1 The respondent's Notice of Assessment (A147036) is varied so as to assess the subject transfer as exempt from duty.

2 The parties have liberty to apply in relation to costs.

1 This matter was referred to the Tribunal by the delegate of the respondent pursuant to s 106 of the Taxation Administration Act, upon the request by the applicant dated 16 July 2004. The applicant sought a variation of the respondent's determination dated 17 May 2004 to disallow the applicant's objection dated 5 February 2004, to a Notice of Assessment dated 29 January 2004 ("the assessment"). By the assessment the respondent assessed for duty a transfer of real estate ("the transfer") lodged at the State Revenue Office on 27 November 2002 in the primary sum of $22,062 (based on the dutiable value of $440,000) plus $2215.43 in penalty tax and interest. It should be noted that the consideration stated in the transfer was "transferee being entitled in equity".

2 On 31 March 1980, the Kringas Family Trust No 2 ("the Trust") was created. At the time of its creation, the trustee of the Trust was Hennasham Pty Ltd ("Hennasham") and the initial appointors of the Trust were Denis Constantine Kringas ("Denis") and the applicant. Denis and the applicant were specified as beneficiaries of the Trust. Clause 10 of the Deed establishing the Trust ("the Trust Deed") confers power on the appointor of the Trust to remove any trustee from office as trustee and/or appoint any person (including a corporate body) to be trustee, or an additional trustee as he shall think fit provided however (amongst other things) -

(a)

that no beneficiary shall be a trustee;

(b)

that the said appointor shall not appoint himself or herself or any legal entity in which he or she has a financial or controlling interest in or a company which he or she is a director of or in which he or she owns or holds any part of the issued capital of, as a trustee.

3 A number of provisions of the Trust Deed are set out below in this decision.

4 On 4 August 1980, Hennasham became the registered proprietor of a house property situated at 10 Gelea Crescent, Vermont South ("the property"). The property was the family home of Denis and the applicant from 1980 until they separated in 1991.

5 As a result of the separation and subsequent Family Court proceeding, a property settlement was agreed to by Denis and the applicant and consent orders were made in the Family Court of Australia on 25 November 2002. The consent orders, inter alia, provided

That within 30 days of the date of this order the Husband will do all things necessary and sign all documents to :

(a) Resign from any office held by him in the company Hennasham Pty Ltd;

(b) Transfer in accordance with the Wife's direction any shares held by him in Hennasham Pty Ltd;

(c) Release and discharge the continuing trustee for the time being of The Kringas Family Trust (hereinafter referred to as 'Trust No 2') from each and every claim or demand which he has or may otherwise have (including without limitation in respect of monies standing to his credit in the accounts for same) against which trustee or in respect of Trust No 2 and relinquish in favour of the Wife or in accordance with her direction :

(i) Any powers which he may have pursuant to the Deed of Settlement of Trust No 2;

(ii) Any right, claim or entitlement which he may have in relation to the assets of Trust No 2.

(d) Release and discharge the Directors of Hennasham Pty Ltd from each and every claim or demand which he has or may otherwise have (including without limitation in respect of monies standing to his credit in the accounts of Hennasham Pty Ltd) against Hennasham Pty Ltd or the Directors thereof.

......

6 It should be noted that the only asset of the Trust was the property.

7 Subsequent to the Family Court orders, Denis and the applicant were advised by their accountants to remove Hennasham as the trustee of the Trust and to appoint the applicant as trustee. They were also advised to de-register Hennasham so that fees charged by the Australian Securities and Investment Commission ("ASIC") would not be incurred each year.

8 In order to remove Denis from any interest in the property, the applicant and Denis were advised to remove Denis as an appointor under the Trust Deed. In pursuance of removing Denis as an appointor, supplementary deeds were executed on 23 November 2002 and, on 25 November 2002, a document signed by both Denis and the applicant confirmed such removal.

9 On 23 November 2002, Hennasham Pty Ltd passed a resolution whereby it resigned as trustee of the Trust and in pursuance of such resignation, Denis as a director of Hennasham advised that Hennasham had resigned as a trustee of the Trust.

