The result sought to be achieved each year by the resolutions, and reflected in the tax returns, was not in dispute. As the taxpayers submitted to the primary judge in the Pt IVC proceedings, by the passing of the "dual net income distribution resolutions", the Trustee endeavoured to ensure that all trust income was distributed to avoid the operation of s 99A of the 1936 Act and to ensure that the distribution occurred in a way that maximised the refundable tax offsets available only to Mr Thomas.
There were two steps. First, in relation to the non-primary production income (which included the franked distributions), the Trustee sought to allocate, or "stream", the income between beneficiaries to attract the most favourable marginal tax rates. In the 2006 year, that required Mr Thomas to receive an amount (just $21,600) that, together with his other income, kept his average tax rate at 30 per cent. The balance (some $763,149) was then streamed to MAPL, which had a tax rate of 30 per cent.
The second step involved the franking credits. The objective was different. As a corporate entity, MAPL could not receive a cash refund from the Commissioner. If MAPL received franking credits over and above an amount that would effectively reduce its tax to nil, the franking credits would be wasted. However, Mr Thomas, as an individual, could get a refund for excess franking credits. It was for that reason that the bulk of the franking credits were sought to be distributed to Mr Thomas (in the 2006 year, $2,416,218), rather than to MAPL (in the 2006 year, $228,900).
The income tax returns lodged by the Trustee, Mr Thomas and MAPL produced deemed assessments under s 166A of the 1936 Act. The Commissioner subsequently gave notice of an audit and expressed concern over the correctness of the Bifurcation Assumption.
State Proceedings
After the Commissioner had given notice of intention to conduct an audit, but before the Commissioner issued amended assessments, the Trustee applied pursuant to s 96 of the Trusts Act, by Originating Application to the Supreme Court of Queensland, for judicial advice in the form of directions. The Trustee sought directions "as to the construction of the [Trustee's] resolutions to distribute net income comprising, inter alia, of franking credits for the income tax years 30 June 2005 to 30 June 2008" and, unusually, also sought in the same Originating Application "[e]quitable rectification, if required, of the [Trustee's] resolutions to distribute net income comprising, inter alia, franking credits for the income tax years 30 June 2005 to 30 June 2008 and/or of clause 4(1) of the trust deed for the [Trust] (as amended)".
It is necessary to describe in a little detail what happened in the State Proceedings.
Mr Thomas and MAPL, as the relevant beneficiaries, were joined as respondents to the State Proceedings but played no active part in the proceedings. The other beneficiaries of the Trust were apparently made aware of the State Proceedings, obtained independent legal advice about the proceedings and supported the proceedings. The Commissioner was given notice of the State Proceedings but told the Trustee's solicitors that he was neither a necessary nor an appropriate party. The Trustee did not seek to join the Commissioner as a party to the State Proceedings.
In the State Proceedings, Applegarth J found that, under Div 207 of the 1997 Act, the Bifurcation Assumption was correct in law, that the Trustee intended to make a bifurcated distribution of franking credits between beneficiaries and that the resolutions gave effect to that intention. His Honour indicated that had he reached the conclusion that the Trustee did not document the resolutions to give effect to the Bifurcation Assumption, he would have ordered that the resolutions be rectified to reflect it. The terms of any rectified resolution or resolutions were not identified.
After reasons for judgment were handed down, Senior Counsel for the Trustee prepared and filed minutes of proposed orders. The Commissioner was not given notice of the contents of the proposed orders or given notice that the orders would extend to include declarations of rights, as opposed to directions that the Trustee would be justified in acting on.
Applegarth J made the declarations and orders sought ("the directions") as follows:
"1. The court directs [the Trustee] under s 96 of the Trusts Act 1973 (Qld), and declares, that:
(a) on the proper construction of the Income Tax Assessment Act 1997 (Cth), franking credits in respect of a franked distribution made to the trustee of a trust confer a financial advantage which falls to be dealt with by the trustee of that trust; and
(b) on the proper construction of the trust deed for the [Trust] and of the resolutions of the directors of [the Trustee] for the years ended 30 June 2005 to 2008, those resolutions were effective to:
(i) allocate to the following beneficiaries in the following amounts the benefits pertaining to the franking credits; and
(ii) entitle those beneficiaries to those benefits in the proportions which those amounts bear, each to the other:
Date of Resolution [Mr Thomas] [MAPL]
30 June 2005 $282,631.49 $17,860.51
30 June 2006 $2,416,217.92 $228,900.38
30 June 2007 $4,765,353.11 $548,488.89
30 June 2008 $1,030,838.70 $42,780.30;
(iii) confer on each of those beneficiaries respectively a vested and indefeasible interest in possession in a share of the distributable income that is consistent with the above allocation to those beneficiaries of the benefits pertaining to the franking credits;
(iv) distribute all the distributable income of the Trust in each year among the above beneficiaries in accordance with those resolutions.
