Paliflex Pty Ltd & Anor v Chief Commissioner of State Revenue

In its 2000 proceedings, Paliflex sought a declaration that the provision had no operation with respect to the land. Declarations and orders were then sought upon the basis that the assessments were invalid. 8 In October 2001, Mason P sitting at first instance, dismissed the 2000 proceedings and entered judgment for the Commissioner for $310,221.21 (Paliflex Pty Ltd v Chief Commissioner of Sate Revenue (NSW) 2002 ATC 4124). Paliflex appealed to the Court of Appeal. 9 In March 2002, the Commissioner issued notices of assessment for the land tax years 2001 and 2002. Paliflex objected, the Commissioner disallowed the objection and in July 2002 the current proceedings were instituted. 10 In November 2002, the appeal was dismissed (Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) 2002 ATC 5015). 11 In February 2003, the Commissioner issued a notice of assessment with respect to the 2003 land tax year. Paliflex objected. 12 The High Court granted special leave to appeal from the judgment of the Court of Appeal. It delivered its judgment in November 2003, dismissing the appeal (Paliflex Pty Ltd v Chief Commissioner of State Revenue (2003) 78 ALJR 87). 13 The Land Tax Management Act 1956, s 7(1) provided that land tax was to be levied and paid on the land value of all land situated in New South Wales which was owned by taxpayers. The term "taxpayer" was defined in s 3(1) to mean any person chargeable with land tax. Section 9(1) provided that land tax was payable by the "owner" of land and that term was defined in s 3(1) in relation to persons entitled or deemed to be entitled to land. 14 In Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1, the High Court had concluded that the reference to persons in a levy of municipal rates did not include the Commonwealth. In Paliflex, the High Court followed that decision to hold that when the Land Tax Management Act 1956 was enacted it did not levy tax on the Commonwealth as it was not a person and hence neither an "owner" nor a "taxpayer". On that basis, it was unnecessary for the court to consider the constitutional validity of the Commonwealth Places (Mirror Taxes) Act 1998 (Cth), s 6(2). 15 The recent decision of the High Court in Permanent Trustee Australia Ltd v Commissioner of State Revenue [2004] HCA 53 does not affect this reasoning. 16 In January 2004, the Commissioner issued a notice of assessment to Paliflex with respect to the 2004 land tax year. 17 The original summons in the current proceedings sought a declaration that the land was Commonwealth place within the meaning of the Constitution (Cth) s 52 as at the date of assent of the Land Tax Management Act 1956 and a declaration that the Commonwealth Places (Mirror Taxes) Act 1998 (Cth) had no operation in relation to it. Further declarations and orders were sought on that basis of invalidity of the assessments. It was not until September 2004 that the issue of a transfer from Paliflex to Mr Anstee was raised by the amended summons.

The 1999 and 2000 assessments 18 Res judicata estoppel is described in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed, Buttterworths, London, 1996 at [9]. Where a final judicial decision has been pronounced on the merits by a judicial tribunal with jurisdiction over the parties and the subject matter, any party to such litigation, as against any other party is estopped in any subsequent litigation from disputing such decision on the merits. 19 It is not open to Paliflex to seek to challenge the judgment of Mason P at first instance. It was not set aside on the appeals.

The Mirror Taxes legislation issue 20 Issue estoppel arises where two or more different conditions are required to be fulfilled to establish a cause of action and one or more of such conditions is a requirement of a different cause of action. If in litigation upon one such cause of action, there is a determination whether a particular condition had been fulfilled, neither party can, in subsequent litigation upon any cause of action that depends upon the fulfilment of the identical condition, assert that the condition was fulfilled, if the court had in the first litigation determined that it was not, or deny that it was fulfilled, if the court in the first litigation determined that it was (Thoday v Thoday [1964] P 181 at 198). A finding that an ultimate fact was not established creates an issue estoppel that it does not exist (Egri v DRG Australia Ltd (1988) 19 NSWLR 600). 21 In my view, it is not open to Paliflex to argue that the Commonwealth Places (Mirror Taxes) Act 1998 (Cth), s 6(2) did not apply in relation to the land. The High Court held that the Land Tax Management Act 1956 did not impose any tax on the land prior to the registration of the transfer to Paliflex. Paliflex is estopped from asserting to the contrary. It is only if it may assert to the contrary that the question under the Commonwealth Places (Mirror Taxes) Act 1998 (Cth), s 6(2) arises.

