MSAS Cargo International Pty Ltd & Anor v Agfa-Gevaert Ltd [2000] VSCA 197

2. Agfa-Gevaert Ltd. ("Agfa") supplies photographic and associated goods and services and imports photographic paper. Two companies, MSAS Cargo International Pty. Ltd. and MSAS Green Pty. Ltd., carry on business as customs agents and tariff consultants. Neither side has at any stage of the proceedings sought to distinguish between those two companies and I shall, as the judge did, treat them as one and call them "MSAS". In 1990 Agfa was paying large amounts of customs duty on a certain kind of photographic paper which it imported. In December of that year MSAS put a proposal to Agfa which, very broadly stated, was that it might be able to persuade the Australian Customs Service ("the ACS") that the paper fell within a tariff exemption and that it should attempt to do so on the basis that if successful it would be remunerated by receiving a percentage of the duty refunded. The proposal was accepted and MSAS obtained favourable determinations from the ACS, which resulted in large refunds of duty being made. These refunds were received by MSAS, which, after deducting from them its 25% fee together with certain minor expenses, paid the balance to Agfa.

5. At the end of September 1991 the ACS announced that it had changed its mind. Later it demanded of Agfa repayment of most of the refunds it had made. A deal of litigation ensued and ultimately, in about June 1998, Agfa paid the ACS a sum of money in excess of the duty that had been refunded. It sought to recover from MSAS, by proceedings in this Court, the amount so paid by it, and the judge held that it was in substance entitled to succeed in its claim. Against that determination this appeal has been brought.

8. The facts must now be stated in greater detail. First, something must be said about the administration of the Customs Act 1901 (Cwth) and the Customs Tariff Act 1987 (Cwth). The legislation provided for the making of "commercial tariff concession orders" ("TCO's") and goods falling within a TCO were either exempt from duty or subject to concessional rates of duty. The ACS had established a tariff classification advisory service which enabled application for a "Tariff Advice" to be made to the ACS to determine, among other things, the applicability of a TCO to the goods described in the application. The "Australian Customs Tariff Guide", produced by the ACS, dealt with tariff advices at some length, stating, among other things, that they might be reviewed for any reason by the ACS and if necessary cancelled; that they were valid for five years unless voided; that they might be voided at the discretion of the ACS; and that the reasons for voiding included a change in the view taken by the ACS of the classification of the goods.

11. What was achieved in the present case by MSAS was the issue of two tariff advices on 23 January 1991 determining that two TCO's applied to the kind of photographic paper in question. The obtaining of these advices had two results. In the first place, MSAS submitted one hundred claims for a refund of duty to the ACS, each claim relating to a separate importation, and in consequence of these claims MSAS received, between December 1990 and 4 April 1991, refunds of duty on behalf of Agfa totalling $864,837.35. In the second place, Agfa was able to import the paper duty free between 23 January and 30 September 1991 and thus saved more than $500,000, of which MSAS received no part. From the total refunded of $864,837.35, MSAS deducted its 25% fee together with costs incurred by it, a total of $237,591, and paid the balance ($627,246.35) to Agfa on 12 April 1991.

14. On 30 September 1991 MSAS was advised by the ACS by fax that, as a consequence of a review of the two tariff advices, they "are now void".

17. Before turning to events after this voiding of the tariff advices, I go back to the agreement that had been made between the parties to this litigation in December 1990. It was common ground before us, and also, it seems, below, that this contract was not one simply to be found in correspondence but was to be derived both from conversations and correspondence. The judge dealt with the principal conversation in terms which have not been criticised:

"On 12 December 1990 there occurred a meeting at Agfa's office. Present on behalf of Agfa were Robert Ross Tutty, its Hazardous Goods Import/Export Controller, John William Butler, its Logistics Manager, both of whom gave evidence and Trevor Prestwich from its technical section who was not called. MSAS was represented by Malcolm John Lawrence Rich, its Senior Customs Consultant and by its Melbourne manager who was not identified. There was little disagreement between the three persons who gave evidence as to what was said. I find that Mr Rich told those present that he had on behalf of another client persuaded ACS that colour photographic paper like that imported by Agfa fell within an exemption contained in two tariff classification orders. He said that, if he could obtain tariff advices for Agfa to the same effect, it could obtain a refund of duty paid in the preceding year and could import paper duty free in the future. Needless to say, the Agfa representatives were very interested in this proposal, notwithstanding that the fee of MSAS would be 25% of duty refunded plus certain costs and expenses. It was made clear to them that the fee was a success fee, in the sense that if no duty was refunded no fee, costs or expenses would be charged. They provided Mr Rich with some details of imports on which duty had been paid in order for him to prepare pro-forma refund applications but they emphasised that, before they would agree to the proposal, they wanted something in writing from ACS to confirm that all was in order. In cross-examination Mr Tutty agreed that what he had in mind in imposing this requirement was a tariff advice. This conversation was confirmed in the exchange of correspondence ... . It is clear that none of those present at the meeting gave a thought to the possibility that ACS would refund the duty and then change its mind. Nothing was said of this at the meeting nor in the correspondence. Likewise it is likely that no one contemplated the possibility that Agfa might find itself embroiled in lengthy and costly litigation in order to establish its entitlement to a refund of duty."