10 Also on 23 November 2002, the applicant recorded in writing her consent to act as trustee of the Trust, and advised Denis that Hennasham had resigned as trustee of the Trust.

11 Subsequently, on 24 November 2002, an application for de-registration of Hennasham was lodged with ASIC and, on 16 December 2002, ASIC advised that the application for de-registration had been approved. Apparently the de-registration took effect as from 4 May 2003.

12 In or about November 2003, the applicant decided to auction the property. In pursuance of that decision, she employed Campbell & Shaw to prepare the conveyancing documents. At that time, it was realised that the property was still registered in the name of Hennasham. The subsequent events are described in an affidavit sworn by Denis and filed herein :

18. ... Campbell & Shaw recommended that the Trust Deed be amended - with effect from 23 November 2002 - to remove me as a potential beneficiary and, further recommended that Helen exercise her power of appointment to remove Hennasham Pty Ltd as trustee and that she appoint herself as trustee in its place, and that this also be done with effect from 23 November 2002.

19. In order to give effect to these recommended changes, the Trust Deed was amended by the Supplementary deed of 23 November 2002 ('the Campbell & Shaw Supplementary Deed"). This deed was executed on or about November 2003 but, as stated above, was intended to take effect from 23 November 2002, this being the date on which the entire transaction was to take effect. ...

20. .... a further supplementary deed was executed on or about November 2003 ('the Second Campbell & Shaw Supplementary Deed') which, like the deed referred to in paragraph 18, was intended to take effect from 23 November 2002. Under this deed, Helen as the Appointor, exercised her power of appointment to remove Hennasham Pty Ltd as trustee of the Trust and appointed herself as the new Trustee with effect from 23 November 2002.

In order to achieve the matters referred to by Denis, Hennasham was re-registered.

13 The applicant subsequently signed the transfer which was lodged at the respondent for stamping. That transfer was subsequently assessed for duty by the respondent as I have described above.

14 On 13 December 2003, the property was sold at auction for $440,000.

15 On or about 13 April 2004, the property was transferred to the purchasers at auction, the consideration being $440,000.

16 Further, in Denis' affidavit which has been confirmed by the applicant, it is stated that the transfer of the property to the applicant was not part of any plan, or desire to avoid stamp duty. It is stated :

34. The only reason for the transfer of the Gelea Crescent property to Helen was to give effect to the decision to replace Helen as the new trustee, in place of Hennasham Pty Ltd. The transfer to Helen was unfortunately delayed because of the oversights referred to, but this did not make any difference to the reason why the Gelea Crescent property was transferred to Helen. Had we realised that any stamp duty liability would have arisen on the transfer to Helen, we would never have changed the trustee.

17 The Kringas Family Trust Deed No 2 reads as follows :

1. In this Deed the term 'beneficiaries' means such of the following individual persons and classes of persons as exist or are alive from time to time notwithstanding that such persons may not be in existence or have come into the defined category at the date of this Deed.

D.

Any person or trustee who becomes a beneficiary after the date hereof by reason of the operation of the provisions of this Deed.

F. The trustee or trustees of any trust or settlement ('the nominated trust') which he trustee may at any time or from time to time in writing nominate as a beneficiary whether or not such trust is in existence at the date of this settlement provided always that :

(a) immediately prior to such nomination a beneficiary under this trust and settlement is a beneficiary of the nominated trust;

(b) neither the settlor or any person claiming under or in the right of the settlor or the trustee of this trust or settlement from time to time has any direct indirect or contingent right or interest as a beneficiary of or under the nominated trust;

(c) upon any such nomination such trustee or trustees shall become a beneficiary hereunder solely in his its or their (as the case may be) capacity as trustee or and for and on behalf of the nominated trust.

2. The Trustee shall hold the Trust Fund upon trust :

(b) Upon and after the date of distribution as to the corpus thereof :

(i) for such of the beneficiaries, and if thought fit for one or more to the exclusion of others or another, and in such shares and proportions and upon such terms and subject to such conditions as the trustee shall in its absolute discretion determine;

(ii) to the extent that the corpus is not disposed of pursuant to sub-paragraph (1) hereof, for the specified beneficiaries if they be living at the date of distribution provided that if they shall have died before the date of distribution leaving issue alive on that date, such issue shall take, and if more than one, equally as tenants in common, and share the deceased specified beneficiary would have taken had he survived the date of distribution.

