only to provide a measure of discretion to deal with unforseen consequences, anomalies or unexpected outcomes, then, the discretion should be applied because the repeal of section 24(1)(b) of the Duties Act creates such a situation.

1. According to Mr Pertile when the Commissioner considers whether individual transactions constitute "substantially one arrangement" he is required to look at the substance of the transactions. He referred to a definition of arrangement in Butterworths Legal Dictionary as "generally, an agreement, plan or compact, the legal effect of which depends on the context in which it is used." He referred to a decision of the High Court of Australia in Bell v Federal Commissioner of Taxation [1952] HCA 34; (1953) 87 CLR 548, 573 where he said the Court interpreted the word arrangement in the Commonwealth Income Tax Assessment Act as extending to "all kinds of concerted action by which persons may arrange their affairs for a particular purpose or so as to produce a particular effect." According to Mr Pertile, care needed to be taken in applying judgements of courts dealing with aggregation provisions and other statutes which are not worded identically to the Duties Act 2000. Moreover, each of them turns on its particular facts.
2. Mr Pertile quoted from the judgements of Greene and Slesser LJJ in Attorney General v Cohen [1936] 1KB 478 and the judgement of Jacobs J in Jeffrey v Commissioner of Stamps (1980) 23 SASR 398. He also referred to the determination of the appeal panel of the Administrative Tribunal of the State of New South Wales in Chief Commissioner of State Revenue v Pacific General Securities Ltd and Finmore Holdings Pty Ltd [2004] NSWADTAP 51; (2004) 58 ATR 17.
3. According to Mr Pertile these cases illustrate that before an aggregation takes place there must be a unifying factor between the transactions which must be an "essential" unifying factor. He said "not just any unifying factor" would do. He contended the transactions have to be, in substance, one transaction, "although masquerading as several." The interdependence of contracts of sale was a relevant factor.
4. Next he contended that transactions could not be aggregated on the basis of an argument:

that requires no relationship between the various transactions except one which is built up by means of a number of matters of fact or casual matters which do not make it proper to say that they constitute substantially one arrangement.

The factors that fall to be considered may well involve, entirely, a consideration of the conduct of the purchasers and their beneficiaries, as opposed to the vendors.

1. He noted that the now appealed section 24(1)(b) of the Duties Act 2000 required that the:

transferee is the same or the transferees were associated persons in order for dutiable transactions to be aggregated under section 24(1). Although the repeal of section 24(1)(b) means that the relationship between transferees is no longer an express criterion in the application of section 24(1), it does not mean that the relationship between the transferees can't be considered under section s24(1)(c) or 24(2).

1. He referred to the Second Reading Speech from the Treasurer moving that Section 24(1)(b) be repealed. He said that despite the repeal of Section 24(1)(b), the relationship between the transferees of the putatatively aggregated transactions:

should be strongly considered in determining whether the transactions form substantially one arrangement for the purposes of section 24(1)(c) although the Commissioner should exercise his discretion not to aggregate.

1. He submitted that such connections as there were between Pertile and the other transferees "do not establish an essential unity" between the transactions.
2. According to Mr Pertile his company's transaction was not interdependent with the others. It was, he said, "negotiated separately". He said that paragraph 15 of Revenue Ruling DA026 postulated an example where no aggregation would take place which would apply to the present situation entailing:

the sale of property negotiated by private treaty... if negotiated separately... for instance unless the sale of one was dependent on the sale of the other"

1. He submitted there is no reason to distinguish between sales of entire properties and sales of fractional interests in properties for the purposes of applying these principles.
2. Mr Pertile conceded that the common use of more than one lot could be a relevant consideration for the application of Section 24(1):

The single use of the one lot, as in the case in relation to the property, was not a relevant factor in determining the application of section 24(1)(c) of the Duties Act. Generally, it would be expected that one lot of land would have only one use.

1. As to the discretion not to aggregate under Section 24(2) he referred to Section 35 of the Interpretation of Legislation Act 1984 as authorising reference to Hansard to determine the true construction of the discretion. He submitted that the purpose of Section 24's predecessor in the Stamps Act 1958 was according to the determination in Clancy v Commissioner of Stamp Duty (1998) 40 ATR 99 at [12] to attack an avoidance practice whereby stamp duty was avoided "by artificial splitting of land holdings for transfer purposes". Next Mr Pertile referred to the Treasurer's second reading speech for what was then the Duties Bill in 2000 where he stated that the purpose of the bill was not to "introduce significant changes to the taxation base or rate of duties" as compared with those ruling under the 1958 Act. Further he said that in the second reading speech from the State Taxation Legislation (Further Amendment) 2002 the Treasurer described Section 24 of the Duties Act as an anti-avoidance position. Since he submitted his company had not entered this transaction for the purposes of duty splitting the discretion should be favourably exercised for his benefit.
2. Mr Pertile conceded that the appeals panel of the New South Wales Administrative Decisions Tribunal had determined that the New South Wales equivalent of Section 24 was:

not to be limited to ... contract splitting and anti-avoidance situations (sic), because there [was] no evidence that the purpose of the New South Wales provision [was] so limited.

