LOGAN J:
1 "Sham", said the High Court in Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 at 486, [46] (Equuscorp), "is an expression which has a well-understood legal meaning. It refers to steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences".
2 In so doing, the High Court cited with evident approval an earlier judgment of a Full Court of this Court, Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 (Sharrment). In Sharrment, each of the judges constituting the Full Court proceeded on the basis that it was the subjective intention of the parties to the transaction in question which was relevant (see Lockhart J at 456 and Beaumont J at 468-469, with each of whose judgments Foster J, at 473 agreed).
3 Later in time in the High Court was Raftland Pty Ltd v Commissioner of Taxation (2008) 238 CLR 516 (Raftland). In Raftland, in the application of this same understanding of the legal meaning of sham and on the basis of findings of fact made by the primary judge (Kiefel J, then a judge of this Court) as to the intentions of the relevant actors, those who were or controlled the parties to the relevant transactions, the High Court overturned the conclusions reached in the Full Court of this Court. The Full Court had looked to the presumed intentions not of those persons, but to that of their legal adviser (see in particular, as to the Full Court's error, Raftland at 531-532, [33]-[35] and 538-539, [58]-[59] per Gleeson CJ, Gummow and Crennan JJ).
4 In Raftland, at 531-532, [35], Gleeson CJ, Gummow and Crennan JJ referred, with approval, to remarks made by Mustill LJ (as his Lordship then was) in Hadjiloucas v Crean [1988] 1 WLR 1006 at 1019 (Hadjiloucas) as to several situations "where an agreement may be taken otherwise than at its face value". They endorsed the remark there made by Mustill LJ, citing another leading case in this field, Snook v London and West Riding Investments Ltd [1967] 2 QB 786 (Snook), that the term "sham", correctly employed, "denotes an agreement or series of agreements which are deliberately framed with the object of deceiving third parties as to the true nature and effect of the legal relations between the parties" (Hadjiloucas at 1019). As to the objective of deliberate deception present in his Lordship's remark, Gleeson CJ, Gummow and Crennan JJ cautioned in Raftland, at 532, [36], that the reference to such an objective necessitated some care in the employment of the term "sham". For, as their Honours allowed, the term may also be used in a less pejorative way which nonetheless admits of the taking of a transaction otherwise than on its face. Put another way, the presence of a fraudulent intention on the part of the parties to a transaction is not exhaustive of the mental element sufficient to ground a conclusion that a transaction may be treated as a sham.
5 Also to be remembered, and the observation by Gleeson CJ, Gummow and Crennan JJ in Raftland at 531, [33] is a reminder, is that a case where sham is alleged offers an example of an exception to the parole evidence rule in relation to agreements or instruments in writing. In this case, absent sham, the Millars, as the parties who had signed the loan agreement, were bound by its terms unless fraud, misrepresentation or some other circumstance which would move a Court of Equity to intervene was present: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165.
6 In the circumstances of the present case, my view, as to the disposition of the issue as to sham in this appeal, may be summarised by adapting a turn of phrase employed by Diplock LJ (as his Lordship then was), at 801, in Snook. My sympathy, like that of Deputy President Frost of the Administrative Appeals Tribunal (the Tribunal) and that of the primary judge, Griffiths J, who respectively affirmed the disallowance of the Millars' objections to their amended assessments and dismissed a statutory appeal by them from the Tribunal's decision, is for the Commissioner of Taxation. My judgment on this issue is for the Millars. That disposition is dictated, as it was in Raftland and Snook, by a finding of fact as to the intentions of a party to the material transaction, in this case the finding which the Tribunal made about the intentions of Mr and Mrs Millar, who were the relevant actors, at the time when they entered into the loan transaction in question.
7 The finding of fact is to be found at [69] of the Tribunal's reasons and is expressed thus:
I accept that the taxpayers themselves were unaware, at the time, that what was being created around them was a fiction. They believed what Mr Gould told them: that they were putting funds on deposit with HWBB, and that they were borrowing money from HWBB. That is despite the fact that, if they had taken a step back from what was taking place, they may well have realised that what Mr Gould was offering them was too good to be true.
