissioner in forming a judgment as to the amount of the assessment: it is for the applicant to discharge their burden of proof by establishing what the correct amount of the assessment should be. 4. However, the taxpayer's evidence must not be regarded as prima facie (that is, at first appearance) unacceptable and must be considered on its merits without any predisposition, either favourable or unfavourable.
3. At an early stage of the hearing I explained to Dr Eskander the legal principles which govern my approach to the case and in particular the onus of proof which she bears as Applicant, as described above, including the fact that there is no onus on the Chief Commissioner to demonstrate that the assessment was correctly made.

Relevant statutory provisions

1. For convenience of reference I set out below the provisions of section 55 of the Duties Act which are central to the determination of the issues in this matter. 55 Property vested in an apparent purchaser (1) Duty of $50 is chargeable in respect of:… (b) a transfer of dutiable property from an apparent purchaser to the real purchaser if: (i) the dutiable property is property, or part of property, vested in the apparent purchaser upon trust for the real purchaser, and (ii) the real purchaser provided the money for the purchase of the dutiable property and for any improvements made to the dutiable property after the purchase. (1A) For the purposes of subsection (1), money provided by a person other than the real purchaser is taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser. (1B) …

The parties' documentary material and submissions

1. The parties have respectively lodged the following documentary material which I have considered.
2. Dr Eskander lodged an Application form with 6 annexures, which included her statutory declarations made on 18 June 2021 and 13 July 2021 (with numerous annexures) and the statutory declaration of her son Mr Shady Eskander of 18 June 2021. As part of the Application bundle (including as annexures to her statutory declarations) Dr Eskander included copies of relevant correspondence between the parties, bank statements, corporate information concerning the Service Company and the Contract for Sale. Dr Eskander also provided written submissions in response to those of the Chief Commissioner.
3. The Chief Commissioner lodged two bundles of documents provided under section 58 of the ADR Act (collectively, the section 58 documents), being an initial bundle lodged on 4 August 2022 and a supplementary bundle lodged on 4 October 2022. He also provided written submissions.
4. Dr Eskander was cross-examined generally, including on her two statutory declarations.
5. At the hearing each party made oral submissions in chief and by consent each made further brief oral submissions in reply. Ms Julia Eskander made submissions on her mother's behalf as her representative.

The real issues

1. The Chief Commissioner's decision under review, namely that the concessional duty of $50 referred to in section 55 (1) is unavailable to Dr Eskander, will be the correct decision unless both the conditions set out in paragraph (1) (b) of the section, are satisfied.
2. So, I have to determine two broad issues and I will consider them in the following order. 1. The first is whether all the purchase moneys for the purchase of the Property were, or can be deemed to have been, provided by Dr Eskander (Issue 1). That requires some further explanation. Resolution of the issue involves firstly deciding whether it was Dr Eskander as the real purchaser who provided or can be deemed to have provided all the money for the purchase. I note here that the reference in paragraph (b) (ii) to" the money for the purchase" has been held to be a reference to the whole of the purchase money including all disbursements and expenses incidental to the purchase transaction: Triantafilis v Commissioner for Stamp Duties for New South Wales [1988] NSWSC 112 per Priestley J at page 4.8, D Graham Hill: "Stamp Duty Rewrite" (LBC Information Services) 1997 at page 185, Al Haddad v Chief Commissioner of State Revenue [2019] NSWCATAD 106 (Al Haddad) at [32] and [33]. The issue stands to be decided by reference to section 55 (1) (b) (i), but also by reference to section 55 (1A), which essentially allows money provided from a source other than the real purchaser to be treated as if it had come from the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser (here, Dr Eskander). 1. The second issue is whether the dutiable property, namely the Property, was vested in Mr Shady Eskander as apparent purchaser upon trust for his mother Dr Eskander, as real purchaser. (Issue 2).
3. Although that is the reverse of the order to which the conditions appear in section 55 (1), I will deal with the issues that way because that seems to be a more effective method of resolving the real issues, given the particular facts of the case.
4. If I find against Dr Eskander on Issue 1, the section 55 concession is not available to her and her application must fail, because the two conditions of availability of the concession are expressed cumulatively in section 55 (1). It would follow that the decision under review was the correct one.

