Pacific General Securities Ltd & Finmore Holdings Pty Ltd v Chief Commissioner of State Revenue

REASONS FOR DECISION 1 The Applicants are joint purchasers who entered into 5 agreements to purchase 5 neighbouring properties in Dee Why with different vendors. Each of the properties was owned by one natural person with the exception that one was owned jointly by 2 natural persons. The agreements to purchase were entered into pursuant to 5 options granted by the owners under 5 respective option agreements under which the Applicants had been nominated as purchaser by the original joint option holders. Each of the 5 purchase agreements was originally separately assessed to transfer duty under Chapter 2 of the Duties Act 1997. The Commissioner later issued a re-assessment notice to the Applicants aggregating the 5 purchase agreements under Section 25(1) of the Duties Act 1997. The notice required payment of additional duty of $42,740 plus interest of $3,555.43. The Applicants objected to the reassessment and that objection was denied. The Applicants then lodged an application for review with this Tribunal. This Tribunal made a decision on that application in favour of the Applicants, in Pacific General Securities Ltd & Finmore Holdings Pty Ltd v Chief Commissioner of State Revenue (No 2) [2004] NSWADT 74). The Commissioner appealed that decision. The Appeal Panel held there was error of law in the original Tribunal decision, in Chief Commissioner of State Revenue v Pacific General Securities Ltd & Finmore Holdings Pty Ltd (RD) [2004] NSWADTAP 51 and remitted the matter to the Tribunal as originally constituted, to to be determined without the hearing of further evidence. This is the decision of this Tribunal as remitted by the Appeal Panel. 2 The Tribunal member in the original decision was on leave after the Appeal Panel decision and in his absence, another Member was allocated without objection from any of the parties. Further Background Facts 3 Background facts to this matter were reported [at 6 to 10] of the Appeal Panel decision as follows: "6. This case arises out of the purchase of five neighbouring residential properties, situated consecutively in the same street in Dee Why. Two entrepreneurs, D and K had in March 2001 acquired from the five neighbours options to purchase the properties. They were interested in redeveloping the land as a mixed residential- unit and commercial development. In each case the contracts initially took the form of the grant of an exclusive option to purchase exerciseable by a set date, for which D and K paid an option fee. The vendors gave their consent to all development applications and agreed to provide whatever information was required and sign all documents "to enable applications for the development … of the Property to be made to the Local Council". 7. In June 2001 D and K made a development application to the local Council covering all five parcels (the estimated cost of the development was $3,000,000). On 30 August 2001 a joint venture agreement to develop the properties was entered into between a financier, Pacific General Securities Ltd (the first applicant for review and now the first respondent) and D and K and their associated companies (Pacific General having a 65% interest, and D and K 35%). The 35% interest was transferred to Finmore Holdings Pty Ltd (the second applicant for review and now the second respondent). The agreement is in evidence. It deals in detail with such matters as borrowings, the conduct of the development application, the joint venture proportions, the obtaining of option deeds, prior capital contribution and the conduct of the project. 8. On 28 and 29 November 2001 the taxpayers exercised the options with all five vendors. There were different prices paid for each of the five lots, $640,000 being the lowest, and $815,000 the highest (total paid $3,470,000). 9. Subsequently on 18 December 2001 the Council granted development approval. The instruments of transfer were assessed for duty separately between January and March 2002. As a result of compliance activity carried out by the Commissioner, the Commissioner issued a notice of assessment requiring payment of an additional $42,740 in duty applying the aggregation provision. 10. The above statement of the circumstances is drawn from the Tribunal's decision as well as an agreed chronology presented to the Appeal Panel by the Commissioner. (We have taken account of certain errors as to dates made in the Tribunal's reasons and noted by both parties to the appeal.)" 4 The notice of assessment of the Commissioner requiring payment of the additional $42,740 duty was a reassessment under Section 9 of the Taxation Administration Act 1996 and was dated 22 October 2002. It also included an assessment of interest on the additional duty at the rate of 12.84% in the amount of $3,555.43. 5 Further facts from the original evidence are referred to later in this decision. Legislation 6 This matter principally involves Sections 25(1) and 25(2) of the Duties Act 1997 which provide as follows: "25(1) Dutiable transactions relating to separate items of dutiable property, or separate parts of, or interests in, dutiable property are to be aggregated and treated as a single dutiable transaction if: (a) they occur within 12 months, and (b) the transferee is the same or the transferees are associated persons, and (c) the dutiable transactions together form, evidence, give effect to or arise from what is, substantially, one arrangement relating to all of the items or parts of, or interests in, the dutiable property. (2) Dutiable transactions are not to be aggregated under this section if the Chief Commissioner is satisfied that it would not be just and reasonable to do so in the circumstances." 7 Section 163F(1)(a)(iii) of the Duties Act 1997 is later referred to in this decision. Section 163F(1)(a) provides as follows: "163F(1) For the purposes of this Chapter, a person who: (a) acquires an interest in a land rich landholder: (i) that is of itself a significant interest in the landholder, or (ii) that, when aggregated with other interests in the landholder held by the person or an associated person, results in an aggregation that amounts to a significant interest in the landholder, or (iii) that, when aggregated with other interests in the landholder acquired by the person or other persons under transactions that form, evidence, give effect to or arise from what is substantially one arrangement between the acquirers, results in an aggregation that amounts to a significant interest in the landholder, or …" 8 Former Sections 41(3A), 41(3B) and 44B of the Stamp Duties Act 1920 are also referred to later in this decision. Those Sections provided as follows immediately prior to the commencement of the Duties Act 1997: "41(3A) Where there are executed two or more agreements for the sale or conveyance of separate parts of, or separate estates or interests in, any property in New South Wales: (a) pursuant to one transaction relating to the whole of the property, or (b) that together evidence or give effect to what is, substantially, one transaction relating to the whole of the property, one of the agreements shall be charged with the same ad valorem duty to be paid by the purchaser or person to whom the property is agreed to be conveyed as if it were a conveyance of the property agreed to be sold or conveyed for the total consideration for the whole of the property to which the transaction relates and shall be stamped accordingly and the other agreement or agreements shall be charged with the duty of $10 each. 41(3B) For the purposes of subsection (3A) of this section, where there are executed two or more agreements for the sale or conveyance of separate parts of, or separate estates or interests in, any property in New South Wales: (a) between the same parties or between different parties who are related persons (within the meaning of Division 30, as provided by section 99A (8)), and (b) within, or apparently within, a period of 12 months of each other, the agreements shall, unless the Chief Commissioner is satisfied that it would not be just and reasonable in the circumstances, be deemed to have been executed pursuant to one transaction relating to the whole of the property. 