Trust Company of Australia Ltd v Commissioner of State Revenue

Trust Company of Australia Ltd v Commissioner of State Revenue - [2003] HCA 23 - HCA 2003 case summary — Zoe

[24]

The Custody Agreement, in cl 4, identified the responsibilities of the Custodian. They included a duty "to enter into a contract to purchase the Scheme Property", and "to hold the Scheme Property ... on [Cromwell's] behalf".
At first sight, the Custody Agreement might suggest that, as between Cromwell and the appellant, it was only the appellant which would enter into the contract to purchase the scheme property. That would be consistent with the language of cl 4 of the Custody Agreement. However, the purchase price was being provided by, or at least through, Cromwell, and the property was to be acquired and held by the appellant as trustee for Cromwell. Cromwell would in turn be bound by the trusts of the managed scheme. As Special Condition 11.6 of the contract of sale acknowledged, neither Cromwell nor the appellant was to be the beneficial owner of the land, and both of them contracted only in their respective capacities under the managed investment scheme. One thing is clear. As between Cromwell and the appellant, on completion of the contract the appellant was entitled to a transfer of the subject land in its own capacity, and not merely as nominee of Cromwell. It was of the essence of the managed scheme that legal title to the subject property would be acquired by the appellant, and not by Cromwell. Clause 4(b) of the standard conditions of contract, as amended, provided that, on completion, there would be delivered "a properly executed transfer of the Land from the Vendor to the Custodian".
If it had become necessary for the Vendor to bring an action for specific performance of the contract of sale, then both Cromwell and the appellant would have been necessary parties to the proceedings[3]. The framing of an order for payment of the balance of purchase price would have been complicated by the contractual provisions set out above. Subject to the limitation of liability contained in Special Condition 11, the effect of Special Condition 12, read together with the references in the Custody Agreement to the responsibilities of the appellant, would be to justify an order against both defendants. And the order would have contained a requirement that the balance of the purchase price be paid upon delivery of a transfer of the subject land to the appellant[4].
That is the contractual context in which the provisions of s 54 of the Stamp Act must be applied. The relevant provisions are sub-ss 54(1), (3), (6) and (6A). The following features may be noted.
First, s 54(1) imposes ad valorem duty, not only on a contract for the sale of property, but also on any contract whereby any person becomes entitled, or may become entitled, to the conveyance or transfer of any property. Such a contract might not necessarily involve any dealing of a kind that could ordinarily be described as a purchase. Nevertheless, ad valorem duty is imposed; and the question then arises as to how the Act deals with duty on a transfer to the person entitled under the contract. That question is addressed (if it is addressed at all) by sub-s (6).
Secondly, s 54(3) deems an option to purchase, for the purposes of s 54, to be an agreement for sale of the subject property, and attracts ad valorem duty accordingly. Once again, the grantee of the option would not ordinarily be described, at least at that stage, as a purchaser, but ad valorem duty is paid and the same question arises when a transfer is executed in favour of the grantee of the option.
Thirdly, s 54(6) provides that, where duty has been paid in conformity with the foregoing provisions, the transfer made to the purchaser shall, upon production of the stamped contract, not be chargeable with any duty. The clear intent is to negate liability for double duty where a contract is charged with ad valorem duty, and then there is a transfer pursuant to the contract, where it can be described as a transfer to the purchaser.
Fourthly, s 54(6A) provides that s 54(6) does not apply in respect of a transfer made to a person other than the person named as purchaser in the contract to which the transfer is intended to be pursuant unless the commissioner is satisfied that the person named in the contract as purchaser was acting as agent for the transferee.
The argument for the respondent, upheld in the Court of Appeal, is that, in the present case, Cromwell was the only party capable of being described as "the purchaser" within the meaning of s 54(6); the transfer to the appellant executed pursuant to the contract was not a transfer "made to the purchaser"; and therefore s 54(6) had no application. This conclusion, it is said, is reinforced by s 54(6A), which refers, in connection with s 54(6), to "the person named as purchaser in the contract". In my view, that argument depends upon an over-simplification of both the contract and s 54.
As was noted above, the contract referred to, and reflected, the managed scheme, which was its genesis, and the respective roles of the appellant and Cromwell Property Securities Ltd in that scheme. Although the contract described Cromwell as Purchaser and the appellant as Custodian, they would both have been necessary parties to an action for specific performance. Subject to the limitations of their liability, an order for the payment of the purchase price could have been made against both. That order would have been conditional upon the delivery by the vendor of a transfer to the appellant as Custodian. In those circumstances, quite apart from the scheme of s 54, it is far from clear that Cromwell is correctly described as the purchaser, to the exclusion of the appellant. When regard is had to their roles, and their respective rights and obligations, under the contract, the appellant has as much claim as Cromwell to be identified as the purchaser.
