Imbree v Chief Commissioner of State Revenue

Relevant legislation

1. Sections 8 and 9 of the Duties Act are as follows: 8 Imposition of duty on certain transactions concerning dutiable property (1) This Chapter charges duty on - (a) a transfer of dutiable property, and (b) the following transactions - (i) an agreement for the sale or transfer of dutiable property, (ii) a declaration of trust over dutiable property, … (2) Such a transfer or transaction is a dutiable transaction for the purposes of this Act. … 9 Imposition of duty on dutiable transactions that are not transfers (1) The duty charged by this Chapter on a dutiable transaction referred to in section 8 (1) (b) is to be charged as if each such dutiable transaction were a transfer of dutiable property. (2) Accordingly, for the purpose of charging duty under this Chapter, in relation to a dutiable transaction specified in Column 1 of the following Table - (a) the property specified opposite the dutiable transaction in Column 2 is taken to be the property transferred (and a reference in this Act to property transferred includes a reference to such property), and (b) the person specified opposite the dutiable transaction in Column 3 is taken to be the transferee of the dutiable property (and a reference in this Act to a transferee includes a reference to such a person), and (c) the transfer of the dutiable property is taken to have occurred at the time specified opposite the dutiable transaction in Column 4 (and a reference in this Act to the time at which a transfer occurs includes a reference to such a time). Table Column 1 Column 2 Column 3 Column 4 Dutiable transaction Property transferred Transferee When transfer occurs agreement for sale or transfer the property agreed to be sold or transferred the purchaser or transferee when the agreement is entered into declaration of trust the property vested or to be vested in the declarant the person declaring the trust when the declaration is made …

1. Section 21(1) of the Duties Act relevantly provides as follows: 21 What is the "dutiable value" of dutiable property? (1) The dutiable value of dutiable property that is subject to a dutiable transaction is the greater of - (a) the consideration (if any) for the dutiable transaction (being the amount of a monetary consideration or the value of a non-monetary consideration), and (b) the unencumbered value of the dutiable property. …
2. Section 32(3) of the Duties Act provides as follows: 32 General rate ... (3) The rate of duty provided for by this section applies unless other provision is made by this Chapter.
3. Section 55 of the Duties Act provides as follows: 55 Property vested in an apparent purchaser (1) Duty of $100 is chargeable in respect of - (a) a declaration of trust made by an apparent purchaser in respect of identified dutiable property - (i) vested in the apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property, or (ii) to be vested in the apparent purchaser upon trust for the real purchaser, if the Chief Commissioner is satisfied that the money for the purchase of the dutiable property has been or will be provided by the real purchaser, or (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) This section applies whether or not there has been a change in the legal description of the dutiable property between the purchase of the property by the apparent purchaser and the transfer to the real purchaser. Note - For example, if the dutiable property is land, this section continues to apply if there is a change in the legal description of the dutiable property as a consequence of the subdivision of the land. (1C) This section applies to the legal personal representative of an apparent purchaser or real purchaser who has died in the same way as it applies to an apparent purchaser or real purchaser. (2) In this section, purchase includes an allotment.
4. Notably, s 55 is in Part 6, which concerns concessional rates of duty.