In this passage, HWBB is Hua Wang Bank Berhad, an entity incorporated in Samoa and Mr Gould is Mr Vanda Gould, the Millars' longstanding and, as the Tribunal found, trusted accountant.
8 It was not an agent who executed the Loan Facility Agreement with HWBB on behalf of the Millars. They signed that agreement personally. In light of that, and the finding of fact that Mr and Mrs Millar believed, at that time, that they were borrowing money from HWBB, the legal understanding of sham, as explained and applied in Equuscorp, Sharrment, and Raftland in this country and in Snook and Hadjiloucas in the United Kingdom, dictated that the Tribunal should have concluded that the loan agreement was not a sham. The Tribunal's statement (at [59]) that, "In the circumstances, not only is the intention of the taxpayers not determinative, it is probably not even relevant", given the finding as to the Millars' intentions (at [69]), makes it patent that the Tribunal was operating under an error of law. It was this error upon which the Millars relied both before the primary judge and in this appeal. The authorities mentioned dictated, with respect, that the statutory appeal from the Tribunal ought to have been allowed.
9 In this case, the impugned transaction was, in form, a loan from HWBB to Mr and Mrs Millar. Related to and immediately preceding that loan was what was, in form, the placement on deposit with HWBB funds drawn from the superannuation fund controlled by Mr and Mrs Millar. The Commissioner's position was that, when the features of the loan agreement and deposit, the surrounding circumstances and the later behaviour of the parties were examined, it should be concluded that the loan transaction was a sham. What was revealed, so the Commissioner's position went, was just a façade behind which the Millars prematurely accessed their superannuation fund so as to augment funds borrowed from St George Bank to an extent necessary to purchase an apartment on Queensland's Sunshine Coast. The façade, so it was alleged, disguised what was otherwise the adverse fiscal consequence of this premature access.
10 A conclusion that a transaction is a sham is not an objective construct divorced from the particular intentions of the parties to that transaction. Nor, unless the impugned transaction has been entered into via an agent, is the agent's intention to be imputed to the principal. Further, in the absence of evidence admitting of a conclusion that they are coincident, the intention of a professional adviser is not to be ascribed to a client who is or who controls a party to an impugned transaction: Coppleson v Commissioner of Taxation (1981) 52 FLR 95 (Hunt J). Given the affirmative finding made by the Tribunal as to the Millars' intentions when entering into the impugned loan agreement, it was irrelevant that either HWBB or Mr Gould may have had different intentions. To conclude that the agreement was a sham, mutuality of intention that it be but a façade was necessary. In such cases, the relevant inquiry is always as to the intentions of the parties: Allsene Pty Ltd v Commissioner of Taxation (1989) 20 ATR 1688 at 1704.
11 In my view, a helpful description, consistent with the remarks by Gleeson CJ, Gummow and Crennan JJ in Raftland, at 532, [36], with respect to the requisite mental element which must be present in the parties to enable a conclusion that a transaction is a sham, is to be found in Antle v The Queen [2010] DTC 5172 at 7307, [20] (Antle), an appeal in a Canadian tax case, in which Noël JA (with whom Sharlow and Leyden-Stevenson JJA agreed) stated:
The required intent or state of mind is not equivalent to mens rea and need not go so far as to give rise to what is known at common law as the tort of deceit (compare MacKinnon v. Regent Trust Company Limited, (2005), J.L.Rev. 198 (CA) at para. 20). It suffices that parties to a transaction present it as being different from what they know it to be.
Given concessions by each party in the course of oral submissions on the appeal, I also took it to be common ground between the parties that Antle correctly stated the position on this subject. As found by the Tribunal, the Millars were not presenting the loan from HWBB as being different from what they knew it to be. And the same necessarily follows in relation to the related deposit with HWBB and the later rollover of the loan.
12 The Tribunal's finding as to the Millars' intentions when they entered into the loan agreement was immediately preceded by these statements by the Tribunal (at [67] and [68] of the reasons):
The taxpayers have not satisfied me that the documents taken at face value represent the real agreement between the parties. In particular, they have not satisfied me that the loan documents are anything other than a façade to disguise the reality of the arrangements, which is that the $600,000 is a distribution to them of money from their superannuation fund, with HWBB an intermediary. In summary, the taxpayers have not disproved sham.