The Anshun estoppel issue 22 In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, an injured workman sued the owner and hirer of a crane. The defendants served notices of contribution on each other. Damages were awarded against both defendants and between them the owner was ordered to pay 90% of the damages and the hirer the remaining 10%. The owner then brought a separate action against the hirer claiming the benefit of an indemnity given by the hirer in the crane hire agreement. It was held that the owner was estopped from raising the indemnity agreement because it was unreasonable to have refrained from raising it in the first action since the indemnity agreement was a defence to the hirer's claim for contribution and was so closely connected with the subject matter of the action that it was to be expected that the owner would raise it as a defence. 23 The Commissioner submitted that it was unreasonable for Paliflex not to have raised the alleged transfer in the earlier proceedings as Paliflex maintained that it was a defence to the Commissioner's assessments and it was so closely connected with the assessments that it was to be expected that the defence would have been raised. 24 I already indicated land tax is payable by the owner of land. The Land Tax Management Act 1956, s 26(1) as it stood with respect to the 1999 to 2002 land tax years was in the following terms: "Where, before or after the commencement of this Act, an agreement has been made for the sale of land, whether the agreement has been completed by conveyance or not, and an instrument that embodies all or any of the terms of the agreement, or a conveyance that gives effect to the agreement, has been duly stamped under the Stamp Duties Act 1920 in respect of the sale: (a) the purchaser shall be deemed to be the owner of the land (though not to the exclusion of the liability of any other person) so soon as the purchaser has obtained possession of the land; (b) the vendor shall be deemed to remain, the owner of the land (though not to the exclusion of the liability of any other person) until possession of the land has been delivered to the purchaser and at least fifteen per centum of the purchase money has been paid; (c) the vendor shall be deemed to be the owner of the land (though not to the exclusion of the liability of any other person) where: (i) under the provisions of the agreement for sale the vendor resumes possession of the land without rescinding the agreement or appoints a receiver of the rents and profits of the land: or (ii) under the provisions of the agreement for sale or under any arrangement with the purchaser the vendor secures the use of the land, or receives the rents and profits of the land or the income from any business carried on on the land: Provided that the Chief Commissioner may exempt the vendor from the operation of paragraph (b) if the Chief Commissioner is satisfied that the agreement for sale was made in good faith, an not for the purpose of evading the payment of land tax, that the purchaser has obtained possession of the land and still remains in possession thereof, and that the agreement for sale is still in force; as to all which matters the decision of the Chief Commissioner shall be final and conclusive." 25 If Paliflex maintained, as it does in the amended summons, that the alleged transfer together with the taking of possession of the land by Mr Anstee excluded Paliflex from liability to land tax as an owner, that matter ought to have been raised in the 2000 proceedings. 26 Mr Anstee was not represented at the hearing. He appeared as second plaintiff and also on behalf of Paliflex of whom he was sole shareholder, director and secretary. He argued that Anshun was distinguishable because while the indemnity went to the heart of the issue in the earlier litigation in that case, his ownership of the land at the relevant times did not go to the heart of Paliflex's review of the Commissioner's adverse determination of its notice of objection. I reject that submission. The heart of the proceedings was to challenge the Commissioner's entitlement to levy land tax on Paliflex. If the Land Tax Management Act 1956 had the operation for which Mr Anstee contended, that argument was as central to the review as the argument that the Commonwealth Places (Mirror Taxes) Act 1998 (Cth), s 6(2) did not apply to the land.

27 Mr Anstee said that it was not a cost effective way to handle the 2000 proceedings to extend the issues to the argument under the Land Tax Management Act 1956, s 26(1). But the conscious decision on the part of Mr Anstee to limit the ambit of the first litigation is no answer to the proposition that there is a public interest in the finality of litigation and that a party should not be twice vexed in the same matter. 28 In Henderson v Henderson (1843) 3 Hare 100 at 115 (67 ER 313 at 319) it was said that the plea of res judicata extended to issues that ought to have been brought forward in earlier litigation: "The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." 29 In Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 Lord Bingham emphasised the public interest in finality of litigation: "But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all." 30 The feature of unreasonableness referred to in Anshun was highlighted by the Court of Appeal in Ruddock v Taylor (2003) 58 NSWLR 269 at 285 where Spigelman CJ said that an overall requirement of an Anshun estoppel was reasonableness. It did not arise unless it was unreasonable of the party sought to be estopped not to plead the cause of action in question. 31 I accept the submission of the Commissioner. It was unreasonable for Paliflex not to have raised the alleged transfer in the earlier proceedings. Paliflex submitted that the issue was a complete answer to the Commissioner's assessments. They had been raised against the wrong party. That being so, the issue was so closely connected with the earlier challenge to the assessments for the 1999 and 2000 land tax years that it was unreasonable that the issue was not raised in the 2000 proceedings.