21. The exchange of correspondence referred to by the judge comprised two letters. The first was sent by fax by MSAS to Agfa on 14 December 1990 (the "header" also containing a message). This letter ran:

"Re: Photographic Paper Refunds/Customs Import Audit Following our meeting of 12 December, 1990 we wish to confirm details of our discussions covering the above referred subjects. Details are: PHOTOGRAPHIC COLOUR PAPER We propose to submit specifications of your products, along with research evidence uncovered by ourselves, to the Australian Customs Service (ACS). Should their decision verify our findings we will be able to present refund claims for all duty paid during the past 12 months. This service is offered on a fee for success basis. The fee being 25% of all duties refunded by the ACS. Should our proposal prove unsuccessful there will be no costs to your company whatsoever. The only other charges involved will be the applicable ACS processing fees plus associated costs incurred. Again these costs will be charged only if successful in our claims."

25. The letter went on to propose an "audit service", whereby import files would be perused by MSAS "to identify areas of both liability and saving". The second letter was dated 20 December 1990 and sent by Agfa to MSAS:

"Re: Photographic Paper Refunds We would like to proceed with your proposal for possible refunds from Australian Customs Service (ACS) for Photographic Colour Paper. We understand that should the submission to ACS not be successful there would be no charge to Agfa-Gevaert. If however the claim is successful your fee would be 25% of duties refunded by ACS. We believe you have already received technical data from Mr Prestwich, if you need any further information please contact the undersigned. We will not proceed at this stage with the Customs Import Audit but will review this option during the new year."

29. His Honour thought it probable that Agfa had given MSAS verbal authority to proceed in relation to the photographic paper duty refunds within a day or so of 14 December 1990. On 14 or 17 December, MSAS lodged two applications for a tariff advice, these being the applications which succeeded.

32. It is accepted by both counsel that, in considering the meaning of expressions used at the meeting of 12 December 1990 and in the two letters, sent on 14 and 20 December, we should, as we would if the contract was wholly to be found in correspondence, adopt an "objective" approach in the sense of ascertaining the intention of the parties from the spoken and written words used by them, considered in the light of the surrounding circumstances, as opposed to having regard to the actual subjective intention of either party. Mr Douglas, senior counsel for MSAS, conceded that the evidence of Rich that if he had thought that his company would receive a fee less than what he estimated at the time of the making of the agreement he "would not have termed the offer in that way", could not be used as bearing on the meaning to be assigned to "refunded".

35. Fortunately the present case is somewhat unusual in that the relevant expressions used in the two letters and at the meeting of 12 December are indistinguishable, as both sides accept. The case can be approached on the basis that what was stipulated for was a fee of 25% of all duties refunded by the ACS. What are the parties to be taken as having meant by "refunded"? His Honour answered this question as follows:

"When the negotiators spoke and wrote of duty refunded, the reasonable bystander would take them to be speaking and writing of sums which would be unconditionally and permanently returned by ACS to Agfa."

I think that in referring to "the reasonable bystander" his Honour was indicating that intention was to be ascertained objectively. MSAS contends that the judge was wrong in concluding that "refunded" meant permanently returned.