3.(a) The date of distribution shall be the date specified as such in the Schedule or such earlier date as the Trustee shall at any time by deed, revocable or irrevocable, appoint.

5.(a) The Trustee may at any time alter or amend any of the provisions of this Deed provided however that -

(ii) no such alteration or amendment shall be exercised so as to enable the Settlor or Trustee or any person not related to the specified beneficiaries by blood or marriage to acquire (directly or indirectly) any beneficial right or interest in or in relation to the income or corpus of the Trust Fund, or any benefit or advantage therefrom whatsoever.

10. The appointor named in the Schedule (and after the death of the appointor or if more than one the last surviving appointor the person named in his or her will as being invested with such power or if he or she dies intestate or if not person is so named his or her legal representative ('successor')) may at any time and from time to time remove any trustee from office as a trustee and/or may appoint any person (including a corporate body) to be trustee, or an additional trustee as he shall think fit provided however -

(a)

that no beneficiary shall be a trustee.

(b)

that the said appointor shall not appoint himself or herself or any legal entity in which he or she has a financial or controlling interest in or a company which he or she is a director of in which he or she owns or holds any part of the issued capital of, as a trustee.

(c)

that the appointor or his or her successor may at any time by notice in writing to the Trustee declare that henceforth he she or it (as the case may be) will not have any of the powers of removal and appointment conferred by this clause and as from the time or receipt of such notice by the Trustee this deed shall in all respects be read and construed as if this clause were deleted therefrom and thenceforth no person shall be conferred with any power of removal or appointment under this clause.

18 By a supplementary deed (referred to in paragraph 8 hereof) prepared by the applicant's accountants on 23 November 2002, it was declared that :

The Trust Deed shall be varied by the retirement of DENIS CONSTANTINE KRINGAS .....

19 By a further document dated 25 November 2002 (also referred to in paragraph 8 hereof) prepared by the accountants, Denis relinquished his powers as appointor pursuant to clause 10(e) of the Trust Deed.

20 By the first Campbell & Shaw supplementary deed dated 23 November 2002, clauses 10(a) and (b) were deleted Denis was removed as a specific beneficiary and Steven James Kringas (the applicant's child) was added as a special beneficiary.

21 By the second Campbell & Shaw supplementary deed Hennasham was removed as a trustee and the applicant was appointed a new trustee.

22 The relevant legislation in this matter is contained in the Duties Act 2000. Section 7 of that Act imposes duty on these type of transactions:

7. Imposition of duty on certain transactions concerning dutiable property

(vi) any other transaction that results in a change in beneficial ownership of dutiable property (other than an excluded transaction).

23 Section 33 states :

"new trustee" means a trustee appointed in substitution for a trustee or trustees or a trustee appointed in addition to a trustee or trustees;

(3) No duty is chargeable under this Chapter in respect of a transfer of dutiable property to a person other than a special trustee if the Commissioner is satisfied that the transfer is made solely -

(a) because of the retirement of a trustee or the appointment of a new trustee, or other change in trustees; and

(b) in order to vest the property in the trustees for the time being entitled to hold it.

SECTION 33

24 The sole question to be decided in this case is whether the transfer comes within the meaning of s 33(3). However, in deciding that question, it is necessary to consider whether the transfer was made solely because of the retirement of a trustee or the appointment of a new trustee or other change in trustee. And further whether the transfer was necessary in order to vest the property in the trustee for the time being entitled to hold it.

Whether transfer was solely for the purpose described in s 33

25 Mr Hines, counsel on behalf of the respondent, submitted that the transfer was not made solely because of the change in trustee but because :

a

the bargain entered into between the applicant and her ex-husband (Denis) in relation to the Family Court proceeding;

b

the desire on behalf of the applicant that Hennasham should not be subject to ASIC fees; and

c

the desire to auction the property subsequent to November 2003; and

d

of a change in the beneficiary of the Trust.

