Court of Appeal (WA)|2007-05-25|Before: Smith JA

1 ROBERTS-SMITH JA: I agree with the reasons of Pullin JA.

2 PULLIN JA: The appellant seeks leave to appeal out of time against the judgment of Martino DCJ in relation to an interpleader summons. On 12 August 2005 Wheeler JA ordered that the application be heard at the same time as the appeal.

3 The interpleader was an estate agent who had acted as agent for the respondents in relation to the sale to the appellant of two parcels of land under two contracts. The agent held deposit moneys as stakeholder. The respondents terminated the two contracts and the agent as stakeholder received demand for payment of the deposits from the respondents and this demand was disputed by the appellant. This prompted the estate agent to interplead and Judge Martino's judgment was that the vendors, the respondents, were entitled to terminate and that they were entitled to the deposits paid under both contracts. The appellant seeks to appeal against that decision but only in relation to the deposit paid on one of the contracts.

4 The facts in relation to the contract in contention are as follows. On 6 May 2003 the appellant made a written offer to purchase Lot 5 Lyon Road, Banjup for $750,000. In the offer the offeror was described as "Investments (WA) Pty Ltd ... and or nominee". The deposit payable pursuant to the terms of the offer was $20,000. The offer was accepted on the same day and upon communication of that acceptance it became a contract between the parties. The settlement date in the contract was shown as 120 days after acceptance. The contract incorporated the Real Estate Institute of Western Australia, Joint Form of General Conditions for the Sale of Land, 2002 Revision ("the General Conditions"). The General Conditions contained the following clauses which read:

The Buyer must arrange for the Transfer to be prepared.

(b) deliver the Transfer to the Seller or the Seller Representative a reasonable time before the Settlement Date.

3.3 Stamping

(a) The Buyer must arrange for:

(1) the Contract to be stamped; and

(2) the Transfer to be stamped,

5 Settlement was to have occurred on 3 September 2003. At some time after 6 May 2003 the contract was unilaterally amended by the appellant. The appellant did this by adding in handwriting a new clause in the contract which read "the nominee is Project 2001 Pty Ltd or Madison (WA) Pty Ltd or Ishmael Pty Ltd or Solution 2000 P/L".

6 The contract was presented to the Commissioner for State Taxation for stamping and the amount of duty was determined to be $35,050 which is the ad valorem rate appropriate to a sale price of $750,000. The contract bears evidence that it was so stamped. There was no evidence about what transpired in the Office of State Revenue when the contract was presented for stamping.

7 Settlement did not take place on 3 September 2003. On 5 September 2003 the respondents sent a Notice to Complete to the appellant requiring completion within 10 business days. Pursuant to the terms of the General Conditions the notice was deemed to have been served on the appellant on 8 September 2003.

8 On 8 September 2003 settlement agents for the appellant provided to the settlement agents for the respondents an unstamped Transfer of Lot 5 which showed the respondents as transferors and Project 2001 Pty Ltd as the transferee. The respondents refused to settle because the Transfer was not stamped.

9 The Transfer was then presented to the Commissioner of State Revenue for stamping. At this time, that is September 2003, s 17C(1)(d) of the Stamp Act 1921 (WA) provided that when the Commissioner assessed an instrument as being one which was not chargeable with duty the Commissioner was to endorse the instrument accordingly. Section 17C(2) stated that an endorsement must be made in a prescribed manner and s 17C(5) then provided that an endorsement on an instrument in a prescribed manner was prima facie evidence of the matters noted in the endorsement. There is an endorsement on the Transfer which reads in part:

"INSTRUMENT DATE 06-MAY-03

... SD$35,050.00

GROSS ... 750,000

CHATTELS ... 0

NO DUTY PAYABLE HEREON STAMP ACT 1921

COMMISSIONER OF STATE REVENUE"

10 The Transfer was then resubmitted to the respondents on 17 September 2003. On 19 September 2003 the solicitors for the respondents wrote to the appellant's agents informing them that the respondents remained ready, willing and able to settle the contract if the appellant provided to them a Transfer of Land document showing the transferee as the appellant rather than Project 2001 Pty Ltd. The respondents contended in this letter that by reason of the appellant providing a Transfer in the name of Project 2001 Pty Ltd the appellant was not ready, willing and able to complete the transaction. The letter said that time for compliance with the default notice would be extended until 26 September 2003 on the basis inter alia that a stamped transfer was provided "in the name of Investments (WA) Pty Ltd".

11 The appellant then instructed solicitors and on 19 September 2003, those solicitors wrote to the respondents' solicitors stating that "Investments (WA) Pty Ltd was the actual purchaser pursuant to the contracts but the nominee became Project 2001 Pty Ltd". The letter contended that the respondents had refused without proper reason to settle Lot 5, that the appellant was not in breach of his obligation to settle Lot 5 and that the respondents were not entitled to terminate the contract. The letter indicated that the appellant was ready, willing and able to settle on Lot 5.