First Instance Decision

1. Relevant to the appeal, the Tribunal determined that the Deed was liable to duty as "an agreement to transfer dutiable property" and not, as had been submitted by the appellant, as a "transfer of dutiable property": at [39] of the Decision. The Tribunal found that the Deed, did not transfer or vest any property. It was not a "transfer" within the meaning of s 8 of the Duties Act. The Tribunal found that the Deed of Variation did not alter the conclusion: at [40] of the Decision.
2. Further, the Tribunal rejected the appellant's submission that by operation of s 9 of the Duties Act, the Deed should be charged "as if" it were a "transfer" for the purposes of the operation of s 55 of the Duties Act. The Tribunal rejected the appellant's submission that s 9 was a general deeming provision for all purposes of the Duties Act. The Tribunal highlighted that s 55 itself refers to both a transfer and a declaration of trust and that many other parts of the Duties Act distinguish between a transfer and another type of transaction, as defined in s 8, which would be nonsensical if the appellant's construction was correct: at [47]-[49] of the Decision. By way of example, the Tribunal said at [48] of the Decision: "When the Duties Act is read as a whole, there is further support for rejecting Mr Imbree's construction. There are numerous examples throughout the Duties Act where the phrase 'transfer of dutiable property' cannot be read to include an 'agreement for sale or transfer of dutiable property' as to do so would render those parts of the Duties Act a nonsense. For example, s 18 of the Act which deals with double duty where two distinct dutiable transactions are referred to: the transfer of dutiable property and the agreement for the sale or transfer of dutiable property; ss 57A, 61, 62, 62A which separately refer to dutiable property being transferred or agreed to be transferred; ss 57 and 63 which draw a distinction between transfers of dutiable property and declarations of trust." (Emphasis in original)
3. As a result of these conclusions, it followed that s 55 of the Duties Act was inapplicable, as it only applied to declarations of trusts and transfers and the Deed was neither: at [50] of the Decision.
4. For completeness, the Tribunal considered the appellant's submission that he was the "real purchaser" and the Trustees the "apparent purchaser", as apprehended by s 55, because he had provided the money for the purchase of the Property, and because it was held on trust for him as the sole member of the Trust: at [53] of the Decision. The Tribunal noted the decision of Harvey v Chief Commissioner of State Revenue [2021] NSWCATAD 63 (Harvey v CCSR) and that s 55 has long been accepted as applying to resulting trusts: at [52] of the Decision. The Tribunal rejected the appellant's submission that there was a resulting trust here and concluded that the section did not otherwise apply: see generally at [51]-[55].
5. The Tribunal found that when the Trustees acquired the Property, they did so as Trustees of the Trust (therein described as the Imbree Super Fund or the Fund). The Trustees held the Property on the terms of the Trust and not as bare trustee of Mr Imbree. The Tribunal concluded that once he had contributed his funds to the Trust, those funds were no longer his personal property, regardless that he was the sole member of the Trust: at [54] and [55] of the Decision. The second Deed of Variation did not alter the Tribunal's conclusion: at [56] of the Decision.

Grounds of Appeal

1. Ultimately, the appellant maintained three Grounds of Appeal (which have been re-numbered here for ease of reference).
2. First Ground (originally error of law 1): In deciding whether the Deed of Transfer was a transfer of dutiable property for the purposes of s 55 of the Duties Act, the senior member made an error in law in the interpretation of s 9 of the Duties Act.
3. Second Ground (originally error of law 3): "In deciding whether section 55(1)(b) by implication applies only to resulting trusts, the senior member made an error in law in finding that the trust referred to in that subsection must be a general law resulting trust to attract concessional duty under that subsection".
4. Third Ground (originally error of law 4): "In deciding whether the sole beneficiary of the superannuation trust was the real purchaser for the purposes of section 55, the senior member made an error in law in finding the sole beneficiary who personally provided all the purchase monies to the self managed superannuation fund and where the property was consequently fully vested in that beneficiary, was not the real purchaser".