Summary termination 32 The principles applicable to summary termination of proceedings are well understood. The case must be very clear to justify summary intervention to prevent a plaintiff submitting a case for determination in the usual way (Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62 at 91). The court's powers of summary dismissal should not be exercised to deny a plaintiff access to the courts unless the lack of a cause of action is clearly demonstrated (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). It is for the applicant to demonstrate that a statement of claim is beyond saving by legitimate amendment (Penthouse Publications Ltd v McWilliam, unreported, NSWCA, 14 March 1991, citing Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628 at 631). 33 In my view, the Commissioner has established that the amended summons should be summarily dismissed under the Supreme Court Rules 1970, Pt 13 r 5.

The s 26 argument 34 In light of the above findings it is unnecessary for me to deal with other arguments raised by the Commissioner. In the interests of completeness, however, I deal briefly with them hereunder. 35 The Land Tax Management Act 1956, s 26(1) as it stood with respect to the 1999 to 2002 land tax years required an agreement for sale of land, a stamped transfer and possession in the purchaser. There was no agreement for sale nor a transfer before the court. The only suggestion of a transfer was a note in Counsel's handwriting, apparently made on 5 August 1998, in the following terms: "Stamp duties office to stamp (a) Trust Deed where Paliflex declares it holds on trust for Anstee (b) Tfr from Paliflex to Anstee for nominal duty with Mr Anstee agreeing to pay the stamp duty owed by Paliflex to OSR assessed at $480,490 plus 20% interest from 5 November, 1997." 36 Even if a declaration of trust existed, it would not satisfy the requirement in the statute. It required an agreement for sale and not a declaration of trust. 37 But even if the terms of the statute were satisfied, and Mr Anstee was deemed to be the owner of the land, it did not exclude other ownership. 38 Mr Anstee relied on Commissioner of Land Tax (NSW) v Opalfield Pty Ltd 94 ATC 4171 in which the Court of Appeal held that a nominee company holding on trust for members of a family was the purchaser of property and had obtained possession of it and was, in consequence, an owner in terms of the Land Tax Management Act 1956, s 26(1). 39 However, ownership under the Land Tax Management Act 1956, s 26(1)(a) was not to the exclusion of the liability of any other person and liability reposed in the owner under s 9(1). Since Paliflex was the registered proprietor of the land it was entitled to the land and fell within the first limb of the definition of the term in s 3(1): "" Owner" includes: (a) In relation to land, every person who jointly or severally, whether at law or in equity: (i) is entitled to the land for any estate of freehold in possession." 40 In Chief Commissioner of Land Tax v Macary Manufacturing Pty Ltd (1999) 48 NSWLR 299, the Court of Appeal held that a trustee who was the registered proprietor of land on the relevant taxing date was the "owner" of the land within the definition and there was nothing to suggest that there could only be one taxable owner of land at any point in time. 41 It follows that even if Mr Anstee brought himself within terms of the Land Tax Management Act 1956, s 26(1), that would not exclude ownership in Paliflex and would not render the assessments invalid. 42 For the later land tax years, the Land Tax Management Act 1956, s 26 was in the following terms: "(1) If land under the provisions of the Real Property Act 1900 is the subject of an agreement for sale that has not been completed by transfer of the land, the person who is registered as the proprietor of the land under the Real Property Act 1900 is taken, for the purposes of this Act, to be the owner of the land, to the exclusion of the liability of the purchaser. (2) If land, not being land under the provisions of the Real Property Act 1900 , is the subject of an agreement for sale that has not been completed by conveyance of the land, the vendor of the land is taken, for the purposes of this Act, to be the owner of the land, to the exclusion of the liability of the purchaser. (3) Despite subsections (1) and (2), the purchaser under the agreement for sale is taken, for the purposes of this Act, to be the owner of the land (to the exclusion of the liability of the registered proprietor or vendor) if: (a) under the terms of the agreement for sale the purchaser is entitled to exclusive possession of the land and is entitled to receive, if the land is let to a tenant, any rents and profits derived from the tenancy, and (b) the purchaser has taken possession of the land. (4) In this section: agreement for sale means an agreement for sale of land that is in force." 43 Again, there was no suggestion of an agreement for sale between Paliflex and Mr Anstee. Only if an agreement for sale entitled Mr Anstee to exclusive possession of the land could the Land Tax Management Act 1956, s 26(3) operate to exclude liability in Paliflex. A declaration of trust did not answer this requirement. 44 The Commissioner submitted that notwithstanding the handwritten note of counsel, I should find there was no transfer. Not only was the matter not raised in the 2000 proceedings, there was no mention of it in the correspondence relating to those proceedings nor in the stamp duty proceedings decided by Austin J (Chief Commissioner of Stamp duties v Paliflex Pty Ltd (1999) 47 NSWLR 382). Furthermore, the alleged transfer was said to have been dated 15 September 1997. At that time, Paliflex was not the registered proprietor of the land and could not give a valid transfer (Real Property Act 1900, s 46). 45 On 8 November 2004, the Crown Solicitor's Office wrote to Elliot Tuthill Solicitors, who had acted for Paliflex in the 2000 proceedings, seeking information about the alleged transfer. The letter contained the following: "In the current proceedings, Paliflex Pty Ltd and Mr Anstee are relying on their assertion that Paliflex Pty Ltd transferred the subject property to Mr Anstee on or about 15 September 1997, however, neither plaintiff has been able to provide a copy of the transfer or any other evidence as to its possible existence. I have issued a Notice of Motion to strike out the summons on a number of grounds which is to be heard on Thursday, 11 November 2004. In that regard, I would be most grateful for your assistance in providing me either with a copy of the alleged transfer if it is in your possession, or any information you can provide to the best of your knowledge as to its possible existence, or any information you can provide as to ever having sighted the transfer to the best of your recollection." 46 The solicitors responded the next day. They said: "We have inspected our files and advise as follows: 1. We have no copy of a Transfer from Paliflex Pty Limited to B A Anstee. 2. We have no knowledge as to its possible existence to the best of our recollection. 3. We have not sighted the Transfer to the best of our knowledge." 47 There is doubt in my mind that the alleged transfer exists. However, as it is unnecessary for me to determine this issue, it is undesirable that I should do so.