12 On 6 October 2003 the respondents by their solicitors responded with a notice terminating the contract. This was followed by the respondents' demand to the stakeholder for payment of the $20,000 deposit and notice from the appellant disputing that the contract had been terminated.

13 When the parties were before the primary Judge, the deposit in relation to the contract relating to the other parcel of land was in issue and there was an argument advanced by the respondents that there was supposed to be simultaneous settlement. The latter issue was determined against the respondents and that is no longer an issue. The deposit in relation to the other land is no longer in issue.

14 The primary Judge after reciting the relevant facts, and referring to the fact that the Transfer showed the transferee to be Project 2001 Pty Ltd, and that it had on it the Commissioner's endorsement that no stamp duty was payable, said at [30]:

"In fact, stamp duty was payable on the transfer. As Project 2001 Pty Ltd was not named as purchaser of the contract for the sale of Lot 5 the proposed transfer was a separate and distinct transaction so that each of the contract and the transfer were liable to full ad valorem stamp duty: s 74(2) Stamp Act 1921."

15 His Honour held that the word "stamped" was not defined in the General Conditions but that the word was "referring to the Stamp Act 1921". His Honour referred to provisions of the Stamp Act 1921 as they were at the time the contract was entered into rather than those in existence when the Transfer was executed.

"32 In my view the transfer delivered by Investments (WA) was not stamped within the meaning of cl 3.3(a) because it was not stamped with the duty chargeable by law. The copy of the contract for the sale of Lot 5 that was stamped included cl 8 providing that the nominee was Project 2000 [sic 2001] Pty Ltd or three other named companies. I have concluded that the contract between Mr and Mrs Hatton and Investments (WA) did not include that clause.

I conclude therefore that when the Commissioner of State Revenue stamped the transfer that no duty was payable the Commissioner was under a misapprehension as to the facts. In general the question of whether an instrument is duly stamped or as to what stamp is required is to be determined by what appears on it [sic] face: Coolmo Pty Ltd v Dominion Nominees, unreported; FCt SCt of WA; Library No 990202; 12 April 1999; Backstop Nominees Pty Ltd v Goscor Pty Ltd [1990] VicRp 41; [1990] VR 468; Commissioner of Stamp Duties (Qld) v Hopkins [1945] HCA 14; (1945) 71 CLR 351.
However, the facts of this case displace that general rule because I have concluded that the contract that was stamped by the Commissioner included a clause ... that had not been agreed to by the parties.
... In this case the contract required Investments (WA) to deliver a stamped transfer. It has failed to do that.
I conclude therefore that Investments (WA) did not remedy its default and that Mr and Mrs Hatton were entitled to terminate the contract for the sale of Lot 5 and forfeit the deposit as they did."

"1. His Honour erred in finding the Commissioner of State Revenue was under a misapprehension as to the facts.

The learned Judge correctly held at [31] that the reference to 'stamped' in the General Conditions meant stamped pursuant to the Stamp Act 1921 (WA). The learned Judge erred, however, by implicitly:

(a) accepting the proposition that the reference to 'stamped' in the General Conditions had the same meaning as under the Stamp Act 1921 (WA) as at the date of execution of the contract of sale of Lot 5; and

(b) rejecting the Appellant's submission that the reference to 'stamped' in the General Conditions had the same meaning as under the Stamp Act 1921 (WA) as at the date when the transfer document was submitted to the Commissioner of State Revenue for stamping.

The learned trial Judge erred in determining that the meaning of the word 'stamped' imports an assessment of the correctness of the assessment of duty and stamping by the Commissioner of State Revenue.
The learned Judge found as a fact that:

(a) the contract of sale of Lot 5 as executed by the Appellant as buyer and the Respondents as sellers described the buyer as '[the Appellant] and/or nominee';

(b) Mr Tilli subsequently inserted into the contract of sale of Lot 5 a clause 8 which provided that Project 2001 Pty Ltd was the Appellant's nominated purchaser; and

(c) the Respondents had not consented to the inclusion of clause 8 into the contract of sale of Lot 5.

On those findings of fact the learned Judge should have held that the insertion of clause 8 by Mr Tilli was in law an equivalent to a nomination pursuant to the nominee provision of the contract referred to in subpara (a) above and did not require any consent or otherwise of the Respondent.

The learned Judge erred in law and in fact at paragraph 30 of the reasons implicitly determining that section 74(2) of the Stamp Act 1921 (WA) applies."

18 The respondents filed a notice of contention. It is not necessary to recite the contents of the notice for reasons which emerge below.