Section 54(6), as its introductory words make plain, applies to the whole of s 54(1), and also to s 54(3). The expression "the purchaser" must be construed as being sufficiently flexible to enable it to have that application. In relation to what might be described as the second limb of s 54(1), if there is a contract whereby a person becomes entitled to a transfer of property, and the contract is charged with ad valorem duty, and a transfer is made to that person, then, either there is relevantly a transfer made to the purchaser, or s 54(6) would have no application. In relation to s 54(3), the grantee of an option is not, under the option agreement, a purchaser, yet s 54(6) appears to be intended to apply to a transfer to such a person if the option agreement has been charged with ad valorem duty as a contract.
I do not regard it as necessary for the appellant to rely on the second limb of s 54(1); although it would be available. Rather, I refer to the second limb of s 54(1), and to s 54(3), to indicate the need to give a sufficiently flexible interpretation to s 54(6) in order to enable it to achieve its evident purpose. This seems to me to be consistent with, and required by, ordinary principles of statutory construction. To give the word "purchaser" in s 54(6) a narrow and inflexible interpretation would deprive it of its capacity to achieve its manifest purpose. It would apply to only part of s 54(1), and not at all to s 54(3). It requires a degree of flexibility. Furthermore, the contract to which it must be applied in the present case is one in which the search for a single "purchaser" does not yield an unequivocal answer. In my view, having regard to the structure of the contract, the first limb of s 54(1) can be applied, and for the purposes of s 54(6), it can be concluded that the transfer to the appellant was a transfer made to the purchaser. The definite article in s 54(6) does not require that, where there are two potential candidates for the description, one of them must be identified as purchaser to the exclusion of the other. That would serve no legislative purpose. To treat the appellant as purchaser conforms to the purpose of s 54(6), and does no violence to the language.
Section 54(6A), although in form expressed as a qualification to s 54(6), in substance expands its operation, subject to a certain condition. It does not narrow the meaning of s 54(6), but deals with a particular issue, that is to say, agency.
It was said on behalf of the respondent that the argument for the appellant amounted, in effect, to the contention that s 54(6) would apply in any case in which a transfer was made in conformity with the contract of sale. There is more to the present case than that. The role of the appellant, the nature of the appellant's responsibilities under the Custody Agreement annexed to the contract of sale, the obligation to pay the balance of purchase price, and the right to receive a transfer as a condition of payment of the price, mean that the transfer was a transfer made to the purchaser, with the result that s 54(6) is satisfied.
The appeal should be allowed with costs. I agree with the consequential orders proposed by Gummow and Hayne JJ.
GUMMOW AND HAYNE JJ. The appellant, Trust Company of Australia Limited ("TCA") challenged an assessment by the respondent ("the Commissioner") to duty under the Stamp Act 1894 (Q) ("the Act")[5], in the sum of $653,475 upon a Form 1 transfer under the Land Title Act 1994 (Q) ("the Transfer"). That instrument was dated 29 November 1999 and it identified Riverfront Developments Pty Ltd ("Riverfront") as transferor and TCA as transferee. These were the only parties to the instrument. The subject property was the land and improvements at 301 Coronation Drive, Milton ("the Land"). The purchase price was $17.5 million.
Section 24 of the Act establishes a procedure to test in the Supreme Court of Queensland the decision of the Commissioner upon an objection to an assessment. This involves the stating by the Commissioner of a case setting out the questions submitted for judicial determination. The present Case Stated was heard in the first instance by the Court of Appeal.
Stamp duty is charged by s 4 of the Act upon the several instruments and at the rates specified in Sched 1, subject to any applicable exemption. The duty is payable by each and every person who signs or executes the instrument in question (s 26(1)(a)). One of the headings in Sched 1 is "Conveyance or Transfer".
The Transfer was made on completion of a contract of sale ("the Contract") made the same day. The parties to the Contract were identified therein as Riverfront as the "Vendor", Cromwell Property Securities Limited ("Cromwell") as "Purchaser" and TCA as "Custodian". Pursuant to the terms of the Contract, the purchase price was paid in exchange for a properly executed transfer from Riverfront to TCA. The Commissioner assessed the Contract and the Transfer to duty in each case in the sum of $653,475. The Commissioner determined that an "exemption" pursuant to s 54(6) of the Act did not apply to the transfer to TCA because that transfer had not been made to the "purchaser" under the Contract. The "purchaser" spoken of in s 54(6) was, so the Commissioner determined, Cromwell, not TCA, and Cromwell was not a party to the transfer.
The Court of Appeal (McMurdo P, Thomas JA, Helman J) answered the questions in the Case Stated in a manner favourable to the position adopted by the Commissioner[6].