Chief Commissioner of State Revenue v Pacific General Securities Limited and Finmore Holdings Pty Ltd (No 2) 125 [2005] NSWADTAP 54; 63 ATR 127 at [20] - [27]

Rather the panel held that the New South Wales provision was intended "to provide a measure of discretion to deal with unforseen consequences, anomalies or unexpected outcomes." According to Mr Pertile, the repeal of Section 24(1)(b) of the Act created the sort of anomaly, unforseen circumstance or unexpected outcome which according to the appeal panel's analysis such a provision was intended to deal with, hence here the discretion should be exercised in his company's favour. He noted that the Revenue ruling referred to previously states generally that the Commissioner would not give a favourable exercise of discretion where a person contracts to purchase a partial or fractional interest in land. He said his company's transaction was "distinguishable from paragraph 27 of the ruling, because in those transactions, six persons were each purchasing the one fractional interest in land." He said the ruling considered only the situation where one person was purchasing fractional interests separately.

1. He submitted that his company's "objection should be allowed in full".

1. Ms Jaques of counsel appeared for the Commissioner. She submitted that in accordance with the formulation of Section 24(1)(c) the various transactions relative to lot 2 were "substantially one transaction". She noted that in accordance with Section 24(1)(a) the various contracts of sale were entered into within 12 months. She referred to the judgment of the Court of Appeal in Attorney-General v Cohen and the decision of Jacobs J in Jeffrey v Commissioner of Stamps and the decision of Mohr J in Old Reynella Village Pty Ltd v Commissioner of Stamps (1989) 51 SASR 379. Next she took me to the determination of the appeal panel of the New South Wales Administrative Decisions Tribunal in Chief Commissioner of State Revenue v Pacific General Securities Ltd and Finmore Holdings Pty Ltd. Then to Clancy v Commissioner of Stamp Duty (1998) 40 ATR 99 (Balmford J) and Blood Property Pty Ltd v Commissioner of State Revenue [2005] VCAT 754; (2004) 59 ATR 234 (Senior Member Davis). She submitted that these authorities established the following propositions relative to Section 24(1) of the Duties Act 2000:

(a) The test requires a multi-factored analysis of all relevant circumstances including but not limited to the circumstances immediately surrounding the transactions and questions;

(b) A focus on the multi-factored analysis would be the relationship between the transactions being integral and unifying rather than a fortuitous one;

(c) Put another way, the test requires consideration of the substance of the transactions to determine whether there is some unifying factor between the transactions.

1. Like Senior Member Cremean in T21/2007 she identified a number of factors which were numbered (a) to (m) which she said indicated there was a relationship between the various transactions which was an integral and unifying one rather than a fortuitous one. These various factors were as follows:

(a) there was a common vendor for each of the contracts of sale (Afreen);

(b) the purchasers did not deal with the vendor in the open market;

(d) the contracts of sale were identical in form, including as to the date of payment of the balance and deposit notwithstanding that two of the contracts were entered into after those dates;

(e) the contracts were entered into within in short space of time: four of the contracts of sale were entered into on the same date and the remaining two within 10 and 17 days respectively;

(f) each contract of sale provided for the same percentage of the purchase price (being 1%) to be paid by way of deposit on the same date and for the balance to be paid on the same date;

(g) the same solicitor appears to have represented both the vendor and each of the purchasers in relation to each contract of sale (this can be inferred from the absence of any solicitor nominated by the purchaser in the particulars of each of the contracts of sale, and the fact that the nominated vendor's solicitor filed all six transfer instruments);

(h) each purchaser entered into the Landholder Deed dated the day before the transfers of title were executed;

(i) each of the purchases was negotiated in contemplation of both Geofglen acquiring 50% of Lot 2 and its related company, Maroondah, taking out the lease;

(j) each of the contracts of sale was for a fractional interest in the same property, covered by a single Certificate of Title;

(k) each of the transfer instruments was executed on the same date, and those instruments were sequential, with five of the purchasers (including the applicant) also signing subsequent transfer instruments as transferor;

(l) each of the transfer instruments record the purchasers as tenants in common, so that there must be a common use of the land and cooperation between purchasers as to their dealings in the land;

(m) there was significant involvement by the vendor (Afreen) in the commercial objectives of the purchasers and their beneficiaries at the time the contracts of sale were entered into:

1. two of the purchasers (Brianco and Endermeant) were shareholders in Afreen;
2. a third purchaser (Brian Duncan, who purchased with his wife Karen) was a former director and shareholder of Afreen, and is claimed by the applicant to have had (together with his wife) a personal relationship with Afreen's shareholders and directors;
3. the fourth purchaser, Pertile, was trustee of the Pertile Superannuation Fund, the members of which are claimed by the applicant to have had a personal relationship with Brian Coopersmith;
4. the fifth purchaser, Davies, was known to Afreen;
5. the final purchaser, Geofglen, was trustee of the Geofglen Investments Staff Superannuation Fund, the members of which were Geoffrey John Sammons and Glenice Rowe Sammons. Geoffrey John Sammons is also a director of Maroondah and sole director and shareholder of Bravo Investments Pty Ltd, a shareholder of Maroondah.