19 The parties were in issue concerning the correct construction of the contract. Both parties agree that the phrase in cl 3.3(a)(1) and (2) of the General Conditions "to be stamped" is a reference to the stamping of the document under the Stamp Act 1921 as it stood from time to time. The Stamp Act 1921 was amended by the Stamp Amendment Act 2003 between the time the contract was executed and the time the transfer was signed in September 2003. Both parties agree that the form of the Stamp Act 1921 which has to be examined in relation to the stamping of the transfer is the form of the Act as it stood in September 2003. At that time s 17A provided that liability to pay duty arises when the instrument is first executed. Both parties agreed that his Honour erred in referring to the provisions of the Stamp Act 1921 as it stood before the amendments effected by the Stamp Amendment Act 2003. The latter Act commenced on 1 July 2003.

20 The dispute between the parties is whether "stamped" in cl 3.3(a)(1) and (2) should be read as a reference to an endorsement made by the Commissioner on the transfer as the appellant contends; or, whether the word should be read as a reference to an endorsement made by the Commissioner showing the correct amount of duty chargeable at law determined in the light of relevant facts. The latter construction is that contended for by the respondents and the one which was implicitly upheld by the primary Judge.

21 It is necessary at this point to refer to provisions in the Stamp Act 1921 as it stood after 1 July 2003. Section 4(1) provided that:

"In this Act, except so far as the context otherwise requires -

...

'stamp', when used as a verb in relation to an instrument, means to endorse the instrument in accordance with section 17C;

..."

(a) duty is paid on an instrument;

(b) penalty tax or any other amount payable under a stamp Act in respect of an instrument is paid;

(c) the payment of duty payable on, or penalty tax or any other amount payable under a stamp Act in respect of, an instrument is waived;

(d) the Commissioner assesses an instrument as being not chargeable with duty;

(e) the Commissioner exempts an instrument from duty; or

(f) the Commissioner allows a reduction of the duty payable on an instrument,

the Commissioner is to endorse the instrument accordingly.

(2) An endorsement under subsection (1) must be made in a prescribed manner.

...

(5) An endorsement of an instrument ... in a prescribed manner is prima facie evidence of the matters noted in the endorsement."

23 The Stamp Regulations 2003 made under the Stamp Act 1921, which came into operation on the day on which the Stamp Amendment Act 2003 came into operation, contained reg 6(1) which read:

"The endorsement of an instrument for the purposes of section 17C is to be effected by the notation on the instrument of sufficient information to indicate -

(a) which of the events referred to in section 17C(1) has occurred;

(b) ...; and

(c) that the endorsement is made by, or on behalf of, the Commissioner."

24 If the different meanings contended for by the parties reflects ambiguity then it is permissible to examine the surrounding objective circumstances at the time of entry into the contract known to both parties. See Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 352; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 76 ALJR 436 and Home Building Society Ltd v Pourzand [2005] WASCA 242 at [26] - [33]. The other relevant rule of construction is that the contract must be read as a whole.

25 An examination of the objective circumstances at the time the contract was entered into and reading the contract as a whole lead to the conclusion that the contract is only concerned with the existence of the endorsement and not with the accuracy of the endorsement. The only relevant objective circumstance existing at the time the contract was entered into was that the Stamp Act 1921 then provided (and it still provides) that in relation to a contract for the sale of land and in relation to the conveyance documents, the obligation to pay stamp duty is an obligation imposed on the purchaser. When the contract is read as a whole it may be observed that the terms of the General Conditions are consistent with and complement the statutory obligation on the purchaser to pay duty. The contract provides that it is the purchaser who must arrange to stamp the transfer and deliver it to the vendor. At settlement the vendor hands over to the purchaser the transfer which has by then been executed by the vendor, along with the certificate of title and the vendor receives in exchange for those documents payment of the balance of the contract price. It is the purchaser who then lodges the transfer at the Office of Titles and if difficulties are encountered in relation to registration, by reason of s 28 of the Stamp Act 1921, then it is the purchaser who has to contend with the problem.

26 There is nothing in the background circumstances or the provisions of the contract read as a whole which suggests that the parties contemplated that the contract should be construed in a way which required the vendor to be concerned with the accuracy of the assessment of duty by the Commissioner and as a result it would not be logical to construe cl 3.3 of the General Conditions as requiring the word "stamped" to mean stamped with the correct amount of duty chargeable at law.

27 In the result the proper construction of cl 3.3 of the General Conditions is that the word "stamped" refers only to the Commissioner's endorsement on the transfer and not to the correctness of the endorsement.

28 The trial Judge erred in two respects. First, as both parties agree, he erred by construing the word "stamped" not as meaning stamped under the Stamp Act 1921 as it stood from time to time, but meaning stamped under the Stamp Act 1921 as it stood when the contract was signed. Secondly, he erred by holding that "stamped" in cl 3.3 of the General Conditions meant stamped with the correct amount of duty chargeable by law.

