Suncorp Insurance and Finance v CSD [1997] QCA 225

Court of Appeal (Qld)|1997-07-29|Before: Before Fitzgerald P, Davies J, Fryberg J, Fitzgerald P

This is an appeal by case stated from two default assessments issued by the respondent Commissioner of Stamp Duties pursuant to s. 22A of the Stamp Act 1894.

On 29 March 1994, two trusts were established by deeds entered into between a settlor, the appellant as trustee, and a manager. The settlor settled money and property aggregating $1,000.00 on the appellant as trustee of each trust, and the appellant was registered as the holder of 500 ordinary units and Abbott & Williams Pty Ltd (presumably a company associated with the appellant) was registered as the holder of 500 "A" units in each trust. One trust was styled the "Suncorp Balanced Property Fund", and the other the "Suncorp Retail Property Fund". The appellant was registered as holder of its units in the Suncorp Retail Property Fund as trustee of the Suncorp Balanced Property Fund.

On 31 March, the appellant as trustee of the Suncorp Balanced Property Fund paid itself $90,000 "in consequence of which decision and payment [land in Queensland which the appellant owned] ... [was] subjected to the terms of the Suncorp Balanced Property Fund and became part of the Trust Fund of the Suncorp Balanced Property Fund".[1] On the same day, the appellant as trustee of the Suncorp Retail Property Fund paid itself the sum of $194,250,000 "in consequence of which decision and payment [other land in Queensland which the appellant owned] ... [was] subjected to the terms of the Suncorp Retail Property Fund and became part of the Trust Fund of the Suncorp Retail Property Fund".[2]

The Commissioner's default assessments of duty in the sum of $3,374,121.40 in respect of the transaction related to the Suncorp Balanced Property Fund and $7,282,478.60 in respect of the transaction related to the Suncorp Retail Property Fund were based on s. 54(AB) of the Stamp Act. It was not disputed that the steps taken in respect of each trust between 29 and 31 March 1994 constituted a "transaction" within the meaning of that section.

Sub-section 54AB(1)(a) applies to "a transaction ... which results in a person obtaining an estate or interest in any real property in Queensland ...". By sub-s. 54AB(1A):

"[f]or the purposes of subsection (1), a person is deemed to have obtained an estate or interest in property of the kind specified in subsection (1) where -

(a) that person acquires an estate or interest, vested or contingent, in a trust the trustee of which owns an estate or interest, vested or contingent, in that property; ..."

Although somewhat awkwardly expressed, the latter sub-section is plainly enough directed to, or at least includes, the acquisition of an equitable "estate or interest, vested or contingent" "in any real property in Queensland" which is held on trust.

The Commissioner's claim to duty was founded solely on sub-ss. 54AB(1)(a) and 54AB(1A)(a). In particular, no reliance was placed on sub-s. 54AB(1A)(b), which it was stated in the Commissioner's written argument "... is, in terms, not applicable to transactions of the sort now under consideration. Relevantly, [sub-s. 54AB(1A)(b)] applies only to a case in which a trustee of a trust in which a person has an estate or interest acquires an estate or interest in property in which the trustee did not previously hold any estate or interest". While it is not clear that that is correct, in the circumstances of this case sub-s. 54AB(1A)(b) does not appear to add anything to the Commissioner's case.[3]

The Commissioner's argument based on sub-s. 54AB(1)(a) without reference to sub-s. 54AB(1A)(a) can be briefly summarised.

(a) Prior to the transaction, the appellant, the owner of the land, did not have any separate equitable interest in the land.

(b) As a result of the transaction, although the appellant retained legal ownership of the land it did so as trustee, and it and Abbott & Williams Pty Ltd each had an equitable "estate or interest" in the land by virtue of its unitholding in each of the trusts.

(c) Although it also resulted in another person, Abbott & Williams Pty Ltd, obtaining an "estate or interest" and diminished the appellant's "estate or interest" in the land, each transaction resulted in the appellant obtaining its equitable "estate or interest" in the land within the meaning of the section.

The first of these propositions is plainly correct.[4]

As to the second proposition, no question was raised concerning the capacity of the appellant, which is constituted under the Suncorp Insurance & Finance Act 1985, with broad functions and powers.[5] Further, although a trust is not a separate legal entity and a trustee is not a separate legal person in his, her or its representative capacity from his, her or its personal capacity and the appellant is both the trustee and the majority unitholder, it was accepted that the transactions were authorised by the trust deeds and were permissible and effective to achieve their purposes.[6] The appellant's first argument on this part of the case was that, although the appellant became trustee of the material land as a result of the transactions, the units held by Abbott & Williams Pty Ltd did not give it any equitable "estate or interest" in the land, and that, accordingly, the appellant likewise did not have an equitable "estate or interest" in the land because a person cannot be a trustee for himself, herself or itself alone.[7] Alternatively, on the proper construction of the deeds, the units held by the appellant and Abbott & Williams Pty Ltd did not give either an equitable "estate or interest" in the land. In considering whether the appellant and Abbott & Williams Pty Ltd each had an equitable "estate or interest" in the land in each "Trust Fund" for the purpose of sub-s. 54AB(1)(a), it will be convenient to keep in mind also the question whether each had an equitable "estate or interest, vested or contingent" in the land for the purpose of sub-s. 54AB(1A)(a).

By cl. 3.2 of the Suncorp Balanced Property Fund deed,[8] the "Trust Fund" was "vested" in the "Trustee" "on trust for the Unitholders on the terms and subject to the conditions of this deed". Unitholders are bound by the deeds "as if each of them were a party ...",[9] although, subject to any approval required by law, "... the Trustee may with the agreement of the Manager make any alteration, modification, addition or cancellation to this deed (including this clause) or any deed supplemental hereto",[10] and "any alteration, addition, modification or cancellation proposed by the Trustee..." can be sanctioned or assented to by a Special Resolution of Unitholders.[11]

Clause 2.1 of each of the deeds defined the "Trust Fund" to include all property the subject of the trust and "Investments" to mean "all investments from time to time comprising the Trust Fund". Clause 3[12] included in the "Trust Fund" money received for units and "Authorised Investments" paid for by units. Clause 14 of the Suncorp Balanced Property Fund deed and cl. 16 of the Suncorp Retail Property Fund deed required the Trust Fund to be invested only in "Authorised Investments", which were there defined. However, by cl. 15.8 of the Suncorp Balanced Property Fund deed and cl. 17.8 of the Suncorp Retail Property Fund deed "the Unitholders may by Ordinary Resolution approve the purchase or sale of, or other dealing with, any property by the Trust ...". Clause 2.1 of each of the deeds defines "Ordinary Resolution" and "Special Resolution" in the following terms:

"`Ordinary Resolution' means a resolution passed at a meeting of the Unitholders duly convened and held in accordance with this deed by a majority of the persons voting thereat on a show of hands or if a poll is demanded then by a majority of the votes cast on such poll;"