The case for the Applicant

1. Dr Eskander's case, as I understand it, can be summarised as follows: 1. Because of her incapacity at the time of the purchase of the Property caused by ongoing acrimonious Family Law proceedings, medical and mental health issues, it was intended at all relevant times that her son Mr Shady Eskander would enter the Contract for Sale as trustee for her, in order to secure the property. 2. It was intended at all times and was the case that the beneficial interest in the Property would be held by her and that Mr Shady Eskander was to take no beneficial interest in the property. 3. Mr Shady Eskander provided none of the purchase money or costs associated with the Purchase and all of those moneys were provided by her, including through sources of funds which she controlled; in particular from the Business Bank Account, being an account operated in the name of the Service Company, of which she was the sole director and shareholder; 4. It was at all relevant times understood between Dr Eskander and her son Shady that when her medical and mental condition improved, he would transfer the Property into her name and that the Transfer gave effect to that understanding. 5. It followed that the Transfer was a transfer of dutiable property from an apparent purchaser (Mr Shady Eskander) to the real purchaser (Dr Eskander) of property vested in Mr Shady Eskander upon trust for Dr Eskander, that she had provided all the money for the purchase including the purchase price and all incidental costs and on that basis the Transfer should have been stamped at the concessional rate of $50, by operation of section 55 (1) (b).

The case for the Respondent

1. The Chief Commissioner's case, as I understand it, is in summary that Dr Eskander has failed to satisfy the onus which she bears to establish that the concessional rate of duty on the Transfer under section 55 (1) (b) was available because the Tribunal could not be satisfied to the requisite standard that: 1. the Property vested in Mr Shady Eskander as trustee for his mother the Applicant, (as required by section 55 (1) (b) (i)); 2. Dr Eskander paid all the purchase money and associated costs for the purchase of the Property (as required by section 55 (1) (b) (ii)); and 3. section 55 (1A) is available to Dr Eskander, because no part of the purchase money was provided as a loan and had been or will be repaid by her as the real purchaser.

Issue 1: All purchase money provided by Dr Eskander?- section 55(1) (b) (ii)