29 Having made those errors his Honour then erred in concluding that the Transfer was not stamped with the duty which his Honour considered was chargeable by law. This was explained at [30] where his Honour said that stamp duty was payable on the transfer. He said:

"As Project 2001 Pty Ltd was not named as purchaser of the contract for the sale of Lot 5 the proposed transfer was a separate and distinct transaction so that each of the contract and the transfer were liable to full ad valorem stamp duty: s 74(2) Stamp Act 1921."

It is clear from that paragraph that his Honour erroneously embarked on a consideration about whether the amount of duty shown on the endorsement on the transfer was the amount which his Honour considered to be payable under s 74.

30 It was not open to the primary Judge to consider the correctness of the Commissioner's endorsement. The primary Judge's judgment is dated 22 April 2005. In 2004 the Stamp Act 1921 was amended by the Revenue Laws Amendment and Repeal Act 2004 (WA) (which commenced on 29 June 2004). The latter Act amended the Stamp Act 1921 by introducing into it s 31 which reads:

"An instrument that has been stamped or is taken to have been stamped -

(a) is admissible in evidence; and

(b) except in proceedings under Part 4 of the Taxation Administration Act 2003, the endorsement of the instrument is conclusive evidence that the assessment is correct."

31 The clear meaning of the section is confirmed by the explanatory memorandum to the Revenue Laws Amendment and Repeal Act 2004 which reads:

"Evidentiary value of an assessment notice

Section 119 of the Taxation Administration Act provides that a notice of assessment is admissible in evidence in proceedings under a taxation Act and is proof of the making of the assessment, the amount of tax assessed, the identity of the person liable for the tax, the due date for paying the tax and any other fact stated in the notice.

While the taxpayer to whom an assessment relates is unable to challenge the validity of an assessment other than by the objection and appeal process, or another specified manner, it is uncertain whether this restriction applies to third parties. It is considered anomalous that a third party may have greater scope than the taxpayer for challenging the validity of an assessment.

The proposed amendment is based on former section 31(3) of the Stamp Act, which provided for the evidentiary value of a stamp duty assessment and had the effect of preventing a third party from challenging the due stamping of an instrument that the Commissioner had denoted as being not dutiable, or had stamped in accordance with an assessment.

The amendments to the Stamp Act ensure that a stamped instrument is admissible in evidence and, except in proceedings for objections and appeals, the endorsement of the instrument is conclusive evidence that the assessment is correct for any court proceedings. This will align the rights of a third party with those of the taxpayer and ensure that a third party is not able to challenge the validity of an assessment in any proceedings."

32 The endorsement of the Commissioner on the transfer was received in evidence during the hearing before the primary Judge. It therefore provided conclusive evidence that the assessment was correct. It was not open to the primary Judge to reach a conclusion that the assessment was incorrect. I should add that neither party drew the existence of this section to his Honour's attention. Neither party appeared to be aware of the existence of the section until it was drawn to their attention by this Court.

33 As a result of the foregoing ground 3 must be upheld. By reason of the concession made by the respondents ground 2 must also be upheld. It is not necessary to consider grounds 1, 4 and 5.

34 Nor is it necessary to consider the notice of contention which only assisted the respondents if their construction of the contract were upheld. Even if the respondents' construction were correct, the respondents could not seek to show that the endorsement was incorrect in this Court. Section 31 still operates to make any such attempt ineffective.

35 The primary Judge's order was made on 22 April 2005. The time limit for appealing expired on 13 May 2005. An affidavit was sworn by Joseph Tilli the financial controller and manager of the appellant. His affidavit reveals that the delay in appealing occurred because advice was taken before deciding to appeal. After the decision was made Mr Tilli "conducted a number of meetings with the appellant's solicitors ... to discuss the prospects of an appeal succeeding". The solicitors then briefed counsel to give an opinion as to the prospects of success. Only after these steps had been taken was the appeal instituted on 1 July 2005, this being about seven weeks out of time.

36 Under O 3, r 5 of the Rules of the Supreme Court read with r 5 of the Supreme Court (Court of Appeal) Rules 2005 the Court has a broad power to relieve against injustice by extending time. See FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283. In deciding whether to extend time the Court will have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences of the grant or refusal of the extension, the prospects of success if an extension is granted and the vested right of the respondent to retain the judgment: Gallo v Dawson (1990) 64 ALJR 458 at 459; Rankilor v Jerome Pty Ltd [2006] WASCA 281.