`Special Resolution' means a resolution, whether or not such resolution is described as a special resolution, passed at a meeting of the Unitholders duly convened and held in accordance with this deed, by not less than 75% of the persons voting on it on a show of hands or if a poll is demanded then by not less than 75% of the votes cast on that poll;"

The deeds exclude individual unitholders from decisions and actions concerning the "Investments" which comprise the "Trust Fund", and, subject to very limited qualifications, commit all powers and discretions with respect to "Authorised Investments" to the "Trustee" and/or "Manager".[13] However, there are covenants by the "Trustee" and "Manager" concerning the performance of their functions, including the exercise of their powers and discretions with respect to "Investments",[14] and of course both the Trusts Act and the general law impose obligations and constraints upon trustees with respect to the exercise of their powers.[15]

Unitholders can decide various matters by resolution,[16] and, importantly, cl. 34[17] of the Suncorp Balanced Property Fund deed (which is expressly referred to in cl. 4.3[18]) effectively requires the unitholders to act by majority, with cl. 34.23 providing:

A resolution passed at a meeting of the Unitholders duly convened and held in accordance with this deed is binding on all Unitholders whether present or not present at the meeting and each of the Unitholders is bound to give effect thereto accordingly."

No provision was contained in the deeds for the compulsory redemption of any units by the appellant as trustee or the manager. However, by cl. 11.3 of the Suncorp Balanced Property Fund deed,[19] the trust may be terminated by a Special Resolution of Unitholders. As earlier noted, each "Trust Fund" is then to be realised,[20] and cl. 11.7[21] of the Suncorp Balanced Property Fund deed provides:

On realisation of the Trust Fund the Trustee must ... distribute to the Unitholders or Mortgagees in respect of any Units all net cash proceeds derived from the realisation of the Trust Fund and available for the purpose of distribution and subject to the terms of the issue of any Unit (including without limitation, the terms applicable to A Units specified in clause 4.6)[22] all Units will rank equally for that purpose ..."

By clause 2.1 of each deed, "Unit" was defined to mean "... subject to the restriction on the interests of the holders of A units ... an undivided part or share in the Trust Fund as described in clause 4".[23] Clause 4 of the Suncorp Balanced Property Fund deed[24] was as follows:

The beneficial interest in the Trust Fund is divided into Units.

Except as provided in this deed, each Unit confers an equal interest in the Trust Fund but does not confer any interest in any particular part of the Trust Fund. ...

Other than as provided in this deed, including without limitation, in clause 34, the beneficial interest of a Unitholder in the Trust does not entitle the Unitholder to:

(a) interfere with any of the trusts, rights, powers, authorities or discretions of the Trustee or of the Manager in respect of any Investment;

(b) interfere with or to question the exercise or non-exercise by the Trustee or the Manager of any of those trusts, rights, powers, authorities or discretions;

(ii) exercise any other right where that right is given to the holder of an asset and such asset is an Investment;

(iii) lodge a caveat or other notice in respect of any Investment prohibiting, whether conditionally or unconditionally, the taking of any action in respect of the Investment or registration of any dealing in respect of the Investment; or

(iv) claim any estate or interest in any particular Investment; or

(d) require the transfer to him of any part of the Trust Fund or any Investment.

... all Units are of equal value on any given date (except as provided in relation to the A Units ...) ...

All A Units have the same rights and liabilities as ordinary Units except that the holder of an A Unit shall have no right, title or interest in respect of the Trust Fund other than a right:-

(a) to participate in any income distribution as provided in this deed;

(b) to receive $1.00 per A Unit on Redemption of that Unit; and

(c) to participate in any distribution following termination of the Trust and realisation of the Trust Fund other than any right to participate in any in specie distribution of Trust

The question whether each or either of the unitholders in the Suncorp Balanced Property Fund and the Suncorp Retail Property Fund had an "estate or interest" in the land which formed part of each Fund's "Investments" involves an area of the law which is conceptually complex, even where, as here, the trustee, the beneficiaries and the trust property are ascertained and the terms of each trust were established. For example, a partner's right to a proportion of the surplus after realisation of the assets and payment of the debts and liabilities of a partnership constitutes an equitable interest in the partnership assets and each of them even while the partnership is a going concern.[26] Further, a beneficiary in a fully administered deceased estate has an equitable interest in property which is the subject of a benefit devised or bequeathed to him or her under the will.[27] Commonly, a unitholder under a unit trust will have an equitable interest in the trust property and its constituent parts.[28] However, it has been held that a beneficiary under an entirely discretionary trust has no legal or equitable interest in all or any of the trust property.[29] Further, a beneficiary under a will has no legal or equitable interest in the estate property while it is unadministered.[30]

In Canny Gabriel, the High Court[31] described the equitable interest of a partner in a continuing partnership in each of the partnership assets as having a "peculiar character"[32] and being "sui generis".[33] On the other hand, both Livingston and Gartside involved the construction of references to "interests" in particular statutory contexts.[34] Further, Livingston emphasised the "peculiar status" of an executor of an unadministered estate. Viscount Radcliffe, in delivering the opinion of the Privy Council which affirmed the majority decision in the High Court,[35] said that, although an executor is subject to fiduciary obligations "and for certain purposes and in some aspects ... treated by the court as a trustee",[36] the law accorded a "peculiar status ... to an executor for the purposes of carrying out his duties of administration".[37] Generally speaking, "... whatever property came to the executor virtute officii came to him in full ownership, without distinction between legal and equitable interests. The whole property was his".[38] No trust came into existence to affect the property in the estate while it was unadministered.[39] "What equity did not do was to recognize or create for residuary legatees a beneficial interest in the assets in the executor's hands during the course of administration."[40]

At p. 712, after referring to the "... fallacy ... that for all purposes and at every moment of time the law requires the separate existence of two different kinds of estate or interest in property, the legal and the equitable",[41] his Lordship continued:

"... When the whole right of property is in a person, as it is in an executor, there is no need to distinguish between the legal and equitable interest in that property, any more than there is for the property of a full beneficial owner. What matters is that the court will control the executor in the use of his rights over assets that come to him in that capacity; but it will do it by the enforcement of remedies which do not involve the admission or recognition of equitable rights of property in those assets. Equity in fact calls into existence and protects equitable rights and interests in property only where their recognition has been found to be required in order to give effect to its doctrines."