[25]

When producing the Contract and the Transfer to the Commissioner, the solicitors for Cromwell had written to describe the nature of the transaction. Cromwell was the responsible entity and trustee for a syndicate of investors known as the Riverfront on Coronation Planned Investment Scheme ("the Scheme"). Pursuant to a document styled "Custody Agreement" and dated 4 October 1999 between Cromwell and TCA, TCA had been appointed Custodian of the assets of the Scheme. The solicitors wrote that that appointment was "a requirement of the Managed Investments Act amendments to the Corporations Law which require separation of legal and equitable title in Managed Investment Schemes". They added that the role of TCA was "limited to holder of the legal title pursuant to the [Custody] Agreement". Paragraphs (a) and (b) of cl 4.1 of the Custody Agreement stated the duties of the Custodian as including the entry into a contract to purchase the Land and to hold the Land "on [Cromwell's] behalf".
At the material time, by force of changes introduced by the Managed Investments Act 1998 (Cth), Ch 5C (ss 601EA‑601QB) of the Corporations Law ("the Law") made provision for the regulation of managed investment schemes. Provision also was made in Pt 7.3 (ss 780‑840) of Ch 7 for the issue of licences authorising the operation of managed investment schemes. Section 784(2) empowered the Australian Securities and Investments Commission ("ASIC") to attach conditions to the grant of licences. A licence under s 784 was issued by a delegate of ASIC to Cromwell on 15 March 1999. Condition 10 required Cromwell not to hold scheme property of a registered scheme and to appoint another person to hold scheme property, unless there applied certain provisions relieving it from that obligation.
The result in the present case appears to have been that TCA held the legal (ie registered) title to the Land on trust for Cromwell which, in turn, was trustee of the equitable title in favour of the syndicate of investors whose moneys had funded the purchase of the Land[7].
In the Court of Appeal, Thomas JA said[8]:

[28]

Before turning to consider the text and construction of the relevant provisions of the Act, it is convenient to identify more fully the salient provisions of the Contract.
For the purposes of the application of the Act, what is essential is the legal characterisation of the obligations provided in the Contract, not the identification of the labels used therein as a means of identification of the particular parties. What is to be ascertained is "the real and true meaning" of the instrument sought to be brought to duty[10].
The Contract was based upon the first edition of the form adopted by the Real Estate Institute of Queensland Limited and approved by the Queensland Law Society Incorporated for conveyances of Torrens title, Crown leasehold title of commercial land, buildings and units. The Contract incorporated standard conditions identified as the "Standard Commercial Conditions". These were then amended by Annexure A to the Contract. Reading these provisions together, the following emerges.
TCA was identified as "Custodian", Riverfront as "Vendor" and Cromwell as "Purchaser". The balance of the purchase price was to be paid on completion in exchange for a properly executed transfer of the Land from the Vendor to the Custodian (cl 4(b)). The Vendor was required to do all acts and to execute all documents necessary for the purpose of completing the sale and ensuring that the Custodian obtained good and valid title to the Land (cl 10.1). If the Purchaser failed to pay the balance of the purchase price as provided in cl 4, then the Vendor was empowered to terminate the contract (cl 13.1). Clauses 11.4 and 11.5 of the "Special Conditions" of the Contract contained respectively covenants by the Custodian to do all things required of it under the Custody Agreement to enable the Purchaser to observe and perform its obligations under the Contract, and by the Purchaser to do all things, including the giving of instructions to the Custodian, to enable the Custodian to comply with its obligations under the Contract. Clause 11.3 contained an acknowledgment by the parties that the rights of the Purchaser and the Custodian under the Contract were several and not joint or joint and several.
The Purchaser acknowledged that the consideration for the payment of the purchase price to the Vendor was satisfied by the Vendor complying with the requirement under cl 4(b) for a transfer to the Custodian (cl 11.2). Finally, cl 11.1 stated that the Vendor and Purchaser acknowledged that the Custodian was a party to the Contract "solely for the purpose of accepting a transfer of the Property in its capacity as Custodian of [the Scheme] pursuant to [the] Custody Agreement".

