Segal v Chief Commissioner of State Revenue

NCAT Appeal Panel|2021-10-08|Before: Dr J

REASONS FOR DECISION

By Notice of Appeal filed on 8 July 2021 the Appellant appealed against decisions of the Tribunal of 9 June 2021, affirming the decisions of the Respondent rejecting the Appellant's objections to Notices of Assessment of Duty in respect of transfers of interests in real properties.
The Appellant sought that the decisions of the Tribunal at first instance be set aside and that, in lieu of the imposition of ad valorem duty on 100% of the consideration for the sale of each real property, duty be levied on 50% of such consideration.
On 21 July 2021 the Respondent filed a Reply to the Appellant's Notice of Appeal seeking the dismissal of the appeal.
In support of his appeal, the Appellant filed written submissions on 24 August 2021. The Respondent filed written submissions in answer to those submissions on 17 September 2021. On 5 October 2021 the Appellant filed submissions in reply to those of the Respondent.
The Appeal Panel has had before it the Reasons for Decision of the Tribunal at first instance of 9 June 2021, and an "agreed bundle for Appeal Panel matter" prepared by the Respondent and filed on 13 August 2021.
Each party made oral submissions on the hearing of the appeal on 8 October 2021.
The Appeal Panel concludes that each of the Appellant's appeals should be dismissed. These are the reasons for our decision.

The Grounds of Appeal

The Appellant's Notice of Appeal articulated four grounds: 1. The Tribunal was wrong that a "Tenant in Common: is not an owner of land". 2. The Tribunal was wrong to find a "Bare trust did not exist with the purchase by Mr Szkirpan of the Liverpool property. The Tribunal failed to apply a Duty Ruling 030." 3. The Tribunal was wrong to find that "an apparent purchaser 'was transferred' Land". 4. The Tribunal was wrong not to apply Duty Ruling 035 V2.
As the Appellant confirmed, each of the grounds of appeal asserted an error of law by the Tribunal at first instance. The Appellant did not seek leave to appeal.