44B (1) If: (a) 2 or more transactions to which this Division applies, or (b) at least one transaction to which this Division applies and at least one instrument liable to ad valorem duty under this Act, are entered into or executed, as the case may be: (c) in relation to separate parts of, or separate estates or interests in, the same property, (d) between the same parties or between one party and other parties, where the other parties are not at arms' length from each other, and (e) within, or apparently within, a period of 12 months of each other, the transactions or the transactions and instruments, as the case requires, shall, unless the Chief Commissioner is satisfied that it would not be just and reasonable in the circumstances, be deemed to constitute a single transaction relating to the whole of the property concerned and ad valorem duty shall be chargeable on: (f) the unencumbered value of the whole of that property as at the date on which the change in beneficial ownership occurs, or (g) the total amount of the consideration in respect of the whole of that property, whichever is the greater. 44B(2) If ad valorem duty has been paid in respect of a transaction or instrument referred to in subsection (1), the duty payable under that subsection shall be reduced by the amount of duty so paid." Submissions 9 At the request of the Commissioner after the Appeal Panel decision, a directions hearing was held on 22 December 2004 and a hearing was held on 21 February 2005 in connection with this matter. In accordance with the order of the Appeal Panel, there was no hearing of any further evidence. The Applicants did not appear at the directions hearing but by phone, agreed to a hearing date being set. The Applicants appeared at the hearing but requested to be, and were, excused on the grounds that it was uncommercial for the Applicants to continue to be involved in proceedings where no further evidence was being tendered and in circumstances where the Applicants maintained their previous submissions. Before the departure of the Applicants from the hearing, the Applicants waived any right to claim denial of natural justice and the Commissioner waived any right to claim costs. At the hearing, the Commisioner orally presented parts of his written submissions and addressed questions raised by the Tribunal on those submissions. 10 The Commissioner made submissions on Section 25(1)(c) and Section 25(2) of the Duties Act 1997 and remission of interest, additional to the submissions made by the Commissioner in connection with the original Tribunal and Appeal Panel hearings. The Applicants relied on their submissions made in connection with the original Tribunal and Appeal Panel hearings. 11 In connection with Section 25(1)(c) of the Duties Act 1997, the Commissioner confirmed at the hearing on 21 February 2005 that it was not asserted by the Commissioner that the vendors were party to any arrangement within Section 25(1)(c), it being the Commissioner's submission that one arrangement of the Applicants relating to all of the items of dutiable property satisfied Section 25(1)(c). 12 In connection with Section 25(1)(c) of the Duties Act 1997, the Commissioner also indicated at the hearing on 21 February 2005 that it was not so much asserted by the Commissioner that the dutiable transactions together "form or evidence" what is, substantially, one arrangement relating to all of the items of the dutiable property but that the dutiable transactions together "give effect to or arise from" what is, substantially, one arrangement relating to all of the items of the dutiable property. 13 The lengthy submissions of the Commissioner and of the Applicants are not recited in this decision. Section 25(1) 14 It is not in dispute that sub-paragraphs (a) and (b) of Section 25(1) of the Duties Act 1997 are satisfied. The issue in respect to Section 25(1) is whether sub-paragraph (c) is satisfied in this case. Appeal Panel Decision 15 The Appeal Panel held that the Tribunal at first instance was in error of law in determining what is "substantially, one arrangement" for the purposes of Section 25(1)(c) of the Duties Act. The Appeal Panel [at 39] held: "39 The Tribunal erred in restricting its consideration in effect to the circumstances immediately surrounding the five transfers; and excluding from consideration such matters as the nature of the antecedent options, the context in which they were given, the nature of the development application and other matters such as the terms of the joint venture agreement". 16 The Appeal Panel held [at 45] that the Tribunal at first instance failed to have regard to the considerations listed at paragraph 45 of the Appeal Panel decision and referred to below. 17 Without the hearing of further evidence, I have had regard to the considerations which the Appeal Panel considered highly material to the ultimate determination as to whether the circumstances involve "substantially, one arrangement". The following are my findings on each of those considerations: (1) the grant of options in similar terms to D and K and that they were given in contemplation of a development application 18 Five written option agreements were entered into and dated 8 March 2001, in simialr terms. Each option agreement was made between the owner(s) of one of the 5 items of dutiable property the subject of this matter (each owner (and the joint owners collectively) herinafter called "vendor") as grantor and D and K as optionee, purchaser. Each option agreement referred only to the property the subject of that agreement. None of the option agreements contained any cross reference to any of the other option agreements or to any of the properties the subject of the other option agreements. Each option agreement contained the following provision except that the provision in one of the option agreements, namely, the one relating to 11 Hawkesbury Avenue, contained a few additional words and was numbered 12.1: "12. The Vendor will upon request by the Purchser consent to all applications, give all informaton and sign all documents reasonably required by the Purchaser to enable applications for the development (including building approvals) of the Property to be made to the local Council and/or competant authority but the Vendor shall not be required to incur any costs expenses or liabilities in respect to any such application…." 19 In each option agreement, "Property" was defined as the property the subject of that option agreement. Accordingly, the agreement by each vendor to consent to all applications for development was an agreement relating only to the vendor's property the subject of that vendor's option. 