2. The court orders that the application for equitable rectification of those resolutions be dismissed." (emphasis added)
Paragraph 1(a) is a direction and declaration that, on the proper construction of the 1997 Act, franking credits in respect of a franked distribution made to the trustee of a trust confer a financial advantage which falls to be dealt with by the trustee of that trust. Paragraph 1(a) is general in nature. That paragraph reflects and records the flawed Bifurcation Assumption that, under the 1997 Act, franking credits can be distributed or streamed between beneficiaries separately from, and in different proportions to, the income comprising the franked distributions.
The following paragraphs of the directions proceed from, and build on, that flawed Bifurcation Assumption. Paragraphs 1(b)(i) and (ii) construe the Deed and the resolutions for, relevantly, the 2006 to 2008 income years and declare that the resolutions were effective to allocate to Mr Thomas and MAPL benefits pertaining to the franking credits in the amounts and proportions set out in par 1(b)(ii). Paragraph 1(b)(iii) declares that the resolutions were effective to confer on Mr Thomas and MAPL a vested and indefeasible interest in possession in a share of the distributable income consistent with the allocation to each of them of the benefits pertaining to the franking credits set out in the schedule in par 1(b)(ii). Finally, par 1(b)(iv) declares that the resolutions were effective to distribute all of the distributable income of the Trust in each year among the beneficiaries in accordance with "those resolutions". The relationship between the directions and the resolutions is clear. The directions purport to give effect to both resolutions, despite the fact that the resolutions are contradictory in terms.
The taxpayers' contention that par 1(b)(iii) was not, as a matter of construction or reasoning, dependent upon the Bifurcation Assumption must be rejected. Hence, the taxpayers' contention that the Full Court of the Federal Court was correct to conclude that par 1(b)(iii) of the directions could be divorced from the balance of the directions also should be rejected. Indeed, to adopt that approach would impermissibly alter the meaning of the directions contrary to the express terms of the directions and the reasoning of Applegarth J.
It will be necessary to return to consider the directions and, in particular, the argument that the Full Court of the Federal Court was bound by Executor Trustee to conclude that the directions determined conclusively against the Commissioner the application of Div 207 to the franked distributions in issue. Before doing that, reference should be made to the issue of the relevant income tax assessments and the subsequent commencement of the Pt IVC proceedings.
Audit and Amended Assessments
The Commissioner completed his audit in 2011. Notices of Amended Assessment were issued to, amongst others, Mr Thomas in relation to the 2006 to 2008 income years and MAPL in relation to the 2008 income year. Each lodged objections in relation to those assessments and, in May 2012, the Commissioner issued further Notices of Amended Assessment to Mr Thomas and MAPL ("the Amended Assessments"). Relevantly, Mr Thomas and MAPL challenged the Commissioner's Amended Assessment objection decisions concerning the primary tax for the 2006 to 2008 income years and filed appeals pursuant to s 14ZZ in Pt IVC of the TAA in the Federal Court.
Part IVC proceedings
In the Pt IVC proceedings, the principal issues raised by the Amended Assessments were the legal effectiveness of the Bifurcation Assumption and, in turn, how Div 207 operated upon the resolutions purporting to "stream" the franking credits between Mr Thomas and MAPL.
The taxpayers contended that Executor Trustee required that the orders of Applegarth J conclusively determined the rights of Mr Thomas and MAPL, as beneficiaries, against the Trustee such that the Commissioner and the Court were bound by them, even if the result was wrong in law. The primary judge, Greenwood J, concluded that Executor Trustee did not bind the Commissioner or the Court. His Honour found that the Bifurcation Assumption was flawed in law and held that the appeals against the objection decisions should be dismissed.