37 It is not desirable that an unsuccessful party should sit back and wait until an opinion is obtained before instituting an appeal. The new procedure under the Court of Appeal Rules allows a party, who has a preliminary view that the primary Judge erred, to file and serve an appeal notice. No grounds of appeal have to be disclosed in the appeal notice. The period between the filing of the appeal notice and the appellant's case allows time for the appellant to obtain detailed advice. If more considered advice is that the appeal will not succeed then the appeal may be discontinued.

38 The length of delay and lack of a fully particularised explanation for the delay are points in favour of the dismissal of the application for an extension of time. Against that however is the demonstrated overwhelming merit in the appeal. In addition the respondents did not file written submissions opposing the application for an extension of time. No oral submissions were made in opposition until, just before the Court reserved its decision, the parties were asked if any submissions were to be made about the extension of time application. The only submissions made by the respondents were that there was a lack of particularity in the Tilli affidavit and that the application was within the discretion of the Court.

39 In all of the circumstances an extension of time should be granted.

40 The application for extension of time should be granted and the appeal allowed.

41 BUSS JA: The background facts and the grounds of appeal are set out in the reasons of Pullin JA. The critical issue in this appeal is whether the respondents, as vendors, were entitled to terminate the contract for the sale and purchase of Lot 5 Lyon Road, Banjup, on the ground that the appellant, as purchaser, was not ready, willing and able to settle under the contract, in that it had failed to perform its contractual obligation to arrange for the instrument of transfer in question "to be stamped".

The proper construction of the relevant General Conditions

42 The contract for the sale and purchase of Lot 5 incorporated the Joint Form of General Conditions for the Sale of Land 2002 Revision ("the General Conditions").

43 Clauses 3.1, 3.2 and 3.3 of the General Conditions provide:

The Buyer must arrange for the Transfer to be prepared.

(a) sign the Transfer, and

(b) deliver the Transfer to the Seller or the Seller [sic] Representative a reasonable time before the Settlement Date.

(1) the Contract to be stamped; and

(2) the Transfer to be stamped,

(b) The Buyer must, on request by the Seller, made not later than 20 Business Days after Settlement or possession, provide to the Seller:

(1) an original of the Contract stamped by the Buyer; or

(2) a photocopy of the Contract showing payment of stamp duty,

to enable the Seller to arrange for a duplicate of the Contract held by the Seller to be stamped.

(1) the Buyer provides to the Seller an original copy of the Contract showing payment of stamp duty; and

(2) the Buyer requests the return of the document specified in subclause (1),

the Seller must immediately, after stamping a duplicate of the Contract held by the Seller return the copy of the Contract specified in subclause (1) to the Buyer."

44 By cl 17.2 of the General Conditions, the Buyer must pay "all stamp duty on the Contract and the Transfer".

45 Clause 26.1 of the General Conditions contains definitions, relevantly, as follows:

(a) "Contract" is defined to mean "the contract between the Seller and the Buyer in which this document is incorporated and includes this document".

(b) "Transfer" is defined to mean "the instrument required to transfer the Land to the Buyer in a form acceptable for registration by [the Department of Land Administration], subject to signing by all parties".

46 The construction of a written contract is concerned with ascertaining what a reasonable person would have understood the parties to mean. Consideration should ordinarily be given not only to the language of the document, but also to the surrounding circumstances known to the parties, and the apparent purpose and object of the transaction. See Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, where Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said, at 179 [40]:

"This Court, in Pacific Carriers Ltd v BNP Paribas ((2004) [2004] HCA 35; 218 CLR 451), has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461 - 462 [22]]."

Also see Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 at 188 [11]; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461 - 462 [22]; Jumbo King Ltd v Faithful Properties Ltd [1999] HKCFA 38; [1999] 3 HKLRD 757 at 773 - 774.

47 In Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2005] FCA 1812; (2005) 56 ACSR 263, Finn J referred, at 276 - 277 [78] - [79], to the controversy as to whether evidence of surrounding circumstances is admissible in the construction of ordinary contracts only if it first appears that the language of the contract is ambiguous or whether such evidence is admissible at the outset, without it first appearing that the contractual language is ambiguous, for the purpose of construing the contract in its context. As his Honour noted, this controversy has focused on the proper interpretation to be given to the observations of Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337 at 352, that:

"The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. ..."

Finn J decided, at 277 [78] - [79], that the controversy was resolved by the decision in Pacific Carriers and that the High Court had accepted the broader view of admissibility. His Honour observed:

"The approach to contractual construction affirmed in Pacific Carriers marks another step in the convergence in organising principles governing the construction of contracts and of statutes. ... While what constitutes 'context' for the purposes of statutory construction and 'surrounding circumstances' (or 'the matrix of facts') for contractual construction will differ significantly given the differing end purposes of construction in each case, what is common to both is the recognition that meaning is contextual: what a document or statute conveys to a reasonable person is what, against the relevant background, the words used by the parties in one case, the legislature in the other, would reasonably be understood to have meant ..."