The Decision of the Tribunal at first instance

The Tribunal at first instance provided reasons for its decision. The background to those reasons has been recorded earlier in these reasons. The Tribunal identified the material which was before it, the written and oral submissions of the parties, and the role and jurisdiction of the Tribunal (Reasons paras 20-32). It is not suggested that the Tribunal's reasons in that regard involve any inaccuracy.
Under the heading "Dr Segal's Submissions in Reply" ("ASR") (Reasons 33 and following) the Tribunal exposed the process of reasoning which led it to dismiss each of the Appellant's review applications.
The Tribunal referred (Reasons 34) to the submission of the Respondent that "Whatever the nature of the Applicant's interest in the Liverpool property prior to the Contract of Sale, it was different to that which was transferred, or to be transferred, to Mr Szkirpan. The Applicant was a tenant in common in equal shares with Dr Sharma. What Mr Szkirpan was to receive was the estate in fee simple. These are different property interests".
The Tribunal referred to the decision in Nullagine Investments Pty Limited v The Western Australian Club Incorporated (1993) 177 CLR 635 ("Nullagine") upon which the Respondent relied (Reasons 35). The majority in Nullagine recorded (657-658) that "where sale is decreed, the single conveyance in fee simple by the tenants in common or joint tenants pursuant to a court order does not involve the sale or disposition of the individual share or interest of the individual tenant. The court order directing the sale of "the land" is an order for the sale of the fee simple in the whole of the land. It follows that the conveyance in such a case extinguishes the share or interest of the individual tenant and effects the sale or disposition of the freehold itself. Indeed, there is strong support for the view that the making of the order for sale extinguishes the equitable interests of the co-tenants in the land itself even before a sale is effected."
The Tribunal referred to the Appellant's response (Reasons 36), in which the Appellant referred to authority which he submitted confirmed his contention that, notwithstanding the Court orders, he retained his 50% equitable interest in each of the properties until completion of the sale of each of them. The Tribunal quoted the passage from the judgment of Brennan J in Nullagine, at 656, upon which the Appellant relied.
The Tribunal recorded, accurately, the Appellant's submission (Reasons 40) that he and Dr Sharma "were by the sale contract selling the two separate distinct shares in the property". The Tribunal held (Reasons 41) that the Appellant's submission that he and Dr Sharma were selling "two distinct shares in property" pursuant to the Court orders was not supported by the passage upon which the Appellant relied in Nullagine, and was contrary to the statements by the majority in that case, which the Tribunal had earlier recited.
The Tribunal recited (Reasons 41) the passage from Nullagine, stating that "where sale is decreed, the single conveyance in fee simple by the tenants in common or joint tenants pursuant to a court order does not involve the sale or disposition of the individual share or interest of the individual tenant". The Tribunal found (Reasons 43) that the "principle" relied upon by the Respondent from Nullagine applied "to the effect of both contracts".
The Tribunal then set out (Reasons 44) the provisions of the Court orders. The full text of the orders appears at pages 122 to 125 of the agreed bundle. The Tribunal's summary of the relevant orders is accurate. The Tribunal noted that the orders were made by consent, including the consent of the Appellant, and provided that the "Segal Sharma partnership be dissolved and wound up", and declared that "the assets of the Segal Sharma partnership include the Campbelltown property and the Liverpool property". The orders appointed Receivers and Managers of the "business and assets of the Segal Sharma partnership, including the real property" at Campbelltown and Liverpool, and empowered the Receivers and Managers to sell those properties, and do everything necessary to complete their sales. The net proceeds of sale of the realisation of the assets of the Segal Sharma partnership were ordered to be paid into Court, and the proceedings remitted to a Judge or Registrar to take accounts of the partnership, to determine the extent, if any to which Dr Segal and Dr Sharma as between themselves were liable to contribute towards the discharge of partnership liabilities, and were entitled to share in any surplus after liabilities were discharged, or were entitled to be recouped by the other partner.