26 In Perpetual Trustee Co Ltd v Commissioner of State Revenue [2000] VSC 117, the taxpayer sought the benefit of an equivalent exemption pursuant to the Stamps Act 1958, which was exemption 23, which exemption was drafted in similar terms to the present s 33(3). Hansen J there stated :

28. The issue under exemption 23 is whether the instruments of transfer were made 'solely in consequence' of the change in trustee. .....

56. ... The test imposed requires the ascertainment of the facts and circumstances relevant to the issue and a determination whether the instruments of transfer were executed solely in consequence of the change of trustee and in order to vest the real property ....

27 Mr Grace, counsel for the applicant, submitted that :

The facts giving rise to the transfer in this case do not admit of any ulterior intention to avoid stamp duty. The transfer in this case was necessary following the decision to appoint Helen Kringas as the new trustee. Helen Kringas was appointed the new trustee following the breakdown of her marriage to Denis Kringas and the family law settlement which was reached as a result.

28 I agree with Mr Grace's submission but do not agree with Mr Hines' submission that part of the reason for the transfer was the proposed sale of the property. It is clear on the evidence that the applicant and her ex-husband had made up their mind to change the trustee in or about November 2002 which is approximately 12 months before the applicant decided to sell the property. It is true that when the conveyancing solicitor was preparing the auction documents, it was discovered that the applicant's intention of changing the trustee had not properly occurred. However, that was not a new intention. What occurred in November 2003 was a change of trustee. The change did not happen because the auction was contemplated, it happened because the applicant and her ex-husband had made up their minds a year earlier that the trustee would change so that the applicant's ex-husband would be excluded from all possible interest in the former matrimonial home (the property). That is, the two events of changing the trustee and the auction are entirely separate and unrelated; the highest it can be put was that the proposed auction was the occasion to change the trustee rather than the cause of the change. Thus, I discount the auction altogether as a cause of the change of trustee.

29 In my view, the word "solely" appearing in s 33 should not be construed too literally. If the word "solely" was to be given a completely literal interpretation, it is difficult to see how s 33 could ever have any effect. At paragraph 58 in Challenger Property Nominees Pty Ltd v Commissioner of State Revenue [2004] VCAT 2434, Deputy President Macnamara stated :

I accept Mr De Wijn's submission that whenever one trustee resigns and another trustee is appointed there is a wider agenda. The items on that agenda may include the promotion of the commercial interest of the incoming trustee, relief from personal burdens for the outgoing trustee, an acknowledgement by the outgoing trustee that it has lost the confidence of the beneficiaries or unit holders under the trust etc. In one sense then no transfer of land given in any of these circumstances might be said to have been given other than 'solely' because of the retirement of a trustee or the appointment of a new trustee and to vest the trust property in the new trustee; but no such analysis is appropriate in the examples I have given. Mr De Wijn submitted that the proper approach is not to ask 'why did the trustee resign?' and say that tat is the purpose of the transfer, rather the question is, 'is the only purpose of the transfer to give effect to the change in trusteeship?'.

The Deputy President agreed with the submissions of Mr De Wijn.

30 I also note that Hansen J in the Perpetual Trustee case referred to the purpose of the exemption at paragraph 53. He stated :

In my view the purpose of the exemption is clear. It is to exempt from stamp duty a transfer of real property given in the context of a change of trustee of a pre-existing trust in order to vest the real property of the trust in the name of the trustee for the time being. In such a case the transfer is not given in consequence of a sale or other disposition of the real property for valuable consideration. In such circumstances it would be unreasonable to charge the instrument of transfer to duty. The beneficial interest has not changed. There has been a mere change in the registered proprietor ... consequent upon and because of the change in the office of trustee and the need for the trust property to be conveyed into the name of the trustee for the time being.

31 In this particular instance, there is no consideration for the change of trustee, it has purely come about as a result of the family law settlement and consequent upon that the desire of the applicant and her ex-husband to have Hennasham de-registered. This is not a commercial purpose and it is not a purpose for which the revenue needs to be protected. There was no secondary transaction under which there would be change in beneficial owner of the land as in the Perpetual case where a large amount of duty was sought to be avoided.

