89 The principal basis on which respondents' counsel proceeded was that Sealark as a paid vendor is a constructive trustee of what Sealark promised to sell. This is not a view which it is easy to take as, in the conceptual framework of the scheme, the agreement of Sealark to sell the land to Pacinette as trustee took place at an earlier stage than the arrangements involving Pacinette in its personal capacity; and those earlier arrangements were completed without producing any effectual passing of beneficial ownership.
90 In the concept of the scheme, beneficial ownership passed from Sealark at a later stage on the redemption of Sealark's units; it did not pass from Sealark under part performance of a contract to sell the land, or under an obligation to complete an agreement to sell the land; the steps taken under the agreement to sell had been perfected earlier with the beneficial ownership still with Sealark. The facts giving rise to a constructive trust cannot be isolated; the whole course of events must be regarded. When they are regarded, the passage of value from Pacinette as trustee to Sealark upon the redemption of units appears to me to be essential for any judgment or decision to impose a constructive trust upon Sealark. The constructive trust claim is ejusdem generis and does not conform to any well known classification. To my mind it is an impossible conclusion that Sealark incurred liability as a constructive trustee or that a constructive trust should be imposed on Sealark in a transaction in which it was paid with the bill of exchange which had no value except for its own acceptance in respect of which it did not receive indemnity; the substance is that it received nothing. If another view were taken and a constructive trust were imposed, it could not, in accordance with principle, be imposed except on terms that Sealark's entitlement to indemnity was to be satisfied as a condition of the imposition and enforcement of the constructive trust.
91 In the conjectural Equity suit by which Pacinette would hypothetically seek to enforce against Sealark a claim for an effectual assurance, presumably a registrable transfer, of Sealark's equitable interest in the land, the burden would be upon Pacinette to establish the enforceability in Equity not only of the final stage in which it dealt with itself as trustee and in the capacity of trustee dealt with Sealark, but of each intermediate stage in which the equitable interest had been dealt with, passed or repassed. This would involve Pacinette in its own right enforcing its transaction with Pacinette as trustee. As this was a self-dealing with the Deed of Trust did not authorise it is not likely that a Court of Equity would enforce it.
92 What is the constructive trust and what are the equities which the whole course of events gives rise to? The substance is that Pacinette in its personal capacity claims to enforce for its own benefit an agreement made by Sealark with Pacinette as trustee, and does so in circumstances where the only value which Pacinette in its personal capacity can claim to have given is a bill of exchange of value only because accepted by Sealark, and the only thing of value which Sealark can be said to have received is the same bill of exchange, without receiving the indemnity in respect of its acceptance which would be the only thing which would accord value in substance to the piece of paper. I do not see any equity in this. In my opinion no constructive trust in favour of Pacinette in its personal capacity should be imposed upon Sealark by the insubstantial course of events and the insubstantial passage of value to Sealark. There is no constructive trust and there is no obligation to assure the equitable interest to Pacinette. Equity would do nothing for Pacinette, there is no assignment and Sealark remains the owner of the equitable interest.
93 In Suncorp Insurance and Finance v. Commissioner of Stamp Duties [1998] 2 Qd R 285 Fitzgerald P (as his Honour then was) after an extensive review of authorities dealing with the nature of the interest of a beneficiary in an incompletely administered estate, and in funds held on trust, and in relation to the interest of a majority unit holder in a unit trust with a provision (see reference at p291 to cl 4) which divided the beneficial interest in the trust funds into units and conferred an equal interest in the trust on the holder of each unit, concluded in these terms at 301-302:
Principle and authority seem to me to indicate that a majority unitholder which has the right to have the trust deeds performed according to their terms, including the "Trust Funds" dealt with as each deed requires, and cause the realisation of each "Trust Fund" and distribution of the proceeds, has an equitable "estate or interest" in the Trust Fund and each of the "Trust Fund" "Investments". Further, since the appellant's "estate or interest" obviously falls short of full ownership, the minority unitholder, which also has the right to participate in the distributions, likewise has an equitable "estate or interest" in each "Investment" held on trust by the appellant for the unitholders.
94 This passage may have been the parent of the scheme followed in Chief Commissioner v. ISPT where the matter under consideration was the interest not of a majority unit holder but of a sole unit holder; even more clearly, the owner and the only owner of an equitable estate or interest in the trust fund and each investment in it. The decision in Chief Commissioner v. ISPT establishes that an effectual mechanism for transferring a beneficial interest in land can be devised which does not bring into existence either a written assurance or any memorandum which could satisfy ss 23C or 54A of the Conveyancing Act 1919. However it is an assumption of that mechanism that the arrangements so made are enforceable in Equity; that is that they can be perfected by obtaining an order of Court of Equity compelling the assignor to give a perfect assurance of the interest transferred, necessarily an assurance in writing and in the case of the Torrens land a registrable transfer. The availability of an equitable remedy which would compel giving such an assurance, even in the face of opposition by the assignor, is a real requirement, cannot be treated as fiction or formality, and must be capable of being tested by conjecturing what would happen in a hypothetical Equity suit brought by the assignee to compel performance. Equity does not assist a volunteer, and value given for the assignment, not merely in form but in substance, is an essential requirement for enforcement.