The principles regarding an appeal

1. An appeal may be brought, under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW), on a question of law, or with leave of the Appeal Panel, on any other grounds. The question of law must be a pure question of law and must be articulated with precision, as it is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22]. It should be possible to discern the question of law from the notice of appeal: Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71]. These authorities were recently applied by the Appeal Panel in Gennacker Pty Ltd t/as Homestead Holiday Park v Hohnberg [2024] NSWCATAP 96 at [11]. The Court of Appeal of NSW in Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [96]-[97] recently reiterated the importance of identifying the question of law.
2. The Criminal Court of Appeal in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [48] and [109], identified that the pure question of law must be discernible on the face of the ground and not depend upon disputed facts: "[48] As was noted in Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 at [52], some questions of law can be decided without any reference to the facts, or may proceed by reference to assumed facts. These are sometimes described as 'pure questions of law'. This was the terminology used, for example, by Leeming and White JJA in strictly confining a grant of leave to appeal in Wilson v Chan & Naylor Parramatta Pty Ltd as trustee for Chan & Naylor Parramatta Trust [2020] NSWCA 62 at [11]; see also Medical Council of New South Wales v Lee [2017] NSWCA 282 at [77]; and Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [66] and [125]. … [109] Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law'. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question."
3. The relevant principles were recently stated by Chen J in Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [87]-[90]. Of particular relevance to this case is what his Honour said at [89]-[90]: "[89] As to this last matter, what amounts to a question of law alone is as stated by Gibbs CJ in Williams v R (1986) 161 CLR 278, 287: … there is "a question of law alone" if the question of law can be stated and considered separately from the facts with which it may be connected in a given case. [90] The question of law alone is not, however, an abstract or hypothetical question. Rather, the appeal is against the conviction 'on a ground that involves a question of law alone'. That requires that the answer to the question of law, and the consequential questions that follow from its resolution, be material to the outcome 'in the sense that it could have affected the outcome': Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [41] ; Styles v Rowley [2023] NSWSC 1053 at [50]-[51] ; R v GAT [2024] NSWCCA 32 at [90]. In that way, the appeal against the conviction 'involves' the question of law alone."

Determination regarding questions of law

1. The First and Second Grounds of appeal raise pure questions of law. In effect, they contend that the Tribunal erred in construing ss 9 and 55 of the Duties Act. An error of construction of statute raises a question of law: Craig v State of South Australia (1995) 184 CLR 163 at 177-178; [1995] HCA 58 at [12]; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [71]-[74].
2. The Third Ground does not raise a pure question of law. To the extent that the Third Ground raises a question of construction of s 55, it nevertheless does not raise a pure point of law. It has, as its premise, the following: 1. that the sole beneficiary (the appellant) "personally provided all the purchase monies to the self managed superannuation fund"; and 2. the Property was "fully vested" in the sole beneficiary (the appellant).
3. The Tribunal, at first instance, found that the character of the monies changed once provided to the Trust and were no longer his "personal property": at [54] of the Decision. Moreover, the Tribunal did not find that the Trust was "fully vested": at [39] of the Decision.
4. The respondent highlighted that at first instance, the following exchange occurred: "SENIOR MEMBER BISHOP: Mr Imbree, I just wanted to ask you, because in your submissions you had gone to length talking about situations where a trust had vested. I wasn't sure whether you were saying that this trust had vested at some point. IMBREE: No, it's vestable in the sense that I'd had to have made the decision. (T37.40-38.1)"
5. Taken on its face, the Third Ground raises a mixed question of fact and law because it relies on disputed findings of the Tribunal, at first instance. It does not satisfy the hallmark of a pure question of law: it cannot be answered separately from the facts connected with it, as discussed in the authorities above.
6. Nevertheless, during the course of argument, the appellant clarified the narrow sense in which he was using the term "vested". Further, the respondent frankly and reasonably conceded that the funds were, ultimately, sourced from the appellant. Further still, whilst the respondent maintained that the Trust had not vested, the respondent did not cavil with the proposition that it was able to be vested.
7. Notwithstanding the narrowing of the dispute between the parties, the Appeal Panel has determined that leave is required. This is considered in detail below.