I conclude, therefore, that in 2000 the taxpayers improperly accessed their superannuation funds to purchase the Sunshine Coast apartment. The documents that were created at the time were created for the purpose of providing a smokescreen to disguise the true position. The taxpayers did not truly place the $600,000 on deposit with HWBB and HWBB did not truly lend the $600,000 to the taxpayers. The money was transferred to Samoa to make it look as though it was being put on deposit, in the name of the superannuation fund, for the purpose of earning interest. The subsequent transfer of the identical amount to Australia was not an advance of loan funds but a return of the money sent over only three days before. The purported placing of funds on deposit with HWBB and the loan documentation are mere window dressing.
13 Of course it was, as the Commissioner correctly submitted on the appeal, for the Millars to prove before the Tribunal that the assessments in question were excessive: s 14ZZK of the Taxation Administration Act 1953 (Cth) (TAA). In this case, where a crucial transaction was impugned as a sham, it was for the Millars, in the discharge of the onus of proving that the assessment was excessive, to satisfy the Tribunal that it was not a sham: Richard Walter Pty Ltd v Commissioner of Taxation (1996) 67 FCR 243 at 258[G]-259[C] per Hill J. The error of law which the Tribunal made was in failing to appreciate that, having regard to the authorities mentioned above, Mr and Mrs Millar had done this, given the finding the Tribunal made at [69] as to their intentions at the time of borrowing. There is a disjunct between that finding and the preceding paragraphs quoted but that disjunct appears to me to be the result of a failure on the part of the Tribunal to appreciate that a conclusion that a transaction is a sham is not an objective construct or governed by that of an advisor who is not a "relevant actor". The statements made at [67] and [68] by the Tribunal are readily reconcilable with the finding at [69] by the error of law under which the Tribunal was operating.
14 There were many features of the dealings between the Millars and Mr Gould and their behaviour and that of HWBB after the impugned transaction and of the transaction itself which sounded an interrogative note about whether the transaction was indeed a loan. The Tribunal referred in detail to these in its reasons. I do not repeat them, because that cannot alter the result which must flow from the finding as to Mr and Mrs Millars' contemporaneous transactional intentions. Those features provided an ample basis upon which the Commissioner could responsibly allege that the loan transaction was a sham and assess accordingly; hence the sympathy expressed by me at the outset of these reasons. It was though for the Tribunal, in the whole of the circumstances as revealed by the evidence before it, which included the evidence of Mr and Mrs Millar and the absence of Mr Gould from the witness box, to make findings of fact. This the Tribunal materially did as to the Millars' intentions.
15 The finding made by the Tribunal as to the Millars' intentions is in quite different terms to that made by Windeyer J in concluding in his judgment in another case where sham was alleged by the Commissioner, Scott v Commissioner of Taxation No 2 (1966) 40 ALJR 265 at 279 (Scott No 2):
I should add that Mr Scott believed, and may have been advised by accountants, that by doing what he did he could somehow make appearance and pretence into reality. In this he was not dishonest or fraudulent, merely mistaken.
Scott No 2 is an example of an intention short of fraud, as later described in Antle, which is sufficient to ground a conclusion that a transaction is a sham. Perhaps more correctly, it is an example of a case where the taxpayer who, on the evidence, was found to have the intention described, failed to discharge the onus of showing that the impugned transaction was not a sham and thus failed to show that the assessment was excessive. That is not this case.
16 On the statutory appeal from the Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), a basis for upholding the Tribunal's decision was found in the relevant intention being that of Mr Gould, described by the Tribunal as the "puppet master". Puppet master or not, he did not, as agent, enter into the loan transaction on behalf of the Millars or make the deposit to HWBB from the superannuation fund. The same applies in relation to the subsequent rollover of the loan. If Mr and Mrs Millar were Mr Gould's puppets, they, as the Tribunal found as a fact, thought that the string he pulled meant that they were indeed signing up to a loan, which was the form of the transaction with HWBB. With respect, the error made by the learned primary judge was in assimilating this case with transactions effected via an agent. There, the agent's intention will bind the principal and were this the finding of fact I should agree with his Honour. But that is not this case.