40. I go back to the narrative. After 30 September 1991 Agfa began to pay duty on imported photographic paper under protest. Unsuccessful attempts were made to have the ACS revert to the opinion on which the tariff advices had been based. Agfa then took proceedings in the Commonwealth Administrative Appeals Tribunal to review the decision of the Collector of Customs to accept the payment of duty made under protest. The Tribunal, constituted by Jenkinson, J., affirmed the Collector's decision. Agfa successfully appealed to the Full Federal Court, but a further appeal to the High Court led to the restoration of the decision of Jenkinson, J.: Collector of Customs v. Agfa-Gevaert Ltd.[1]. By this time it was December 1996. Almost exactly a year later the proceedings out of which this appeal arises were instituted, when the Regional Director of the ACS and the Commonwealth sued Agfa for the sum of $806,111.44 together with interest, relying on s.165 of the Customs Act, providing for recovery of duty erroneously refunded. The principal sum claimed represented all but $58,725.91 of the total duty refunded by the ACS, the amount claimed representing the refunds which had been made within the 12 month limitation period fixed by s.165(1). Agfa joined MSAS as a third party in this action, alleging that, if it was liable to repay $806,111.44 to the ACS, MSAS should repay to Agfa $237,591, being 25% of that sum, together with the expenses which MSAS had deducted. On 21 May 1998 a settlement was reached between the plaintiffs and Agfa whereby Agfa agreed to pay to the plaintiffs the total sum of $906,000, which sum has since been paid. It was the third party proceedings that went to trial, in February 1999, and resulted in the judgment now under appeal. I need not explain what led the judge to award, not the amount claimed, but a lesser amount ($220,327.86).

43. Agfa's statement of claim was initially prepared on the basis that the company was resisting the plaintiffs' claim. Once it had compromised that claim it amended its pleading. The amended pleading relies on both an express and an implied term of the agreement made with MSAS. The express term is alleged in paragraph 3. The pleading appears to rely, not on the use in the agreement of the word "refunded" and the contention that this means permanently refunded, but on the use at the meeting and in the two letters of the expression "fee for success" and similar references. It is alleged that it was agreed that if the services of MSAS proved unsuccessful there would be no costs whatsoever to Agfa. This seems clearly enough to have been treated at the trial as comprehending an allegation of a term, not only that no out-of-pocket expenses would be charged to Agfa, but also that it would not have to bear the cost of repaying duty that had been refunded without being exonerated by MSAS in respect of the 25% deduction which it had made. There seems to have been no suggestion at the trial, and there was certainly no suggestion on appeal, that the judge was travelling outside Agfa's case in treating it as setting up an express term, based on the word "refunded", that the fee of MSAS would be earned only in respect of permanent refunds.

46. The implied term alleged by Agfa was as follows:

"3A Further or in the alternative, it was an implied term or condition of the agreement that, in the event that ACS claimed repayment of any duty refunded to the Defendant and such duty was repaid by the Defendant to ACS or such claim was compromised by a payment from the Defendant to ACS, MSAAS Cargo and GE Green & Co would not be entitled to retain any fee, costs or expenses under the agreement."

50. Paragraph 13 of the amended statement of claim alleges liability to pay the amount claimed as money received to the use of Agfa. This was treated by the judge in his reasons as a claim for money had and received on the basis of a total failure of consideration. It was conceded below that this claim must fail on the basis that there had been no total failure. Counsel for Agfa argued before us that this concession was wrong and that the case fell within David Securities Pty. Ltd. v. Commonwealth Bank of Australia[2] as one in which the consideration could be broken up or apportioned. Mr Douglas could not suggest any reason why we should not entertain this submission notwithstanding the concession below. I think we may dispose of this appeal without determining the question raised by Agfa's new submission.

53. Turning to a distinct but related question, I observe that the claim for money had and received made in paragraph 13 was cast in terms wide enough to cover a claim based, not on failure of consideration, but on the obligation of an accounting party to account.

56. Having determined that "refunded" meant unconditionally and permanently refunded, the judge went on to consider the suggested implied term. This was pleaded on a "further or in the alternative" basis. The judge appears to have treated the allegation as one of an additional rather than an alternative term. At this point a difficulty emerges. Plainly the express terms of an agreement must be established before the implication of a term can be considered according to the principles laid down in BP Refinery (Westernport) Pty. Ltd. v. Shire of Hastings[3]. It was plain that the fee was to be earned if and only if duty was "refunded", and the judge had to decide between the rival contentions of the parties, Agfa saying that the word meant permanently refunded and MSAS saying that it meant no more than repaid, however temporarily. The judge had to resolve this contest. If he resolved it in favour of MSAS, it would be unthinkable that he should then imply a term such as that suggested in Agfa's paragraph 3A, in view of the manifest inconsistency. If, on the other hand, the judge accepted - as he did - Agfa's contention about the proper construction of "refunded", then the greater part of the implied term as derived by the judge would be otiose, as simply restating the effect of an express term on its proper construction. For the implied term was, according to the judge, a term "that, in the event that duty refunded was the subject of a demand under s.[165] and paid to ACS, no fee, costs or expenses are payable to MSAS in respect of that refund and, if paid, are refundable by MSAS to Agfa." The whole of the term down to "that refund" is, as regards fees, to the same effect as the express term, and it is clear that costs or expenses would, by the express terms of the agreement, be dealt with in the same way as fees.