20 Each vendor's signature on that vendor's option agreement was witnessed by a witness different to the witness to the signature of each other vendor on that other vendor's option agreement. One of the option agreements had every page initialled by the vendor and that vendor's witness. The other option agreements did not. The footer at the bottom of each page of the respective option agreements was different for each agreement as follows: \NASHSYD3\Common\GN\101086\Docs\OptionAgreement-3 HawksburyAve#2.doc; C:\WINDOWS\TEMP\OptionAgreement-5 HawksburyAve#2.doc W:\20744\68850 Untitled:DesktopFolder:OptionAgreement-9 HawksburyAve C:WINDOWS\TEMP\OptionAgreement-11 HawksburyAve#4.doc 21 As the option agreements were each entered into on the same date, in favour of the same optionees (D & K), on similar terms, it is reasonable to infer that D & K were party to an arrangement relating to all of the items of the dutiable property since D & K were party to each of the 5 option agreements. However, it is not reasonable to infer the same for the vendors. Without more, there is no evidence to indicate that the respective vendors were even aware of the existence of the other option agreements at the time each vendor respectively entered into its option agreement. (2) the subsequent development application and the connection of the grantors of the options (still at that time the owners of the affected properties) to the development application 22 The development application related to development of all of the items of dutiable property the subject of the 5 options and was made by Property & Equity Developments Pty Ltd. As aforementioned, each vendor was required under its option agreement, to sign documents reasonably required by the purchaser to enable applications for the development of that vendor's property. Since the development application related to all of the items of the dutiable property, the consent to it by each vendor evidenced each vendor being a party to an arrangement with Property & Equity Developments Pty Ltd relating to development of all of the items of the dutiable property. However, it did not necessarily evidence each vendor being a party to any arrangement with the other vendors. The copy of the Application for Development tendered in evidence included a heading in print type on page 3, "Consent of All Owners". Under that heading, were the words "See attached documents" written by hand. Copies of those documents were not in evidence. This suggests that the vendors may not have collectively signed one instrument of consent to the development application. (3) the assignment by D and K of their interests 23 No instrument of assignment was in evidence. The agreed chronology of events presented at the Appeal Panel hearing noted that on 28 and 29 November 2001, D and K nominated the Applicants pursuant to Clause 2.24 of the option agreements and contracts were entered into between the vendors and the Applicants. (4) the degree of support given to the pursuit of a development application, as evidenced by their agreement to an extension of the option period 24 Clause 14.2 of the Joint Venture Deed made between Pacific General Securities Ltd and Property & Equity Developments Pty Ltd and D & K provided that: "Following the extensions of the Options effected in accordance with Clause 14.1 P&E and the Grantees shall use their best endeavours in negotiating with the owners of the Lots to obtain further exttensions of the periods for the exercise of the various Options. Any such extensions so negotiated shall be subject to the approval of the Board of Management and shall be by way of agreement entered into by the Participantswith such owners by and with the consent of the Grantees". It is clear from this Clause, that it was contemplated that each vendor would be the subject of a separate negotiation for the extension of its option period. This Clause corroborates the Applicants' submissions that the vendors were not a party to an arrangement for the transfer of all of the items of dutiable property. (5) the terms of the joint venture agreement 25 The Joint Venture Agreement was made between Pacific General Securities and Property & Equity Developments Pty Ltd and D & K. The vendors were not a party to the Joint Venture Agreement. Clause 2.4 of the Joint Venture Agreement provided that: " The Grantees do hereby acknowledge that they enterred into the Options and hold their interests in the Options together with their right, title and interest in the plans for and on behalf of P&E". The Grantees were defined in the Joint Venture Agreement as D & K together. Clause 2.4 of the Joint Venture Agreement evidenced that D & K and P&E were all a party to an arrangement relating to all of the items of dutiable property, at least since the date of the entry into the options on 8 March 2001. (6) the nearness of the date of execution of the contracts to the ultimate development consent, and the terms of the agreement of the purchasers to provide all relevant consents 26 (It is understood that the reference to "purchasers" in paragraph 45(6) of the Appeal Panel decision was intended to be "vendors".) The contracts for sale for the respective 5 items of dutiable property were dated 28 and 29 November 2001. The Warringah Council Development Consent for development of all of the items of the dutiable property was dated 18 December 2001, that is, 18 or 19 days after the dates of the 5 contracts for sale. Each option agreement contained the provision referred to in (1) above. (7) the nature and magnitude of the development application 27 The development application described the development as a proposed mixed use and multi unit residential development with proposed use of residential/ commercial at an estimated cost of $3 million. Conclusions on considerations 28 It is apparent from these considerations that each of the following was substantially one arrangement relating to all of the items of the dutiable property: a) the arrangement between D & K and P&E in connection with the 5 options (see (1) and (5) above); b) the arrangement between P&E and all of the vendors in the development application (see (2) above); c) the arrangement between Pacific General Securities Ltd, P&E and D & K in the joint venture agreement(see (5) above). 29 It is reasonably clear from the evidence that there must have been substantially one arrangement relating to all of the items of the dutiable property of or between the Applicants, and possibly others such as those who were a party to the Joint Venture Agreement, in connection with the purchase by the Applicants of all of the properties. 30 The evidence did not indicate that the vendors had involvement in any arrangement relating to all of the items of the dutiable property other than in relation to the development of all of the items of dutiable property as evidenced by the consent of the vendors to the development application. The evidence did not indicate that the vendors had any involvement in any arrangement relating to the purchase by the Applicants of all of the items of the dutiable property. There is no evidence to indicate that the respective vendors were necessarily aware of the existence of the other purchase agreements at the time each vendor respectively entered into its purchase agreement. As aforementioned, the Commissioner acknowledged that it was not asserted by the Commissioner that the vendors were a party to any such arrangement, it being the Commissioner's submission that the arrangement of the Applicants relating to all of the items of dutiable property satisfied Section 25(1)(c). 31 The Appeal Panel held [at 46 to 48] as follows (emphasis added): "46. The factors that fall to be considered by the Commissioner in applying s25(1) may well involve, entirely, a consideration of the conduct of the purchasers and their beneficiaries . 47. We do not see this as surprising. This legislation is directed to imposing tax on instruments of transfer with the liability borne by the transferee. The vendors are not at risk of tax. The objective of s25 is to treat differentially transferee(s) involved in transactions that have no connection sufficient to amount to an arrangement, as compared to those where there is a sufficient connection. Accordingly the conduct of primary significance will be that of the transferee(s). In any assessment as to whether there is 'substantially one arrangement' there will be questions of degree involved. Here the Tribunal erred in not having regard to a number of considerations that we consider arose on the facts as found and were material to the application of s25(1) 48. In other submissions the Commissioner analysed the meaning to be given to the words in s 25(1) which precede the words 'substantially, one transaction'. Those words are 'form, evidence, give effect to or arise from'. In light of our conclusions it is not necessary to examine these submissions". 