17 The numerous authorities relied on by the Commissioner, be they Midland Bank plc v Wyatt [1995] 1 FLR 696 and others like it in the United Kingdom or, in Australia, Pickersgill v Tsoukalas [2009] SASC 357 about imputing the intention of another, be that on the basis of reckless indifference to the point of just going along with the acts of another or otherwise, are not relevant, given the crucial finding of fact as to the Millars' own intentions made by the Tribunal.
18 It is for the Tribunal to find the facts and, on any subsequent appeal to this Court, (subject to an exception not relevant in this case) those facts are an immutable given. Neither in the original jurisdiction where the statutory appeal was heard nor in an appeal therefrom to the Full Court is the appeal in any sense in the nature of a rehearing on questions of fact. The Commissioner's endeavour before the primary judge and on the further appeal before us to defend the outcome in the Tribunal on the basis that Mr Gould was an agent and it was his intention which was determinative was subversive of the nature of the statutory appeal. What the primary judge could not do in relation to finding facts, we also cannot. Of course the reasons of the Tribunal must be read as a whole and not narrowly and with an eye for error but, in the face of a finding as explicit as that at [69] of the Tribunal's reasons, it is not for this Court, on appeal, to seek to construct otherwise on the basis of some other passages in the Tribunal's reasons. The Commissioner never sought to support the allowance of the statutory appeal on the basis that the Tribunal's reasons were either illogical or inadequately expressed. They are not. It is just, with respect, that they have been influenced by a mistake of law as to the import in a case where sham was alleged of the finding as to the Millars' intentions.
19 On the basis that the loan and its rollover were not shams, no amount fell for inclusion in the Millars' assessable income by virtue of the operation of s 26AFB of the Income Tax Assessment Act 1936 (Cth) (ITAA1936) (which, subject to a discretionary value judgment made in place of the Commissioner by the Tribunal and adversely to the Millars, operated so as to include in their assessable income the "benefit" obtained by them from their Australian superannuation fund).
20 This then leaves for determination the other issue in the appeal dependent upon the absence of sham. This relates to interest withholding tax.
21 The issue arises because the Millars' interest liability under the HWBB loan for the period 2001 to 2008 was capitalised, i.e. progressively added to the loan's principal.
22 In the years in question, a borrower's liability to remit withholding tax to the Commissioner was governed by s 12-245 in Sch 1 to the TAA. That provided:
12-245 Interest payment to overseas person
An entity must withhold an amount from interest (within the meaning of Division 11A of Part III of the Income Tax Assessment Act 1936) it pays to an entity, or to entities jointly, if:
(a) the recipient or any of the recipients has an address outside Australia according to any record that is in the payer's possession, or is kept or maintained on the payer's behalf, about the transaction to which the interest relates; or
(b) the payer is authorised to pay the interest at a place outside Australia (whether to the recipient or any of the recipients or to anyone else).
23 The issue comes down to, "Did Mr and Mrs Millar, in terms of s 12-245, "pay" interest to HWBB in those years on each occasion it was capitalised"? The Commissioner contends for an affirmative answer on the basis that this is the effect of the section. The Millars contend that, where interest is capitalised, payment only occurs when the borrower transfers to the lender a sum in respect of that capitalised interest (or some part thereof).
24 In none of the years in question did the Millars actually pay interest to HWBB. But the meaning to afford the word, "pay" is not just a matter of looking to the text of s 12-245, having regard to statutory context and purpose. That is because of s 11-5 in Sch 1 to the TAA, which provides:
11-5 Constructive payment
(1) In working out whether an entity has paid an amount to another entity, and when the payment is made, the amount is taken to have been paid to the other entity when the first entity applies or deals with the amount in any way on the other's behalf or as the other directs.
(2) An amount is taken to be payable by an entity to another entity if the first entity is required to apply or deal with it in any way on the other's behalf or as the other directs.
The presence of s 11-5 means that, in the circumstances, the question becomes, "Were the Millars, as the 'first entity', applying or dealing with their interest liability under the loan either on behalf of HWBB, as the 'other', or as HWBB directed"? That is because, as a matter of construction, it is the Millars who are "an entity" and "the first entity" in terms of s 11-5 and HWBB is that "other entity" and "other's".