Submissions of the parties

1. The appellant reiterated his submissions at first instance, that, in effect, s 9 of the Duties Act deems all transactions that are subject to duty to be transfers for other purposes of the Act. This was said to apply to s 55 of the Duties Act, which the appellant describes as the charging provision. The appellant submitted that the reference in s 55 to both a transfer and a declaration of trust was a drafting infelicity that would not shut out his submission and further submitted that the Duties Act was full of redundancies.
2. On the other hand, the respondent identified that if the appellant's submission that s 9 was a general deeming provision was embraced, there were a multitude of provisions in the Duties Act that would be redundant. The Tribunal at first instance referred to examples at [48] of the Decision; which included s 18 of the Duties Act which deals with double duty and could only be understood if not all transactions were deemed to be transfers. The respondent gave the following examples and submitted as follows: "For example: (a) Sections 54(2), (2A), (3), (3A) and (4) refer to transfers of dutiable property, while s 54(3B) refers to a vesting of land in New South Wales, which, by s 8(1)(b)(vii) of the Act, is a type of s 8 (1)(b) transaction along with an agreement to transfer, drawing a distinction within the one section of the Act of s 8(1)(a) transfers, and s 8(1)(b) transactions. See also ss 54A(1), (2), (4), (5), (6) versus s 54A(3) of the Act. (b) Sections 61, 62, 62A, which separately refer to dutiable property being transferred or agreed to be transferred. On the [appellant's] logic, there would be no reason to include the italicised words, the reference to dutiable property being transferred would be enough. (c) Section 57 draws a distinction between a transfer of dutiable property and a declaration of trust over that property. (d) Section 63 draws a distinction between a transfer of dutiable property and various other kinds of transactions. (e) Section 64C, which refers to a transfer of dutiable property on the one hand, and whether or not it is in conformity with an agreement to transfer dutiable property, emphasising the distinction between the two. (f) Section 65, which refers to multiple different kinds of dutiable transactions." (Emphasis in original)
3. The respondent submits that the correct approach is to commence the analysis with s 8 which identifies that the Chapter charges duty on a transfer, an agreement for sale or transfer and other separate and distinct transactions compendiously known as "dutiable transactions". The respondent submitted that the treatment of a dutiable transaction as a transfer is for the purposes set out in subs 9(2) - "the purpose of charging duty". This is underscored by the use of the word "accordingly" in subs 9(2). Further, s 55 is found in Pt 6, which concerns concessional rates of duty: demonstrating it is providing for a concessional rate of duty and is not a charging provision.
4. Whilst the respondent openly accepted that there were redundancies in the Duties Act and that in some places it was appropriate to construe the use of the word "transfer" more broadly than an actual transfer such as ss 12 and 13 of the Duties Act, the respondent submitted that it was necessary, for this appeal, to construe the use of the word "transfer" as it appears in s 55. In doing so, it was submitted, the Appeal Panel would be satisfied that where s 55 referred to a transfer, this was indeed a transfer in the ordinary sense and did not apprehend an agreement for transfer which was treated as a transfer for the purposes of s 9.
5. Further, so the respondent submitted, it was apparent from a plain reading of s 9(2) that it limited the operation of any "deeming" in s 9(1). Properly construed, s 9(1) does not deem all styles of dutiable transactions to be transfers. It is a drafting tool to particularise, for each style of dutiable transaction, who is liable and when liability to duty arises. It does not have an effect beyond prescribing how duty is charged in the specific circumstances.

Determination of First Ground

1. As identified by the Court of Appeal in Chief Commissioner of State Revenue v Benidorm Pty Ltd [2020] NSWCA 285, the Duties Act levies duty on transactions: at [55] per Leeming JA (Meagher and Payne JJA agreeing). Chapter 2 relates to transactions concerning dutiable property. The transactions the subject of Ch 2 includes transfers of dutiable property and the various transactions specified in s 8(1)(b); including an agreement to transfer dutiable property. Each one of those transactions is a "dutiable transaction" (s 8(2)).
2. The Duties Act also identifies that the time when liability for duty arises is when "a transfer of dutiable property occurs" (s 12) and that the person liable for duty is the "transferee" (s 13). These provisions, read on their own, could not operate on the transactions captured by s 8(1)(b) of the Duties Act. However, s 9 fills the gap. Section 9 provides that duty is charged under Ch 2 in relation to the transactions referred to in s 8(1)(b) "as if each such dutiable transaction were a transfer of dutiable property." It identifies who is the "transferee", the timing of the "transfer" and the identity of the property "transferred".
3. The application of s 9(2) demonstrates that s 9(1) is not a general deeming provision and that it does not deem all transactions to be transfers for all purposes. Subsection 9(2) identifies how the mandate that dutiable transactions are to be charged "as if" they are transfers, applies. The table in s 9 must be read with the provisions which impose liability, to identify, for a dutiable transaction which is not in fact a transfer, who is liable for the duty, when liability arises and what is the dutiable property. This is supported by multiple provisions in the Duties Act which make a deliberate distinction between a transfer and another kind of dutiable transaction, as referred to above.
4. An argument that a purported declaration of trust was a "transfer" was rejected in Benidorm Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 471 at [270] and [339]. Ward CJ in Eq (as her Honour then was) said at [270]: "A transfer of property and a declaration of trust are not the same thing."
5. Further, s 55 is not itself a charging provision. As indicated by s 20 of the Duties Act, it provides for a concessional rate of duty in specific circumstances. The instruction, in s 9(1), to treat the transaction (in this case, an agreement to transfer) "as if" it were a transfer, does not apply to s 55. This is supported by the express distinction in s 55 between a transfer and a declaration of trust.
6. The Deed is not a transfer, nor is it treated "as if" it were a transfer, for the purposes of s 55 of the Duties Act.
7. This ground of appeal therefore fails.