As the judgment went on to recognise, there was Australian authority to the contrary, and the judgment of Jordan C.J. in McCaughey v. Commissioner of Stamp Duties (N.S.W.)[42] and the decision of the High Court[43] in Smith v. Layh[44] were referred to with disapproval. Speaking of McCaughey, it was said[45] that, although "beneficiaries are not without legal remedy during the course of administration to secure that the assets are properly dealt with and the rights that they hope will accrue to them in the future are safeguarded", they did not in consequence have any beneficial proprietary interest in the property. And the statement in Smith[46] that "[t]he right of the next-of-kin or residuary legatee to have the estate properly administered and to receive payment of the net balance gives them an equitable interest in the totality and therefore in the assets of which it is comprised" was expressly rejected.[47]

In Gartside, two concurring judgments were delivered, one by Lord Reid with whom Lord Morris of Borth-y-Gest and Lord Guest agreed, and the other by Lord Wilberforce with whom Lord Hodson agreed. Potential beneficiaries under discretionary trusts (for convenience called "the discretionary beneficiaries" by Lord Wilberforce) had no right to receive any income. The nature of the trusts clearly emerges from the judgment of Lord Wilberforce at pp. 614-615:

"The trustees had an absolute discretion to distribute or to withhold distribution of the income of any year, and, as regards any income they decided to distribute, to give all or none of it to any one beneficiary. Any undistributed income had, during the permissible period, to be accumulated, i.e., added to capital. The accumulations so made could subsequently be distributed in the same way as current income - no beneficiary having any right to any such distribution - and subject to this power were held by the trustees upon trusts under which ... two grandchildren had contingent interests only.

... It is also necessary to appreciate that the discretionary beneficiaries taken together had no right to receive any or, a fortiori, all of the income. ...; the reason being that the trustees have power to accumulate so much as they did not distribute, which might be the whole, ... ."

Lord Reid said at pp. 601-602 that the argument for the Inland Revenue Commissioners was that the duty of the trustees to exercise their discretion from time to time gave to each of the discretionary beneficiaries an interest in the fund which extended to the whole fund because the trustees could at any time have given the whole of the income from it to any one of the discretionary beneficiaries. His Lordship continued:

"[The Commissioners of Inland Revenue] say that it is immaterial whether or not the trustees ever at any time in fact gave to any of these beneficiaries any sum or other benefit: they each had interests in possession of the whole fund even if none of them ever received anything from it. ... But the appellants argued that a person's right to require trustees of a discretionary trust to consider from time to time whether or not to apply the whole or some part of the income of the trust funds for his benefit is not an interest, and, in any event, is not an interest in possession, in the whole fund or in any part of it within the meaning of this section.

... A person, who has a contingent right to some benefit from a trust fund in some future event, has a present right to prevent the trustees from dissipating the fund. But that right is not an interest in possession separate from and in addition to his contingent interest."

"There are in some of the cases indications of a view that, while each of the objects of a discretionary trust has an interest in the trust fund, this interest does not extend to the whole or any part of the interest accruing from the fund. But, on the other hand, all the objects together have a single class or group interest which does extend to the whole interest of the fund. Counsel for the [Inland Revenue Commissioners] ... expressly declined to adopt that view and I think he was well advised in taking that course. ...

I think that this idea of a group or class right must have arisen in this way. Where the trustees are bound to distribute the whole income among the discretionary beneficiaries and have no power to retain any part of it or use any part of it for any other purposes, you cannot tell what any one of the beneficiaries will receive until the trustees have exercised their discretion. But you can say with absolute certainty that the individual rights of the beneficiaries when added up or taken together will extend to the whole income. ... And that may lead to important results where the trust is of that character. But that is not this case.

There was also an intermediate argument that, although an object of a discretionary trust has an interest in the whole of the trust fund, he does not have any interest in either the whole or any part of the income accruing from the fund. That argument is too subtle for me to understand it. No object of a discretionary trust has, as such, any legal right to or in the capital. His sole interest, if it be an `interest' within the scope of these provisions, is with regard to the income: he can require the trustees to exercise, in bona fide, their discretion as to how it shall be distributed, and he can take and enjoy whatever part of the income the trustees choose to give to him. I cannot see any ground for holding that he can have any `interest' in the capital if he has no interest in the income. ... his right to prevent misappropriation of the capital is not a separate interest."

"In my judgment, an examination of the relevant provisions of this legislation leads to the clear conclusion that objects of a discretionary trust do not have interests extending to the whole or any part of the income of the trust fund and it must follow that they do not have interests in the fund within the meaning of s. 2(1)(b) [of the Finance Act 1894]. And when one comes to s. 43 of the 1940 Act, a fortiori they do not have interests in possession. It does not seem to me to be a reasonable method of construction to say first that you must disregard technicalities when considering what `interest' means and then, with regard to the rest of the phrase `in possession', introduce the technicality that any interest which is not `in expectancy' must be an interest `in possession'. To have an interest in possession does not merely mean that you possess the interest. You also possess an interest in expectancy, for you may be able to assign it and you can rely on it to prevent the trustees from dissipating the trust fund. `In possession' must mean that your interest enables you to claim now whatever may be the subject of the interest. .... a right to require trustees to consider whether they will pay you something does not enable you to claim anything. If the trustees do decide to pay you something, you do not get it by reason of having the right to have your case considered: you get it only because the trustees have decided to give it to you. Even if I had thought the objects of discretionary trusts have interests, I would not find any good reason for holding that they have interests in possession."

"... the discretionary beneficiaries ... had no `interest' within the meaning of the section: no single member of this class had any right to any income: even if one considers them collectively they had no right to any income because the trustees could accumulate the whole of it."

"No doubt in a certain sense a beneficiary under a discretionary trust has an `interest': the nature of it may, sufficiently for the purpose, be spelt out by saying that he has a right to be considered as a potential recipient of benefit by the trustees and a right to have his interest protected by a court of equity. Certainly that is so, and when it is said that he has a right to have the trustees exercise their discretion `fairly' or `reasonably' or `properly' that indicates clearly enough that some objective consideration (not stated explicitly in declaring the discretionary trust, but latent in it) must be applied by the trustees and that the right is more than a mere spes. But that does not mean that he has an interest which is capable of being taxed by reference to its extent in the trust fund's income: it may be a right, with some degree of concreteness or solidity, one which attracts the protection of a court of equity, yet it may still lack the necessary quality of definable extent which must exist before it can be taxed."

Both Lord Reid and Lord Wilberforce distinguished Attorney-General v. Heywood [1887] 19 Q.B.D. 326, in which the settlor of a discretionary trust who was also a discretionary beneficiary was held to have reserved an "interest", but nothing which was said requires further discussion in the present case.

In Schultz, the High Court held that the property of a bankrupt divisible amongst her creditors included her entitlement under a will to an interest in a house and contents although the estate was unadministered. In the judgment of the Court,[48] it was said at pp. 313-314:

"... it is significant that [in Livingston, Lord Radcliffe] approved [(1964) 112 C.L.R., at p. 27; [1965] A.C., at p. 717] the view of the law expressed by Fullagar, Kitto and Menzies JJ. in this Court: Livingston v. Commissioner of Stamp Duties (Q.) [(1960) [1960] HCA 94; 107 C.L.R. 411].