25 The Millars contend that it is a strain to language to say that a borrower applies an amount of interest, or deals with an amount of interest, when nothing occurs. They point, by way of contrast, to the former s 221YK(3)(a) of the ITAA1936, a predecessor to s 12-245 of Sch 1, which expressly deemed interest to be paid at the time when it was capitalised. It provided relevantly:
221YK Interpretation
…
(3) For the purposes of this Division:
(a) interest or a royalty shall be deemed to have been paid by a person to another person although it is not actually paid over to the other person but is reinvested, accumulated, capitalized, carried to any reserve, sinking fund or insurance fund however designated, or otherwise dealt with on behalf of the other person or as the other person directs;
26 The Commissioner also sought to gain comfort from the former s 221YK(3)(a). He embraced the approach of the learned primary judge. His Honour considered that s 11-5, in succession to s 221YK(3)(a), "[omitted] particular instances or matters and simply [relied] upon the more high level expression of the concept of an entity applying or dealing with an amount in any way on another entity's behalf or as the other entity directs. That broader concept encompasses the particular instances which were identified in the earlier legislation" (Millar v Commissioner of Taxation [2015] FCA 1104 at [182]).
27 The correct approach to statutory construction is not to begin with the past but rather to begin with the text of the present, see: Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [10], citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382, [69]-[71] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47, [47], being a recent reminder in that regard. To begin with the text of s 221YK(3)(a) is fraught with the risk of colouring the construction of the present text of s 11-5 with a priori assumptions based on the past text of s 221YK(3)(a).
28 Approaching the task of construing s 11-5 in this way, it strikes me as distinctly odd to regard Mr and Mrs Millar as having applied or dealt with any amount in any way either on behalf of HWBB or as HWBB directed. As a matter of ordinary language, s 11-5 looks to some act by one entity, be that an "application" or "dealing", of an amount on behalf or as directed by another entity so as to deem the latter entity to have been paid. As the Tribunal found, at [22], cl 5.4 of the Loan Facility Agreement permitted HWBB to capitalise any part of the interest which became due but was not paid by the due date. That this circumstance arose, whereby HWBB became contractually entitled, as a matter of discretion, to capitalise particular interest liabilities of the Millars, entails no act by them other than not making the interest payment by the due date. By no stretch of language could their failure to make the payment by the due date be regarded as either an application of, or a dealing with, an amount of interest. Such application or dealing with an amount of interest as occurred at all was by HWBB when it chose to capitalise a due amount of interest.
29 This result, derived from textual analysis of s 11-5, is supported by the approach to the meaning of "otherwise dealt with" in the former s 19 of the ITAA1936 by Sir Harry Gibbs in Brent v Commissioner of Taxation (1971) 125 CLR 418 (Brent), upon which the Millars relied. As that phrase appeared in that section, it was as part of a genus which included, inter alia, "capitalised", posited as alternatives to "actually paid", in application of which income would be deemed to have been derived. The case arose against the background of an arrangement between Mrs Charmaine Brent, the then wife of a fugitive from British justice, Ronald Biggs of the Great Train Robbery infamy, and a media company for payments to her in respect of information. So far as the s 19 issue in that case was concerned, the relevant facts were that Mrs Brent had not asked for the payment in question and the media company had refrained from making that payment. Having recited these facts, Sir Harry Gibbs observed, at 430:
However, even if the company had deferred payment at the request of the appellant, s. 19 would not have applied. Income is not "dealt with", under s. 19, when all that happens is that a debtor refrains from paying his debt at the request of the borrower.
30 When referring, at [22], to cl 5.4 of the Loan Facility Agreement, the Tribunal did not make a finding as to whether the Millars made any request of HWBB to capitalise the interest due. Be this as it may, the analogy with Brent is that an amount is not "dealt with" by a borrower when all that happens is that that borrower refrains from paying interest which is due.