1. I commence consideration of this issue by re-stating, for convenience of reference, the provisions of section 55(1)(b) and (1A). 55 Property vested in an apparent purchaser (1) Duty of $50 is chargeable in respect of - (a) … (b) a transfer of dutiable property from an apparent purchaser to the real purchaser if - (i) the dutiable property is property, or part of property, vested in the apparent purchaser upon trust for the real purchaser, and (ii) the real purchaser provided the money for the purchase of the dutiable property and for any improvements made to the dutiable property after the purchase. (1A) For the purposes of subsection (1), money provided by a person other than the real purchaser is taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser.
2. Subject to the deeming provision in section 55 (1A) which I discuss below, section 55 contemplates that if any part of the purchase money plus related expenses was not provided by the real purchaser but rather from any source, then the concessional duty of $50 will not be available. As Senior Member Goodman SC (as His Honour then was) succinctly put it in Noble v Chief Commissioner of State Revenue [2021] NSWCATAD 159 (Noble) at [35], the question of whether all the money was provided by the real purchaser, either in fact or by way of the deeming provision in section 55 (1A): .. is an all or nothing question. There is no basis for apportionment…There is no discretion to be exercised.
3. As is readily apparent from Dr Eskander's documentation and in particular her statutory declaration of 19 June 2021 and is uncontested, there were only two sources of payment of the total purchase money of $869,000 together with the other costs and expenses incidental to the sale: the Business Bank Account and the Term Deposit Account.
4. Dr Eskander's contention, which is clarified by her statutory declaration of 30 July 2021 at paragraph 12, is that from the time of her separation from her husband (which had occurred prior to the date of the Contract for Sale) and at all relevant stages of the purchase transaction, she: ..considered (her) financial affairs..to be solely (her own). In short the moneys credited to the (Business Bank Account) I treated … as mine only…... I am not financially astute and see no blur between the two types of ownership.
5. That is the basis for Dr Eskander's contention that the whole of the purchase price was provided by her.
6. But her contention to that effect must fail, for these reasons. 1. It is well established that the tests in section 55, including that in paragraph (1) (b) of the section, are strict and the onus on the taxpayer-applicant is heavy: Triantafilis per Priestley JA at page 4; Al Haddad at [32]; and Wykrota v Chief Commissioner of State Revenue [2019] NSWCATAD 106 at [26]; and the passage at [30] above from the decision in Noble. 2. Dr Eskander has not satisfied that heavy onus. The money used was that the Service Company's asset, not Dr Eskander's. There is nothing persuasive in Dr Eskander's submissions or those made on her behalf or in her statutory declarations or other documentary material to demonstrate how she came to give herself a right to use the Service Company's money, at least insofar as concerns her payment of the deposit of $79,000 under the Contract for Sale in 2014. 3. In particular, there is nothing in her later documentary evidence as to loan arrangements between the Service Company and herself. I examined it in detail. It comprises a bundle of documents in response to the Chief Commissioner's written submissions, includes an explanatory letter dated 8 September 2022 from Dr Eskander's public accountants which in turn annexes, amongst other items, a document headed "Loan Agreement" between the Service Company and Dr Eskander. 4. That Loan Agreement is dated 1 June 2014. But it does not give legal effect to or provide evidence of any particular loan. It is, rather, what might better be described as a "loan facility arrangement". That is, it facilitates any future arrangements between the parties for any loans which, as recited in Clause 1, "may be made". There is no certainty that any such loans will ever be made. The language used in clause 1 is anticipatory and corresponding language appears in the repayment provisions in clause 4. It is certainly not evidence of any actual loan; nor evidence that Dr Eskander used the Service Company's money for the deposit (or indeed for any other purpose). The existence of any such loan (as opposed to provision of the deposit moneys of $79,000 by cheque drawn on the Business Bank Account) is not referred to in Dr Eskander's statutory declaration of 18 June 2021. 5. Dr Eskander's documentation includes a letter from her public accountants dated 8 September 2022. I assume that that letter is put forward as confirmation and explanation of particular loans. The passage in it which relates to the payment of the deposit is in the following terms: In relation to the deposit, as her accountant and after review of her financial statements, the funds for the deposit paid by Dr Eskander in June 2014 (sic.) by loan under Division 7A, as showing in the balance sheet in FY2014 in non-current assets as part of receivables. On the settlement in 2017, it was paid under an additional Division 7A by Dr Eskander… The use of funds is not unfettered, and is treated under the Income Tax Assessment Act, 1936, which Division 7A is part of, (sic.) is the response to the letter questioning the use of the company's resources.
7. Without intending any disrespect to the author of the letter, who may not have intended the letter in that form to be part of formal submissions, I must say that the passage above lacks clarity. Neither that passage or anything else in the letter establishes the existence of any relevant loan. Despite my best efforts, I cannot ascertain from it a confirmation or an explanation of a particular loan. It may be intended to suggest that the deposit was provided by way of loan under Division 7A, but the letter leaves that in the realm of uncertainty and postulation. As I have noted at [16] above, it is not for the Chief Commissioner to put forward a plausible explanation of what happened, to explain how Dr Eskander purported to give herself the right to use the Service Company's money or how any loan might have been effected. It is certainly not up to me to surmise on those matters. Rather the onus is on Dr Eskander to show me how the relevant events (such as the making of any loan) came about. That passage from the accountant's letter fails to do that.
8. One thing which is clear is that Dr Eskander did not provide the deposit: it was provided by the Service Company. She therefore did not provide all of the purchase money.

Does "provided" have a broader meaning?