95 The contest in Chief Commissioner v. ISPT took a markedly different form to the present contest. The Chief Commissioner of Stamp Duties sought to maintain that, in an arrangement with a general similarity to the first part of the present transactions in which Sealark was to exchange its beneficial interest in land for units, the beneficial interest passed to the trustee (or passed to the trustee even though only for an instant). In the argument which prevailed, the beneficial interest remained with the original owner of the land, ISPT did not become the beneficial owner, there was no change in the beneficial ownership of an interest in land and ISPT was not required by s 44A(1) of the Stamp Duties Act 1920 to lodge a statement in the approved form, which by subs 44A(5) would be deemed to be an instrument chargeable with duty. Later dealings involving other unit holders divested the original land owner of the beneficial interest and vested it in those unit holders; but never in ISPT. Although it is easy to see in Chief Commissioner v. ISPT a precursor of measures taken in the present case, they are not exactly replicated.
96 Chief Commissioner v. ISPT was decided on facts which resembled the facts of the present case in a number of ways, but there are significant differences. ISPT paid the full purchase price to Coles Myer Property Investments (Meagher JA at 654-A-B) and the manner in which that occurred was that ISPT endorsed two cheques, each drawn in favour of ISPT by one of the superannuation fund trustees to which title was ultimately transferred; the cheques were endorsed to Coles Myer Property Investments, and there was no doubt that the cheques were met. There is no element in the facts in Chief Commissioner v. ISPT resembling the use made in the present case of a bill of exchange, and nothing analogous to the outstanding and unsatisfied entitlement of Sealark to indemnity for accepting the bill of exchange.
97 In his address to the facts Meagher JA at 653G to 654C said that the crucial facts were those at steps 5 and 6 of Mason P's judgment, that is (644B-D) the steps in which ISPT's written offer to purchase the property from Coles Myer Property Investments was accepted orally and paid for by endorsing back to Coles Myer Property Investments the cheque with which Coles Myer Property Investments had paid for its purchase of the units which (at a later stage) were redeemed. Meagher JA said:
The legal estate resided in Coles Myer Property Investments both before and after steps (5) and (6). Either s 23C and s 54A of the Conveyancing Act 1919 , applied to nullify the ordinary effect of those two steps, or they did not. If they did, the beneficial interest remained with Coles Myer Property Investments. If they did not, the beneficial interest also remained in Coles Myer Property Investments, in its capacity as sole unit holder in ISPT. In neither event is there any change of beneficial interest.
98 It will be seen that Meagher JA did not fully endorse either alternative but was of the view that if ss 23C and 54A of the Conveyancing Act 1919 did not relevantly operate, the beneficial interest remain in Coles Myer Property Investments in its capacity as sole unit holder. Meagher JA's conclusions are valid whether or not either transaction took place for value. As Coles Myer Property Investments paid and was repaid with its own cheque it was in no position to assert that the transactions did not take place for value.
99 In my opinion it is an unexpressed but unmistakable basis of the majority opinions in Chief Commissioner v. ISPT that all the relevant transactions, including the redemption of Coles Myer Property Investments units, took place for value. In this respect, and in others also, the reasoning cannot be readily applied to the present facts.
100 Another important difference is that title was transferred by Coles Myer Property Investments, by a transfer which undoubtedly took place for value to the transferor, to ISPT Nominees (a nominee of ISPT and not, curiously, of the superannuation fund trustees which paid for the land). The Court's consideration took place in the context of a transaction which had been perfected by transfer of registered proprietorship.
101 Another significant difference was that the curious element of the ultimate purchaser and the trustee of the unit trust being the same person, said to be acting in different capacities, has no place in the facts of ISPT. There was such an element in the facts of Suncorp Insurance and Finance v. Commissioner of Stamp Duties (1998) 2 Qd R 285, where its difficulties were remarked on by Davies JA at 305 and by Fitzgerald P at 289, text at note 6; his Honour said:
Further, although a trust is not a separate legal entity and a trustee is not a separate legal person in his, her or its representative capacity from his, her or its personal capacity and the appellant is both the trustee and the majority unitholder, it was accepted that the transactions were authorised by the trust deeds and were permissible and effective to achieve their purposes.
102 An even more fundamental distinction is that in Chief Commissioner v. ISPT the Chief Commissioner of Stamp Duties maintained, unsuccessfully, that the effect of the transactions was that ISPT as trustee of the unit trust became the beneficial owner of the property, or alternatively was its beneficial owner momentarily; and hence was required by s 44A(1) of the Stamp Duties Act 1920 to lodge a statement which would be chargeable with duty. The subject for judicial decision was whether ISPT ever became beneficial owner; the views of the majority establish that, in the parts of the transaction by which Chief Commissioner of Stamp Duties contended ISPT became the beneficial owner, Coles Myer Property Investments remained the beneficial owner. The parts of the events which caused the superannuation trustees to become beneficial owners were not the primary subject of judicial attention as they did so as a consequence of the redemption of units in a unit trust scheme, and there was an exemption from duty under Stamp Duties Act s 44(1)(a); see 660E.
103 There is no suggestion in the report of Chief Commissioner v. ISPT that the payment of $17,973,996.00 paid to Coles Myer Property Investment by two cheques each for $8,986,998 drawn by ISPT Propriety Ltd, Trustee of the Industry Superannuation Property Trust and ISPT Custodians Pty Ltd, trustee of the ISPT Coles Myer (Forster Property Trust No. 2) were not worth the sums for which they were drawn, or that the proceeds of the cheques were not duly collected by Coles Myer Property Investments.