48 A Full Court of the Federal Court dismissed an appeal from Finn J's judgment: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144; (2006) 156 FCR 1. Weinberg, Kenny and Lander JJ, in separate judgments, held that the High Court has determined (in Pacific Carriers and Toll), in effect, that, at least when construing commercial contracts, the "surrounding circumstances" or "factual matrix" may be considered even if the language of the contract is not ambiguous or is not susceptible to more than one meaning. See per Weinberg J at 10 - 11 [45] - [46], per Kenny J at 21 - 22 [98] - [100] and per Lander J at 48 [238], 50 - 51 [250] - [254].

49 It is unnecessary, in this appeal, with respect, to express an opinion on the correctness of the approach of Finn J and the Full Court of the Federal Court in Lion Nathan. See, in this context, and compare, the observations in Home Building Society Ltd v Pourzand [2005] WASCA 242 at [25] - [33]; Johnstone v Knight [2006] QCA 322 at [17] - [18].

50 In the present case, the contract between the parties and the instrument of transfer executed pursuant to the contract should be construed in the context of the stamp duties legislation which applied to those instruments, but that legislation does not determine the true meaning and effect of any provision of the contract.

51 Clauses 3.3(a) and 17.2 of the General Conditions impose on the Buyer an obligation:

(a) to arrange for the Contract and the Transfer "to be stamped"; and

(b) to pay "all stamp duty on the Contract and the Transfer".

The Buyer's obligation, as between the Buyer and the Seller, to pay the stamp duty reflects the statutory liability of the Buyer under the Stamp Act 1921 (WA). At all material times, the Stamp Act has stipulated that the stamp duty chargeable on contracts for the sale of land, and any duty chargeable on an instrument of transfer of land under the Transfer of Land Act 1893 (WA), is a liability of, and payable by, the purchaser or transferee. See, in relation to the Stamp Act before 1 July 2003, s 16(1), s 39, s 74 and item 4 of the Second Schedule. See, in relation to the Stamp Act after 1 July 2003, s 16(1), s 17, s 74 and item 4 of the Second Schedule.

52 By cls 3.1, 3.2 and 3.3 of the General Conditions, relevantly, the Buyer is obliged to:

(b) sign the Transfer and deliver it to the Seller or the Seller's representative a reasonable time before the due date for settlement; and

(c) arrange for the Contract and the Transfer "to be stamped" before the Transfer is delivered to the Seller or the Seller's representative.

53 The Seller is entitled, upon receipt of the stamped Transfer from the Buyer, to retain custody of it until settlement. At settlement, the Seller is obliged, relevantly, to deliver to the Buyer:

(a) the Transfer, which must have been signed by the Seller;

(b) (subject to cl 3.11 of the General Conditions, which is not relevant for present purposes), the duplicate certificate of title to the land; and

(c) each other document which is necessary to enable the Buyer to become the registered proprietor of the land free of any encumbrances, except those encumbrances subject to which the land has been agreed to be sold.

54 At settlement, the primary obligation of the Buyer is, of course, to pay the balance of the purchase price.

55 Upon settlement being effected, the Buyer is entitled to lodge with Landgate (which is now the relevant authority) those documents which are necessary to enable the Buyer to become the registered proprietor of the land. At all material times, s 28 of the Stamp Act has prohibited, relevantly, the Registrar of Titles from receiving or registering an instrument of transfer under the Transfer of Land Act unless he is satisfied, relevantly, that "the original instrument has been stamped or is exempt from duty": see s 28(1)(a).

56 In my opinion, the Buyer's obligation under cls 3.3(a) and 17.2 of the General Conditions to arrange for the Contract and the Transfer "to be stamped" requires the Buyer to obtain a stamp duty assessment from the Commissioner in respect of the Contract and the Transfer, and to pay the amount assessed. Clauses 3.3(a) and 17.2 require the instruments to be assessed by the Commissioner and the amount assessed to be paid, but do not require that the stamping be in accordance with the Stamp Act (as in force from time to time) or that the instruments be stamped with such duty as the law requires.

57 The evident intention of cls 3.3(a) and 17.2 of the General Conditions is to ensure that after the Seller has received the Transfer from the Buyer, the Seller will not be obliged to release the Transfer for any purpose before settlement (including, for example, for the purpose of being stamped). The Transfer must have been signed by the Buyer before receipt by the Seller, and the Seller must sign it after receipt from the Buyer and before settlement. Plainly, the Seller should have custody of the Transfer after it has been signed by both parties and until settlement is effected. If the Transfer (or, for that matter, the Contract) has not been stamped with the correct amount of duty payable under the Stamp Act, the inadequate stamping may produce adverse consequences for the Buyer, but not the Seller. As I have mentioned, it is the Buyer who is obliged under the General Conditions, and liable under the Stamp Act, to pay the stamp duty chargeable on the Contract and any duty chargeable on the Transfer.