The Tribunal recorded (Reasons 45) "In summary the Liverpool property and the Campbelltown property were declared by the Court to be assets of the Segal Sharma partnership and the Receivers had power and a duty to dispose of those assets and pay the net proceeds into Court. Her Honour also ordered that a Judge or Registrar shall determine the extent (if any) to each partner is as between themselves liable to contribute to discharging liabilities of the Partnership or entitled to share in any surplus or be recouped by the other partner. Her Honour also ordered that each partner may purchase from the Receivers, any of the assets of the partnership".
The "Bare Trust" issue asserted by the Appellant was addressed by the Tribunal (Reasons 46-63). The Tribunal there recorded the contention of the Appellant that "By reason of the terms of the Bare Trust Deed Mr Szkirpan as purchaser was a Bare Trustee". The Tribunal recorded, accurately, (Reasons 50) that there had not been "any Bare Trust Deed or other document creating a Bare Trust" produced, and recorded that, if there was a Bare Trust "there is no probative evidence before the Tribunal that the Trust was created by deed".
The Tribunal recorded (Reasons 51) the contention of the Appellant that the Respondent levied ad valorem duty on 100% of the consideration "in full knowledge that Mr Szkirpan was only an apparent purchaser". The Tribunal further recorded the Appellant's contention that the Respondent had "insisted on the two transfers despite a request to transfer under s 18(3)". The Tribunal rejected (Reasons 52-55) the assertion of the Appellant that the Respondent "insisted on the two transfers", and found that the Respondent "provided advice, as requested, as to his opinion concerning duty payable in respect of certain documents or transactions" (Reasons 55). The Tribunal referred to s18(1) of the Duties Act, which provides that, "if a dutiable transaction is effected by more than one instrument, one instrument is to be stamped with the duty payable on the dutiable transaction and each other instrument is chargeable with duty of $50".
The Tribunal reiterated (Reasons 58) that "the interest in each of the Properties being transferred was an estate in fee simple in the whole of each Property. The full value of that fee simple, in these circumstances was the sale price of each property. Not as Dr Segal submitted, a 50% interest in each property." The Tribunal also reiterated that the Respondent "did not at any relevant time after Ward CJ in Eq orders and prior to the auctions, hold a beneficial interest in each Property."
The Tribunal then referred (Reasons 59) to the Appellant's submissions in reliance upon the decision of the High Court in D.K.L.R. Holding Co (No. 2) Pty Limited v The Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431 ("DKLR"). The Tribunal recorded the submission of the Appellant in reliance upon the statement by Gibbs CJ with respect to a "transfer of land where a trustee had first declared a trust of the land in favour of the transferor and where the land was then transferred to the Trustee", that "before the transfer there had been no severance of the legal and equitable interests in the land. It was only when the declaration took effect, which of course was immediately after the transfer that there was a separate [sic] of legal and equitable interests."
The Tribunal referred (Reasons 61) to other passages in DKLR to which the Appellant did not refer (Reasons 61-63), and recorded that the effect of the additional passages was that the Appellant could not advance his case in reliance upon the passage which he had selected from DKLR. For the reasons which it provided, the Tribunal dismissed each of the Appellant's challenges to the Respondent's rejection of his objections.