32 In accordance with the guidance of the Appeal Panel, this Tribunal has looked at the evidence preceeding the dutiable transactions themselves and, after having regard to the considerations aforementioned, has found that substantially, one arrangement relating to all of the items of dutiable property existed (more than once) between different entities or persons as abovementioned. Having found this, although it was not necessary for the Appeal Panel to examine the words "form, evidence, give effect to or arise from" in Section 25(1)(c), it is now necessary for this Tribunal to do so, in order to determine whether on the evidence, Section 25(1)(c) applies in this case. Form 33 The expression "form" was used in Section 66ab(1)(b) of the Stamp Duties Act 1923 (SA), the subject of Jeffrey v Commissioner of Stamps (SA)(1980) 23 SASR 398 and Old Reynella Village Pty Ltd v Commissioner of Stamps (SA) (1989) 51 SASR 378 and in former Section 68(1)(b) of the Stamps Act 1958 (VIC), the subject of Clancy v Commissioner of Stamps (VIC)(1998) 40 ATR 99 and in Section 73 of the Finance (1909-1910) Act 1910 (UK) the subject of Attorney-General v Cohen and another [1937] 1 KB 478. Both Section 66ab(1)(b) and former Section 68(1)(b) referred to separate conveyances "that together form, or arise from, substantially one transaction or one series of transactions". Section 73 of the Finance (1909-1910) Act 1910 (UK) the subject of Cohen's Case referred to "the transaction thereby effected does not form part of a larger transaction or of a series of transactions". 34 In Clancy's Case, Bamford J [at 14] held that it could not seriously be denied that the 19 transfers the subject of that case did "together form or arise from, substantially one transaction or one series of transactions" and cited as authority, Attorney-General v Cohen and another [1937] 1 KB 478. Cohen's Case involved Section 73 of the Finance (1909-1910) Act 1910 (UK) which used the words "form part of a larger transaction or of a series of transactions" and did not use the words "arise from". Accordingly, Bamford J appeared to hold that the transactions "formed" one series of transactions. In Clancy's Case, among other things, the close familial relationship between of all of the parties to the transfers contributed to the inference that the 19 transfers formed "one series of transactions". 35 Jeffrey's Case involved 2 separate conveyances of 2 adjoining parcels of land from the same joint vendors, one to a mother and the other, to her son, pursuant to 2 contracts for purchase, the second of which was conditional on completion of the first. Jacobs J held that the 2 conveyances could be regarded as one series of transactions. From the interdependence of the second contract with the first, coupled with the common joint vendors and the close familial relationship between the 2 purchasers, this case appears to have involved the joint vendors and the mother and son collectively having all been involved in that one series of transactions. 36 The facts of Old Reynella were materially similar to those in this case. In Old Reynella, a purchaser of 17 neighbouring properties acquired the properties by 17 separate transfers from at least 16 different neighbouring owners, pursuant to contracts for sale and option agreements that had been assigned to the purchaser. Mohr J held in Old Reynella that the 17 separate transfers were "clearly part of a series of transactions within the meaning of s66ab". In doing so, Mohr J appeared to hold that the transactions "formed" part of one series of transactions. Section 66ab did not actually refer to "part of" one series of transactions. Section 73 of the Finance (1909-1910) Act 1910 (UK) the subject of Cohen's Case (which was relied upon as authority by Mohr J) did refer to "part of a …series of transactions" but Section 66ab did not. This aspect of the decision in Old Reynella is unclear. 37 The fact that circumstances materially similar to the present case were held in Old Reynella, to be within the meaning of then Section 66ab(1)(b) of the Stamp Duties Act 1923 (SA), does not automatically mean that Section 25 applies in this case. This is because of the difference in the words used in the two Sections. The Appeal Panel noted [at 31] that "The provision under notice here is, we recognise, differently expressed to the UK Finance Act provision and the South Australian provision". In addition, the structure of the then Section 66ab is different to Section 25, as described later in this decision. It is therefore necessary to first compare the differences in language used. The following comparison results in the difference in language used being insignificant. 38 The relevant words that were applied in Old Reynella were "series of transactions" whereas the expression used in Section 25(1)(c) is "arrangement relating all of the items or parts of, or interests in, the dutiable property". 39 The Appeal Panel [at 15] held that "on its face 'arrangement' has a wider connotation" than one transaction or one series of transactions". At the same time, however, Section 25(1)(c) includes additional words after "arrangement" that do not appear in the Old Reynella Section 66ab(1)(b), namely, "relating to all of the items or parts of, or interests in, the dutiable property". These qualifying words may make Section 25(1)(c) narrower than Section 66ab(1)(b). Jacobs J in Jeffrey's Case (which was also relied upon as authority by Mohr J in Old Reynella) compared Section 66ab(1)(b) with former Section 41(3A) of the Stamp Duties Act 1920 and in quoting former Section 41(3A), Jacobs J highlighted the words "the whole of the property" at the end of each of sub-paragraphs (a) and (b) of that Section and then stated the following: "That, as it seems, to me embodies narrower concepts than those which are found in sec. 66ab ..." 40 The concepts embodied in Section 41(3A) were, "one transaction relating to the whole of the property" and "substantially one transaction relating to the whole of the property". Although Section 25(1)(c) now uses the wider expression, "arrangement" in place of "transaction", like former Section 41(3A), Section 25(1)(c) still includes, at the end of the Section, words similar to "the whole of the property", namely, the words "all of the items or parts of, or interests in, the dutiable property". These words qualify the "arrangement" in a way that the expression "series of transactions" in Section 66ab(1)(b), the subject of Old Reynella was not qualified. 41 However, the Appeal Panel [at 44] still held as follows in respect to Old Reynella: "44. ….It is not, we agree, to be treated as a binding precedent. Its importance, as we have indicated, lies in its illustration of the appropriate approach to provisions such as s 25(1), especially where there is no significant involvement by the original vendors in the commercial objectives of the purchasers and their beneficiaries". 42 Newton v Federal Commissioner of Taxation 98 CLR 1 supports this. In that case, Lord Denning on behalf of the Privy Council [at 9] gave the following analysis on the facts in that case: "Was there an arrangement? The answer is "Yes". The whole complicated series of transactions must have been the result of a concerted plan; and the nature of the plan is to be ascertained by the overt acts done in pursuance of it" ( emphasis added ). 43 In other words, Newton's Case held that a series of transactions will be an "arrangement" if the transactions are the result of a concerted plan. 44 It is reasonably clear that the dutiable transactions in this case did together result, at least in part, from a concerted plan of the Applicants relating to their purchase all of the items of the dutiable property. That concerted plan of the Applicants would never have been realised without the involvement of the 5 vendors. The dutiable transactions therefore also resulted from the independent actions of the respective vendors. The fact that the vendors were not party to the concerted plan of the Applicants relating to all of the items of the dutiable property does not however prevent the dutiable transactions together from still being a result of that concerted plan of the Applicants. 