58 In the present case, it is apparent that the Transfer in respect of Lot 5 was assessed by the Commissioner and that the Commissioner endorsed the instrument, in accordance with s 17C(1)(d) of the Stamp Act, to the effect that it was not chargeable with duty.

59 The learned Judge was in error in holding that the word "stamped", in cl 3.3(a) of the General Conditions, requires that the Commissioner's assessment and endorsement of the Transfer accurately reflect the duty chargeable at law under the Stamp Act. Ground 3 of the grounds of appeal has been made out.

60 It is unnecessary, in the circumstances, to determine the other grounds of appeal.

61 The respondents filed a notice of contention on 27 September 2005 which asserted that there were five grounds, not relied on by the learned Judge, on which the respondents relied to uphold his Honour's decision.

62 The grounds set out in the notice of contention are these:

"Ground 1

The following matters were relevant to the question of the basis upon which the Commissioner ... stamped the transfer document produced by the appellant and support the finding of His Honour that the Commissioner stamped the transfer on the basis that Project 2001 was expressly nominated as a transferee upon the Contract:

(a) absence of an endorsement, as required by section 74(3)(b)

(b) absence of any assessment for nominal duty pursuant to subsection 74(3) (under Item 6, Second Schedule in this regard).

Ground 2

The learned Judge correctly held at [31] that the reference to 'stamped' in the General Conditions meant stamped pursuant to the Stamp Act 1921 (WA) but erroneously applied previously amended provisions to interpreting the contract; however, it was open to the learned Judge to find that the applicable provisions, being those in force at the date the transfer was produced to the Commissioner and then to the vendors had the same result.

Ground 3

The learned Trial Judge in determining whether the meaning of the word 'stamped' imports an assessment of the correctness of the assessment of duty and stamping by the Commissioner ... was further entitled to rely upon:

(a) the general principle that the Court should prefer and give effect to an interpretation of a contract that requires lawful conduct rather than that the parties engage in illegal and unlawful conduct; or, alternatively

(b) the principle that if more than one meaning is open on the language of the contract, the meaning that will be preferred is that which will avoid consequences which appear capricious, unreasonable, inconvenient or unjust.

Ground 4

In addition to those grounds upon which the learned Judge determined that section 74(2) of the Stamp Act 1921 (WA) applies, His Honour was further entitled to find upon the evidence as specified below, that no agency existed at the time of execution of the contract as required pursuant to section 74(3) of the Stamp Act. The evidence to which reference is made in this ground was:

(a) No written agency agreement between the purchaser and Project 2001 Pty Ltd was produced by the appellant.

(b) No other document referring to or adverting to an agency between the purchaser and Project 2001 Pty Ltd was produced by the appellant.

(c) In paragraph 9 of his affidavit sworn 7 April 2004, Joseph Tilli (the appellant's financial controller and manager) asserted:

'At the time the offers were made by [the appellant] it was contemplated that Project 2001 Pty Ltd ... be nominated as the purchaser and this nomination was duly made by [the appellant]. The nomination of Project was accepted by the [respondents] by initials being made where the nomination clause was inserted.'

(d) The nomination clause referred to in paragraph 9 of the said affidavit (see Exhibit 'JT1') stated that: 'The Nominee is Project 2001 Pty Ltd or Madison (WA) Pty Ltd or Ishmael Pty Ltd or Solution 2000 Pty Ltd.'

(e) In answer to a question in the course of cross-examination concerning his and his father's intention in the purchase of the land, Joseph Tilli answered 'We were never a nominee on the contract and if we did purchase it it would be through affiliated companies that we were associated with, with beneficial interests in.' [Transcript 15/11/04 at 25: Tilli J].

Ground 5

In addition to the preceding grounds, it was open to the learned trial judge to find for the respondents on the alternative ground that the transfer produced to the respondents did not comply with condition 3.3(a)(1) and (2) of the general conditions of the sale of land contract on the basis that:

(a) the contract was one of two between the same vendor and purchaser as specified in section 75AF of the Stamp Act 1921; and

(b) was not stamped in accordance with the requirements of section 75AF, namely, by the aggregation of the value of the two contracts and assessment of duty on the aggregated amount (with the result that the amount of stamp duty was underpaid by $3875.00)."

63 Grounds 1, 2, 4 and 5 of the notice of contention are predicated on the assumption that the learned Judge was correct in holding that the word "stamped", in cl 3.3(a) of the General Conditions, requires that the Commissioner's assessment and endorsement of the Transfer accurately reflect the duty chargeable at law under the Stamp Act. I have held that his Honour was in error in that regard and, in consequence, it is unnecessary to determine grounds 1, 2, 4 and 5.