1. As noted above, Dr Eskander lays considerable weight on her assertion that she perceived a "blur" between moneys and accounts held in her name and those held in the name of the Service Company which she solely owned and controlled as described above at [31]. She appears to have regarded moneys in the Service Company's name as her own.
2. In light that and the fact that she was not legally assisted in the presentation of her case or at the hearing, it seems appropriate that, notwithstanding that she did not raise this contention, I should consider whether the term "provided" in the phrase "..the real purchaser provided the money for the purchase" in section 55 (1)(b) (ii) has such a broad operation that it would include moneys held by, or in an account in the name of, a separate entity, where that account or separate entity is under the control of the real purchaser.
3. The hypothesis is that if those conditions subsist and the real purchaser exercises their power to effect or arrange a transfer of moneys from such a separate entity or account in full payment of the money required for the purchase, the real purchaser should be treated as having "provided the money for the purchase" for the purposes of section 55 (1) (b) (ii).
4. Such a broad operation of section 55 (1)(b) (ii) would include within the term "money provided (by the real purchaser) for the purchase", moneys contributed at the real purchaser's direction from an account or asset owned by a separate entity where that entity is effectively controlled by the real purchaser.
5. Such a construction would substantially extend the availability of the concessional rate under section 55 (1) (b)(ii). It would involve reading the term "provided" as having a broader meaning than "paid" and to have a meaning approximating "made available", or "arranged the availability of".
6. However, in recent cases the Tribunal has rejected such a construction. 1. In Meyers v Chief Commissioner of State Revenue [2022] NSWCATAD 176, the applicant, who was the real purchaser for the purposes of section 55, asserted that the funds for the purchase which he had provided included those from his entitlement to a TRIS (Transfer to Retirement Income Stream) account. The TRIS account was held by the trustee of the real purchaser's superannuation fund. The real purchaser effectively controlled the trustee. The Tribunal held that those funds were not "provided" by the real purchaser for the purposes of the section. 2. In Rafael v Chief Commissioner of State Revenue [2021] NSWCATAD 218 at [39]-[42], approximately $83,000 of the deposit for the purchase was sourced from a term deposit account in the name of the real purchaser's brother. The real purchaser was a signatory to that account, but he appeared to have arranged the withdrawal of the $83,000 without the authorisation of his brother as the account holder. The real purchaser told the Tribunal that he: …had forgotten to tell my brother that I had used his money for the deposit. (Emphasis added)
7. The real purchaser effectively contended that the $83,000 had been "provided" as a loan. The Tribunal concluded, at [43], that it had not, confirming that: ..(2) The fact that Mr Rafael had some sort of authorisation to operate the account and that there was clearly an informal arrangement for family support between the brothers does not change that result.. (2) The $83,000 was provided by means of a transfer from an account which (Mr Rafael's brother) owned. It was (the brother's) money.
8. On the basis of those cases and others which support such a result, the requirement that "..the real purchaser provided the money for the purchase" in section 55 (1)(b) (ii) is not amenable to such a broad and benevolent construction as to allow moneys to have been "provided" where they are made available from an account or other source owned by a person or entity other than the real purchaser, even though that account or person or entity may be under the control of the real purchaser.
9. For those reasons, when section 55 (1) alone is considered, Dr Eskander is not entitled to the concessional rate of duty. However, the additional provisions of section 55 (1A) must also be considered.

Section 55 (1A)- money provided as a loan which has been or will be repaid?

1. Section 55 (1A) is in the following terms: (1A) For the purposes of subsection (1), money provided by a person other than the real purchaser is taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser.
2. Section 55 (1A) extends the availability of the concession by allowing any money which became available to support the transaction by way of loan and which, to the Chief Commissioner's satisfaction, has been repaid or will be repaid, to be treated as if it was money contributed to the purchase by the real purchaser, as is required by section 55 (1) (b)(ii). It is significant that the loan does not need to be a loan to the real purchaser: Noble at [41]-[47].
3. In Noble, at [37] Senior Member Goodman SC (as His Honour then was) set out 3 questions, each of which must be answered in the affirmative in order to enliven the operation of section 55 (1A). They are: 1. was (all) the money for the purchase of the Property provided by a person other than the real purchaser? 2. if so was that money provided as a loan or loans? 3. if so, have any such loans been repaid, or will they be repaid by the real purchaser?
4. As to issue (1), I have concluded above that Dr Eskander did not provide the deposit and that it was provided by the Service Company. She therefore did not provide all of the purchase money.
5. As all 3 questions had to be resolved in the affirmative in order to enliven the operation of section 55 (1A), it must follow from this conclusion that the subsection is not enlivened.