45 The Appeal Panel [at 35] referred to 2 of the vendors being members of the same family. Apart from those 2, I do not find the relationship between the vendors as owners of neighbouring properties, alone to be sufficient to lead to an inference of interdependence between the contractual relationships of those respective vendors and third parties. This is so even when those third parties are the same, the contracts are on substantially similar terms and the respective transactions arise out of substantially similar circumstances. 46 The fact that each of the vendors consented to the development application relating to all of the items of the dutiable property did not evidence that the vendors were all party to one arrangement relating to all of the 5 agreements for transfer. The evidence did not indicate that the vendors were even aware of the other agreements for transfer or other earlier option agreements. 47 There was simply no evidence that from the perspective of each such vendor, that vendor's agreement for transfer was not entirely independent from each of the others. Even the Commissioner did not assert that the vendors were party to any arrangement within Section 25(1)(c). I find that the 5 dutiable transactions together did not form one arrangement between all of the parties to the 5 agreements because the evidence does not indicate that the vendors were collectively parties with the Applicants to one arrangement for the transfer of all of the items of dutiable property to the Applicants. 48 Notwithstanding this, it was the view of the Appeal Panel that it may not be necessary for transferors to be party to an arrangement for Section 25(1)(c) to apply and that the approach in Old Reynella was appropriate for provisions such as Section 25(1) (see paragraphs 44, 46 and 47). There was nothing in the facts of Old Reynella that indicated that, from the perspective of the respective vendors, the transactions were interdependent. 49 The view of the Appeal Panel that it may not be necessary for transferors to be party to an arrangement for Section 25(1)(c) to apply is supported by Section 163F(1)(a)(iii) in Chapter 4A of the Duties Act 1920. Section 163F(1)(a)(iii) uses similar language to Section 25(1)(c). Section 25(1)(c) refers to "dutiable transactions together form, evidence, give effect to or arise from what is, substantially, one arrangement" and Section 163F(1)(a)(iii) refers to "transactions that form, evidence, give effect to or arise from what is substantially one arrangement between the acquirers" (emphasis added). 50 On the one hand, it might be argued that the express inclusion of the words "between the acquirers" in Section 163F(1)(a)(iii) compared to the absence of similar words ("between the transferees" relevant to Chapter 2) from Section 25(1)(c) indicates that the legislature did not intend additional words of the kind included in Section 163F(1)(a)(iii) to apply in the context of Section 25(1)(c). That is, that the legislature intended Section 25(1)(c) to be narrower than Section 163F(1)(a)(iii), by impliedly requiring all parties to the dutiable transactions to be a party to the one arrangement (and not just the transferee(s)). However, this interpretation would result in the word "arrangement" in the 2 Sections having different meanings. As there is nothing clear to indicate that the legislature deliberately intended to use the same word with different meanings, the presumption that the same meaning is intended should prevail (Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452). 51 With the same meaning being attributed to "arrangement" in each of Sections 25(1)(c) and Section 163F(1)(a)(iii), the express inclusion of the words "between the acquirers" in Section 163F(1)(a)(iii) compared to the absence of similar words from Section 25(1)(c) indicates that the legislature intended the word "arrangement" to be broad enough to encompass an arrangement of the kind referred to in Section 163F(1)(a)(iii) as well as other arrangements. 52 Following the guidance of the Appeal Panel, and the approach taken in Old Reynella, and for the other reasons aforementioned, I find that the 5 dutiable transactions did together "form" substantially one arrangement relating to all of the items of dutiable property within the meaning of Section 26(1)(c). That one arrangement was an arrangement of or between the Applicants to purchase all of the items of the dutiable property. Evidence, give effect to or arise from 53 Since I have found that the dutiable transactions together did "form" substantially one arrangement relating to all of the items of dutiable property within the meaning of Section 25(1)(c), it is not necessary for me to consider the meaning of the expressions "evidence", "give effect to" or "arise from" in that Section. Conclusion on Section 25(1) 54 As it is not disputed and it is clear from the evidence that Sections 25(1)(a) and 25(1)(b) apply, and as I have found that Section 25(1)(c) is satisfied, I find that Section 25(1) applied in this case. Section 25(2) 55 In Giris Pty Ltd v Federal Commissioner of Taxation (1968) 119 CLR 365, in the context of a general discretion of the Federal Commissioner of Taxation under Commonwealth tax legislation, Windeyer J held [at 384] that "I assume he (the Commissioner) is to be guided and controlled by the policy and purpose of the enactment, so far as that is manifest in it" and that the Commissioner should act "honestly, consistently, and, as he thinks, in accordance with the legislative purpose" (emphasis added). 56 Section 33 of the Interpretation Act 1987 also requires that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to a construction that would not promote that purpose or object. Purpose of Section 25 57 The purpose of Section 25 is not manifest in the Duties Act 1997. Section 3 of the Duties Act provides: "This Act creates and charges a number of duties". Is the purpose of Section 25 simply as part of the charging provisions of Chapter 2 of the Duties Act 1997, or is it as an anti contract-splitting provision or an anti transaction-splitting provision or a combination of any or all of these or something else altogether? 58 Section 34 of the Interpretation Act 1987 permits consideration of material not forming part of an Act, among other things, to confirm that the meaning of a provision in an Act is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act and the purpose or object underlying the Act) or to determine the meaning of the provision if it is ambiguous or obscure. 59 The Explanatory Note to the Duties Bill which became the Duties Act 1997 included the following: "The object of this Bill is to replace a number of existing stamp duties charged under the Stamp Duties Act 1920 with the following duties: a transfer duty on the transfer of, or on specified transactions that deal with, property that is specifically identified in the Bill as dutiable property (this being supported by special anti-avoidance provisions )…." ( emphasis added ) 60 In their respective Second Reading Speeches to the Duties Bill which became the Duties Act 1997, the then Minister for Corrective Services, Mr Debus in the Legislative Assembly on 12 November 1997, and the then Treasurer, Mr Egan in the Legislative Council on 26 November 1997, each said: "The primary purpose of the Bill is to replace the current Stamp Duties Act with simple, clear and equitable legislation drafted in contemporary language and modern style…The bill replaces all existing stamp duties with the following duties: transfer duty; including special anti-avoidance provisions; marketable securities duty; lease duty…The transfer duty chapter continues to impose duty on dutiable transactions such as agreements, transfers and declarations of trust. However, for the first time, a list of dutiable property is provided, giving taxpayers and their advisers certainty in regard to property transactions that attract duty…"(emphasis added). 