Appeal to the Full Court of the Federal Court
The taxpayers successfully appealed to the Full Court of the Federal Court (Pagone J, Dowsett J and Perram J agreeing). Pagone J accepted that Div 207 did not operate to permit the Bifurcation Assumption. However, his Honour held that Executor Trustee required that although the Commissioner was not bound, or may not be bound, by the construction of Div 207 adopted in par 1(a) of the directions, the Court was bound by par 1(b)(iii) of the directions and that it followed that the taxpayers' appeals should be allowed.
That is, Pagone J accepted that the Commissioner was not bound by the construction of Div 207 adopted by Applegarth J, but stated that the relevant question was whether Applegarth J's orders "relevantly determined conclusively the rights of the beneficiaries as against the trustee in such a way that Div 207 would operate as the taxpayers contended". After stating that Applegarth J's declaration in par 1(b)(iii) was perhaps surprising in its terms, Pagone J held that par 1(b)(iii) of the directions conclusively determined the beneficiaries' respective shares of the Trust's net income for the years covered by the directions.
In relation to the 2009 year of income (which was then in issue), Pagone J adopted the alternative construction of the resolutions, which has been described earlier in these reasons.
Dowsett J and Perram J agreed. Perram J held that Applegarth J's orders were valid and binding (apparently binding generally and without limitation) until set aside.
Executor Trustee
In addressing the principal issue in this Court - whether, in the Pt IVC proceedings, the Full Court of the Federal Court was correct in holding that it was bound by Executor Trustee to conclude that the directions determined conclusively, against the Commissioner, the application of Div 207 to the franked distributions - it is necessary to consider the decision in Executor Trustee. As these reasons will explain, the Full Court of the Federal Court misunderstood and misapplied Executor Trustee.
In Executor Trustee, a testator had left directions for the application of his estate. The trustee applied to the Supreme Court of South Australia for, and was granted, directions as to the application of the estate. Dixon J described the orders made by the Supreme Court in the following terms:
"The orders define the interests of the six beneficiaries. It is true that they do not purport to give new interests and that in law they operate only as declarations determining, as between trustee and beneficiary, the interests otherwise existing, that is, arising under the will. But it is none the less true that the beneficiaries can, after the making of the orders, have no interest in the land inconsistent with the orders." (emphasis added)
Contrary to those orders and declarations, the trustee, who had been a party to the earlier proceedings, sought to depart from those orders by claiming six deductions under the Land Tax Assessment Act 1910 (Cth) on the footing that the six beneficiaries were joint owners of certain land, as persons entitled to its income in the will. The High Court held that the order of the Supreme Court had declared the position. As Latham CJ stated:
"The order of the Supreme Court is certainly conclusive in relation to the rights inter se of the parties to the proceedings in which it was made. It could have been challenged upon appeal, but so long as it stands, the rights of the annuitants to receive income from the trustee are the rights declared in the order - no more and no less. There is no means whatever whereby either the trustee or the annuitants can, as a matter of right, vary those rights …
The question which arises in this appeal depends entirely upon the rights of the annuitants against the trustee. Those rights have been defined by a court of competent jurisdiction in a manner which excludes the definition of them now preferred by the annuitants - or any other definition inconsistent with the order of the court. The commissioner is entitled to take, and must take, interests in land as he finds them". (emphasis added)
Executor Trustee is authority for the proposition that the general law rights of trustee and beneficiary inter se, to the extent that they are defined by a decision made in duly constituted proceedings, are defined as against the Commissioner unless the decision is set aside. In Executor Trustee, the earlier proceedings had determined rights inter se. There was no question of res judicata or of issue estoppel, and the separate declaration did not generate rights in rem against third parties. And, importantly, the earlier proceedings did not determine the application of the taxation law to those rights.
It follows that Executor Trustee is not authority for the proposition that the Commissioner, or a court under Pt IVC, should determine the application of the taxing acts otherwise than according to law. "When the revenue authorities come to impose a tax in relation to such rights [defined by order of the court], they must … take them as they in fact actually exist between the parties" (emphasis added). But directions made under the equivalent of s 96 of the Trusts Act do not bind the Commissioner in the application of the taxation laws.
The Full Court of the Federal Court was wrong to conclude that it was bound by Executor Trustee to hold that the directions in the State Proceedings determined conclusively, against the Commissioner, the application of Div 207 to the franked distributions.