Issue 2: The existence of a trust

1. My conclusion as to Issue 1, which will result in the Chief Commissioner's decision being upheld, means that I do not strictly need to consider Issue 2 because the relevant statutory requirements, being paragraphs (i) and (ii) of section 55 (1) (b), are cumulative, as noted above.
2. However, as a matter of completeness and lest it can be said that I erred as to Issue 1, I do proceed to deal with Issue 2. I need to determine whether the dutiable property was vested in Mr Shady Eskander as apparent purchaser upon trust for the real purchaser, his mother Dr Eskander.
3. I have concluded, for the reasons which follow, that it was.
4. As was observed in Harvey v Chief Commissioner of State Revenue [2021] NSWCATAD 63 (Harvey) at [37]-[38], the expressions "apparent purchaser" and "real purchaser" within section 55 (1) (b) suggest that the legislative intention was that the trust referred to there was a resulting trust and section 55 and its predecessor provisions have been interpreted as applying only to resulting trusts.
5. In Harvey, Senior Member Goodman SC explained the position succinctly, as follows: [47]… Absent a particular feature of the relationship between the two persons as would give rise to a presumption of advancement, it is presumed that the person(s) providing the purchase money did not intend the other person to take the property beneficially. Absent evidence rebutting the presumption that the person(s) providing the purchase money did not intend the other person to take the property beneficially, a resulting trust arises in favour of the person(s) providing the purchase moneys:see, e.g., Calverley v Green (1984) 155 CLR 242 at 246 per Gibbs CJ and 266-267 per Deane J. [48].. (In the present case) (t)here is no suggestion that the presumption of advancement applies. In those circumstances, a rebuttable presumption arises that the applicants did not intend (the apparent purchaser) to take the property beneficially and that it was intended that (the apparent purchaser) hold the Property on a resulting trust for the applicants.
6. Neither party has suggested that any presumption of advancement applies here.

The parties' intentions, objectively inferred from conduct

1. As was made clear by Gibbs CJ in Calverley v Green (1984) 155 CLR 242 (Calverley) at [9], actual intention is relevant to rebut the presumption that a resulting trust arose in any particular case. More recently, in Harvey, it was said at [49] that such an intention is not a subjective intention, but rather an objective one inferred from the conduct of the relevant party or parties who provided the purchase monies and that it should be determined as at the date of the purchase.
2. So the question of the existence or otherwise of a resulting trust in this case turns on the conduct of Dr Eskander who made the purchase moneys available and her actual intention at the date of the purchase. I need to determine her objective intentions, as inferred from her conduct.
3. Dr Eskander has exhibited some difficulty presenting her case personally, due to what appeared to be emotional stress, but her ability to do so seemed to improve during the course of the hearing and she was ably assisted and represented by her daughter Julia. I have had regard to what Dr Eskander told me at the hearing, her statutory declaration of 18 June 2021 and annexures, the documentary materials attached to her Application, her further written submissions dated 13 September 2022 as well as explanations of the relevant transactions provided at the hearing by Julia Eskander.
4. I also have had regard to the statutory declaration of D Eskander's son Mr Shady Eskander, although, as foreshadowed to the parties at the hearing I have given that document only reduced weight because Mr Eskander was requested by the Crown Solicitor to appear at the hearing and to be available for cross-examination on that declaration, but did not appear. I have also taken into account Dr Eskander's answers under cross examination.
5. I have applied the relevant standard of proof, being the balance of probabilities subject to the Briginshaw standard; that is, the standard expressed by Dixon J (as His Honour then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. His Honour said in effect that a fact cannot be established by mere mechanical comparison of probabilities independent of belief in its reality and that it is enough that affirmation of an allegation of fact is made out to the reasonable satisfaction of the tribunal, bearing in mind that reasonable satisfaction is not established independently of the nature or consequence of the fact to be proved or of the gravity of the consequences flowing from a particular finding.
6. I find Dr Eskander to be a reliable and persuasive witness of truth. I accept her evidence, the submissions in the form of evidence given by Ms Julia Eskander and that of her son Mr Shady Eskander as to the conduct, motives and intentions of the parties relating to the transaction. I reach my conclusions below notwithstanding the limited weight I give to Mr Eskander's statutory declaration, as explained above.
7. I am persuaded as to the truth and accuracy of the family members' account of their motives in having the purchase made in Mr Eskander's name. I am satisfied to the required standard that Mr Eskander made himself available to assist his mother with her purchase by being named as purchaser and carrying the main administrative burden of the purchase transaction, because of his mother's incapacities at the time as a result of acrimonious matrimonial proceedings and her resultant emotional strain and associated mental health issues. He did so out of the affection he bore his mother but also in compliance with cultural mores arising from the family's Egyptian heritage, relating to the duties of a son.
8. On that basis, I accept that it was never contemplated by Mr Eskander or by his mother Dr Eskander, or indeed by Ms Julia Eskander (on the basis of what she asserted at the hearing), than Mr Shady Eskander would take any beneficial title to the Property. So I find that the conduct of Dr Eskander (who made the purchase moneys available) and her actual intention at the date of the purchase, judged objectively, supports the presumption that a resulting trust arose. That result means that paragraph (ii) of section 55 (1) (b) was satisfied.