61 The predecessor to the Duties Act 1997, namely, the Stamp Duties Act 1920, was similar but different to the Duties Act. Among the differences is that in the context of Chapter 2 duty, relevantly, the Stamp Duties Act 1920 originally imposed stamp duty only on "instruments" of conveyance and on "instruments" of agreement for sale or conveyance. Over time, the Stamp Duties Act 1997 was amended to deal specifically with certain practices for reducing or avoiding such instrument duties. In 1978, the Stamp Duties Act 1920 was amended by the Stamp Duties (Amendment) Act 1978 to insert Section 41(3A). Its purpose was as an anti contract-splitting provision in the context of written instruments. The Explanatory Note and Second Reading speeches to the Bill which introduced Section 41(3A) were quoted by Spender J in Davis v Commissioner of Stamp Duties (NSW) (1995) 30 ATR 405; 95 ATC 4245 as follows: "Section 41(3A) was introduced into the Act by the Stamp Duties (Amendment) Bill 1978. The explanatory note to the bill stated the objects which relevantly were: (b) to abolish the practice known as "contract splitting" whereby the incidence of ad valorem duty payable in respect of the conveyance of property is reduced by apportioning the consideration between 2 or more agreements for the sale or conveyance of the property… In his second reading speech on 12 December 1978 the treasurer, Mr Renshaw, said: 'I turn now to the provisions designed to overcome certain stamp duty avoidance schemes. The stamp duty on conveyances is levied on a sliding scale with the highest rate of duty, $2.50 in each $100, applicable to contracts in excess of $250,000. There is clear evidence that increasing use is being made of contract splitting to avoid the full duty charged. The loss of duty involved has been assessed at a minimum of $1 million annually and the use of the device is growing. The scheme operates in the following way: the purchaser of the property, with the co-operation of the vendor, enters into and executes a number of agreements for proportionate parts of the property being purchased, each part being of an amount that attracts the lower rate of duty. For example A agrees to purchase a property from B for $104,000 and by arrangement between the parties eight contracts are drawn up and executed, each for a one eighth part with a consideration of $13,000. Each agreement would be subject to approximately $162 stamp duty making $1300 in all. However, if only one agreement had been executed to buy the property which is all that is legally required the duty would have been $2340. The resulting loss to the revenue as a consequence of the arrangement would have been $1040 ... To meet this situation new subs (3A) and (3B) are to be added to s 41 of the principal Act ...'". 62 In 1987, Section 44B was introduced into the Stamp Duties Act 1920 by the Stamp Duties (Amendment) Act 1987. Former Section 44B was never amended. In his Second Reading Speech in the Legislative Assembly on 26 May 1987, the then Minister for Finance, Mr Debus said: "As I have already said, the major aim of this bill is to eradicate devious and artificial tax avoidance arrangements". The outline of the Bill in the Second Reading Speech stated that Schedule 1 of the Bill "inserts a new Division 3A dealing with Transactions Otherwise than by Dutiable Instrument and makes consequential changes" and opposite Section 44B were the words: "This section prevents 'contract splitting'". The heading to Section 44B was "Splitting of Transactions". From all of this, the purpose of former Section 44B of the Stamp Duties Act 1920 was as an anti-avoidance, anti contract-splitting, anti transaction-splitting provision. 63 From the outset, under Chapter 2, the Duties Act 1997 has imposed stamp duty in respect to dutiable transactions (as defined) irrespective of whether or not the transaction is effected by a written instrument or by any other means (Section 10 of the Duties Act 1997). As such, it is understandable that Chapter 2 of the Duties Act 1997 does not contain a direct equivalent of former Section 41(3A) of the Stamp Duties Act 1920. 64 If more than one dutiable transaction is effected by one instrument, absent the operation of Section 25(1) of the Duties Act 1997, each dutiable transaction is separately chargeable to duty under the Duties Act (Sections 8, 9, 13, 19 and other Sections of the Duties Act 1997). Section 294 of the Duties Act does not derogate from this because of Section 10. This is different to the position that pertained under the Stamp Duties Act 1920. Under the Stamp Duties Act 1920, only if former Section 17 of the Stamp Duties Act 1920 applied would more than one transaction effected by the one instrument be separately chargeable with duty. 65 The Commissioner pointed out in his submissions that Section 25 is broader than former Sections 41(3A) and 44B of the Stamp Duties Act 1920 in the respect that Section 25 extends to transactions involving "separate items of dutiable property" whereas Sections 41(3A) and 44B did not (Davis' Case). This is clear. However, Section 25 is also narrower than former Sections 41(3A) and 44B of the Stamp Duties Act 1920 as the following indicates. 66 Each of former Sections 41(3A) and 44B of the Stamp Duties Act 1920 could apply where transferees were not associated persons, whereas Section 25 can not (Section 25(1)(b)). Even in circumstances where two or more dutiable transactions together form, evidence, give effect to or arise from substantially, one arrangement relating to all of the items or parts of, or interests in, the dutiable property, Section 25 can not apply to aggregate those dutiable transactions unless the transferees are the same or are associated persons (as defined). This is because Section 25(1)(b) must be satisfied for Section 25 to apply. The reason for this policy change in Section 25 of the Duties Act 1997, as compared to the position that pertained under the Stamp Duties Act 1920, is not obvious. 67 This analysis points to there being differences between former Sections 41(3A) and 44B of the Stamp Duties Act 1920 and Section 25 of the Duties Act 1997. However, there is still more in common between Section 25 and former Section 44B than different. In terms of structure, like Section 25 (in subsection (2)), former Section 44B contained an over-riding discretion to the application of the provision. Relevant to former Section 41(3A) of the Stamp Duties Act 1920, former Section 41(3B) also contained a discretion, but that discretion did not extend to the entire application of Section 41(3A). It only extended to an aspect of it. An over-riding discretion of the kind in Section 25 and former Section 44B also did not exist in the stamp duty legislation in the UK the subject of Cohen's Case or in the South Australian stamp duty legislation the subject of Jeffrey's Case and Old Reynella or in the stamp duty legislation in Victoria the subject of Clancy's Case. Accordingly, the stamp duty provisions the subject of those cases involved structure different to the structure of Section 25 of the Duties Act applicable in this case. As such, it does not follow that where particular factual circumstances fell within the ambit of the stamp duty provisions the subject of those cases, the same circumstances occurring in this State would necessarily fall within Section 25 of the Duties Act 1997. 