1. According to Ms Jaques the applicant's reliance on paragraph 15 of the revenue ruling was misconceived. She said that the example was "not directed toward the purchase of fractional interest in the same property". Moreover, she submitted that there was an interdependency between the transactions "in particular, Maroondah's lease of lot 2 was entered into" on the basis that Afreen would sell Maroondah a 50% fee simple interest in the property, (as it turned out, the sale was to the related entity Geofglen), and negotiations with the other parties for the sale of 10% interest was on the basis of the sale of lease to Maroondah and on the basis that the interest in Lot 2 would be offered to other parties. In any event, she said revenue rulings were intended to provide guidance "but are not legally binding".
2. She said the Commissioner agreed that the relationship between the multiple transferees was relevant for consideration in this proceeding. She said whether or not they were "associated" with one another in an informal sense there were a number of significant connections between them. She noted for instance that directors of two of the transferees Brianco and Endermeant were also directors or shareholders personally or through a corporate entity of Afreen, the transferor. Mr Duncan was formerly a director and shareholder of Afreen and those behind Pertile had a personal relationship with the Coopersmith's who are directors of Brianco and Afreen. Geofglen was associated with Maroondah, both companies being associated with the dealer principal, a Mr Geoff Sammons. Ms Jaques continued that the Commissioner submitted "that these relationships strongly support the conclusion that the transactions form, evidence, a single arrangement." She said taking all these things together established quite a connection or relationship of interdependence between the transactions that gives them the essential unity which the test referred to in Jeffrey v Commissioner of Stamps (1980) 23 SASR 398 required.
3. Ms Jaques further submitted that no discretion should be exercised under Section 24(2) in favour of the present applicant. She referred to a second decision in Pacific General complex of litigation by the appeal panel of the Administrative Decisions Tribunal of New South Wales in Chief Commissioner of State Revenue v Pacific General Securities Ltd and Finmore Holdings Pty Ltd (No 2) [2005] NSWADTAP 54; (2005) 63 ATR 127 in which she said the appeal panel had specifically rejected the approach to the discretion advocated by the applicant in this proceeding. The Administrative Decisions Tribunal had concluded that the Section 24 equivalent in New South Wales was directed against stamp duty avoidance and contract splitting and a conclusion that the matter before that Tribunal did not entail either, necessarily meant that the discretion should be exercised in favour of the taxpayer. This approach was rejected by the appeal panel. The panel, she said, concluded that an intention to evade and avoid tax would count against a taxpayer when a discretion came to be exercised but an intention not to evade and avoid tax was a "neutral factor". She said the appeal panel concluded the discretion should only be exercised in the case of "unforseen consequences, anomalies or unexpected outcomes".
4. She continued that Parliament had deliberately repealed Section 24(1)(b) of the Duties Act which rendered Subsection (1) applicable only for transfers when made to associated persons. When that requirement for the subsections operation was removed, it could not be said that the consequences were unforseen, anomalous or unexpected. It would, she said, be constitutionally inappropriate to employ the Subsection (2) discretion to undo what Parliament had done by repealing paragraph (b) of Section 24(1). She submitted that no consideration had been identified which would indicate that aggregation was not just and reasonable.
5. Finally, Ms Jaques submitted that I should follow Senior Member Cremean's decision in T21/2007. She said there was no significant difference between the facts in the two proceedings and that earlier proceeding involved the same transfer and four of the same six transferees. She submitted that whilst there were some factual differences, for instance Afreen retained an interest in Lot 1 but sold all of Lot 2, and in the case of Lot 2, not all contracts were entered into on the same day etc. The significant distinction between the two was the existence of the Landholder Deed for Lot 2. This factual circumstance made the operation of section 24(1) with respect to Lot 2 even clearer and more appropriate. She said Senior Member Cremean's decision should be followed in the interests of comity and uniformity. She referred to Charnley Glen v Boroondara City Council [2000] VSC 340; (2000) 110 LGERA 52; Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366; (2000) 111 LGERA 42.

1. In reply, Mr Pertile submitted that it was open to the Tribunal to aggregate his company's transaction with one or more of the other transactions but not all of them.
2. He pointed out that in the case of the Geofglen contract as signed, A B Natoli Pty is shown as the purchaser's solicitors, in contrast to no solicitor for the purchaser being identified in the other contracts.
3. He noted a distinction between section 24 of the Victorian Duties Act and its New South Wales equivalent. He said the latter allowed aggregation only where:

(a) The transferor is the same or the transferors are associated persons; and

(b) The transferee is the same or the transferees are associated persons.

1. Next he noted that in Jeffrey's case Jacobs J said that aggregation should occur only where there was an "essential unity" (Mr Pertile's emphasis).
2. As to the various items which the Commissioner referred to as leading to the conclusion that the transfers were part of the same transaction, Mr Pertile observed:

The Commissioner does not say which one or more, if any, of the factors are essential unifying factors or which one or more of the factors, if not present would mean that the aggregation test in section 24(1) of the Duties Act would not be satisfied.

1. He said that the contracts of sale were not identical. Two had different dates of sale, one contract was for 50% interest and the others were for 10% interests, one included a stipulation for vendor's solicitor and the others did not, and each contract had a different purchaser. He observed that his company was represented in the transaction by himself and his brother Gary. He submitted it was wrong to conclude that the same solicitor represented the other purchasers as represented Afreen. He said"

The lodgement of the transfers by Afreen's solicitors is not evidence that Afreen's solicitor represented GPN and the purchasers in the other transactions in relation to the negotiation contract process. Firstly, lodgement with the payment of duty occurs after a transaction has completed. Secondly, Afreen's solicitor would have been instructed by the solicitor for Geofglen and by Brett Coopersmith as manager of the property to lodge for the payment of duty after considering the group's statutory declarations in relation to the GPN transaction, and the other transactions which are required for lodgement, are preferred by Afreen.

1. Next he submitted it was wrong to regard the parties as having been in communication with one another in early 2007 by reason of the fact that Gary Pertile acted on the objection to the assessment of duty for Lot 1. He said:

The other parties also objected to their assessments only because Gary Pertile offered through (Brett Coopersmith) to act pro bono in the review and appeal process, because the issues were the same and would take little extra time to litigate.