"Provision" of the purchase moneys

1. For completeness I note that my conclusion on Issue 1 at [36] above that Dr Eskander did not directly "provide" all of the purchase money for the purposes of the strict statutory analysis of section 55 (1) (b)(ii) is not inconsistent or incompatible with my conclusion on Issue 2, to the effect that there was a resulting trust.
2. There is a distinction between the single term "provide" used in the statute and various similar terms used in the cases when determining the existence of a resulting trust by reference to the actions and contributions of particular parties. For example, in Calverley, at 155 CLR 251 Gibbs CJ uses the term "contribute" and cognate terms rather than "provide" when describing the monetary amounts of the respective parties to the purchase price.
3. Additionally, although the analytical exercise necessary to determine the meaning of "provided" in the subsection must be undertaken according to the strict construction principles appropriate to the provisions of a revenue statute, that can be no impediment to a different construction being adopted in determining the existence of a resulting trust. The latter exercise must be undertaken with due regard to the parties' intentions at relevant times, objectively assessed, as explained in Harvey.

The involvement of Mr Shady Eskander's company AHC

1. Before leaving the resulting trust issue, and for completeness, I deal with the written submissions made on behalf of the Chief Commissioner, especially at [56] the involvement at settlement of the purchase of Mr Shady Eskander's company Aged Health Care Pty Limited (AHC) is queried. The respondent contends in effect that this throws further doubt on the existence of a resulting trust, because the involvement of AHC is unexplained, it introduces a third party and hence: " disturbed the apparent purchaser/ real purchaser paradigm between the applicant and her son.. The .. involvement of AHC being unexplained, it leaves open the possibility of AHC also having some interest in the (Property).
2. In my view, a reasonable explanation of what happened at this stage emerges from a reading Mr Eskander's statutory declaration of 16 June 2021, especially at paragraph 6 (b) with the Settlement Statement (which is Annexure D to Dr Eskander's statutory declaration of 18 June 2021) and with Dr Eskander's explanation at paragraphs 13 and 15 of her statutory declaration of 18 June 2021.
3. On my reading of that material, a reasonable explanation of what occurred, is that: 1. Dr Eskander as real purchaser directed Mr Eskander as apparent purchaser to make the closing balance available on closure of the Term Deposit Account, being $834,122.08, available towards the moneys required on settlement of the purchase and then, 2. either she directed him or he decided on his own initiative to channel such of that amount as was required to be paid on settlement of the Purchase through an account in the name of his company, AHC. 3. As Mr Eskander declares at paragraph 6 (b) of his statutory declaration that amount, $829,884.84, plus $30 for bank cheques required on settlement (totalling $829,914.84) was indeed applied through AHC and paid on settlement in accordance with the Vendor's settlement direction.
4. In short, the explanation is that AHC was used as a mere "conduit" for the passage of the necessary funds for settlement. It is unfortunate that Mr Shady Eskander was not available for cross-examination at the hearing, to explain why. But the construction above, notwithstanding the absence of a clear explanation of why it was implemented, supports the existence of the resulting trust.