68 Section 25 aggregates transactions that occur and former Section 44B aggregated transactions that occurred: a) within 12 months; b) between certain persons; c) in certain circumstances, subject to a general discretion of the Commissioner. As aforementioned, the description of the persons who must be party to the transactions for the respective Sections to apply, differ, as so too do the circumstances. However, I do not find that the differences in language used in the two Sections to be sufficient to indicate an intention that Section 25 displace the character of former Section 44B. 69 The differences in language used in Section 25 as compared to former Section 44B include, as aforementioned, that Section 25 can apply to transactions involving "separate items of dutiable property" whereas Section 44B (and Section 41(3A) did not. This is clear language overcoming Davis' Case. 70 Former Section 44B aggregated transactions by deeming them, where the other conditions of Section 44B were satisfied, to constitute a single transaction relating to the whole of the property concerned, unless the Commissioner was satisfied that it would not be just and reasonable in the circumstances. Section 25 aggregates dutiable transactions, where the other conditions in Section 25(1) are satisfied, that together form, evidence, give effect to or arise from what is, substantially, one arrangement relating to all of the items or parts of, or interests in, the dutiable property, unless the Commissioner is satisfied that it would not be just and reasonable in the circumstances. I do not find that the difference in structure or language used in Section 25 in this respect, as compared to the former Section 44B, is sufficient to represent any significant shift in the underlying purpose of the respective Sections. Section 44B was directed at "transaction-splitting". 71 There is nothing in the Explanatory Note to the Duties Bill 1997 or in the Second Reading Speeches to the Duties Bill 1997 that indicates that a different policy was intended to be introduced in the context of Section 25 as compared to its predecessor Section 44B of the Duties Act 1997. To the contrary, both of the Second Reading Speeches to the Duties Bill 1997 abovementioned indicated that the new transfer duty chapter would continue to impose duty on dutiable transactions such as agreements, transfers and declarations of trust and the Explanatory Note to the Bill and the Second Reading Speeches each also referred to transfer duty supported by or including "special anti-avoidance provisions" (emphasis added). 72 It was the Commissioner's submission that the primary purpose of Section 25(1) was as a charging provision, to collect duty on what is substantially one arrangement without taking account of thresholds if the transactions were assessed separately. However, this submission disregards sub-sections (a) and, in particular, sub-section (b) of Section 25(1). It is only where all three subsections ((a), (b) and (c)) of Section 25(1) are satisfied, that Section 25(1) can apply. Given that sub-section (b) requires that the transferees be the same or associated persons, it can not be correct that the primary purpose of Section 25(1) is as a charging provision to collect duty on what is substantially one arrangement. This is because, as aforementioned, non-associated transferees may, just as equally as associated persons, enter into transactions that are together, substantially, one arrangement, and yet, Section 25(1) will not apply since Section 25(1)(b) requires that the transferees be the same or associated persons. 73 In light of: 1) the Second Reading Speeches to the Duties Bill referring to "The transfer duty chapter continues to impose duty on dutiable transactions", 2) the Explanatory Note and the Second Reading Speeches to the Duties Bill each referring to transfer duty supported by or including "special anti-avoidance provisions", 3) the absence of anything in the Explanatory Note or the Second Reading Speeches to the Duties Bill 1997 indicating that a different policy was intended to be introduced in the context of Section 25 as compared to its predecessor Section 44B of the Duties Act, and 4) despite the differences between Section 25 of the Duties Act 1997 and former Section 44B of the Stamp Duties Act 1920, the significant degree of relevant similarity, both as to structure and content, between Section 25 of the Duties Act 1997 and Section 44B of the Stamp Duties Act 1920, 74 I find the purpose of Section 25 is, except where from the words used, the position is clearly to the contrary, to operate so as to continue the substantive approach to aggregation of dutiable transactions as it applied immediately prior to the Duties Act 1997. That is, Section 25 can operate as a charging provision where more than one dutiable transaction is effected by one instrument and as an anti transaction-splitting provision where more than one dutiable transaction is effected by more than one instrument or by any other means. Application of Purpose 75 The 5 dutiable transactions the subject of this matter were not effected by one instrument and the evidence does not establish that the 5 dutiable transactions were involved in any "transaction-splitting". The evidence does not support that it would have even been possible to effect the 5 dutiable transactions together as substantially one transaction relating to all of the items of dutiable property. Even if the Applicants intended that the dutiable transactions, together, be combined into substantially one transaction with all of the vendors relating to all of the items of dutiable property, it is not at all clear or substantiated from the evidence that the vendors collectively, would have been willing to participate in such an arrangement. The Applicants submitted that the nature of the arrangements was such that it would have been virtually impossible for the Applicants to have acquired all of the items of dutiable property from the vendors in any manner other than the manner in which the items were actually acquired. Nothing in the evidence contradicts this. 76 It has already been found (and the Commissioner has not asserted to the contrary) that the vendors were not involved in one arrangement relating to the purchase by the Applicants of all of the items of dutiable property. The 5 agreements for transfer could not have even been created without each vendor. As such, if all of the vendors were not collectively involved in one arrangement relating to the purchase by the Applicants of all of the items of dutiable property, there could not have been any "transaction-splitting" arrangement. I find on the evidence in this case that the dutiable transactions were not part of a transaction-splitting arrangement. 77 The Appeal Panel did not conclude that the conduct of the transferees (or the purchasers and their beneficiaries) was the only conduct relevant in applying Section 25. The expression "may well" as used by the Appeal Panel [at 46] is not definitive and the expression "primary significance" as used by the Appeal Panel [at 47] is not exclusive. In any event, the observations of the Appeal Panel were made in the context of what the Appeal Panel was considering, namely, Section 25(1). The Appeal Panel did not consider Section 25(2) of the Duties Act 1997. That Section was left for this Tribunal to consider, if appropriate (see [53] of the Appeal Panel decision). 78 The Commonwealth tax cases cited by the Commissioner related to discretions involving the expression "reasonable" or "unreasonable" but not the expression "just and reasonable". The Commissioner did however also cite Chief Commissioner of State Revenue v Lee 2000 ATC 4600, a case involving the expression "just and reasonable". 79 Commissioner of State Taxation (WA) v Smith (1978) 9 ATR 127 was also a case involving the expression "just and reasonable". That case considered Section 49(2)(b) of the Death Duty Assessment Act 1973 (WA) which excluded from the operation of Section 49(1), certain debts where "the Commissioner is satisfied that it would not be just and reasonable in the circumstances that the subsection should apply". In that case, Burt CJ (with whom Smith and Wickham JJ agreed) held [at 131] as follows: "Many may say that justice and reasonableness are concepts necessarily foreign to a taxing Act, but for the purposes of such an Act that view cannot be accepted. For present purposes the Act, I think, assumes that it is both just and reasonable that tax be paid ...unless there be "circumstances" which satisfy the Commissioner of the contrary". 