The cross claim 48 I granted the Commissioner leave to file in court a cross claim. It sought the land tax assessed in the land tax years 2001 to 2004 together with interest. The amounts claimed as tax for each of the years in the cross claim accord with the notices of assessment for those years: 2001-$98,615.00, 2002-$103,460.00, 2003-$108,118.00, 2004-$121,361.00 a total of $431,554.00. The interest calculation will need to be brought up to the date of judgment. 49 The Supreme Court Rules 1970, Pt 13 r 2(1) provided that where on the application by the plaintiff in relation to any claim for relief there was evidence of the facts on which the claim was based and there was evidence given by the plaintiff or some responsible person that in the belief of the person giving the evidence the defendant had no defence to the claim, the court might by order on terms give such judgment for the plaintiff on that claim as the nature of the case required. There was before me an affidavit by a senior review officer of the Office of State Revenue swearing to his belief that Paliflex had no defence. 50 The Supreme Court Rules 1970, Pt 13 r 3(1) provided that a party might apply for summary judgment notwithstanding that by r 1 the provision did not apply to the proceedings in relation to a claim made by some other party. It was, therefore, open to the Commissioner to seek summary judgment on his cross claim. 51 In my view it is appropriate for me to act under the Supreme Court Rules 1970, Pt 13 r 2(1).

Conclusion 52 I will make an order that the proceedings of Paliflex and Mr Anstee be summarily dismissed under the Supreme Court Rules 1970, Pt 13 r 5. I will enter judgment for the Commissioner against Paliflex on his cross claim in the amount of $431,554.00 together with interest to be calculated to the date of judgment under Pt 13 r 2. I will hear the parties on costs. I direct the parties to bring in short minutes of orders reflecting these reasons.

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