64 As to ground 3(a) of the notice of contention, my construction of the Contract does not permit the parties, or either of them, to engage in illegal or unlawful conduct. In particular, my construction does not diminish or affect the obligations of the Buyer under the Stamp Act in relation to the Contract and the Transfer. I note that when the appellant and the respondents executed the Contract:

(a) Section 26(1) of the Stamp Act provided:

"All the facts and circumstances affecting the liability of any instrument to duty, or the amount of the duty with which any instrument is chargeable, are to be fully and truly set forth in the instrument; and every person who, with intent to defraud the Crown -

(a) executes any instrument in which all the said facts and circumstances are not fully and truly set forth; or

(b) being employed or concerned in or about the preparation of any instrument, neglects or omits fully and truly to set forth therein all the said facts and circumstances,

(b) Section 114(1) of the Stamp Act provided:

(a) shall resist or obstruct any officer or other person in the performance of any duties or the exercise of any powers under this Act;

(b) shall wilfully mislead any officer in any particular likely to affect the discharge of his duty;

(c) being lawfully asked any question by any officer pursuant to this Act shall fail to answer the same truthfully and completely to the best of his knowledge, information and belief."

Section 114(2) provided that a person who contravened or failed to comply with any of the provisions of 114(1) committed an offence against the Act. Since 1 July 2003, s 26(1) of the Stamp Act has been amended, but not in any material respect. Since 1 July 2003, s 114 has been superseded by more stringent and extensive provisions which are to be found in Pt 9 of the Taxation Administration Act 2003 (WA).

65 As to ground 3(b) of the notice of contention, cls 3.1, 3.2, 3.3 and 17.2 of the General Conditions are not, relevantly, ambiguous. The principle of construction referred to in ground 3(b), which is derived from the observations of Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 at 109 - 110, does not apply.

66 This Court raised with counsel for the parties the possible relevance of s 31 of the Stamp Act.

67 At all material times before 1 July 2003, s 31(3) of the Stamp Act provided, relevantly:

"Every instrument -

(a) ...; or

(b) which has been stamped in accordance with an assessment of duty issued under subsection (2) in respect of that instrument,

shall be admissible in evidence and available for all purposes."

On 1 July 2003, that provision (and the other provisions of the then s 31) were repealed by the Stamp Amendment Act 2003 (WA).

68 Section 119 of the Taxation Administration Act 2003 (WA), which came into operation on 1 July 2003, provides:

"An assessment notice (or a copy of an assessment notice) is admissible as evidence in proceedings under a taxation Act and, in the absence of proof to the contrary, is proof of -

(a) the making of the assessment;

(b) the amount of tax assessed;

(c) the identity of the person liable for the tax;

(d) the due date for paying the tax; and

(e) any other fact stated in the notice."

The Stamp Act is a "taxation Act", and "tax" includes stamp duty.

69 The Revenue Laws Amendment and Repeal Act 2004 (WA) amended the Stamp Act by inserting a new s 31, as follows:

"An instrument that has been stamped or is taken to have been stamped -

(a) is admissible in evidence; and

(b) except in proceedings under Part 4 of the Taxation Administration Act 2003, the endorsement of the instrument is conclusive evidence that the assessment is correct."

The new s 31 came into operation on 29 June 2004. Pullin JA has set out in his reasons an extract, with respect to the new s 31, from the explanatory memorandum to the Bill which, upon enactment, became the Revenue Laws Amendment and Repeal Act 2004.

70 The Revenue Laws Amendment and Repeal Act 2004 does not contain any transitional provisions with respect to the new s 31. Counsel for the parties did not make any submissions as to whether the provision applies:

(a) to instruments executed before the provision came into operation; and

It is unnecessary to determine whether the new s 31 precluded the learned trial Judge from concluding that the Commissioner's assessment in respect of the instrument of transfer in respect of Lot 5 was incorrect. The proper construction and application of s 31 was not fully argued by counsel. In the circumstances, I would not express an opinion in relation to it.

The appellant's application for an extension of time

71 I agree with Pullin JA, for the reasons he gives, that the appellant's application for an extension of time should be granted.

72 I would grant the appellant's application for an extension of time, and allow the appeal.

Revenue Laws Amendment and Repeal Act 2004(WA)

Administration Act 2003

Supreme Court (Court of Appeal) Rules 2005

Stamp Amendment Act 2003(WA)

INVESTMENTS (WA) PTY LTD -v- HATTON & ANOR [2007] WASCA 110 (25 May 2007)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (135 paragraphs)

The proper construction of the relevant General Conditions

The appellant's application for an extension of time

Legislation Cited (6)

Cases Cited (10)