Fullagar J. considered that the residuary beneficiary had an equitable interest in the entire mass of the testator's estate and that it may be that she had an equitable interest in every part of that mass, an interest which could be described as a proprietary interest or `property', though there was a problem in justifying the accuracy of these descriptions as precise descriptions of the nature of the interest [(1960) 107 C.L.R., at p. 438]. Kitto J. acknowledged that the residuary beneficiary in an unadministered estate was not the legal or beneficial owner of the assets in that estate. However, his Honour described the interest of the residuary beneficiary in assets of such an estate as consisting of rights `with respect to, or "in", or ad each specific asset for the time being in the estate' [(1960) 107 C.L.R., at p. 451]. Menzies J., agreeing with Fullagar J., in speaking of the residuary beneficiaries' chose in action, concluded [(1960) 107 C.L.R., at pp. 458-459] that they had `no separate or separable property in the specific items or assets of which the estate is made up', in the words of this Court in Smith v. Layn [(1953) [1953] HCA 16; 90 C.L.R. 102, at p. 108]. And Dixon C.J., who was in the minority, spoke [(1960) 107 C.L.R., at p. 426] of the residuary beneficiary being entitled at her husband's death to `an equitable interest in the Queensland property forming part of his estate', that interest being incapable of definition in terms appropriate to legal estates or chattels real.

The right which any beneficiary has in an unadministered estate springs from the duty of the executor to administer the estate, to preserve the assets and to deal with them in the proper manner. Each beneficiary has an interest in seeing that the whole of the assets are treated in accordance with the executor's duties. In that sense, the beneficiaries as a class may be said to have an interest in the entire estate. But it does not follow that each piece of property which goes to make up the estate is held on a particular trust for the beneficiary named as its intended recipient upon completion of administration: Horton v. Jones [(1935) [1935] HCA 7; 53 C.L.R. 475, at p. 486. Whether or not the estate is held on a trust for the beneficiaries as a class in the usual sense in which the word `trust' is used, so as to confer a specific proprietary interest, as distinct from a general, non-specific interest, upon all beneficiaries, is not something which arises for consideration in this case.

Nevertheless, Mrs Schultz acquired upon the death of Mrs Pereira a right to have the deceased estate administered in accordance with the duties of the executors. Though not the legal or equitable owner of the assets which were the subject of the devise and bequest in her favour, she had, by virtue of the chose in action created by that devise and bequest, an expectation that the assets would pass to her upon completion of the administration, subject to their being realized to meet any outstanding liabilities and to defray the costs of administration, and an interest in respect of those assets. That interest was derived from and dependent upon the chose in action. The interest is of such a kind that, when a beneficiary transmits a chose in action (or part thereof), or that chose in action passes by operation of law, such as under the Bankruptcy Act, that transmission naturally encompasses not only the chose in action but also the expected fruits of that chose in action: Horton v. Jones; In re Leigh's Will Trusts [[1970] Ch. 277, at p. 282].

Mrs Schultz's right to due administration arose from cl.3(a) and (g) of the will. That right vested in the Official Receiver as soon as it vested in Mrs Schultz, since it was clearly `property' as defined in s.5(1) of the Bankruptcy Act: Re Pevsner; Ex parte Trustee in Bankruptcy [(1983) [1983] FCA 119; 68 F.L.R. 254, at p. 256]; Silvia v. Thomson [(1989) [1989] FCA 394; 87 A.L.R. 695, at p. 696]. It follows, from what has been said above, that the interest derived from that right also passed to the Official Receiver at that time. Moreover, at all times Mrs Schultz possessed but one right by virtue of cl.3(a), whatever the effect of the subsequent court orders in relation to cl.3(g)."

Costa & Duppe Properties Pty Ltd involved a unit trust which has some similarities to the trusts in the present matter. The trust fund of the unit trust consisted of freehold land, and two family trustee companies each held half of the issued units. Brooking J. held that a unitholder had a proprietary interest in the land which was sufficient to support a caveat.

Clauses 7(a) and 8(a) of the trust deed there under consideration provided:

"`7.(a) The beneficial interest in the Trust Fund as originally constituted and as existing from time to time shall be vested in the Unit Holders for the time being.

`8.(a) Each Unit shall entitle the registered holder thereof together with the registered holders of all other Units to the beneficial interest in the Trust Fund as an entirety but subject thereto shall not entitle a Unit Holder to any particular security or investment comprised in the Trust Fund or any part thereof and no Unit Holder shall be entitled to the transfer to him of any property comprised in the Trust Fund other [sic] than in accordance with the provisions hereinafter contained.'"

"Things are not always what they seem. A unit is an undivided part or share in the trust fund, but it does not necessarily follow from this definition that the holder of a unit has a proprietary interest in any of the assets making up the trust fund; a testator may in terms give a share of his residuary estate, but the law says that the residuary beneficiary has no proprietary interest in any of the assets of the unadministered estate. By cl. 7(a) of the deed the beneficial interest in the trust fund shall be vested in the unit-holders, but `beneficial interest' does not always mean an interest that is proprietary; moreover the effect of an instrument in relation to the creation of proprietary interests depends, not simply on any express provision it may contain in that regard, but on what effect the law will give to the instrument considered as a whole in the light of applicable principles."

Later, after referring to a number of authorities, including New Zealand Insurance Co. Ltd. v. Commissioner of Probate Duties (Vic.), Charles v. Federal Commissioner of Taxation[49] and Octavo Investments Pty Ltd v. Knight,[50] his Honour said at p. 96:

"To my mind, having regard to the New Zealand Insurance Case, the Octavo Investments Case and what is said in Charles v. Federal Commissioner of Taxation, the conclusion is inescapable that the unit-holders in the Costa & Duppe Properties Unit Trust have a proprietary interest in all the property which is for the time being subject to the trust deed. This proprietary interest is recognized by cl. 7(a) of the deed. Clauses 7(a) and 8(a) cannot mean that the unit-holders, while having a proprietary interest in the whole, have no such interest in any of the constituent parts. If there is a proprietary interest in the entirety, there must be a proprietary interest in each of the assets of which the entirety is composed: cf. Smith v. Layh [1953] HCA 16; (1953) 90 C.L.R. 102; at pp. 108-9. What cl. 8(a) recognises is that no unit-holder can claim to have any particular asset appropriated to his share or transferred to him otherwise than in accordance with the deed.

It is worth noting that writers on the unit trust treat unit-holders as having a proprietary interest in the trust assets: H.A.J. Ford, Unit Trusts, (1960) 23 Mod. L.R. 129, at pp. 131-2 and 141; M.J. Walsh, `Unit Trusts' - Structure, Management and Taxation (1976) 10 T.I.A. 534, at pp. 537-8 and 550; M.J. Walsh, Unit Trusts (1977) 12 T.I.A. 446, at p. 447; T.W. Magney, A Comparative Analysis of Estate Planning Vehicles Part 2 (1977) 12 T.I.A. 222, at p. 226; Grbich, Munn & Reicher, Modern Trusts and Taxation, 1978, pp. 36-7 and 40-1.

In my opinion, cl. 7(a) and cl. 8(a) do no more than recognize what the effect of the trust deed would be in the absence of express provision. A unit-holder has a proprietary interest in each asset of the trust notwithstanding the possible duration of the trust, the extremely wide powers of management given to the trustee and the possibility that the trust might lose the whole or part of its capital through unprofitable trading or speculation.