32 I also note a general policy in the Duties Act to exempt change of property ownership relating to breakdown of marriage. See s 38(2) and 44(1) and (2). The Act extends relief to transactions of a trustee upon a marriage breakdown (s 44(2)). It must be remembered of course in this case that those sections do not apply to a corporate trustee as in this case. However, they do show the general attitude of the legislature. Thus I conclude that neither the bargain entered into because of the Family Court proceeding nor the desire to avoid ASIC fees are sufficient to take the transaction out of "solely" changing the trustee.

33 Mr Hines in his submission placed emphasis on the words used by Hansen J in paragraph 53 where he referred to the fact that there should not be a change of beneficiary. He stated that, in this case, there had been a change of beneficiary. That is, Denis was removed as a specified beneficiary of the trust and Steven Kringas was added as a special beneficiary. He said this was done contemporaneously with the change of office of trustee and is part of the same factual matrix. Mr Hines therefore concluded that a change in the beneficiary was an additional cause for the transfer.

34 In my view, it is a big jump to conclude that a change in the beneficiary was a cause of the transfer. The change in beneficiary may have been an act that did happen contemporaneously with the change of trustee and the transfer, but the change of trustee and the transfer is in no way dependent upon the change of beneficiary. The change of beneficiary is a separate and distinct act from that of changing the trustee or executing the transfer. It could just as easily have been achieved at some considerably later time after the transfer was stamped. In my view of the facts, it was done contemporaneously purely out of convenience and not as a means of any way avoiding the payment of duty. Thus I find that the word "solely" as used in the section is not affected by the change of beneficiary and I disagree with Mr Hines' submission that the transfer was made because of a change in the beneficiary. In fact, the transfer and the change of trustee had nothing to do with the change of beneficiary.

35 Thus I conclude for the above reasons that giving the word "solely" its proper meaning in the context of the statute, the transfer was not made for any other reason other than solely because of the retirement or change of trustee and the desire to vest the property in the new trustee being the applicant.

Whether there was an effective change in the trustee

36 Mr Hines submitted that unless there has been an effective retirement, or change in trustee and appointment of new trustee, s 33(3) cannot operate.

37 He stated that once Denis "retired" as appointor, any power of appointment under the Deed vanished. For this proposition he relied on the wording of clause 10(c) of the Deed. Alternatively, he stated, if Denis did not retire because there was no notice in writing to the trustee as required by clause 10(c) of the Deed, there was no effective appointment of the applicant as the new trustee, as the appointors could not jointly exercise their powers of appointment to replace the trustee and he (Denis) never purported to exercise the power.

38 By a supplementary deed dated 23 November 2003 (prepared by the accountants and being Exhibit DCK3 herein), the trustee exercised its power of amendment under clause 5 of the deed to amend the schedule of the deed and remove Denis as appointor. This in fact amended the schedule, which left the applicant as the sole appointor of the trust.

39 Further, even if Denis was not validly removed as appointor, in my view, it would make no difference. The instrument of appointment being the second Campbell & Shaw supplementary deed, was "by and in writing and ... executed" by both the applicant and Denis in substantial compliance with what was required by clause 10(e) of the deed.

40 Mr Hines said there was in fact an additional reason why there was no effective change in trustee. He stated clause 5(a)(ii) of the Deed made it clear that the trustee had no power to delete clause (a) and (b) from the deed. It will be remembered that clause 10(a) and (b) forbade the appointment of a beneficiary as a trustee and forbade the appointment by an appointor of herself as trustee. Further, it will be remembered that clause 5(a)(ii) permits an alteration or amendment to the provisions of the Deed, however, the settlor, trustee or any other person not related to the specified beneficiaries by blood or marriage were not entitled to acquire any beneficial advantage under the trust.

41 Mr Hines further stated that the entrenched intent of the settlor and the original trustee, is that the beneficiary should under no circumstances become a trustee and for that proposition, he relied on clauses 5(a)(ii) and 10(a) of the Deed. He stated that appointing the applicant as trustee would enable the trustee to acquire a benefit or advantage from the trust fund in breach of clause 5(a)(ii) because it would enable the trustee to exercise favourably her discretion to distribute income or corpus in favour of herself as a beneficiary.