The appeal

Although he is undoubtedly educated and has cogently agitated his grounds of appeal, as the Appellant is not legally qualified, it is appropriate to briefly refer to the principles which govern the appeal.
In accordance with the provisions of s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"), the Appellant may appeal against the decisions of the Tribunal at first instance "as of right" on any "question of law".
In Micallef v ICI Operations Pty Ltd [2001] NSWCA 274 at [45], Heydon JA recorded that, to successfully challenge a discretionary decision, an appellant must demonstrate that he decision-maker: 1. made an error of legal principle; 2. made a material error of fact; 3. took into account some irrelevant matter; 4. failed to take into account, or gave insufficient weight to some relevant matter; or, 5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
There is little doubt that each of the Appellant's grounds of appeal asserts an error of legal principle.

The grounds of appeal

The Appellant's outline of submissions addressed his grounds of appeal conjointly. Our consideration of the grounds of appeal will also follow that course.
In his written submissions in chief (paragraph 4), the Appellant referred to the provisions of s 20(2) of the Partnership Act 1892 (NSW). The Appellant submitted that nothing in that section "causes a severance of legal and equitable ownership of land". As with his submissions generally, the Appellant did not engage with the effect of the Court orders on the operation of provisions of the Partnership Act.
The Appellant submitted that the beneficiaries of a trust "do not have ownership interests in trust assets" by reference to the decisions in Chief Commissioner of Stamp Duties (NSW) v Buckle (1988) 192 CLR 226 ("Buckle") and DKLR. In a passage which he highlighted (paragraph 6) the Appellant emphasised that "a man cannot be a trustee for himself" and "you cannot have a legal estate in trust for yourself", neither of which propositions is either controversial, or relevant for present purposes.
The Appellant submitted that in Buckle the High Court "held that a trustee's right of indemnity out of trust assets was not an encumbrance upon the interests of the beneficiaries. Until the trustee's right of reimbursement or exoneration has been satisfied, it is impossible to say what the trust fund is, in the sense that it is impossible to identify assets which are held solely upon trust binding the trustee in favour of the beneficiaries. The right of the trustee to be indemnified has priority over the right of beneficiaries in relation to the assets". We do not understand how that reality can assist the Appellant. If anything, having regard to the terms of the Court orders, it militates against acceptance of the Appellant's contentions.
The Appellant referred (paragraph 8) to the decision of the High Court in Commissioner of State Revenue v Rojoda Pty Limited (2020) 268 CLR 281; [2020] HCA 7 ("Rojoda"), and submitted that the majority held that "The interest is a chose in action, essentially a right of administration to have all the partnership assets applied in satisfaction of all the partnership liabilities and for the surplus to be ascertained on completion of winding up the partnership. That right is the same, single right which continues to the point of completion of winding up". That passage, as the Respondent submitted, is consistent with the approach taken by the Tribunal at first instance in the light of the Court orders.
The Appellant submitted (paragraph 11) that the Respondent accepted that he had purchased one of the properties jointly with Dr Truong, although only the Appellant's name was on the Contract. In our view that submission cannot advance the Appellant's contentions. Had the Respondent levied 100% ad valorem duty on the subsequent transfers of the Campbelltown or Liverpool properties, that submission may have assumed relevance, but, as is not in doubt, the Respondent levied only the nominal duty provided by s 55 of the Duties Act upon the subsequent transfers by Mr Szkirpan to the Appellant, and by the Appellant to himself and Dr Truong.
The Appellant referred (paragraph 13) to the presumption of a resulting trust which the High Court considered in Calverley v Green (1984) 155 CLR 242. There is no doubt that, with respect to the transfers by Mr Szkirpan to the Appellant, and by the Appellant to himself and Dr Truong, the Respondent accepted that each of the subsequent transferors held the property on a resulting trust for, in the case of Campbelltown, the Appellant solely, and in the case of Liverpool, for the Appellant and Dr Truong.
The Appellant referred (paragraph 14) to "Duty Ruling 30.P4-6" which he submitted advanced his contention. As the ruling makes clear, the Commissioner applies the presumption of resulting trust where a person (the real purchaser) acquires property in the name of another person (the apparent purchaser). As the Tribunal recognised, that is what happened with the subsequent transfers of the Campbelltown and Liverpool properties, but was not what occurred with the transfers by the Receivers and Managers pursuant to the Court orders.
The Appellant relied (paragraph 15) upon the Judgment of Gummow J in Herdegen v Federal Commissioner of Taxation [1988] FCA 699, in which, in the passage emphasised by the Appellant, his Honour recorded that "The term "bare trust" may be used fairly to described the position occupied by a person holding the title to property under a resulting trust flowing from the provision by the beneficiary of the purchase money for the property". Those observations, as the Respondent clearly recognised, applied to the subsequent transfers of Campbelltown and Liverpool.