In these appeals, that conclusion is reinforced by the following facts and matters. First, the State Proceedings, under s 96 of the Trusts Act, had the primary function of providing advice to the Trustee respecting the management or administration of the Trust. It is a procedure which, if adopted, not only protects a trustee from later complaint that he or she should have acted otherwise but also protects the trustee from personal liability for costs incurred. The question for the Supreme Court of Queensland under s 96 of the Trusts Act concerned the management and administration of the Trust. It was no part of proceedings under s 96 of the Trusts Act for the Court to decide how the taxing acts operate. And that conclusion is reinforced by two separate but interrelated facts: there was no contradictor in the State Proceedings; and the Commissioner was not a party to those proceedings. Not being party to the State Proceedings, the Commissioner was not bound by any orders made in those proceedings about the operation of the taxing acts. The nature and course of the State Proceedings necessarily determined the limited nature and effect of the directions.
Second, read as a whole, the directions were made on the basis that the Bifurcation Assumption, a question about how the taxing acts operate, was correct in law. That question was not a question suitable for determination in proceedings advising a trustee about how the trustee could lawfully administer the trust. At its highest, the advice given could only protect the trustee from later complaint. And the answer given to the question was incorrect.
Third, as the Commissioner submitted and as the preceding analysis of the directions demonstrates, the construction which the Full Court of the Federal Court placed on par 1(b)(iii) of the directions, when divorced from the balance of the directions, altered the meaning of the directions. Contrary to the approach adopted by the Full Court of the Federal Court, it was impermissible for the Court to pick out one sub-paragraph of the directions, par 1(b)(iii), and treat that sub-paragraph as somehow binding the Court, while at the same time ignoring par 1(a), which recorded and adopted the Bifurcation Assumption.
Finally, as the taxpayers conceded in argument, if the Bifurcation Assumption underpinned par 1(b)(iii) of the directions (and it did), then the Court was not bound by Executor Trustee to conclude that the directions (or one sub‑paragraph of the directions) determined conclusively against the Commissioner the application of Div 207 to the franked distributions. This is because, for the reasons explained earlier, the Commissioner and the Federal Court in proceedings under Pt IVC were each required to determine the taxation issues according to law.
The Attorney-General of the Commonwealth and the Attorney‑General of the State of Queensland intervened to provide submissions concerning s 118 of the Constitution and the requirement in s 118 that "[f]ull faith and credit … be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State". The nature and scope of the State Proceedings and the directions having been identified, no issue concerning s 118 of the Constitution arises for determination. Section 118 does not alter, or add to, the effect of the directions.
Alternative construction of the resolutions and the application of Div 207
The taxpayers contended that the resolutions in the 2006 to 2008 income years, properly construed, were effective in their terms to achieve the alternative construction adopted by the Full Court of the Federal Court.
Pagone J explained the alternative construction, in the context of the 2009 year, as follows:
"The terms of the two resolutions taken together only make sense if construed as conferring upon Mr Thomas, as a share of the trust's net income covered by s 97(1)(a) of the [1936 Act] in the 2009 year, so much of the [T]rust's net income for that year as would see him receive the benefit of franking credits in the amount stated in the franking credit distribution resolution notwithstanding that the amount of income purportedly distributed to him in the 2009 year was $16,000 and to MAPL $157,143."
His Honour noted that the alternative construction fitted uneasily with the words of the resolutions but stated that the construction was consistent with the intention of the Trustee reflected in the mind of the person drafting the resolutions.
As the Commissioner submitted, this alternative construction is contrary to the terms of the resolutions, and inconsistent with the bifurcated returns and the Trustee's intention.
As has been seen, there were two resolutions - the Net Income Resolution and the Franking Credit Resolution. The Net Income Resolution, in its terms, pooled all the income of the Trust and treated it on the same basis, with the result that the whole of the income of the Trust was distributed to Mr Thomas and MAPL. There was no attempt to stream or allocate the franked distributions to one beneficiary and the rest of the income to the other.