Duppe Holdings Pty Ltd had, by virtue of being a unit-holder, a proprietary estate or interest in each piece of land which was included among the assets of the trust."

Brooking J.[51] considered Charles "the most important authority for present purposes", noted that it involved a unit trust which was not a trading trust but an investment trust with a wide power to vary investments, and quoted the following passage from the joint judgment of the High Court[52] at p. 609: "But a unit under the trust deed ... confers a proprietary interest in all the property which for the time being is subject to the trust of the deed". However, as Brooking J. stated, the Court did not explain that conclusion but merely referred to Baker v. Archer-Shee. In my opinion, little assistance for present purposes is to be derived from Charles, in which the trust deed provided that the trust fund was held in trust for unitholders, who were entitled to surrender their units for cash or, if their unitholding was of an appropriate number, for a proportionate part of the trust fund, and who were further entitled, on termination of the trust, to a proportional distribution in specie or cash; all "income" was to be distributed; and the deed did not contain provisions such as cll. 7(a) and 8(a) of the trust deed in Costa & Duppe Properties Pty Ltd or the comparable provisions in the Suncorp Balanced Property Fund and Suncorp Retail Property Fund deeds.

Nor do I find significant assistance in Octavo Investments, in which the trust property was held by the trustee on trust for the beneficiaries "to pay the income to them in equal shares and to distribute the capital equally between them on the `vesting day' ...".[53] The proposition that the beneficiaries had "a beneficial interest in the trust assets"[54] was not in dispute, but the trust deed lacked any of the features which are potentially material in the present case.

In Costa & Duppe Properties Pty Ltd, the outcome was influenced by the construction accorded to the terms of the particular deed.[55] It is plain that the rights of the unitholders likewise derived from the terms of the trust deed in Read. The Suncorp Balanced Property Fund[56] and Suncorp Retail Property Fund[57] deeds are materially different from the deeds in those cases. The difficulty in the present case does not stem from any inherent characteristics of a unit trust but from the terms of the Suncorp Balanced Property Fund and Suncorp Retail Property Fund deeds. The most important statement in Costa & Duppe Properties Pty Ltd for present purposes is that on p. 93, quoted above, in which Brooking J. said that "... the effect of an instrument in relation to the creation of proprietary interests depends, not simply on any express provision it may contain in that regard, but on what effect the law will give to the instrument considered as a whole in the light of applicable principles". The general principle reflected in that statement is that a clause in an instrument cannot be given effect according to its terms if they contradict the effect of the instrument as a whole.[58] The critical question is whether the overall effect of each of the Suncorp Balanced Property Fund and Suncorp Retail Property Fund deeds was to give the appellant (and Abbott & Williams Pty Ltd) an equitable estate or interest in the "Investments" comprising those "Trust Funds".

While Gartside is somewhat equivocal, as appears from the passages underlined, it is at least consistent with a conclusion that each of the appellant and Abbott & Williams Pty Ltd had a sufficient interest in the land included in the "Trust Funds" to satisfy sub-s. 54AB(1A)(a). However, the underlined passages quoted from Livingston at pp. 707 and 712, especially the second last sentence in the passage from p. 712, could lead to a contrary conclusion unless confined to the special position of an executor. Although the dissenting judgment of Brennan, Dawson and McHugh JJ. in Registrar of the Accident Compensation Tribunal v. Federal Commissioner of Taxation[59] at p. 183-184 suggests the possibility that the passage quoted from p. 712 might have a wider operation, I have found no other authoritative support for that view. On the contrary, what was said by the Privy Council in Livingston must now be read in conjunction with the passage cited from the High Court's judgment in Schultz. According to the majority judgment[60] in Registrar of the Accident Compensation Tribunal at pp. 165-166:

"... unless there is something in the circumstances of the case to indicate otherwise, a person who has `the custody and administration of property on behalf of others' [Taylor v. Davies [1920] A.C. 636 at p. 651] or who `has received, as and for the beneficial property of another, something which he is to hold, apply or account for specifically for his benefit' [Cohen v. Cohen [1929] HCA 15; (1929) 42 C.L.R. 91, at p. 100, per Dixon J.] is a trustee in the ordinary sense."

That accords with the received view in Australia today, interestingly (in view of what was said in Livingston of Jordan C.J.'s views in McCaughey) substantially influenced by the views of Sir Frederick Jordan,[61] that a person who is entitled to equitable relief to enforce or protect rights in respect of property has an equitable interest in the property commensurate with the equitable relief available.[62]

Principle and authority seem to me to indicate that a majority unitholder which has the right to have the trust deeds performed according to their terms, including the "Trust Funds" dealt with as each deed requires, and to cause the realisation of each "Trust Fund" and distribution of the proceeds, has an equitable "estate or interest" in the Trust Fund and each of the "Trust Fund" "Investments". Further, since the appellant's "estate or interest" obviously falls short of full ownership, the minority unitholder, which also has the right to participate in the distributions, likewise has an equitable "estate or interest" in each "Investment" held on trust by the appellant for the unitholders.[63]

If the appellant's units entitle it to an equitable "estate or interest" in the relevant land, in one sense it obtained that "estate or interest" as a result of the transaction; its "estate or interest" in the land the subject of each trust is different from, and importantly less than, its original full ownership of that land. In the present case, each new "estate or interest" of the appellant is equitable, but the same situation could arise from a transaction which led to the registration of an instrument executed by the registered proprietor of an estate in fee simple in the land which resulted in him, her or it "obtaining" a lesser legal estate.[64] It is not material to the present point that, by virtue of paras. (a) or (b) of sub-ss. 54AB(2), a statement might not be required in respect of such a transaction. What is of current significance is whether such a transaction is, within the meaning of sub-s. 54AB(1)(a), one "which results in a person", i.e., the original registered proprietor, "obtaining an estate or interest in any real property", i.e., the lesser "estate or interest".

In my opinion, that question should be answered in the negative. While the same transactions resulted in one person, Abbott & Williams Pty Ltd, obtaining an additional "estate or interest" in land and the "estate or interest" of another, the appellant being reduced, dutiability for present purposes is concerned only with the latter, not the former, effect of the transactions. In my opinion, the evident purpose of sub-s. 54AB(1)(a) is to extend liability to duty to transactions which result in a person obtaining an additional "estate or interest" in land, not to transactions which result in that person's "estate or interest" being reduced.

The Commissioner's argument based on sub-s. 54AB(1)(a) of the Act therefore fails.