The Appellant then referred to the decision of the Full Court of the Federal Court in Gasparin v Federal Commissioner of Taxation [1994] FCA 248 in support of the proposition that, prior to settlement of a contract for sale "the purchasers undoubtedly acquired interests in equity and rights to specific performance, but the vendors did not become bare trustees for the purchasers". Again, though uncontroversial, that does not advance the Appellant's grounds of appeal.
The Appellant also referred (paragraph 18) to the statement by Brennan J in Nullagine to which the Tribunal referred (Reasons 36). With respect to the Appellant, nothing in that passage is capable of advancing his grounds of appeal.
The Appellant reiterated (paragraph 20) that "at all times Mr Segal remained the legal/beneficial owner of 50%" of each of the properties and that (paragraph 21) on payment of the purchase price Dr Truong became beneficially entitled to 50% of the equitable estate, but that (paragraph 22) "on payment of the purchase price Phillip Segal remained beneficially entitled to 50% of the undivided equitable estate. He remained the legal owner for 50% of the undivided estate" and that (paragraph 23) "on registering the first transfer Phillip Segal held 50% of the fee simple and held a further 50% as a bare trustee".
The Appellant further submitted (paragraph 24) that he did not "own any more dutiable property following the "transfer""; no transfer occurred to Mr Segal and, accordingly, (paragraph 25) "there was a severance of the legal and equitable estate for 50% of the "property"".
By reference to what he asserted that Duty Ruling 35V2 provided (paragraph 26), the Appellant submitted (paragraph 27) that he "had 50% interest in the fee simple before and after the transfer and had the same value".
The Appellant referred (paragraph 28) to the Judgment of Ormiston JA in Coles Myer Limited v Commissioner of State Revenue [1988] 4 VR 728, in which it was recorded that "For an instrument to be properly characterised as a "transfer" one must be able to find that the property has passed from transferer to transferee so that the property is vested in the transferee who for all practical purposes is then capable of exercising the same rights as were capable of being exercised by the transferor before the transfer was executed". The Appellant did not make clear how that statement was asserted to advance his appeal, and we cannot discern how it could.
The Appellant set out (paragraph 43) the sequence of transfers, and his contention as to the nature and effect of the "initial transfer" in each instance, and reiterated his assertion that the Respondent had "insisted on a two stage transfer to the real purchaser which was Phillip Segal" and referred to page 641 of the agreed bundle. We discern nothing emerging from page 641 of the agreed bundle, or elsewhere, which supports the Appellant's interpretation of the document, or advances the appeal. As the Tribunal found, the Respondent did not "insist" on any particular form of transfer, but rather, as requested by the solicitor who was then representing the Appellant, provided advice as to the effect of various transfers and the statutory basis for the duty which, in the Respondent's view, was properly payable with respect to each of those transfers.
The Appellant's assertion (paragraph 45) that "no dutiable property was transferred in the first step", was not developed in his oral submissions. As with his submissions generally, and with great respect to him, the Appellant conflated the initial and subsequent transfers, and, though not so expressed, effectively sought to have each treated in the way that each of the subsequent transfers was treated.
The Appellant also cited from Trust Company of Australia Limited v Commissioner of State Revenue [2007] VSC 451, the proposition that a trustee purchaser "holds not for itself but for the benefit of others". As observed earlier, and as the Tribunal recorded, that is how, correctly, the Respondent treated each of the subsequent transfers. The Appellant accordingly reiterated (paragraph 57) that the Tribunal was wrong to affirm the duty liability levied by the Respondent and should have levied duty on 50% of the consideration.
The Respondent submitted that the "basis of Dr Segal's appeal of the Decision is very difficult to glean from his Notice of Appeal" and submissions. The Respondent submitted that the Appellant did not refer "substantively to the reasoning of the Decision at all, nor explain why it is wrong, other than the perfunctory references to the Tribunal being wrong to affirm the decisions" of the Respondent (paragraph 7). The Respondent submitted that the Appellant was seeking to reargue the case he put before the Tribunal at first instance with new arguments which were not put below.
Under the heading "The Correct Position" the Respondent referred to the relevant provisions of the Court orders (paragraph 10). That summary is accurate and substantially reflects the summary appearing in the Reasons for Decision of the Tribunal at first instance. The Respondent confirmed his reliance upon submissions made to the Tribunal at first instance (paragraph 12).
As is not in doubt, the Respondent levied full ad valorem duty on the Contracts for Sale of Campbelltown and Liverpool, which were entered into by the Receivers and Managers appointed by the Court orders as vendors. The "apparent purchaser" of Liverpool was Mr Szkirpan, whilst the Appellant was the "apparent purchaser" of Campbelltown. The Appellant was the "real purchaser" of Liverpool, and Dr Truong was the "real purchaser" of a half-share of Campbelltown. Shortly after completion of the initial transfers, the properties were transferred to their "real purchasers". Each of those transactions was assessed for nominal duty pursuant to s55 of the Duties Act 1997 (NSW) with respect to real/apparent purchasers. As the Respondent submitted, there is no suggestion that that approach was erroneous.