59. His Honour's discussion of the suggested implied term is not, and could not sensibly be, a discussion on the assumption, for the sake of argument, that his view about the meaning of "refunded" was erroneous. For, as I have said, he had to consider and resolve the matter of the suggested express term before turning to implied terms.

62. In the course of discussion the Court referred counsel to what was said by Dawson and Toohey, JJ. in Breen v. Williams[4]. Their Honours there observed that, where there is no formal agreement, the actual terms must be inferred before any question of implication can arise, and that no question of an obvious implication arises because what is obvious will be an actual term as a matter of inference. This approach was not adverted to at the trial, nor was any great enthusiasm shown for it on appeal when it was raised by the Court.

65. In dealing with the meaning of "refunded" his Honour held that it meant "unconditionally and permanently returned". I would accept as a compendious express term simply "permanently refunded" on the understanding that this means that a refund is not "permanent" where repayment is demanded by the ACS and that demand is met. I shall not mention all Mr Douglas's arguments against the view taken by the judge. He argued strenuously that the judge had erred by concentrating on the quantum of the fee instead of first considering whether MSAS was entitled to its fee. What was said at the meeting and the two letters showed, he contended, that the fee was payable upon "success", in the sense of the obtaining of a tariff advice. He submitted that from that success two benefits flowed to Agfa, one being the obtaining of refunds and the other the ability to import further goods duty free. It was unlikely, he said, that contracting parties would stipulate that a fee should be payable upon the achievement of "success" and yet intend that, even if "success" was achieved and benefits thereby accrued to one party, the quantum of the fee payable to the other party might be nil. I do not find these arguments persuasive. The judge rightly concentrated, not on the quantum of the fee, but on the event in which the fee was to be earned (refund), which event would also quantify it. Mr Douglas contended that "refunded" meant simply "actually repaid". More than one hypothetical situation was put to him in discussion in which a refund might be made "erroneously" within the meaning of s.165 in circumstances very different from those of the present case; for example, duty might be refunded by clerical or other error quite unrelated to an erroneous view taken of the scope or effect of the TCO. He submitted in response that the nature of the error was irrelevant and that any actual refund would entitle his client to its 25% commission. He also relied on cases like Baltic Shipping Co. v. Dillon[5], where the plaintiff was unable to recover her fare, and Wincup v. Hughes[6], where no part of the premium paid in respect of an apprenticeship could be recovered where the master died in the course of the apprenticeship. I do not think these authorities are of any assistance in the present case.

68. I have said that I accept that by "refunded" the parties, on the objective approach, should be taken to have meant "permanently refunded" on the understanding that this means that a refund is not "permanent" where repayment is demanded by the ACS and that demand is met. This brings me to a point that was not properly exposed in the oral argument on appeal; notwithstanding this failure to expose I think we should in all the circumstances dispose of the point without seeking further submissions. The partially obscured question is whether duty is "refunded" where there is an actual refund and the duty is not later repaid as the result of a demand for repayment, or whether on the other hand duty is "refunded" where there is an actual refund and the duty is not later repaid as the result of a legally enforceable demand for repayment. The judge's reasons do not clearly and expressly draw this distinction, nor was it drawn in oral argument before us. It is perhaps implicit in paragraph 19 of those reasons, with its reference to duty as "potentially repayable to ACS within twelve months of an erroneous refund", that the judge took the latter view, and it is clearly implicit in paragraphs 30 and 31 of the reasons that Agfa's claim against MSAS would succeed only if the demand of the ACS for repayment was legally enforceable. In the appellant's written outline of submissions it is said that "it was necessary for his Honour to be satisfied ... that Agfa was legally obliged to repay those refunds". I think the preferable view of the meaning of "refunded" in the context of this case is that it was not intended that Agfa should, so to speak, buy a lawsuit and that duty was not "refunded" if the payment by ACS was followed by a demand for repayment which Agfa in fact met. But, as will become apparent when I deal with the seventh ground of appeal, I consider that, even if the ACS demand for repayment had to be legally enforceable for Agfa to succeed against MSAS, that requirement was met.