The conclusion that the appellant and Abbott & Williams Pty Ltd each had an equitable "estate or interest" in the land the subject of each trust by virtue of its unitholding in the trust leads inevitably to the conclusion that each unitholder had "an estate or interest, vested or contingent, in a trust" of the type spoken of in sub-s. 54AB(1A)(a). However, when the appellant acquired its units in each of the trusts, it did not own any "estate or interest" in any material land as trustee; more generally, no material land was then held on any trust. Whether or not other meanings might be derived from sub-s. 54AB(1A)(a) by straining its language and ignoring its intent, I am of opinion that the trustee spoken of in the sub-section is intended to own an "estate or interest ... in ... property" in its capacity as trustee, and that that ownership must precede the acquisition by the "person" referred to of "an estate or interest ... in [the] trust". In this case, the order of events was reversed. All units held by the appellant and Abbott & Williams Pty Ltd had been issued before the appellant became trustee of the land.

The Commissioner's argument based on sub-s. 54AB(1A)(a) therefore also fails.

In these circumstances, only two of the questions asked in the case stated, (a) and (d), need to be answered. I consider that they should be answered as follows:

(a) The appellant was not obliged to prepare and lodge with the Commissioner statements in the prescribed form pursuant to sub-s. 54AB(2) of the Stamp Act.

(d) The costs of and incidental to the stating of the case and these appeals should be borne and paid by the Commissioner.

In accordance with sub-s. 24(4) of the Act, the duty assessed by the Commissioner and paid by the appellant should be ordered to be repaid to the appellant with interest calculated in conformity with sub-s. 24(4A).

This is an appeal by way of case stated from default assessments of the Commissioner of Stamp Duties pursuant to s.22A of the Stamp Act 1894. The assessments were, in each case, upon the failure to lodge a statement pursuant to s.54AB(2). They were made, in each case, on the basis that there was a transaction or acquisition which resulted in a person obtaining an estate or interest in real property in Queensland (s.54AB(1)(a)) either on the ordinary meaning of those words or because the acquisition was of an estate or interest, vested or contingent, in a trust the trustee of which owned an estate or interest, vested or contingent, in such property (s.54AB(1A)(a)).

Although the written outlines of argument of both parties focussed on the second of these bases of assessment, before this Court Mr. Keane Q.C. S.G. for the Commissioner relied solely on the first, conceding, correctly in my view, that if the Commissioner did not succeed on that basis she could not succeed on the second. Accordingly it is not necessary to consider the second basis for the assessment.

The Commissioner contended, and this was accepted by the appellant, that in order to determine whether there was such a transaction, it was necessary to look at the series of steps which occurred pursuant to a scheme for restructure of the property portfolio of the appellant Suncorp Insurance and Finance ("Suncorp"). The steps taken pursuant to that scheme were as follows.

1. On 29 March 1991 a person settled a small sum of money and a Queensland Treasury Corporation Bond on Suncorp upon each of two trusts called respectively the Suncorp Balanced Property Fund and the Suncorp Retail Property Fund. Both were unit trusts constituted by trust deeds whose provisions were relevantly identical. The deeds provided that the initial unit holders of each were Suncorp as the holder of 500 ordinary units and Abbott and Williams Pty. Ltd. as the holder of 500 A units. Under the second Suncorp held its units as trustee of the Suncorp Balanced Property Fund. I shall refer later to some of the terms of those deeds.

2. On 30 March Suncorp purported to pay itself, as trustee of the Suncorp Balanced Property Fund, $320,849,870 for 317,474,870 ordinary units in the Suncorp Balanced Property Fund and to pay itself, as trustee of Suncorp Retail Property Fund, $205,597,755 for 198,313,380 ordinary units in the Suncorp Retail Property Fund. These steps were described in the case stated as, in each case, Suncorp subscribing the money referred to for units and, it was said, the units were issued.

3. On 31 March Suncorp, acting in its capacity as trustee of the Suncorp Balanced Property Fund, purported to pay itself, in its personal capacity, $90,000,000 in order to subject specified real property to the terms of the trust and, acting in its capacity as trustee of the Suncorp Retail Property Fund, purported to pay itself, in its personal capacity, $194,200,000 in order to subject other specified property to the terms of that trust. These sums purported to be paid out of the respective sums referred to in 2. These steps were described in the case stated as, in each case, the payment of money referred to and, it was said, the property specified in each case was subjected to the terms of the Fund.

It was conceded by Suncorp that the transaction to which s.54AB refers was, in this case, the totality of these steps. They were part of a scheme described in a Board submission forming part of the case. The question is whether the transaction constituted by these steps was one which resulted in Suncorp obtaining an estate or interest in real property. The assessments were not made and are not sustainable on the basis that Abbott and Williams Pty. Ltd. obtained an estate or interest in real property; nor was that contended. Nor was it submitted that the transaction or any instruments pursuant to it were dutiable on any other basis than that on which it or they had been assessed. Each of the trust deeds and each of Suncorp's applications for units had been assessed to duty and there is no dispute about those assessments. I shall, from now on, refer in the singular to the trust deed because, as I have said, the relevant terms of the deeds were identical.[65]

The appellant advanced three arguments in favour of its submission that Suncorp did not obtain any estate or interest in real property as a result of the transaction. The first focussed on the meaning of "obtain" and asserted that this denoted an acquisition from another. The second relied on the absence of any right enforceable by Suncorp as beneficiary against itself as trustee. Added to that was a submission that, under the trust deed, Abbott and Williams obtained no beneficial interest in the property and that, even if a person could be a trustee for itself and another, that was not this case. And the third submission relied on the terms of the form of statement prescribed pursuant to s.54AB(2).

If, as the appellant contended, the effect of the trust deed was that Abbott and Williams obtained no beneficial interest in the trust property then, it seems to me, the appeal must succeed for it cannot be disputed that a person cannot hold property in trust for himself alone[66]. It is convenient then to consider that question first.

The trust fund is defined to include all property of the trust and unit is defined to mean, subject to the restriction on the interests of the holders of A units, an undivided part or share in the trust fund. The deed then provides that, except as provided by the deed, each unit confers an equal interest in the trust fund[67]. However the right of any beneficiary to exercise any right in respect of any item of property forming part of the trust fund is limited[68] and the rights of the holder of A units are further relevantly limited to a right to participate in any distribution following termination of the trust and then not to an in specie distribution[69]. However it is not clear how there could ever be an in specie distribution on termination of the trust[70].

Notwithstanding these limitations the holder of A units has a beneficial interest in the trust fund[71] and the interest of such a holder necessarily includes an interest in each asset of the trust fund which, of course, includes the real property[72]. I would therefore reject the appellant's argument to the contrary.

Nor do I think that the appellant is assisted by definition of the word "obtain" in other contexts. The question which must be resolved in the context of s.54AB is whether the interest which Suncorp has in the real property after the transaction was obtained as a result of it. This requires determination of the character of that interest and how it arose.

The character of Suncorp's interest in the real property after the transaction and how it arose

As mentioned earlier a person cannot hold property in trust for himself or herself alone. Thus where legal and equitable ownership of property, formerly separate, unite in one person the equitable interest merges in the legal one[73]. On the other hand a person may have the whole legal estate and a limited beneficial interest in that estate[74].