Second Ground

1. Our conclusion with respect to the First Ground was sufficient to dispose of the Appeal. Nonetheless, in the interests of completeness, and noting that it is important for intermediate appellate courts (and it would follow, the Appeal Panel of the Tribunal) to consider whether to determine all grounds of appeal. We proceed to determine the Second Ground: Kuru v State of New South Wales [2008] HCA 26 at [12].

Submissions of the parties

1. The appellant contends that there is no requirement, in s 55 (1)(b) of the Duties Act, that there be a resulting trust. There is no need to prove any intention. Simply put, if the legislature had intended s 55 to apply solely to resulting trusts it would have said so.
2. At [8.1] of the appellant's submissions in reply, filed 29 May 2024 it was said: "Section 55(1)(b), by its express terms, covers the field of matters pertaining to resulting trusts required by the legislature for the purposes of the exemption. Those matters deal with the start and end point of the resulting trust requirement: A provides B with the purchase monies to acquire dutiable property (and the relevant duty paid, if any) on trust for A, the transfer to A by B is liable for concessional duty."
3. The appellant submitted that the only aspects of resulting trusts captured by s 55(1)(b) are those expressly identified, as follows: 1. that there be a transfer (or deemed transfer as the appellant maintains is the position); 2. the transfer must be from an apparent purchaser to a real purchaser; 3. in circumstances where the property transferred was vested in the apparent purchaser upon trust for the real purchaser; and 4. where the real purchaser "provided the money for the purchase".
4. The appellant submitted, that he need not establish that there is a general law resulting trust: the expression "trust" in s 55(1)(b) is wider than a resulting trust. It captures an express trust, such as the Trust: a trust for the purposes of superannuation. On a proper construction of the Duties Act, the express terms of s 55(1)(b) were, here, satisfied.
5. Further, he submitted that to the extent that previous cases have implied or found that it is necessary to establish a resulting trust, they are distinguishable or should not be followed. The appellant identified that cases such as Truskett v Commissioner of Stamp Duties (1976) 6 ATR 1 (Truskett) failed because it was not possible to track the source of funds from the taxpayer through to the acquisition of the relevant property; and not because they failed to prove a resulting trust per se.
6. The appellant submitted that the mere fact that the funds used to purchase a property are trust funds, does not break the chain: where funds to acquire the property are trust funds, the beneficiary is still the real purchaser, so long as the link between the beneficiary's entitlement and the purchase can be established, which is the submitted position here.
7. The appellant identified that the concept of a resulting trust has been criticised by the High Court in Bosanac v Commissioner of Taxation [2022] HCA 34 at [56]-[57] per Gageler J (as his Honour was then) and at [92] and [95] per Gordon and Edelman JJ, and should not be introduced into the Duties Act. Consonant with longstanding tenets of statutory construction, the Appeal Panel would avoid implying the need for a resulting trust into the statute.
8. On the other hand, the respondent contended that s 55 and its predecessor have long been treated as applying to resulting trusts and that there is no basis for the Appeal Panel to now depart from the longstanding approach. The respondent cited the following cases in support: Benidorm Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 471 per Ward CJ in Eq (as her Honour then was) at [271]-[273]; Ross v Chief Commissioner of State Revenue [2010] NSWADTAP 74 at [40]-[51]; Harvey v CCSR at [37]-[45]; and Meyers v Chief Commissioner of State Revenue [2022] NSWCATAD 176 at [30]-[31] and [57].