The Respondent relied upon the provisions of sections 8(1)(b)(i), 9, 12, 19, 21 and 32 of the Duties Act, which provide the statutory regime with respect to "dutiable transactions", and the calculation of "dutiable value". The Respondent submitted (paragraph 13) that "the short point is that the duty the subject of this appeal was levied in respect of each Contract for Sale, not on the later series of transfers" which the Appellant referred to in many of his submissions.
The Respondent further submitted that each property was sold by public auction, as was the case, that all parties bidding at the auction must have been "bidding to acquire the same interest, which was an estate in fee simple of each property". After the auction each Contract for Sale had been executed in respect of the fee simple of that property. The Respondent accordingly submitted (paragraph 14) that the issue of duty charged was "straightforward", in each case the dutiable transaction on which duty was charged was the Contract for Sale which, by means of s 8 and s 9 of the Duties Act is treated as if it were a transfer of each property. In each instance an estate in fee simple was sold, not a half-share of such estate. Duty was therefore submitted to be liable to be paid on the entire purchase price of each property.
The Respondent submitted (paragraph 15) that "ought to be the end of the matter", and that the submissions of the Appellant were irrelevant and/or misconceived. The Respondent nevertheless engaged with the Appellant's submissions, firstly with respect to "the Campbelltown property" at paragraphs 16 to 23.
The Respondent submitted (paragraph 17) that it was incorrect to assert that, after the making of the Court orders, and prior to the auction, the Appellant "owned" a 50% interest in the Campbelltown property. As is not in doubt, the Court orders declared that the property was an asset of the partnership, and appointed Receivers and Managers to sell the partnership assets and deal with them in accordance with the partnership accounts when they were taken.
The Respondent submitted (paragraph 19), for the reasons there advanced, that, as had been the case before the Tribunal at first instance, the Appellant's reliance upon Nullagine was misguided. Also for the reasons there advanced (paragraph 21), the Respondent submitted that the Appellant's interest in the Campbelltown property before and after the transfer made pursuant to the Court orders was "of an entirely different character".
The Respondent also submitted (paragraph 22) that the Appellant's reliance upon Duty Rule 35V2, which was concerned with s 30 of the Duties Act, had no relevance for present purposes and, in support of that submission, cited the decision in Chief Commissioner of State Revenue v Webec [2015] NSWCATAP 279 at 44-47. We are satisfied that provisions relating to "partition" of real property have no relevance for present purposes. Similarly, the Respondent submitted (paragraph 23) that the Appellant's reliance upon s 18 of the Duties Act was misconceived, for the reasons there advanced. We agree with the Respondent's contentions, and the reasoning underpinning them.
Under the heading "The Liverpool Property" at paragraphs 24-30, the Respondent referred to (paragraph 25), the Statutory Declaration (agreed bundle page 160), which the Appellant asserted to be a "bare trust deed". As is not in doubt, the declaration was executed after Mr Szkirpan acquired the Liverpool property. In any event, as is not in doubt, by operation of the real and apparent purchaser provisions of the Duties Act, the Respondent treated Mr Szkirpan as holding the Liverpool property on a resulting trust for the Appellant, resulting in the imposition of only nominal duty when Mr Szkirpan subsequently transferred the property to the Appellant.
As the Respondent submitted (paragraph 26), whether Mr Szkirpan held the Liverpool property on trust for the Appellant is ultimately irrelevant in the context of a consideration of the imposition of duty on the transfer by the Receivers and Managers of the Liverpool property to Mr Szkirpan. The Respondent submitted (paragraph 27), correctly in our view, that the finding of the Tribunal at first instance that the Respondent did not "insist" on any transaction or form of transaction or transactions was not erroneous. As with other submissions of the Appellant, the Respondent submitted (paragraphs 28-29), the Appellant's reliance upon the subsequent transfers can have no bearing on the fate of his appeal against the imposition of ad valorem duty on the full consideration for the initial transfers by the Receivers and Managers of Campbelltown and Liverpool.
The Respondent submitted, for the reasons there set out (paragraph 30), that the Appellant's reliance upon Trust Company of Australia v Commissioner of State Revenue [2007] VSC 451; (2007) 19 VR 111 was unsound. We accept that, by reason of the differences in the statutory provisions, the case cannot advance the Appellant's appeal.
The Appellant's written submissions of 5 October 2021 reiterated the more extensive primary submissions made by him to which we have referred.
In oral submissions in reply, the Appellant referred to the decision of the High Court in Trust Company of Australia Limited v Commissioner of State Revenue (2003) 77 ALJR 1019; [2003] HCA 23. The Appellant also referred to the decision of the Supreme Court of Western Australia in Anderson v McPherson (No. 2) [2012] WASC 19. In our view neither of these authorities assists the Appellant's appeal. The decision of Ward CJ in Equity in Benidorm Pty Limited v Chief Commissioner of State Revenue [2020] NSWSC 471 is similarly unhelpful for the Appellant.