31 The case cited by Sir Harry Gibbs in Brent in support of his conclusion, Permanent Trustee Co. of New South Wales Ltd v Commissioner of Taxation [1940] 2 AITR 109, at 110-111, was also relied upon by analogy by the Millars. That was another s 19, ITAA1936 case and Rich J held the section not to be applicable to circumstances where a person "got nothing except a new obligation to pay in exchange for an existing obligation to pay". It was submitted on behalf of the Millars that HWBB had, on the capitalisation of the interest, got nothing except a new liability to pay. The Commissioner's response to this, citing in support remarks made in Bank of New South Wales v Brown (1983) 151 CLR 514 at 523, coincidentally also by Sir Harry Gibbs, was that the mere fact that interest is added to principal and interest does not, in the ordinary course, create an entirely new debt. So much may be accepted but the point for present purposes really is that a person does not deal with an amount by doing nothing in respect of that amount.
32 The Millars also submitted that s 11-5 ought to be construed in their favour because s 12-245 had a penal operation, because, where applicable, it operated to block tax deductions to which they as a borrower would otherwise have been entitled. I am not at all sure that I should characterise a provision which added a qualification to a provision for a deduction as a penal provision. Even if it could be so characterised, if that were its unambiguous meaning having regard to text, context and purpose, that it had this character could not alter that meaning.
33 The Commissioner also cited his public ruling TD1993/146. Such pronouncements by an officer of the executive branch of government do not bind those charged with exercising the judicial power of the Commonwealth, a fortiori, for constitutional reasons, when that officer is the Crown's chief revenue officer and the Court is seized with a controversy about a person's liability to tax: Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32 at 40; Giris Pty Ltd v Commissioner of Taxation (1969) 119 CLR 365 at 378-379; MacCormick v Commissioner of Taxation (1984) 158 CLR 622 at 628; Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 at 153, [8]. These rulings have a role to play in public administration in the public signification of the Commissioner's views on a given subject but reference to them in the present context is but a distraction. That is not to say that propositions in such rulings might not, subject to the making of a responsible, independent value judgment by counsel, inspire the making of particular submissions on behalf of the Commissioner. If so, the Court must deal with those submissions.
34 The learned primary judge also observed (at [183]) of the relevant Explanatory Memorandum that it contained "nothing … to suggest an intention to change the substance of s 221YK(3)". With this I agree but, for reasons already given, that does not, with respect, mean that one construes s 11-5 through the prism of the now repealed s 221YK(3) of the ITAA1936. HWBB has capitalised the interest liabilities of the Millars and this would have been within the embrace of the text of s 221YK(3)(a). It is not within the embrace of the text of s 11-5. On this ground also, the Millars must succeed.
35 It may perhaps be that the omission from s 11-5 of particular examples such as "capitalised" has left a gap which would otherwise have not been present had the wording of the former s 221YK(3)(a) been retained. The result may be inconvenient to the Commissioner but there is no absurdity in the text of s 11-5. The courts are duty bound to look and give meaning to the text approved by parliament. If some other outcome is desired than that resultant from that text, it is the constitutional function of parliament, not the courts, further to legislate: see, for example, Gauntlett v Repatriation Commission (1991) 32 FCR 73 at 76-77 per Pincus J.
36 The conclusion reached by the Tribunal in relation to sham not only meant that it found it unnecessary to consider the withholding tax question but also an issue arising under Part IVA of the ITAA1936. Only the former emerged as an issue in the statutory appeal (because of a notice of contention by the Commissioner). That means that the Part IVA issue remains unresolved.
37 It follows that, while the appeal must be allowed, the judgment below set aside and the decision of the Tribunal quashed, the matter must be remitted to the Tribunal for the hearing and determination of the remaining issue. So much was accepted by the Millars. They submitted that, on that remission, the Tribunal ought to be differently constituted. Ordinarily, the constitution of the Tribunal on a remitter is a matter for the President of the Tribunal in his administration of that body. The point made for the Millars is that Deputy President Frost made very particular findings about what had occurred, which included findings about credit. As it transpired, one of these, relating to their intentions when signing the loan, was not unhelpful to them but there were others. Even though what flawed the outcome in the Tribunal was an error of law, this is, in my view, one of those exceptional cases in which it would be preferable to condition the remitter on the Tribunal being differently constituted. Lest it be thought otherwise, I add that this condition in no way is a personal reflection on the Deputy President, only a recognition that there ought to be no appearance of pre-determination in respect of the hearing and determination of the remaining issue. That will have to be conducted on the footing that the loan from HWBB was not a sham but otherwise it will be for the Tribunal as differently constituted to make its own findings of fact.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.