Division 207 sets out the effects, for tax, of the beneficiaries having received that income when, in each year, the income included the receipt by the trustee of franked distributions. First, each beneficiary, for that income year, has an amount, described as a "share of the trust's net income for that income year [being the net income of the trust under s 95 of the 1936 Act] that is covered by [s] 97(1)(a) of the [1936 Act]". The task is to work out the amount notionally allocated to each beneficiary, as their share of the franked distributions, as was taken into account in working out each beneficiary's share of the trust's net income under s 97(1)(a) of the 1936 Act. Here, the Net Income Resolution allocated between the beneficiaries the whole of the net income for the purposes of s 97(1)(a) in the proportions consistent with the amounts stated in the resolutions. In the 2006 year, the proportions were the first $21,600 of the net income to Mr Thomas and the balance to MAPL. There was no dispute that the net income of the Trust for that year was $798,826 and that the proportions were approximately 2.7 per cent for Mr Thomas and 97.3 per cent for MAPL.
Next, s 207-55(3), operating with s 207-50(3)(b)(i), notionally allocated the franked distributions between Mr Thomas and MAPL in those same proportions. The franking credits were attached to, or on, the franked distributions.
Third, s 207-57 then effected a statutory allocation of the franking credits ($2,645,118) between those beneficiaries in the same proportions with the result that, in the 2006 year, $71,418 was allocated to Mr Thomas and $2,573,700 was allocated to MAPL.
As a result, there was no other income on which the second resolution - the Franking Credit Resolution - could operate. The Net Income Resolution had allocated all of the net income among the beneficiaries and there was simply no net income left over that was capable of being dealt with by the Franking Credit Resolution. Moreover, the Franking Credit Resolution, in its terms, was based on the Bifurcation Assumption, which the taxpayers accept is legally ineffective. That is, the Franking Credit Resolution seeks to have the Trustee, contrary to the 1997 Act (and the Deed), apply the franking credits as some kind of income (and they are not) separately from the franked distributions to which they are attached.
Moreover, it is not possible to read the two resolutions as a single composite resolution. Indeed, even if, as the Full Court of the Federal Court suggested, it was possible to take the two resolutions together, on their proper construction they fail to achieve a distribution of so much of the net income in each year such that Mr Thomas would receive the benefit of the franking credits stated in the Franking Credit Resolution. The 2006 year is illustrative of the problem. In the Net Income Resolution, only $21,600 of the net income was distributed to Mr Thomas. That amount of income was never sufficient to match the $2,416,218 of franking credits listed against Mr Thomas' name in the Franking Credit Resolution. The Net Income Resolution was considerably short.
The taxpayers' contention, in substance, that the Franking Credit Resolution is the resolution to be given primacy and that the Net Income Resolution is to be read as if, by some process of construction or amendment, the amount of net income distributed to Mr Thomas was increased from $21,600 to match the $2,416,218 of franking credits listed against Mr Thomas' name in the Franking Credit Resolution, is not only contrary to the express terms of the Net Income Resolution, it is contrary to law. A resolution of a company is a formal decision of the board of directors of the company recording a binding corporate action which must meet certain specific requirements. It is a collective resolution of the board of the company and it binds the company. If it is to be amended, then it is a matter for the collective resolution of the board of the company.
The net income distributed to Mr Thomas in the 2006 year was $21,600, not some greater amount. Moreover, the alternative construction does not give effect to the intention of the Trustee when the two resolutions were passed in each of the 2006 to 2008 years of income. The Trustee endeavoured to ensure that all trust income was distributed to avoid the operation of s 99A of the 1936 Act and to ensure that the distribution occurred in a way that maximised the refundable tax offsets available only to Mr Thomas, whilst at the same time minimising Mr Thomas' tax rate. That was the intention, although as the taxpayers now accept, that was legally ineffective under Div 207. The alternative construction is not open factually or legally and it should be rejected.
Notices of contention
The taxpayers sought to raise three further issues by way of notices of contention: estoppel by convention, rectification and a denial of procedural fairness. Each contention should be dismissed.
Estoppel by convention
The taxpayers contended that because the Trustee and the relevant beneficiaries of the Trust were all present when the resolutions were passed, and then acquiesced in the tax returns being lodged with the Commissioner, the rights between the beneficiaries were fixed by the actions of the Trustee and the Commissioner was estopped by convention from administering the taxing acts according to law and, instead, had to "assess in accordance with those rights".
That contention is flawed. Estoppel by convention is founded on the conduct of relations between identified parties on an agreed or assumed state of facts which the parties are estopped from denying. The immediate difficulty for the taxpayers was and remains that the Commissioner was not a party to and played no part in the adoption of either aspect of the alleged assumption - the making of the resolutions or the lodging of the income tax returns.