42 It is clear that the removal of paragraphs 10(a) and (b) did not confer any beneficial right or interest on the trustee, Hennasham, and did not allow the then trustee Hennasham to acquire any such interest. In my view, whether or not a person, including the trustee, is (or becomes) entitled to the beneficial right or interest under the trust is determined, by the definition of beneficiary and the definition of specific beneficiaries. Taking the meaning of beneficial right or interest in or in relation to the corpus of the trust fund or any benefit or advantage therefrom, the applicant already enjoyed such benefit as she was a named beneficiary. The amendment did not allow Hennasham which was the trustee at the time to acquire any such interest, nor could it enable any person not named as a beneficiary to acquire any interest as beneficiary. Therefore the Trust Deed did not stop the applicant becoming a trustee (see paragraph 45 hereunder).

43 In answer to this point, Mr Hines stated that a person with a vested interest in the income of a trust fund though liable to be divested by an exercise of the trustee's power to select one or more of them to the exclusion of the other, or others should be held to be beneficially entitled to those shares. In support of this proposition, he cited from the judgment of the High Court in Queensland Trustees Limited v Commissioner of Stamp Duties (1952) 88 CLR 63 where it was stated :

Upon the death, the persons amongst whom for the time being the income was required to be distributed in the manner determined by the trustees became beneficially entitled in equal shares to the income accruing during the lifetime of the niece in the one case and of the second cousin in the other case .... the interest of each of them being a vested interest, though liable to be divested wholly or in part by an exercise of the trustees' power to select one or more of them to the exclusion of the other or others.

44 In my view, this case is not to the point here because at the particular time that it was sought to remove clauses 10(a) and (b) from the deed, no property or income had vested and the vesting date was approximately 60 years off.

45 Further, in my view, Mr Hines has taken a wrong view as to the meaning of clause 5(a)(ii) of the deed. The clause was directed to entrenching the trust for the benefit of family members and only family members. Put another way, it was directed to preventing any amendment to the definition of "beneficiary" which would allow non-family members to benefit under the trust. The clause is not referring to a person acquiring an interest by that person being placed in a position to control the distribution of trust income or capital to itself and in any event, the law of trust provides protection against such an improper action by trustees and it is likely that the draft person would have both known and presumed this fact. In my view, the clause was intended to prevent a trustee from amending the Trust Deed to allow a person who was not among the original class of beneficiaries (ie family members) from becoming beneficiaries or otherwise acquiring a vested interest in the trust property.

46 Mr Hines further submitted that the entrenched intent of the deed was that a beneficiary should under no circumstances become a trustee. In support of the submission he relied on clauses 1F, 5(a)(ii) and 10(a) of the Deed.

47 Clause 1D of the Deed recognises that a trustee may become a beneficiary. It specifically uses the words "... trustee who becomes a beneficiary ...". As I have previously stated, the only entrenched intent of the Deed is that the class of beneficiary is not to be altered so as to allow non-family members as beneficiaries.

48 Buckle v Commissioner of Stamp Duties (NSW) [1998] HCA 4; (1998) 192 CLR 226 at 237, where the High Court which was dealing with a deed similar to the present, made it clear that neither discretionary beneficiaries, nor one who has a contingent interest, has a right "to acquire" any interest or benefit, they merely have a right to be considered. As clause 5(a)(ii) is concerned to protect vested rights in persons who are not family members, in my view, that clause does not prohibit the amendments which were made to the Trust Deed relating to clause 10(a) and (b).

Whether difficulty in proving the supplemental deed deleting clause 10(a)

49 Mr Hines submitted that the relevant supplemental deed purporting to delete clause 10(a) cannot be proved, as despite purporting to effect a change in specified beneficiaries, it is not stamped (see s 7(1)(b)(vi) of the Act). Mr Hines therefore concluded that as long as the deletion of clause 10(a) cannot be proved, it cannot be proved that the applicant was eligible to be appointed trustee under the terms of the trust and her appointment as such cannot be proved.

50 The question that now must be asked is whether the removal of Denis as a specified beneficiary and the inclusion of Steven Kringas as a specified beneficiary under the Campbell & Shaw supplementary deed altered the beneficial ownership of the trust property?