71. If, as I consider, the judge was right in his determination that by "refunded" the parties meant permanently refunded, the question then arises what additional term, if any, the contract should be taken to contain in relation to the matter of fees. If the only relevant term of the contract was that a fee or commission of 25% should be paid on duty permanently refunded, then it could be said that MSAS was an accounting party and that it had not accounted for the full amount of the refunds received by it, in that it had deducted from them sums to which it was not entitled, with the result that the amount of these deductions could be recovered by Agfa as money had and received. What did the agreement require where an actual refund was made which turned out not to be permanent in the sense in which I use that word, that is, as meaning refunds which are not repaid in consequence of a demand for repayment by the ACS? There are really only two views here worthy of serious consideration. The first is that MSAS was not entitled to deduct its commission and expenses until it was established that the refund was permanent. The second is that MSAS was entitled to make these deductions when accounting to its principal for the refunds received but that the deductions were to be provisional only, the amounts having to be disgorged by MSAS to Agfa in the event that the refunds proved not to be permanent. As the present case shows very well, the question whether a refund is permanent may not be ascertained for a very long time. Having regard to this, and having regard to the fact that in general one would expect a refund to be permanent, I think that the clear implication or perhaps (having regard to what was said by Dawson and Toohey, JJ. in Breen v. Williams) inference is that the agent was to be entitled to deduct its commission and expenses provisionally, subject to disgorging them if the refund proved not to be permanent.

74. I turn now to consider a number of other answers made by MSAS to Agfa's claim. Nothing need be said about ground 5 of the notice of appeal, which complained that the judge erred in failing to determine that the agreement contained an implied term that Agfa would pay MSAS a fee of 25% of all duties saved by Agfa on importation of photographic paper as a result of the tariff advices. This ground was by clear implication abandoned in the course of argument.

77. Next reliance was placed - and I am turning now to ground 6 - on a few lines of printed text which appeared at the foot of p.1 of the letter from MSAS sent by fax on 14 December 1990. With the aid of a lens one can ascertain that this text reads:

"Consolidated Services are subject to the Company's Conditions of Contract as printed on the reverse of the Company's International House Air Waybill if by air or the Company's Bill of Lading if by sea. Any other service is subject to the Company's Standard Trading Conditions. Copies available on request."

81. His Honour's strictures are well worth recording:

"The sentences are printed in very small typeface and are barely legible on the photocopy of the faxed document received by Agfa. This may have been the explanation for the fact that it did not occur to the lawyers for MSAS to rely upon the standard terms until its third amended defence was filed by leave given on 22 February 1999, some eight years after the contract was entered into. Having themselves overlooked these sentences, they now solemnly assert that Agfa should be taken to have contracted on the basis of these standard trading conditions. The terms were not mentioned at the 12 December 1990 meeting. A further difficulty was caused by the fact that no copy of the standard terms current in 1990 was able to be produced. This was overcome by the production of a contract made in 1988 between the firstnamed defendant and ICI Australia Operations Pty Ltd, which contract incorporated the then current standard terms."

85. Once MSAS succeeded in unearthing a copy of its "Standard Trading Conditions" his Honour was confronted with a farrago of conditions filling no less than eleven pages. In what follows I shall make the unpalatable assumption that these were incorporated into the present agreement. They nevertheless provide no answer to Agfa's claim. The conditions extracted from the mass are these:

"Save in respect of such loss or damage as referred to at sub-clause (B) above and subject to these Conditions, the Company shall not in any circumstances whatsoever be liable for indirect or consequential loss such as (but not limited to) loss of profits loss of market or the consequences of delay or deviation however caused. ... The Company shall be discharged of all liability whatsoever howsoever arising in respect of any service provided for the Customer or which the Company has undertaken to provide unless suit be brought and written notice thereof be given to the Company within six (6) months from the date of any event or occurrence alleged to give rise to a cause of action against the Company."

89. Both conditions were relied on at the trial, but before us only the second was invoked. His Honour rightly held that it did not avail MSAS, and that for two reasons. The first was that what was sought to be enforced in the third party proceedings against MSAS was not within the words "all liability whatsoever howsoever arising in respect of any service provided for the Customer or which the Company has undertaken to provide". The second is that suit was brought and written notice thereof was given to MSAS within six months from the date of the event or occurrence alleged to give rise to a cause of action. No cause of action arose until Agfa repaid the refunded duty. This was done on 11 June 1998, and the necessary steps were taken within the prescribed period.