1. Mr Pertile referred to a number of the factors relied upon by the Commissioner as said to demonstrate that the transactions had an essential unity. He said, for instance, that it should be the activities of the purchasers that were relevant rather than those of the vendor. He continued with detailed comments upon the various matters.
2. Mr Pertile submitted it was wrong to regard the transactions and the lease to Geofglen as dependent upon one another. According to Mr Pertile, the sale to Maroondah was contemplated before the negotiation of the sale to Geofglen or Maroondah and no more was demonstrated than that the lease to Maroondah was dependent on the sale to Geofglen. He said it was not proven that the sale to Pertile was conditional on any of the other transactions.
3. As to the antecedent links between various investors, he submitted that they did not establish that Pertile had a relationship with the other transferees. Moreover, Mr Coopersmith's statement showed that the negotiation and sale of the interest in Lot 1 took place in circumstances where each purchaser except Brianco, which was a company associated with the Coopersmiths themselves, was not aware of the identity of the other purchasers. Mr Pertile said therefore it was incumbent on the Commissioner if he wished to rely upon the issue of prior relationships to show a prior relationship between Pertile and one or more of the other transferees:

Not just any relationship should have to be established, e.g. a personal relationship, but something closer to the relationships in the 'associated persons' tests should have to be established in order to raise this factor in support of aggregation. In other words, the relationship should itself establish the essential unity between the transactions sought to be aggregated, although some real way to be contributing to the essential unity.

1. Mr Pertile noted that the Commissioner had not denied in any way the material relied on by Pertile from Hansard as to the purpose of Section 24 of the Victorian Duties Act as an anti-avoidance, anti-duties splitting device. He noted also that the Commissioner "has not disputed the evidence that [the Pertile] transaction was not entered into for the purpose of avoiding duty."
2. As to the argument that the Tribunal should, in this proceeding, follow the determination in T21/2007, Mr Pertile relied upon what I had said in dismissing the Section 75 application in this proceeding.
3. Finally, Mr Pertile submitted that the Landholder Deed was of little significance, as it was entered into after all the contracts were made and entered into at the request of one party. If anything, he said, it supported Pertile's case.

1. The origin of the jurisprudence on Section 24 and its analogues is the decision of the Court of Appeal in Attorney-General v Cohen. In that case the question was whether some six sales made at public auction should be aggregated for stamp duty purposes. The Court of Appeal held by a majority that they should not be. The conclusion to this effect depended, in accordance with Section 73 of the Finance (1909-10) Act 1910 upon a finding that the instruments of conveyance did not:

form part of a larger transaction or of a series of transactions in respect of which the amount or value, or the aggregate amount or value, of the consideration [exceeded] £500.

1. It will be seen that under that provision to express the matter in positive rather than negative terms aggregation should take place where a number of conveyances or transactions form part of a larger transaction or were part of a series of transactions. The authorisation for aggregation therefore includes two distinct limbs. This point was made by Greene LJ (as he then was). His Lordship stated:

In my opinion, read in its context, the phrase 'part of a series of transactions' is intended to sweep any cases where the relationship between the transactions is an integral and not a fortuitous one depending really on such circumstances as contiguity in time or place, but is such that it would not or might not be sufficient to bring them within the phrase 'part of a larger transaction'." [1937] 1 KB 478, 491.

1. The other member of the majority Slesser LJ said:

Similarly, where co-ordinated or interdependent transactions might not be so treated as to amount in law to parts of a 'larger transaction,' nevertheless they might be so related that, in effect, one would cause or qualify another. In such case, where the total amount of the consideration for the series is more than £500 and so might otherwise attract to itself a higher rate of duty, the series is not to escape the full weight by being dissected into artificially discrete parts. In other words, only genuine disparate transactions of less than £500 are to be favoured.

1. Ms Jaques stressed that this was one of the few reported cases where a Court or Tribunal had refrained from aggregating conveyances for stamp duty purposes. She noted that this was an instance of public auctions carried out independently in circumstances where it was unknown until the fall of the hammer in each auction whether the taxpayer would or would not be the purchaser. This stood in contrast, she said, to the private off-market negotiations which took place in the present instance.
2. Ms Jaques' observations as to these factual matters are well made. On the other hand, what is apparent from the passages which I have quoted from the two majority judgements is that the Court saw the breadth of the provision with which it was dealing on the subject of aggregation as resting crucially for the extent of its reach upon reference to a series of transactions which Their Lordships considered cast the net wider, or to quote Greene LJ (as he then was), had the effect of "sweeping in more cases than a mere reference to being part of a single transaction." Section 24(1) of the Victorian Duties Act omits any reference to a series of transaction. On the face of it, therefore, its reach for aggregation purposes is significantly narrower than the provision from the Finance Act which the Court of Appeal was considering in Cohen's case. Ms Jaques submitted as will appear later that Section 24(1) had at least as broad a reach as the provision in Cohen's case, or perhaps a broader one still by reason of the use of the word "arrangement" rather than "transaction" as was used in the Finance Act as considered in Cohen's case. I will turn to that point later.
3. Next in turn is Jeffrey v Commissioner of Stamps (1980) 23 SASR 398. There, two adjoining parcels of land in common ownership were the subject of contracts of sale to a mother and son. Both agreements were made in the same month of the same year, though not on the same day. One agreement was expressed to be subject to the fulfilment of special conditions in the other agreement. Both agreements provided for the same nominal sum by way of a deposit unrelated to the purchase price and settlement was to be effected in the same place and on the same day. The provision in the South Australian stamp duty legislation in question in Jeffrey's case called for determination of whether the conveyances "arose out of one transaction, or one series of transactions." The resemblance to the formulation in Cohen's case is clear enough. Jacobs J said "even if the parties are the same, it does not necessarily follow that the transactions must be regarded as 'one series of transactions' " (1980) 23 SASR 398, 403. His Honour quoted extensively from the judgement in Cohen's case. Later His Honour observed:

Upon consideration of the Act itself, and of the arguments addressed to me, it appears to me that the use that is made in the statute of the word 'one' - one contract, substantially one transaction, one series - gives a critical clue to the application of the section. It points to some essential unity, some 'oneness', some unifying factor that brings the several transactions within the section." (1980) 23 SASR 398, 405.

On the same page His Honour observed that the conclusion in favour of the taxpayer in Cohen's case was dependent upon the consideration that:

whether the purchaser at auction succeeded in buying one, or four, or six of the lots offered was a mere matter of market chance. Again, if a farmer were to subdivide his land into three parcels and sells each parcel to different purchasers at arm's length from each other, I do not see how this section could apply.

One can imagine, for example, a situation in which four related companies each contracted to purchase a separate lot, each contract being conditional upon the due performance of all the other contracts, thereby manifesting the clear intention that the four companies intended to acquire between them the four allotments, or none at all, it might be very difficult in such a case to contend that each transaction did not form part of a series or part of a larger transaction, or indeed that there was not, in the language of s66ab of the Act, substantially one transaction, although the parties are different."

His Honour concluded that the various factors already described demonstrated the essential one-ness of the two transactions. The son's purchase was made conditional upon a sale of another property by the mother to enable her to finance his purchase.

There is thus an intended advancement of the son by the mother, who is to provide all or most of the purchase price for both parcels just as they would have been had both properties been purchased by the mother in their joint names, as joint tenants or as tenants in common. (1980) 23 SASR 398, 407.

1. In Old Reynella Village Pty Ltd v Commissioner of Stamps [1989] SASC 1724; (1989) 51 SASR 378, Mohr J considered the application of the same provision in the South Australian Stamp Duties Act 1923 where the taxpayer purchased seventeen properties for the purpose of amalgamation so a shopping complex could be erected. It does not appear, in contrast to the situation in Cohen's case, that these properties were acquired at auction. Presumably the contracts were made by way of private treaty. Mohr J concluded that the relationship between the transactions was to quote the words of Greene LJ in Cohen's case:

An integral and not a fortuitous one. That being so, the transactions under consideration are clearly part of a series of transactions within the meaning of s66ab... [1989] SASC 1724; (1989) 51 SASR 378, 382.

1. In Clancy v Commissioner of Stamp Duties (1998) 40 ATR 99, Balmford J considered an appeal from a determination of the Victorian Administrative Appeals Tribunal aggregating for stamp duty purposes some four transactions to transfer equal undivided interests in certain properties by a mother to a daughter. The purpose of these transactions was to forestall any application by a son for provision out of the mother's estate after her death in accordance with the Administration of Probate Act 1958. The aggregation condition there applicable was Section 68 of the Stamps Act which, for present purposes, required that the instruments of conveyance "together form, or arise from, substantially one transaction or one series of transactions." Her Honour found in favour of the Revenue on the point of aggregation although her decision is principally devoted to the degree to which a declaration provided for in Section 68 could be regarded as conclusive evidence in favour of the taxpayer as distinct from subject to attack by the Revenue.
2. The later decisions, all Tribunal decisions, turn on legislation in the form of Section 24 or substantially the same form. In Chief Commissioner of State Revenue v Pacific General Securities and Finmore Holding Pty Ltd [2004] NSWADTAP 51; (2004) 58 ATR 17 an appeal panel of the New South Wales Administrative Decisions Tribunal considered a determination of the New South Wales Commissioner to aggregate for duty purchases five purchases of neighbouring residential properties from different vendors but by the same taxpayer purchaser. The Commissioner sought a review by the panel of a determination against him in the first instance in the Tribunal. He contended that for aggregation purposes he was required to have regard to all relevant factors in relation to the taxpayer's purchase of the properties to determine whether they arose out of "substantially one arrangement" which is the same wording as appears in Section 24(1) of the Victorian Act and on which this proceeding must be determined. The panel accepted the Commissioner's contention concluding that for the application of this test it was necessary to have regard to all relevant factors and not limit oneself to those relating immediately to the individual conveyances. The panel noted at the outset that in contradistinction to the legislation considered in Cohen's case and the two South Australian decisions, it had to consider not whether the conveyances were part of substantially one transaction, but substantially one arrangement. They stated "on its face 'arrangement' has a wider connotation" [2004] NSWADTAP 51; (2004) 58 ATR 17, 20 [15]. With respect to the potentially wider meaning than the word arrangement, the panel quoted for the purposes of distinguishing the analysis of that word in Federal Commissioner of Taxation v Lutovi Investments Pty Ltd [1978] HCA 55; (1978) 140 CLR 434, 463 by Aickin J where His Honour was considering the meaning of that word in Section 44(2)(b) and (2D) of the Income Tax Assessment Act 1936 which referred to an arrangement being "entered into". His Honour said that whilst the concept "arrangement" extended to something that was no more than a plan drawn up by and to be implemented by one person alone, that meaning could not apply in the context which His Honour was considering because the arrangement had to be "entered into" which necessarily implied at least one other person or counter-party was involved. The panel noted that no such words of restriction appeared in the New South Wales Duties Act. They said "the term 'arrangement' as used in [Section 25 of the Duties Act 1997] could encompass a unilateral arrangement" [2004] NSWADTAP 51; (2004) 58 ATR 17, 23 [34]. The relevance of the distinction in the Pacific General Securities case was that as the panel observed on the same page of the report:

Here the vendors were independent of each other ... the entrepreneurs, D and K, had dealt with them in the open market (by private negotiation rather than by auction). D and K were successful in putting together a parcel of properties.