Consideration

As the Respondent submitted, the Appellant's submissions do not engage with the Court orders, or their effect. In reality, the submissions of the Appellant proceed on the unstated assumption that those orders have no impact upon his proprietary rights with respect to Campbelltown or Liverpool.
The declaration and orders of the Supreme Court were made by consent, at a time when the Appellant was represented. The Appellant did not suggest that he was not bound by the declaration or the Court orders. He would in any event be estopped by record or Judgment from doing so (Carl Zeiss Stiftung v Rayner & Keeler Limited (No. 2) (1967) 1 AC 853, Administration of the Territory of Papua and New Guinea v Guba (1972) 130 CLR 353). As there is, and could be no suggestion that the Judgment of the Supreme Court was interlocutory, an estoppel by Judgment clearly arises (Schlieske v Minister for Immigration and Ethnic Affairs (1987) 79 ALR 554).
The declaration by the Supreme Court that Campbelltown and Liverpool were partnership assets has profound, and fatal implications for the Appellant's challenges to the decisions of the Tribunal at first instance. Had Campbelltown and Liverpool not been declared to be partnership assets, different considerations may have arisen in relation to the duty properly payable on their disposition, but that is not what happened.
In Commissioner of State Revenue v Rojoda Pty Limited (2020) 268 CLR 281; [2020] HCA 7 ("Rojoda"), Bell, Gageler, Keane, Nettle and Edelman JJ, set out the "features of a partner's equitable rights" under a trust created in favour of a partnership. Their Honours recorded: "32 Some of the features of a partner's equitable rights under the trust were shared with those of a fixed trust: the interests of the partners were in fixed shares or proportions; the partners owed to each other the common duty of a trustee to apply the partnership property exclusively for the benefit of the partnership in accordance with the partnership deed; and, like those beneficiaries who are entitled to "wind up" a trust, a partner could dissolve the partnership, requiring a winding up and consequential distribution of the proceeds of the partnership assets. 33 However, unlike a beneficiary of a fixed trust, it was well established that a partner's interest was not an interest in, or in relation to, any specific asset other than an entitlement to the partner's share of the net proceeds from the sale of each asset at the completion of winding up. In other words, the only right that the partners have, both before and after dissolution, in relation to each asset is a right to the account and distribution after sale of the proceeds of that asset - "not to an individual proportion of a specific article, but to an account: the property to be made the most of, and divided". Hence, a partner's equitable interest is not accurately expressed as a "beneficial interest", at least in the sense of being a right to any proportion of, or for the personal use of, or for the benefit from, any particular asset. 34..In a famous description that encapsulated the equitable principles, Lindley described a partner's interest as "his proportion of the partnership assets after they have been all realised and converted into money, and all the debts and liabilities have been paid and discharged". Lindley added that "[t]his it is, and this only, which on the death of a partner passes to his representatives". Lindley's famous description was copied from the third edition of his text, with attribution, by Pollock, who acknowledged Lindley's work. 35 The description by Lindley emphasised that although the partners have an existing equitable interest in relation to each and every asset for the payment of their share after winding up is complete, that interest can fluctuate during trading and is not ascertained until the assets are realised in a fund upon winding up. Hence, despite some contrary authority, where the partnership property was land the equitable interest was described as a "personal estate" in relation to the land to signify that there was no vested or ascertainable right in relation to the particular legal estate in the land." [Citations omitted]
We are satisfied that the principles reiterated by the High Court in Rojoda applied to Campbelltown and Liverpool, at least from the time of the making of the Court orders. In Rojoda the High Court referred to a number of provisions of the Partnership Act 1895 (WA). Their Honours recorded at [37]: "37 Section 30(2) does not create any new trust in relation to land. It gives "statutory recognition" to the equitable principle that legal title to partnership property is held on trust for all partners. The reason for the specific provision that estates in land devolve on trust is to ensure that "no distinction can be drawn between the nature of a partner's interest in real estate and his interest in personal estate". Whatever the nature of the partnership property and "wherever the legal estate may be", it is held on trust for the partners, whose interests are as tenants in common. As Deane J said in Chan v Zacharia, "there is neither metaphor nor inaccuracy" in the description of a partner as a trustee for the partnership." [Citations omitted]
Section 30(2) of the Western Australian Statute is in identical terms to s 20(2) of the Partnership Act 1892 (NSW). Their Honours further recorded at [38]-[40]: "38 The Partnership Act also preserved equity's unique treatment of the interest of partners under the trust. The partner's unascertained interest in relation to all of the partnership property is an equitable interest, not a mere equity, but the "partner's share" is defined in s 33 as being only "the proportion of the then existing partnership assets to which he would be entitled if the whole were realised and converted into money, and after all the then existing debts and liabilities of the firm had been discharged". Hence, as Lindley MR explained, a "deceased partner could only dispose of his interest in the surplus which would remain after payment of the joint debts out of the joint assets". Until then, a partner's interest under the trust is unascertained and, although it is a non-specific interest that concerns all partnership assets, it is not a right to any particular partnership asset. Indeed, in order that "all doubt upon the point [be] removed", s 32 makes certain that, in the absence of agreement, partners will lack a vested interest in any land that is partnership property. It provides that unless the contrary intention appears, where land has become partnership property it is treated between partners, and the heirs, executors or administrators of partners, as personal and not real estate. 