Moreover, the justice of an estoppel would not permit parties to create a private arrangement which produced an outcome contrary to law or produced an outcome which required a statutory officer to administer the taxing statutes other than according to law. That was, in substance, the effect of the taxpayers' contention. That contention was flawed: the Commissioner is obliged to administer the taxing statutes according to law.
Rectification
If the Court did not accept that it was bound by the construction of the resolutions adopted by Applegarth J in the Supreme Court of Queensland, the taxpayers sought rectification of the resolutions.
As counsel for the taxpayers conceded in argument before this Court, as the taxpayers' application for rectification of the resolutions had been dismissed by Applegarth J, the taxpayers were bound by that decision, and the taxpayers could not now seek to raise that issue in these proceedings. That concession was properly made and is a complete answer to the question of rectification of the resolutions. The other difficulties with the application for rectification are unnecessary to address.
Denial of procedural fairness
As noted earlier, s 207-55 of the 1997 Act seeks to ensure that the amount of a franked distribution made to a trustee is allocated notionally amongst the beneficiaries who derive benefits from that distribution and that the allocation corresponds with the way in which those benefits were derived. Its sub-sections provide the mechanisms to achieve that objective. Section 207-55(2) provides that the amount notionally allocated, described as a share of the franked distribution, does not have to be received by the beneficiary. The table in s 207‑55(3) provides the method for determining the share amount. No other step is necessary.
It was common ground that the additional step imposed by the primary judge - that evidence be adduced of how much of the amount of the franked distributions was taken into account by the Trustee in working out the particular beneficiary's share of the s 95 net income - was not the subject of submissions from the parties.
By the parties' respective appeals to the Full Court of the Federal Court, that legal question was before that Court. Any denial of procedural fairness was therefore addressed by those appeals and is no longer operative. To the extent that the taxpayers sought to have the proceedings remitted to the primary judge to adduce further evidence in relation to the actual distributions of income that were made in the 2006 to 2008 income years, that application should be rejected. An application by the taxpayers to the primary judge for leave to reopen to adduce that evidence was refused. If the taxpayers wished to raise that issue in this Court, they should have sought leave to file a cross-appeal. No such cross‑appeal was filed.
Conclusion and orders
For those reasons, the following orders should be made:
Matter No B60/2017
- The appeal be allowed in respect of the income years ending 30 June 2006, 30 June 2007 and 30 June 2008.
- The cross-appeal be dismissed.
- Set aside order 1 of the Full Court of the Federal Court of Australia made on 12 April 2017 in Matter No QUD72/2016 and orders 1, 2, 3 and 4 of that Court made on 3 August 2017 in Matter No QUD72/2016, and in their place make the following orders:
(a) the appeal be allowed in part;
(b) the cross-appeal be allowed;
(c) the objection decisions in respect of the income years ending 30 June 2006, 30 June 2007 and 30 June 2008 be remitted to the Commissioner of Taxation of the Commonwealth of Australia for determination in accordance with the reasons of this Court;
(d) the objection decision in respect of the income year ending 30 June 2009 be remitted to the Commissioner of Taxation of the Commonwealth of Australia for determination in accordance with the orders of Greenwood J made on 26 November 2015 in Matter No QUD274/2012 and otherwise in accordance with the law.
- The respondent pay the appellant's costs of the appeal except for those costs that relate to the determination of the matters concerning the income year ending 30 June 2009.
- The appellant pay the respondent's costs of the appeal insofar as those costs relate to the determination of the matters concerning the income year ending 30 June 2009.
Matter No B61/2017
- The appeal be allowed.
- Set aside order 1 of the Full Court of the Federal Court of Australia made on 12 April 2017 in Matter No QUD78/2016 and orders 1, 2, 3 and 4 of that Court made on 3 August 2017 in Matter No QUD78/2016, and in their place make the following orders:
(a) the appeal be dismissed;
(b) the cross-appeal be allowed;
(c) the objection decision in respect of the income year ending 30 June 2008 be remitted to the Commissioner of Taxation of the Commonwealth of Australia for determination in accordance with the reasons of this Court.
- The respondent pay the appellant's costs of the appeal.
Matter No B62/2017
- The appeal be dismissed.
- The appellant pay the respondent's costs.
Matter No B63/2017
- The appeal be dismissed.
- The appellant pay the respondent's costs.