The panel concluded that these considerations in themselves were not, in the context of the 1997 Act, sufficient to exclude the possibility of aggregation. The determination of the Tribunal at first instance was set aside and the matter was remitted to hearing without further evidence.

1. Upon the remitter the Tribunal at first instance again determined the matter in favour of the taxpayer, on this occasion by the application of the equivalent in the New South Wales Act to the discretion given to the Victorian Commissioner under Section 24(2). The matter was taken by the Commissioner once again to the appeal panel. The Tribunal at first instance had concluded that since the activities of the taxpayers did not entail any contract splitting or duty avoidance, these considerations rendered it appropriate to exercise the discretion in their favour. The appeal panel rejected this view. The panel's reasoning as summarised in Ms Jaques's submissions on this point, is that a lack of intention to transaction split or avoid duty was a neutral factor, and that the discretion was granted to the Commissioner solely to deal with unforseen circumstances, anomalies and so forth. The appeal panel said

[30] In the present instance, it is clear, in our view beyond doubt, that s25 is attaching duty consequences to circumstances where several transactions are engaged in, but they have been undertaken with a common purpose in mind and can properly be found to involve 'substantially, one arrangement'. It will often be the case that vendors with small individual parcels of property will not have any involvement with the end objective of the common purchaser. In development context, their only involvement may be to furnish a consent to a development application as a condition of an option to purchase. This is an everyday circumstance.

[31] On its face there is nothing special about this transaction, and there will have to be some unusual special considerations which would take the case outside the normal application of duty. To use the discretion to relieve the purchaser from duty would require special justification. A dispensing power should not lightly be applied.

[2005] NSWADTAP 54; (2005) 63 ATR 127, 133

1. Finally I come to Blood Properties Pty Ltd v Commissioner of State Revenue [2005] VCAT 754; (2005) 59 ATR 234. In that case there were sales of a number of assets associated with the conduct of a car dealership. Senior Member Davis accepted that the transactions should be aggregated under Section 24(1), being of the view that the sale of the business, the sale of the properties on which the business was primarily conducted, and the procurement of a lease from the transfer of leases were all part of a single transaction. There were different vendors and purchasers but in each case the same person was sole director and shareholder of both companies. The contracts were expressed to be conditional upon one another, and Mr Davis remarked that, when reaching his conclusion, he had applied what he described as a "reality check" referring to the expression used by Hansen J of the Supreme Court of Victoria in Perpetual Trustee Company Ltd v Commissioner of State Revenue [2000] VSC 177; (2000) 44 ATR 273.
2. What then do these authorities mean for the disposition of the present proceeding? The first question for determination is the purport of the word "arrangement" as used in Section 24(1). I have referred to the views expressed by the appeal panel of the New South Wales Administrative Decisions Tribunal in the Pacific General case to the effect that in contrast to the meaning which has been attached to that word in other contexts, the word arrangement in Section 24(1) can relate to something which is wholly unilateral, a plan formulated by an individual to be implemented by that individual alone. It is clear that in general speech the word "arrangement" can have such a meaning. We speak for instance of a flower arrangement, or an arrangement of music, upon the assumption usually that the "arrangement" has been carried out either by a single individual, or by two persons co-operating, that is acting jointly, not one party and a counter party. Mr Pertile submits that the word "arrangement" in Section 24(1) should be given the meaning which it was given in Bell v Federal Commissioner of Taxation [1952] HCA 34; (1953) 87 CLR 548, 573 where, in a joint judgement, Dixon CJ, Williams, Webb, Fullagar and Kitto JJ said, of the word being used in section 260 of the Income Tax Assessment Act 1936 (now repealed) that the word:

extends beyond contracts and agreements so as to embrace all kinds of concerted action by which persons arrange their affairs for a particular purpose, or to produce a particular effect.