However the origin and still of the essence of a trust is an obligation owed by a person, the trustee, to exercise rights on behalf of another or for the accomplishment of some purpose[75]; and where that obligation is in respect of property on behalf of another the beneficiary of that obligation has a right to enforce it against the trustee[76]. Plainly a trustee who also has a limited beneficial interest in a trust cannot owe obligations to himself or herself, let alone enforce them.

It is unnecessary here to attempt to characterize more precisely the nature of the limited beneficial interest of such a person. However the answer to the question whether, in this case, Suncorp obtained an interest in real property as a result of the above transaction requires close examination of how such a beneficial interest arises. That may best be described, in my view, by reference to the trust imposed in respect of the owner of the other equitable interest. The question may now be considered by reference to the steps, referred to earlier, said to constitute the present transaction.

Step one involved a gift to Suncorp with a trust impressed on it in favour of Abbott and Williams in terms of the trust deed. In consequence it imposed restrictions on Suncorp's absolute enjoyment of the gift.

Step two and the description of it in the case stated appear to be based on the false assumption that Suncorp in its personal and trustee capacities are different persons. The reality is, of course, that it remained one person and that one person cannot pay money or transfer property to itself. It is unnecessary to determine what, if any, effect step two had.

Step three and the description of it in the case stated are also based on the same false assumption. But what was done does evidence an intention by Suncorp to subject to the terms of the trust property formerly owned by it absolutely in fee simple; that is to impress upon that property a trust in favour of Abbott and Williams in terms of the trust deed which thereby became enforceable against Suncorp by Abbott and Williams. Suncorp thereby restricted its own former absolute enjoyment of the property, the extent of that restriction being commensurate with the beneficial interest conferred on Abbott and Williams.

For the Commissioner to succeed it must be correct to describe what occurred by step three as the obtaining by Suncorp of a beneficial interest in property and I do not think that that is so. It is more accurate, in my view, to describe it, vis-à-vis Suncorp, as the restriction upon its absolute enjoyment of the property in consequence of its acceptance of the imposition upon it of a trust in respect of that property in favour of Abbott and Williams.

It is therefore unnecessary to consider the appellant's argument based on the form of statement presented pursuant to s.54AB(2).

It follows that the appeal must succeed. Question (a) in the case stated asked:

"Was the Appellant either in its own right or as Trustee for the Suncorp Balanced Property Fund, or both, obliged to prepare and lodge with the Commissioner statements in the prescribed form pursuant to s.54AB(2) of the Stamp Act?"

That question should accordingly be answered "no". In view of that answer it is unnecessary to answer questions (b) and (c). Question (d), which asks how the costs should be borne and paid should be answered by saying that they should be borne and paid by the Commissioner.

I agree with the orders proposed by Davies JA and with His Honour's reasons for those orders.

[3] It was not argued, for example, that the appellant "acquired" an "estate or interest" in the land when it became trustee of the land, presumably because it was always the legal owner.

[4] DKLR Holding Co. (No. 2) Pty Ltd v. Commissioner of Stamp Duties (N.S.W.) (1982) 149 C.L.R. 431, 442, 443-444, 450-451, 473-474; Westdeutsche Landesbank Girozentrale v. Islington London Borough Council [1996] UKHL 12; [1996] 2 W.L.R. 802 at 830.

[5] Suncorp Insurance & Finance Act 1985; e.g., ss. 7, 8, 38 and 39.

[6] The law in Queensland has been altered by statute since Glennon v. Federal Commissioner of Taxation (1972) 127 C.L.R. 503, 512. See the Trusts Act 1973, for example s. 59, and s. 14 of the Property Law Act 1974; and, generally, Ford and Lee, "Principles of the Law of Trusts", 3rd ed., paras. 1560, 1570, 1580, 1590, 9120, 9130, 9140. Indeed, the Stated Case proceeded on this basis, which was not questioned during the hearing.

[7] DKLR Holding Co. (No. 2) Pty Ltd; Purcell v. Deputy Federal Commissioner of Taxation [1920] ArgusLawRp 78; (1920) 28 C.L.R. 77, 88.

[8] Clause 5.2 of the Suncorp Retail Property Fund deed.

[9] Clause 40 of the Suncorp Balanced Property Fund deed and cl. 44.1 of the Suncorp Retail Property Fund deed.

[10] Clause 38.1 of the Suncorp Balanced Property Fund deed and cl. 42.1 of the Suncorp Retail Property Fund deed.

[11] Clause 34.24 of the Suncorp Balanced Property Fund deed and cl. 38.26 of the Suncorp Retail Property Fund deed.

[12] Clause 5 of the Suncorp Retail Property Fund deed.

[13] Clauses 12 to 17, 20.6 and 26.1 (especially paras. (i), (j) and (l)) of the Suncorp Balanced Property Fund deed and 14 to 19, 22.7 and 29.1 of the Suncorp Retail Property Fund deed. As earlier noted, by cl. 15.8 of the Suncorp Balanced Property Fund deed and cl. 17.8 of the Suncorp Retail Property Fund deed, "... the Unitholders may by Ordinary Resolution approve the purchase or sale of, or other dealing with, any property by the Trust ...".

[14] Clauses 21 and 24 of the Suncorp Balanced Property Fund deed and 23 and 26 of the Suncorp Retail Property Fund deed.

[15] Note cll. 26.2 and 43 of the Suncorp Balanced Property Fund deed, and cll. 29.3 and 47 of the Suncorp Retail Property Fund deed.

[16] See, for example, cll. 15.8 and 23.1(b) of the Suncorp Balanced Property Fund deed and cll. 17.8 and 25.1(b) of the Suncorp Retail Property Fund deed.

[17] The corresponding clauses in the Suncorp Retail Property Fund deed are cll. 38, 38.3, 38.23 and 6.3.

[19] Clause 13.3 of the Suncorp Retail Property Fund deed.

[20] Clause 11.5 of the Suncorp Balanced Property Fund deed and cl. 13.5 of the Suncorp Retail Property Fund deed.

[21] Clause 13.7 of the Suncorp Retail Property Fund deed.

[22] Clause 6.6 of the Suncorp Retail Property Fund deed.

[23] The quoted extract is from the Suncorp Balanced Property Fund deed. The reference in the Suncorp Retail Property Fund deed was to cl. 6.

[24] Clause 6 of the Suncorp Retail Property Fund deed.

[25] Clause 11.5 of the Suncorp Balanced Property Fund deed (cl. 13.5 of the Suncorp Retail Property Fund deed) required the trustee to sell and realise the Trust Fund on termination of the trust.