92. Two more defences remain to be considered. The first (reflected in ground 7) is that the ACS was not entitled to recover the duty, since it had not been "erroneously refunded" within the meaning of s.165(1) of the Customs Act. It was said that "erroneously" did not comprehend an error made by the ACS as to whether goods of a certain class fell within a TCO. (In dealing with the recoverability of refunded duty under the Customs Act, and indeed elsewhere in his judgment, the judge, by a manifest slip, referred to s.157 instead of s.165.) His Honour held that the ACS was entitled to recover the refunded duty pursuant to s.165 and I agree with this conclusion. Mr Douglas referred to a number of decisions in support of his proposition that "erroneously" in s.165 was limited to refunds which had been made without or contrary to or in excess of the statutory authority to make them. The authorities relied on were Auckland Harbour Board v. R.[7], Commonwealth v. Hamilton[8] and Sandvik Australia Pty. Ltd. v. Commonwealth[9]. I do not find anything in these authorities to support the proposition and no other reason was advanced why the word "erroneously" in s.165 should not be viewed as covering the making of refunds under an erroneous view that a particular class of goods fell within a TCO. In any event, in the view which I take and have earlier expressed of the proper construction

of the agreement, duty is not "refunded" if the money paid by way of refund is later demanded back and that demand is complied with, whether or not the sum demanded back was legally recoverable by the ACS. But if, contrary to my view, duty is "refunded" where it is paid back unless there is a subsequent demand enforceable by action which is met, then in the present case the fact that demands enforceable by action and met were made means that there was no refund. The only argument put by the appellant on appeal, in contrast with the position which it took up before the judge, on whether the demand for repayment made by the ACS was legally enforceable was the contention that in this case duty had not been "erroneously" refunded within the meaning of s.165. Although it was argued below that Agfa had a defence of estoppel against the demands of the ACS, the judge's rejection of this contention has not been challenged.

96. Finally it was submitted - under ground 8 - that Agfa had repaid, not the whole amount of the refunded duty the subject of the claim against it ($806,111.44), but only about one-half of that sum, having regard to the fact that the plaintiffs were claiming, not only the sum of $806,111.44 but also interest from the date of the demands made on Agfa in January and February 1992. But in my opinion it was open to the judge on the evidence to find as he did that what Agfa paid in settlement of the plaintiffs' claim was the total duty demanded ($806,111.44) together with an additional sum of about $100,000 for interest and costs. This evidence comprised the written terms of settlement, the memorandum of advice of Agfa's solicitor, Mr Main, and the witness statement of Mr Main. I refer in particular to paragraphs 5 and 7 of the witness statement.

99. I am not persuaded that any of the attacks on his Honour's decision have been made out and I would dismiss this appeal.

110. I agree with Brooking, J.A. and wish for myself only to deal with one argument advanced for the appellant in support of its contention that "refunded" in the subject contract meant "actually repaid". That "actually repaid" was the meaning was said to be shown by s.165(1) of the Customs Act in its requiring a person to whom a "refund [of duty] has erroneously been made" to repay the amount "erroneously refunded" on demand made within twelve months from the date of "refund". In my view, that special statutory meaning was not imported into the parties' informal contract. It is out of place in the context in which the parties negotiated and agreed. Whilst, obviously, the parties negotiated against the general background of a customs regime that admitted of refunds of duty, none of those present at the meeting on 12 December 1990 had the concepts of s.165(1) in mind, for, as his Honour said in the passage quoted by Brooking, J.A., none gave thought to the possibility that the ACS would refund the duty and then change its mind.

[1] [1996] HCA 36; (1996) 186 C.L.R. 389.

[2] [1992] HCA 48; (1992) 175 C.L.R. 353 at 382-3.

[4] (1996) 186 C.L.R. 71 at 90-91. See too Hawkins v. Clayton (1988) 164 C.L.R. 539 at 569-70 per Deane, J.

[5] [1993] HCA 4; (1993) 176 C.L.R. 344.

[6] (1871) L.R. 6 C.P. 78.

[7] [1924] A.C. 318 at 326-7.

[8] [1992] 2 Qd.R. 257 at 263.

[9] (1989) 89 A.L.R. 213.