Determination of Second Ground

1. The task of statutory construction starts with text read in context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]; SAS Trustee Corp v Miles (2018) 361 ALR 206; [2018] HCA 55 at [41]; Harvey v Minister for Primary Industry and Resources [2024] HCA 1 at [107].
2. Section 55 of the Duties Act does not use the language "resulting trust". Nevertheless, as the respondent has identified, s 55 and its precursor have long been construed as applying to resulting trusts. At first instance, the Tribunal accepted (at [52]) what had been said in Harvey v CCSR at [37]-[45], which after consideration of earlier cases, was to the effect that s 55 applied "only" to resulting trusts.
3. On its face, s 55(1)(b) is satisfied where the transferor (the apparent purchaser) holds the property on a purchase price resulting trust for the transferee (the real purchaser). As noted in Commissioner of Stamp Duties (NSW) v Pendal Nominees Pty Ltd (1989) 167 CLR 1 at 17; [1989] HCA 19 at [38] (Pendal Nominees) where the then Chief Justice Mason said of the precursor to s 55(1)(a) of the Duties Act: "[T]he situation envisaged by the paragraph is one in which the law would ordinarily impose a resulting trust in favour of the provider of the purchase money"
4. At the time, paragraph (1) in Sch 2 to the Stamp Duties Act 1920 (NSW) (repealed) said: DECLARATION OF TRUST: (1) Any instrument declaring that a person in whom property is vested as the apparent purchaser thereof holds the same in trust for the person or persons who have actually paid the purchase-money therefor.
5. This reasoning applies equally to s 55(1)(b). There is no difference between the precursor provisions and the extant provisions that would affect this analysis.
6. As identified in J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (8th edition, 2016, LexisNexis Butterworths) at 212-213 [12-10]: "A resulting trust will be presumed where, on a purchase, the legal title to real or personal property is vested in someone other than the person who is proved (by parol or other evidence) to have provided the purchase money. … It has been argued that actually the fact presumed is not that there is a 'resulting trust', but rather that there has been a declaration of trust by the person who provided the purchase money in his, her or its own favour: the label 'resulting trust' merely states a conclusion of law from that state of affairs. As explained below, on the whole that view is, strictly speaking, supported by the authorities". (Footnotes omitted)
7. A resulting trust arises because "the court presumes, in the absence of evidence to the contrary, that the person paying the purchase money declared a trust over the property": Jacobs' Law of Trusts in Australia at 216 [12-12]. Where there is no reason to assume a trust arises in favour of the person supplying the funds or property, there will be no resulting trust: Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 246-247, 266-267.
8. A resulting trust may be rebutted, where evidence demonstrates that no trust was intended, or the intention was for an "express trust for a third party": Jacobs' Law of Trusts in Australia at 219 [12-13]. The learned authors also note that a resulting trust will be rebutted where the transaction is found to be one "to raise an express trust" with terms different to that of a resulting trust: Jacobs' Law of Trusts in Australia at 219 and 221 [12-13] and [12-15].
9. The above analysis demonstrates that where s 55(1)(b) is satisfied, it would likely be concluded that there was indeed a resulting trust; as was the position under the precursor legislation. The appellant contends, however, that the reverse is not necessary; and that the Tribunal at first instance erred in following Harvey v CCSR, in which it was concluded that s 55 applies "only" to resulting trusts.