[26] Federal Commissioner of Taxation v. Everett [1980] HCA 6; (1980) 143 C.L.R. 440, at pp. 446-447 (citing Bakewell v. Deputy Commissioner of Taxation (S.A.) [1937] HCA 11; (1937) 58 C.L.R. 743, 770; Bolton v. Federal Commissioner of Taxation (1965) A.L.R. 481, 485; Livingston v. Commissioner of Stamp Duties (Q.) [1960] HCA 94; (1960) 107 C.L.R. 411, 453; and Canny Gabriel Castle Jackson Advertising Pty Ltd v. Volume Sales (Finance) Pty Ltd [1974] HCA 22; (1974) 131 C.L.R. 321, 327-328; United Builders Pty Ltd v. Mutual Acceptance Ltd [1980] HCA 43; (1980) 144 C.L.R. 673; Connell v. Bond Corporation Pty Ltd (1992) 8 W.A.R. 352.

[27] Baker v. Archer-Shee [1927] UKHL 1; [1927] A.C. 844.; Archer-Shee v. Garland [1930] UKHL 2; [1931] A.C. 212; New Zealand Insurance Co. Ltd v. Commissioner of Probate Duties (Vic.) [1973] VicRp 64; (1973) V.R. 647.

[28] See, for example, Costa & Duppe Properties Pty Ltd v. Duppe [1986] VicRp 9; (1986) V.R. 90; Commissioner of Stamps (S.A.) v. Softcorp Holdings Pty Ltd (1987) 47 S.A.S.R. 382; Read v. The Commonwealth [1988] HCA 26; (1988) 167 C.L.R. 57, especially at pp. 61-62, 63-64, 65 and 66; Connell at p. 374; Aust.-Wide Management Ltd (Receiver Appointed) v. Chief Commissioner of Stamp Duties (N.S.W.) (1992) 92 A.T.C. 4740; Merifield Cooksey Holdings Pty Ltd v. Commissioner of State Taxation (W.A.) (1993) 93 A.T.C. 4153; Bhagat v. Australian Securities Commission (1995) 16 A.C.S.R. 536.

[29] Gartside v. Inland Revenue Commissioners [1967] UKHL 6; [1968] A.C. 553; Dwyer v. Ross [1992] FCA 20; (1992) 34 F.C.R. 463, 465-466; R. & I. Bank of Western Australia Ltd. v. Anchorage Investments Pty Ltd (1993) 10 W.A.R. 59, 64, 79.

[30] Commissioner of Stamp Duties (Q.) v. Livingston [1964] UKPC 2; [1965] A.C. 694; Official Receiver in Bankruptcy v. Schultz [1990] HCA 45; (1990) 170 C.L.R. 306, 312.

[34] In Livingston, the material phrase was "beneficial interest in property" in s. 4 of the Succession & Probate Duties Acts 1892 to 1955 (Qld.); in Gartside, the phrases were "interest in possession" and "interest limited to cease" in the Finance Act 1894 and the Finance Act 1940 (Imp.). In the passages set out below, the underlining has been added.

[35] Fullagar, Kitto and Menzies JJ, Dixon C.J., Windeyer J. dissenting.

[36] Livingston [1964] A.C. at p. 707.

[39] Livingston ([1964] A.C.) at p. 708.

[41] See also Westdeutsche Landesbank Girozentrale at 830.

[43] Dixon C.J., Fullagar, Kitto and Taylor JJ.

[48] Mason C.J., Brennan, Deane, Dawson and Gaudron JJ.

[55] See the passage quoted above from p. 96.

[58] Australian Mutual Provident Society v. Allan [1978] UKPC 7; (1978) 52 A.L.J.R. 407, 409; Narich Pty Ltd v. Commissioner of Payroll Tax (N.S.W.) (1983) 58 A.L.J.R. 30, 35; cf. Radaich v. Smith [1959] HCA 45; (1959) 101 C.L.R. 209; Softcorp at p. 386.

[60] Mason C.J., Deane, toohey and Gaudron JJ.

[61] Jordan, "Chapters on Equity in New South Wales", Select Legal Papers, 6th ed. (1947), p. 52, n.(e).

[62] See Glenn v. Federal Commissioner of Taxation [1915] HCA 57; (1915) 20 C.L.R. 490, 503, 504; New Zealand Insurance Co. Ltd v. Commissioner of Probate Duties [1973] VicRp 65; (1973) V.R. 659, 664, 666, 669, 670; Stern v. McArthur [1988] HCA 51; (1988) 165 C.L.R. 489, 522-523; Chan v. Cresdon Pty Ltd [1989] HCA 63; (1989) 168 C.L.R. 242, 252-253; cf. Swiss Bank Corp. v. Lloyds Bank Ltd [1979] Ch. 548, 565. See also the explanation of the constructive trust as an equitable remedy in Muschinski v. Dodds [1985] HCA 78; (1985) 160 C.L.R. 583 at pp. 612ff and Baumgartner v. Baumgartner [1987] HCA 59; (1987) 164 C.L.R. 137, 148.

[63] For reasons which will appear, I have not found it necessary to consider the value of the appellant's equitable "estate or interest" as unitholder.

[64] See the Land Title Act 1994; e.g., ss. 55, 60(1), 61(1), 62(1) and 182.

[65] Clause numbers cited are for the Suncorp Balanced Property Fund Trust Deed. Corresponding clauses in the Suncorp Retail Property Fund Trust Deed are two numbers higher. The clauses are otherwise identical.

[66] DKLR Holdings Co. (No.2) Pty. Ltd. v. Commissioner of Stamp Duties (N.S.W.) (1982) 149 C.L.R. 431 at 474.

[68] Clause 4.3; see specifically cl.4.3(c)(ii), (iii), (iv) and (d).

[70] See cl.11.5 which provides: "On termination of the Trust the Trustee must sell and realise the Trust Fund."

[71] Costa and Duppe Properties Pty. Ltd. v. Duppe [1986] VicRp 9; [1986] V.R. 90; cf. Canny Gabriel Castle Jackson Advertising Pty. Ltd. v. Volume Sales (Finance) Pty. Ltd. [1974] HCA 22; (1974) 131 C.L.R. 321 at 327-8.

[73] In Re Douglas (1884) 28 Ch.D. 327; In Re Selous [1901] 1 Ch. 921.

[74] Brydges v. Brydges (1796) 3 Ves. 120 at 126; Purcell v. Deputy Federal Commissioner of Taxation [1920] ArgusLawRp 78; (1920) 28 C.L.R. 77 at 88. See also Halsbury's Laws of England, 4th ed. para.509; Ford and Lee Principles of the Law of Trusts, 3rd ed. para.[5010].

[75] Maitland, F., Lectures in Equity, Cambridge 1947 at 44, 110 et seq.

[76] Maitland supra at 31; Underhill and Hayton, Law Relating to Trusts and Trustees, 15th ed. London, 1995, article 1; and cf. KLDE Pty. Ltd. v. Commissioner of Stamp Duties (Q) [1984] HCA 63; (1984) 155 C.L.R. 288 at 297. It is unnecessary here to consider whether there may be a valid trust notwithstanding that personal factors peculiar to the beneficiary preclude its enforcement; see Burns Philp Trustee Co. Ltd. v. Viney [1981] 2 N.S.W.L.R. 216.

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