1. In excluding a unilateral concept of arrangement in Lutovi Investments, Aickin J noted that the word where used in the section he was considering was allied with the phrase "entered into". In Bell's case, the Court was considering the word once again allied with the concept of "entered into" and also as part of a list of concepts namely "every contract, agreement or arrangement...". This tends to reinforce the concept that what is involved is a multi-lateral arrangement and not a unilateral one. The Commissioners case would therefore have it that cases like Bell's case are irrelevant to the meaning of the word "arrangement" in Section 24(1) of the Duties Act. I was initially attracted to the view that despite these considerations, the context in which the word arrangement appears in Section 24(1) nevertheless strongly implies that its meaning is to be restricted to arrangements of the multilateral character. The typical operation of Section 24(1) in a circumstance such as the present is to aggregate a number of transfers or conveyances of dutiable property. This very context necessarily entails more than one person being involved, typically a vendor and purchaser or transferor and transferee (more fully to track the language in the statute). However, as Section 24(1)(a)(ii) indicates, the section does operate in circumstances other than transfers on sale. Section 8 of the Duties Act imposes duty at conveyance rates upon transactions which are not sales or transfers. This is done by a sub-joined table which in effect deems a particular party to be a transferee. Without going through each of the instances set out in the table whilst the statute deems a particular party to be a transferee it is clear that in not every such case would there be someone who could be deemed to be the transferor. By using the word "arrangement" in the context of Section 24(1) it seems Parliament does assume that there can be "substantially, one arrangement" in circumstances where there are not necessarily two parties. It seems to accept that there can be a unilateral arrangement for the purposes of Section 24.
2. The next question is what is the significance of the omission of the reference to a series of transactions from the legislation which is now in force, in contradistinction to the use of that term in the legislation considered in Cohen's case, Jeffrey's case, the Old Reynella case and Clancy's case. I quoted above from the judgement of Greene LJ as he then was, where he regarded the reference to a series of transactions as significantly enlarging the reach of the aggregation provision. Indeed his reference to the aggregation entitlement extending to transactions which are of an integral and not a fortuitous relationship depending merely on circumstances such as contiguity of time or place flowed from the reference to a series of transactions not from the concept of these various matters being part of a single transaction. Slesser LJ's judgement was to the same effect. On this view the aggregation provision in Section 24 has, at least in this respect, a significantly more limited reach than the earlier versions. Ms Jaques submitted that the expansiveness of the concept of "arrangement" extending as she submitted, and I have accepted, it does, to purely unilateral arrangements, as it were, made up for this limitation in the present aggregation provision.
3. In the present instance, there is no doubt that there was an arrangement by Afreen under the direction of the Coopersmiths. The purpose and the effect of the arrangement was to sell off the fractional interest in Lot 2 to a range of investors including their own investment company, Brianco. On the authority of cases such as Pacific General and Old Reynella, it is difficult to see how the fact that this arrangement was promoted by Afreen under the control of the Coopersmiths and not shared in by persons such as the Pertiles makes much difference. In the Pacific General case, using what I might call the contemporary aggregation provision, the appeals panel concluded that there should be an aggregation of purchases despite the fact that the vendors were no part of the arrangement. Similarly, in Old Reynella, aggregation occurred under the older style provision, despite the fact that the vendors acted individually and not as part of a single arrangement. The single transaction found to exist was planned and implemented by the purchaser alone.
4. Having concluded that section 24(1) of the Duties Act applies, the next question is whether the discretion under section 24(2) should be exercised favourably to the taxpayer such that the aggregation is reversed.
5. What constitutes a striking contrast between this proceeding and the Court or Tribunal determinations relied upon by the Commissioner is that in the other matters where aggregation has taken place, the essential unity or oneness which has typically been required, has been imposed by the planning of the purchasers, typically as part of a project of redevelopment as in Old Reynella Village and Pacific General Security. The result there seems to be not unfair in so far as the aggregation is at the expense of the party, that is the planner and the executor of the arrangement or transaction. Here, I did not understand Mr Pertile's evidence to be challenged that he was simply looking for a relatively modest investment for the superannuation fund of which his company was trustee. It was a matter of indifference to him on his evidence, whether any other fractional interest in Lot 2 was disposed of to any of the other friends or associates of the Coopersmiths' or their companies. There might, I suppose, be an argument that the applicant company was party to an arrangement which entailed the sale to it of the fractional interest and the lease to Maroondah. The applicant company's investment policy could only be implemented if Lot 2 was let at commercial rates. The effect of Mr Pertile's evidence was that his company was purchasing a 10% interest in the 'income stream' generated by the lease. This sort of view would have the somewhat surprising result that if a superannuation fund told a developer that it would be interested in purchasing a shopping centre under development as long as it was fully let, then the sale of the shopping centre would be regarded as part of a single arrangement with the letting to the various shopkeepers. As Ms Jaques observed, there is now no stamp duty on leases. Even in the days when there was, the rate was at $6 per thousand of rental reserved, scarcely 10% of the top conveyance rates. Hence hypotheses which relate leases and sales as a putative single arrangement do not seem to be significant for revenue purposes. The fact, if it be a fact, that the applicant company's purchase and the sale to Maroondah could be seen as part of a single transaction in itself and without more is of no significance to the disposition of the present proceeding.
6. The appeal panel's view that the Section 24(2) discretion is to be exercised only in the case of anomalies and unforseen circumstances is in itself problematic. It is a commonplace to say that one person's terrorist is another person's freedom fighter, hence one person's anomaly is another person's reasonable and proper revenue collecting policy. What may be foreseeable to one mind may be unforeseeable by another. The discretion in Section 24(2) is an open one. The appeal panel correctly observed that such a discretion must be determined by implication from the subject matter statement and purpose of the statute. Minister for Aboriginal Affairs v Peako-Walsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-40. I accept that to conclude as the Administrative Decisions Tribunal at first instance in the Pacific General Securities case did, that the taxpayer was not engaged in an attempt at stamp duty avoidance is not in itself a factor which should attract the exercise of a favourable discretion under Section 24(2). The panel appears however to go further, suggesting that it is a matter totally irrelevant. I cannot agree. The Duties Act is as its name indicates, a statute which imposes what used to be known as stamp duty. An intent or lack of intent to avoid such duties is at the very least relevant to a discretion under the Act. The panel said that the discretion was to be used for 'hard cases'. On one view the present is a very hard case. The applicant company entered into the present transaction independently of the arrangement promoted by Afreen. It was beyond its control whether other fractional interest and how many and what value of fractional interests were offered to other persons who happened to be friends and associates of the Coopersmiths within a particular 12 month period. Yet the consequences of this arrangement are according to the Commissioner's assessment to be visited on the applicant company.
7. The panel in the Pacific General Securities' case correctly observed that it would be wrong to exercise a discretion such as the one granted by Section 24(2) in a manner that was fundamentally inconsistent with the policy evident in Section 24. Just what policy the section may be regarded as serving should be considered in light of its legislative history. It seems to have been modelled upon Section 25 of the New South Wales statute which the appeal panel was considering in the Pacific General Securities' case. More pertinently one of the paragraphs of Section 24(1), namely paragraph (b) was repealed after its enactment and before the date that the present transfer or transfers came into existence. That paragraph before its repeal included in Section 24(1) a requirement that before aggregation could take place it had to be shown that:

(b) The transferee is the same or the transferees are associated persons.

1. The effect of this requirement on the operation of the aggregation provision must be seen in light of the definition of associated person which appears in Section 3 of the Act.

associated person means a person who is associated with another person in accordance with any of the following provisions -

(a) persons are associated persons if they are related persons;

(b) natural persons are associated persons if they are partners in a partnership to which the Partnership Act 1958 applies;

(i) there are minority shareholders common to each company who, if their interests were aggregated, would be majority shareholders in each company; or

(ii) any majority shareholder or relative is a majority shareholder in each company;

(ca) companies are associated persons if the shares in the companies are "stapled", in that they are unable to be traded other than as if they together represented a single security;

(d) trustees are associated persons if any person is a beneficiary common to the trusts (not including a public unit trust scheme) of which they are trustees;

(e) a company and a trustee are associated persons if the company or a related body corporate of the company is a beneficiary of the trust (not including a public unit trust scheme) of which the trustee is a trustee;

(f) a company and the trustee of a unit trust scheme are associated persons if their shares and units are "stapled", in that they are unable to be traded other than as if they together represented a single security;

(g) trustees of unit trust schemes are associated persons if the units in each of the unit trust schemes are "stapled", in that they are unable to be traded other than as if they together represented a single security;

(h) a qualified investor and a private company are associated persons if the qualified investor is a majority shareholder in the private company;

(i) a qualified investor and the trustee of a private unit trust scheme are associated persons if the qualified investor holds 20% or more of the units in the private unit trust scheme;

and, for the purposes of Part 2 of Chapter 3, a public company and a subsidiary of a public company are taken to be associated persons;

1. This definition must be judged by reference to the incorporated definition of "related person" which also appears in Section 3.

related person means a person who is related to another person in accordance with any of the following provisions -

(a) natural persons are related persons if one of them is a relative of the other;

(b) companies are related persons if they are related bodies corporate within the meaning of the Corporations Act;

(c) a natural person and a company are related persons if the natural person is a majority shareholder or director of the company or of another company that is a related body corporate of the company within the meaning of the Corporations Act;

(d) a natural person and a trustee are related persons if the natural person is a beneficiary of the trust (not being a public unit trust scheme) of which the trustee is a trustee;

(e) a company and a trustee are related persons if the company, or a majority shareholder or director of the company, is a beneficiary of the trust (not being a public unit trust scheme) of which the trustee is a trustee;

1. It would be wrong in my view to exercise the discretion under Section 24(2) in a manner which would, without Parliamentary approval, effectively reinstate the now deleted requirements of Section 24(1)(b). Would a favourable exercise of discretion for Pertile in this case have such an effect? Whilst Section 24(1)(b) was not in force at the relevant time its precise requirements were not explored as such in the course of the evidence. My understanding of the evidence however was that whilst the families involved and their companies had a considerable history and there was crossover of directorships and ownership in some instances, there was no such crossover between Pertile and the other transferee companies. Nor whilst there was some reference to a romantic attachment between a Pertile and a Coopersmith, were there any formal family relationships. Hence I regard the repeal of paragraph (b) of Section 24(1) as irrelevant. Even if the requirements of Section 24(1)(b) could potentially have applied to Pertile it is not clear that allowing it to escape from aggregation for cognate but not identical reasons would not necessarily entail a frustration of Parliament's policy in repealing Section 24(1)(b). In the event I do not have to pursue that issue.
2. The Section 24(2) discretion should be exercised in favour of the applicant company.
3. I am conscious that in this respect I am reaching a different conclusion from the one reached by Senior Member Cremean in T21/2007. The rule that Tribunal decisions should generally follow one another in the interests of uniformity and comity is by no means absolute, moreover the argument for these things is much stronger where the earlier decision is given by a judicial member cf Anteden's case. Dr Cremean disposed of the Section 24 discretion with a single paragraph. He seemed not to have dealt with the matters which have ultimately weighed with me in reaching a different conclusion.

1. Section 111 of the Taxation Administration Act 1997 empowers the Tribunal to 'confirm, reduce, increase or vary the assessment or decision'. I note that this section does not specifically authorise the Tribunal to set aside an assessment which presumably is implicit in the existence of the review jurisdiction. I conclude therefore that Section 111 of the Taxation Administrative Act is not exclusive of the Tribunal's powers under Section 51 of the Victorian Civil and Administrative Tribunal Act. In the circumstances I propose exercising that power to set aside the assessment and remit it for reassessment in accordance with these reasons.