10. The appellant's submission that a pre-existing trust is not fatal to satisfying s 55, is supported by Triantafilis v Commissioner of Stamp Duties for New South Wales (1998) 39 ATR 56 (Triantafilis). There, the Court of Appeal upheld a decision of Hodgson J in Triantifilis v Commissioner of Stamp Duties for New South Wales (1995) 31 ATR 386. His Honour was prepared to accept that the precursor to s 55, could indeed be satisfied where the funds used to acquire the property were already held in trust by the person said to be the apparent purchaser, for the persons said to be the real purchasers. There, a substantial portion (but not the whole) of the purchase price was paid out of funds that had previously been paid into an account which the Court was prepared to accept was always held for the sons of the plaintiff. The Court was prepared to accept the argument that the pre-existing trust would not have disentitled the taxpayer to the relief sought. The taxpayer failed on a different basis: that the whole of purchase price had not been paid (in effect) by the sons.
11. In the circumstances of Triantafilis, the link between the purchase and each beneficiary's entitlement was, on the facts the Court was prepared to assume, such that it could be said the beneficiary provided (part of) the purchase price. Critically however, there was also nothing to suggest that the terms of the pre-existing trust were inconsistent with a resulting trust in relation to the purchase.
12. It is a question of fact as to whether, in a particular case, it can be said that a person holds title on trust for a person who provided funds for the purchase.
13. For the reason that s 55 requires the "real purchaser" to have provided the purchase price "for" the purchase, the Appeal Panel considers that an express trust whose terms were inconsistent with a purchase price resulting trust, would likely not satisfy the section. However, ultimately this will be a question of fact and turn on the terms of the express trust.
14. The Appeal Panel is satisfied that where there is a resulting trust, s 55 will be satisfied. Further, whilst the Appeal Panel accepts that a pre-existing trust may not be fatal to the application of s 55(1)(b), we are also satisfied that its terms must not be inconsistent with the requirements in s 55(1)(b) that: the property transferred was vested in the apparent purchaser upon trust for the real purchaser; and the real purchaser "provided the money for the purchase". A resulting trust will satisfy the section and an express trust inconsistent with a resulting trust, likely, will not. It is the link between the purpose for which the funds were provided and the holding of the property on trust that marks the section out as applying where there is a resulting trust.
15. This is not to say, however, that in order to satisfy s 55(1)(b) one must first find there to be a resulting trust. The Appeal Panel would couch it in terms that if the criteria in s 55(1)(b) were satisfied, there would ordinarily arise a resulting trust in favour of the "real purchaser". Ultimately, it is always a question of determining if the section is satisfied. We do not consider that the Tribunal below approached the statutory task any other way.
16. We do not accept that the Tribunal, at first instance, misconstrued the section.
17. This ground of appeal fails.
18. We pause to note that even if the appellant had succeeded on this ground, it would still have been necessary to demonstrate that the criteria of the section were satisfied in this case. The Tribunal did not find that the criteria of s 55(1)(b) had been satisfied: at [53] of the Decision.