39 Although the peculiar nature of the fluctuating, unascertained, non-specific interest of partners in relation to partnership assets may have led Fullagar J, in dissent in Maslen v Perpetual Executors Trustees & Agency Co (WA) Ltd, to doubt whether partners had an interest in partnership assets that was capable of assignment, s 33 of the Partnership Act reflects the position, long established in equity, that partners do have an interest in relation to partnership property although, as this Court has constantly reiterated, the interest "can be finally ascertained only when the liquidation has been completed" and until then it is a non-specific interest. That is all that could have been meant by Rich J when he said, in dissent in Sharp v The Union Trustee Co of Australia Ltd, that the unascertained interest of a partner "is in proportion to his share in the ultimate surplus coming to him if at that moment the partnership were wound up and its accounts taken". As Dixon and Evatt JJ said in Bakewell v Deputy Federal Commissioner of Taxation (SA), a partner's share in a partnership consists "not of a title to specific property, but of a right to his proportion of the surplus after the realization of the assets and payment of the debts and liabilities of the partnership". 40 Upon dissolution, but before the partnership is wound up, the partnership property will continue to be held by the legal owner on trust with a duty to sell. Once winding up is complete, and the interest of each partner in the share of the surplus can be identified, then, like the rights of legatees of a wholly administered estate, s 50 of the Partnership Act recognises the partners' right to the transfer of the net value of their entitlements from the person holding the surplus." [Citations omitted]
The provisions of s 39 and s 44 of the New South Wales Partnership Act are substantially similar to the provisions of the Western Australian Partnership Act to which their Honours referred. Section 39 of New South Wales Partnership Act provides: "39 Rights of partners to application of partnership property On the dissolution of a partnership every partner is entitled, as against the other partners in the firm, and all persons claiming through them in respect of their interests as partners, to have the property of the partnership applied in payment of the debts and liabilities of the firm, and to have the surplus assets after such payment applied in payment of what may be due to the partners respectively after deducting what may be due from them as partners to the firm; and for that purpose any partner or the partner's representatives may, on the termination of the partnership, apply to the Court to wind up the business and affairs of the firm."
Section 44 of the New South Wales Partnership Act provides: "44 Rule for distribution of assets on final settlement of accounts In settling accounts between the partners after a dissolution of partnership, the following rules shall, subject to any agreement, be observed: (a) Losses, including losses and deficiencies of capital, shall be paid first out of profits, next out of capital, and lastly, if necessary, by the partners individually in the proportion in which they were entitled to share profits. (b) The assets of the firm, including the sums, if any, contributed by the partners to make up losses or deficiencies of capital, shall be applied in the following manner and order: 1 In paying the debts and liabilities of the firm to persons who are not partners therein. 2 In paying to each partner ratably what is due by the firm to the partner for advances as distinguished from capital. 3 In paying to each partner ratably what is due from the firm to the partner in respect of capital. 4 The ultimate residue, if any, shall be divided among the partners in the proportion in which profits are divisible."
In our view, as the Tribunal at first instance recognised, at least from the time of making of the Court orders, the nature of the Appellant's interest in Campbelltown and Liverpool changed. He was no longer beneficially entitled to 50% of either property. Indeed, upon the taking of partnership accounts, it may ultimately have transpired that the Appellant had no interest in or entitlement to any of the proceeds of sale of those properties. Particularly in the light of Rojoda, the submission of the Respondent that the nature of the Appellant's interest in the properties changed by virtue of the Court orders is in our view correct.
The Tribunal at first instance referred to the decision of the High Court in Nullagine (at 35 and 41 of its Reasons). The Tribunal was influenced, correctly in our view, by the statement of the majority in Nullagine at 657, that "Where sale is decreed, the single conveyance in fee simple by the tenants in common or joint tenants pursuant to a Court order does not involve the sale or disposition of the individual share or interest of the individual tenant. The Court order directing the sale of "the land" is an order for the sale of the fee simple in the whole of the land", and that "There is strong support for the view that the making of the order for sale extinguishes the equitable interests of the co-tenants in the land itself even before a sale is effected".
In our view, and as submitted on behalf of the Respondent, that is sufficient to determine the present appeal. Nothing raised by the Appellant, or emerging from any of the decisions or further decisions relied upon by him in our view renders the decision at first instance erroneous.
It is unnecessary to consider the Appellant's various arguments with respect to resulting or bare trusts, having regard to our conclusion with respect to his appeal. We agree with the contention of the Respondent that, whilst considerations of bare or resulting trusts were relevant to the second transfers of Campbelltown and Liverpool, they can have no bearing upon the correctness of the decision of the Tribunal at first instance with respect to the transfers by the Receivers and Managers of Campbelltown and Liverpool pursuant to the Court orders.
No ground of appeal having been made out; the appeal should be dismissed.

Costs

The Respondent sought that, irrespective of the outcome of the appeal, the Appellant pay one-half of the costs incurred by it in obtaining the transcript of the proceedings at first instance in accordance with a direction of the Tribunal of 27 July 2021. Sensibly in our view, the Appellant agreed to such an order. In those circumstances the Tribunal will so order. The sum involved is $552.50. The Appellant did not dispute either his liability to pay such sum or the reasonableness of that sum.

Order 1. The Appeal is dismissed. 2. The Appellant is to pay the Respondent the sum of $552.50 within 28 days.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2021

Civil and Adminstrative Tribunal Act 2013(NSW)

Partnership Act 1895(WA)

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