80 There was nothing in Smith's case that indicated that Section 49 was or was intended to be part of an anti-avoidance provision. 81 The provision at issue in Chief Commissioner of State Revenue v Lee 2000 ATC 4600, did clearly involve anti-avoidance provisions in Division 30 of Part III of the Stamp Duties act 1920. That Division was introduced by the same Act that introduced Section 44B. As aforementioned, the Second Reading Speech in the Legislative Assembly for the Bill which became that Act included the statement that "the major aim of the bill is to eradicate devious and artificial tax avoidance arrangements". 82 The Court of Appeal in Lee's Case applied the purpose of Division 30 in the exercise of the discretion. Meagher JA (with whom Clarke AJA agreed) held [at 28] as follows: "There is no doubt, in my opinion, that the discretion ought to be exercised in the respondent's favour. There are at least three reasons why this is so. The first is that the parties to the transaction, TML and HJL, had no intention to evade any New South Wales Tax or duty: there is no reason to doubt that the purpose of entering the transaction was to ensure that they were not disadvantaged by the "thin capitalization" doctrine. The second is that, if the purpose of Division 30 was to ensure that there was no evasion of the payment of ad valorem duty in land deals, that is wholly inappropriate in the present circumstances: within three years of the transaction of 30 June 1991 no less than three lots of duty on an ad valorem basis were paid - two in respect of the Enfield property and one in respect of the Bankstown property. The third is the anomaly of being taxed as if a transaction consisted of the sale of 66% of the Company's realty whereas it was in fact only 6%". 83 The Commissioner submitted that the reasons given by Meagher JA in Lee's Case were cumulative. However, the decision refers to there being "at least" three reasons. This implies that there may even be more reasons, indicating that those three that were elaborated can not have been intended to be cumulative. 84 Priestley JA held [at 1 to 3] in Lee's Case as follows: "Division 30 was inserted in Pt III of the Act in 1987 to deal with a very particular kind of transaction; namely, one in which shares in a land-owning company were sold and the sale attracted less duty or tax than would have been the case if the land held by the company had been sold, the sale of the shares effecting much the same results so far as the human parties involved were concerned in substance as if the land itself had been sold. The basic idea of the Division was to ensure that transactions by way of sale of shares which had the substantive effect of transferring the ownership of land or an interest in land would bear the rate of duty that the sale of the land or the interest in land itself would have attracted. Within s 99F itself, the grant of the discretion to the Chief Commissioner in subsection (3) recognised that the widely drawn provisions of Division 30 will bring within their operation transactions which the basic purpose of the Division was not aimed at. The existence of the discretion showed that the legislature (or the legislation) intended that there would be some cases which would not attract the whole duty which would be payable if the discretion were not there and were not exercised. From this it seems to follow that the discretion ought to be exercised in such a way as to prevent any assessment of the amount of duty payable by the operation of Division 30 being greater than the amount that would have been payable if the land or the interest in the land had been transferred directly rather than indirectly by the share transaction". 85 Lee's Case is authority that the purpose of a provision or part of an Act should be applied in the exercise of a discretion under that provision or part of the Act. 86 Given the finding aforementioned on the purpose of Section 25, namely, to continue the substantive approach to aggregation of dutiable transactions as it applied immediately prior to the Duties Act 1997, it would not be just and reasonable for dutiable transactions to be to be aggregated under Section 25(1) in circumstances where the dutiable transactions are effected by separate instruments and those dutiable transactions are not part of a transaction -splitting arrangement. This interpretation does not defeat Section 25(1)(c) or make it redundant. It allows Section 25(1)(c) to operate as a means for bringing a wide range of arrangements (but limited by sub-sections (a) and (b) of Section 25(1)), to the notice of the Commissioner, for the Commissioner to be given the opportunity to be satisfied, when it is not just and reasonable for aggregation under Section 25(1) to apply. 87 Circumstances where an arrangement is effected by more than one instrument and the arrangement is not a "transaction-splitting" arrangement are circumstances where it would not be just and reasonable for aggregation under Section 25(1) to apply. This does not mean that there may not be other circumstances where it would also not be just and reasonable for dutiable transactions to be aggregated. Each case must be determined on its own facts. See McDonald's Australia Ltd v Chief Commissioner of State Revenue [2005] NSWSC 6, where Gzell J held [at 100] as follows: "In exercising the discretion under the Stamp Duties Act 1920, s 43A(2)(b) and under the Duties Act 1997, s 26(1) Revenue Ruling DUT 004 should not be used as a fetter upon the discretion which is couched in general terms and must be exercised according to its language and depending on the facts of each case". 88 The foregoing interpretation gives some clarity and equity to Section 25 of the Duties Act. This is relevant, bearing in mind the Duties Bill Second Reading Speeches statements that "The primary purpose of the Bill is to replace the current Stamp Duties Act 1920 with simple, clear and equitable legislation…" (emphasis added). 89 The foregoing application of Section 25(2) to the facts of this matter is consistent with and promotes the purpose of Section 25 earlier referred to. Conclusion on Section 25(2) 90 For the foregoing reasons, the Commissioner should have been satisfied that it would not be just and reasonable to aggregate the subject dutiable transactions in the circumstances of this case. 91 For the foregoing reasons, I find that the 5 dutiable transactions in this case should not have been aggregated under Section 25 of the Duties Act 1997. Remission of Interest 92 Given this Tribunal's conclusion that the 5 dutiable transactions in this case should not have been aggregated under Section 25 of the Duties Act 1997, it is not necessary for this Tribunal to decide on the submissions of the parties concerning remission of interest since no interest is payable by the Applicants. Order 93 For the reasons given in this decision, the decision under review is set aside and the matter is remitted to the Commissioner for reconsideration in accordance with this decision, for the Commissioner to: 1) be satisfied under Section 25(2) of the Duties Act 1997 that it would not be just and reasonable to aggregate the subject dutiable transactions under Section 25 in the circumstances of this case; 2) withdraw the reassessment in the notice dated 22 October 2002 under Section 13 of the Taxation Administration Act 1996; 3) issue a notice of the withdrawal of the reassessment in accordance with Section 14(4) of the Taxation Administration Act 1996; and 4) refund any amount paid in excess of the original assessments plus if applicable, pay interest in accordance with Sections 104 and 105 of the Taxation Administration Act 1996.

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