Submissions of the parties

1. The appellant submits that the Tribunal (at first instance) should have been satisfied that the appellant was the "real purchaser" and that the Trustees were the "apparent purchasers": he was the ultimate source of the purchase price; and the Trust was "vested".
2. The appellant's written submissions clarify what the appellant means by the expression "vested". This was also confirmed at the hearing of the appeal. Vested is used by the appellant in the sense that "being the sole member of the self managed superannuation fund [the appellant] could bring that trust fund to an end immediately at will": at p 31 of the appellant's submissions filed 18 April 2024. As stated at the hearing of the appeal, the funds held by the Trustee were vested in him in "interest" if not in "possession".
3. Further, the appellant also says in his written submissions filed 18 April 2024, at p 31: "It is the ability of the applicant to direct the trustee as to the investments made (section 58 SIS Act) and the immediate right to payment as a lump sum (clause 13 1 of the trust deed), which characterises the self managed superannuation fund assets as prospectively owned by the applicant."
4. Clause 13.1 of the Trust Deed of the Trust (the Trust Deed) provides as follows: "13. PAYMENT OF BENEFITS 13.1 A Member's retirement benefit or Total and Permanent Disablement benefit shall be paid by way of annuities, pensions or other periodical payments, or lump sum payments, or any combination of such methods of payment as permitted by the Act as the Trustee and the Member shall agree PROVIDED THAT, subject to Statutory Requirements, the Member shall be entitled to require the Trustee to pay a retirement benefit or Total and Permanent Disablement benefit as a lump sum." (Emphasis in original)
5. In effect, the appellant contended that there was no statutory requirement (or other reason) that precluded him, at the time the Property was acquired from being given his benefits as a lump sum. It is in this sense that the appellant used the expression vested.
6. From this position, the appellant contended that the purchase price could be said to have been paid by him. There were none of the tracing problems that appeared in cases such as Truskett. As the ultimate provider of the purchase price and being the sole member of the Trust with an immediate entitlement to be paid his entitlement as a lump sum benefit, he could properly be said to be the real purchaser.
7. The respondent accepted that the funds were, ultimately, sourced from the appellant; but submitted that the funds making up the purchase price had, in effect, changed character in the Trustees' hands and were no longer the appellant's funds, notwithstanding that he was the sole member of the Trust and even if there were no legal impediments to the Trust vesting. The respondent did not accept that the funds held by the Trustees were vested in the appellant in any sense. Though, the respondent accepted that the appellant could have called for a lump sum, had it paid to him and then purchased the property, the respondent emphasised that this did not occur. The character of the funds changed from being the appellant's property to the property of the Trustees and subject to the restrictions on use imposed by the relevant trust deed, the general law and statutes concerning superannuation funds.
8. Despite the concessions, there was no agreement as to the scope or materiality of any restrictions on use of the funds, for so long as the funds were held by the Trustees under the terms of the Trust. Whether the funds held by the Trustees could properly be treated as the appellant's funds, requires an analysis of the terms of the Trust and the relevant general law and statutes. Further, Commissioner of State Revenue (WA) v Rojoda Pty Ltd (2020) 268 CLR 281; [2020] HCA 7 provides an example where the nature of equitable rights that a person has in respect of assets must be finely considered before it may be said that the position under two different scenarios is the same. In that case, which was in a very different context to the context here, the unique nature of a partnership and the nature of the partner's equitable rights was held to be different to that under a fixed trust, even though the fixed trust was in the same shares or proportions as the partnership.
9. Despite the concessions, there was no agreement as to the scope or materiality of any restrictions on use of the funds, for so long as the funds were held by the Trustees under the terms of the Trust. Whether the funds held by the Trustees could properly be characterised as the appellant's funds such that it could be said he provided the funds for the purchase (as opposed to provided the funds for the express trust (the Trust)), requires an analysis of the terms of the Trust and the general law.
10. The Third Ground, therefore, remains a question of mixed fact and law and leave is required to appeal on this ground.

Leave to Appeal

1. Several cases in the Tribunal have considered when the Appeal Panel might grant leave to extend to the merits. Some of these were collected in FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 and included: Ros v Commissioner of Police [2020] NSWCATAP 70 at [20]-[23], Collins v Urban [2014] NSWCATAP 17 at [82]-[84], Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]. See too Abdul-Karim v Council of the New South Wales Bar Association [2005] NSWCA 93 at [33]-[34].
2. In order to obtain leave, the appellant must identify some point of principle or question of public importance, or an unorthodox approach to the fact finding, a finding that was unreasonably arrived at, or a clear injustice.
3. Here, the Appeal Panel accepts that there is a question of public importance in that the ground raises a question about the meaning and scope of the expression "real purchaser" in s 55 of the Duties Act.
4. However, there must also be utility to the grant leave to appeal. This is supported by Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 per Bell P (as his Honour then was) at [27]-[28] and the authorities cited there; NSW Land and Housing Corporation v Simeon [2021] NSWSC 325 at [7] per Basten JA.
5. Ultimately, the Appeal Panel accepts that there is no utility in granting leave to appeal in relation to the Third Ground, as the appellant has failed in relation to the First Ground of Appeal. The Appeal Panel has concluded that s 55 does not apply to the dutiable transaction at all.
6. Leave to appeal is therefore refused.

Orders

1. The Appeal Panel orders: 1. Leave to appeal refused. 2. Appeal dismissed.

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 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: 09 August 2024