Conclusions as to Issue 2

1. For the reasons provided above I am satisfied and find that the inference properly to be drawn from the conduct and intention of the parties is that Mr Shady Eskander did not take beneficial title to the Property upon exchange or settlement of the Contract for Sale and that a resulting trust arose. The dutiable property was property vested in Mr Shady Eskander as apparent purchaser upon trust for his mother Dr Eskander as real purchaser.
2. Notwithstanding that conclusion as to Issue 2, Dr Eskander's case must fail because of my conclusions as to Issue 1.

The High Court of Australia decision in Bosanac v Commissioner of Taxation

1. The High Court's decision in Bosanac v Commissioner of Taxation [2022] HCA 34 (Bosanac) was published on 12 October 2022; that is, 8 days after the hearing of the present matter. Obviously that decision and the High Court's detailed reasons for it were not available to either party to the present proceedings at the hearing. For that reason, although I have read the High Court's reasons for decision in Bosanac, I do not rely on them or on the result in that case in reaching my decision in the present matter.
2. I merely note that the decision in Bosanac is of considerable significance to the development of the law relating to resulting trusts and hence to "apparent purchaser" cases which may come before the Revenue List of this Tribunal.

Due assessment of the quantum of duty

1. No issue was raised as to the accuracy of the Chief Commissioner's assessment of duty. I find the duty to have been properly assessed.

Was the decision the correct and preferable one?

1. Under section 63 of the ADR Act the Tribunal must determine whether the decision under review is the correct and preferable decision. It is clear that that determination must be carried out at the time the relevant issues come to be decided by the Tribunal and not as at the time at which that decision under review itself was made: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 88 at 91-2, per Bowen CJ and Deane J and numerous subsequent authorities, including Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 ("Shi").
2. I must reach my decision as to whether the decision under review was the correct one only on the basis of the settled law, on the basis of the taxpayer's burden of proof explained above at [12] and [13]. For the reasons I have given above, Dr Eskander has not persuaded me that the decision under review here was other than the correct decision under the statutory provisions pursuant to which it was made. I find therefore that that decision was the correct decision.
3. The question of whether a decision is also the preferable one must be made by reference to the relevant statute or other law under which the decision-maker purports to make that decision. The term "preferable" in relation to an administrative decision was addressed by Justice Kirby in Shi at [140]. He described it as a term which: … is apt to refer to a decision which involves discretionary considerations.
4. So the question must be answered by reference to any such discretionary considerations; that is, discretions as to whether or not to impose the duty which are available under the relevant statutory provisions. But there are none here and where that is so the decision-maker is bound to administer the law in accordance with its terms: Valencia v Chief Commissioner of State Revenue [2017] NSWCATAD 261. As Senior Member Norman Isenberg put it in that case, at [84], to do otherwise would unfairly disadvantage other taxpayers who have complied with their obligations under the same laws.
5. In short, if, as here, the decision under review was the correct one and the Chief Commissioner had no discretion as to whether or not to make it on the basis of the established facts, his decision must also have been the preferable one.
6. It follows that the decision under review here was the correct and preferable decision. Dr Eskander's application therefore fails.
7. It must follow that the Chief Commissioner's decision under review must be affirmed under section 63 (3) of the ADR Act and confirmed under section 101 of the Administration Act. The Tribunal's order is therefore as follows:

ORDER 1. The decision of the Chief Commissioner of State Revenue on 22 July 2021 that the duty concession available under section 55 of the Duties Act 1997 (NSW) is not applicable to the transfer of land the subject of these proceedings is affirmed under section 63 (3) of the Administrative Decisions Review Act 1997 and confirmed under section 101 of the Taxation Administration Act 1996. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 15 February 2023 - typographical error in paragraph 13 (1) corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2023