51 The specified beneficiaries were discretionary beneficiaries only, and as such, had no proprietary interest in the trust property and therefore no beneficial ownership. Lord Reid in Gartside v Inland Revenue Commissioners [1967] UKHL 6; [1968] AC 553 stated at p 606 :

No object of a discretionary trust has, as such, any legal right to or in the capital.

'In possession' must mean that your interest enables you to claim now whatever may be the subject of the interest. .... Even if I had thought the objects of discretionary trusts have interests, I would not find any good reason for holding that they have interests in possession.

... the discretionary beneficiaries under the secondary trust had, for the reasons already given, no 'interest' at all.

52 Further, it would appear that even if the beneficiaries had a contingent interest, such an interest conferred no interest in the trust property or beneficial interest. In Buckle's case at p 242 the High Court stated :

The second and third respondents (who held contingent interests) had no vested interests in corpus but they did enjoy rights to due administration of the trusts of the Deed of Settlement which a court of equity would protect.

53 Thus, in my view, it follows that it does not matter that the second Campbell & Shaw supplementary deed was not stamped because the same did not change beneficial ownership in accordance with the meaning of s 7(1)(b)(vi). Thus the requirement for stamping did not exist pursuant to that sub-section.

54 Thus I find that there was a valid and effective change of trustee and that the transfer was made solely for the purpose of a change of trustee from Hennasham to the applicant.

Was the applicant "entitled" to hold the property as trustee?

55 Mr Hines submitted that there had been no effective change of trustee and as such the land was held on a constructive trust or as a trustee de son tort. He said :

Even if this is a 'change of trustee' for the purposes of s 33(3)(a), which is unlikely, given that no trustee had validly retired or been appointed, and that she did not have the trust powers under the deed, she was not a trustee entitled to hold the land in terms of s 33(3)(b).

Hence he suggested the transfer was dutiable as a result of s 33(4).

56 Clearly on the findings made above this argument must fail because there was an effective change in the trustee. However, in my view, even if I am wrong in the view I have expressed, the wording of s 33(3)(b) would not make the transfer dutiable in this situation. Mr Hines submitted that unless the applicant had been appointed in strict compliance with the Deed, she was not "entitled" to hold the land within the meaning of 33(3)(b).

57 Given the circumstances of this case, in my view, it could not be argued that subsequent to November 2003, the applicant was anything else other than a trustee. In this circumstance, it is almost impossible to conceive that anyone other than the applicant would be trustee as she was holding the legal estate in the only trust property that existed (the property). She was bound to hold that property in the terms of the trust and equity would have enforced that trust. Thus, in my view, the fact that steps were taken to change the trustee and the fact that the trustee was actually changed is sufficient to enliven the section. It is difficult to imagine a situation of a person who is actually holding the property as trustee whether it be as constructive trustee or solely under the trust instrument itself that they are not "entitled" to hold the property as trustee unless of course they were forbidden by law from being a trustee. Under those circumstances, in my view, the applicant was "entitled" to hold the property as trustee, and the transfer was in order to vest the property in her. Therefore, even if Mr Hines be correct in that she was not validly appointed pursuant to the Trust Deed, in my view, s 33(3) is enlivened in any event.

58 In conclusion, I am of the view that the transfer was solely for the purpose of the change of trustee and while there may have been other events surrounding such a change including the auction, that was in fact the occasion rather than the cause for making the change. Further, I am of the view that the applicant has been validly appointed as a trustee and that the transfer came about in order to vest the property in the applicant as a result of Hennasham no longer being the trustee. In any event, it does not matter whether or not the applicant was validly appointed pursuant to the Trust Deed. In those circumstances, in my view, the respondent's Notice of Assessment (A147036) is varied so as to assess the subject transfer as exempt from duty.

59 At the conclusion of the hearing, Mr Grace requested to argue on the question of costs. Because there is considerable doubt as to whether this Tribunal has power to award costs bearing in mind the provisions of Part 19 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, it was agreed between the parties that leave would be given for either party to argue the question of costs should that party so desire.