[44]

The references in the original s 54(3) to sub‑purchasers, those acting on behalf of another, and those taking by direction, have been removed. Counsel for the appellant carefully traced the series of legislative steps by which these and other changes to s 54 were brought about. However, the issue which arises on this appeal is best approached by turning immediately to construe sub‑ss (1) and (6) of s 54 as they stood at the relevant time. It may be added that the conclusion yielded by that effort does not appear inconsistent with anything in the legislative history.
Section 54(1) does not distinguish between contracts and agreements but does deal distinctly with (i) contracts or agreements for the sale of any property and (ii) contracts or agreements whereby a person becomes entitled to the conveyance or transfer of any property or may become so entitled provided the terms and conditions of the contract or agreement are met. It may be, as counsel for the appellant suggested, that category (ii) was introduced at least partly on the footing that category (i) dealt only with immediately executed rather than executory contracts or agreements. However that may be, the Contract fell within category (ii). Provided the terms and conditions thereof were met, for example, the tendering of the purchase money on completion, the Custodian became entitled to the transfer of the Land. That entitlement arose by reason of the terms and conditions of the Contract. That meant that the connecting factor made requisite by the term "whereby" in s 54(1) is satisfied. It followed that the Contract was properly charged with the same duty as if it had been an instrument of conveyance of the Land. No party suggests the contrary.
The next step is to construe sub‑s (6) in its relation to sub‑s (1) in the circumstances of this case. The matters just discussed concerning the application here of sub‑s (1) indicate that the condition precedent to the operation of sub‑s (6) was satisfied. That condition is expressed by the words "[w]here duty has been duly paid in conformity with the foregoing provisions". The balance of sub‑s (6) assumes and operates expressly upon the footing that in respect of the instrument attracting the payment of duty in conformity with sub‑s (1), there will be a party to answer the statutory description "the purchaser" to whom a transfer of the land is made. The phrase "made to the purchaser" identified the Transfer made under and in performance of those provisions of the Contract whereby the Custodian became entitled to the Transfer.
The term "the purchaser" in s 54(6) takes its colour not simply or exclusively from the law of vendor and purchaser, but from the earlier provisions of s 54, in particular, in this case, s 54(1). Section 54(1) is so drawn that a covenant under seal to transfer, unsupported by consideration, will attract duty under that provision. The transferee would not ordinarily be described as "the purchaser" but the transfer made in performance of the covenant would attract the operation of s 54(6) because duty had been paid in conformity with s 54(1).
An understanding of the operation of s 54(6) may be further assisted by regard to s 54(3). This deals with options and states:

[48]

Something should be said of two authorities referred to in the judgments of the Court of Appeal and relied upon by the Commissioner. Each is a decision of this Court. Neither was concerned with the construction of the Act.
The first decision is Dudley Buildings Pty Ltd v Rose[21]. This was a vendor and purchaser dispute. The Court was concerned with which of two persons who were, at various times, entitled to a transfer of certain lands and buildings in Melbourne, was the purchaser thereof at a particular time. The Court held that this was the person who had certain obligations in addition to the right to a transfer. Turning to the present appeal, TCA under the Contract had the right to a transfer of the Land and it covenanted for the benefit of Riverfront that it would do all things required of it under the Custody Agreement to enable Cromwell to observe and perform its obligations to Riverfront. Dudley Buildings does not assist the Commissioner.
The second decision is Commissioner of Stamp Duties (NSW) v Pendal Nominees Pty Ltd[22]. The Court there was concerned with two provisions in the Stamp Duties Act 1920 (NSW). The first was s 17(1). This restated the general principle that an instrument containing or relating to several distinct matters is to be separately and distinctly charged with duty in respect of each of them. In that regard, reference was made[23] to Limmer Asphalte Paving Co v Commissioners of Inland Revenue[24]. Nothing in the present case turns upon that rule of construction.
The second provision in the New South Wales statute comprised certain paragraphs under the heading "Declaration of Trust" in the Second Schedule. These included the phrase "a person in whom property is vested as the apparent purchaser". But, whilst the judgments in Pendal were the subject of detailed examination in oral submissions on this appeal, the unsurprising result is that what was determined in Pendal is of no assistance in determining the construction of s 54 of the Act.

[56]

The ultimate issue in the appeal is whether an instrument of transfer of property to the appellant was chargeable with stamp duty in accordance with the State Act. The only basis propounded to sustain the submission of the appellant (Trust Company of Australia Ltd) that the instrument of transfer was not liable to the duty levied by the Commissioner (the respondent) was that, for the purposes of the State Act, the appellant was to be characterised as the "purchaser" of the property thereby conveyed to it. The facts are set out in other reasons. I will not repeat them.
There may be "merits" arguments that support the appellant's submission. One could contend that the law at the relevant time should have so provided (as the judges of the Court below appeared to acknowledge[28]). The outcome urged by the respondent may appear somewhat unfair in that what was "in substance a single sale of property"[29] is thereby subjected to ad valorem stamp duty twice by the decision under appeal. On the face of things, that might seem a surprising result for the operation of the State Act. But if it is one that the mind would naturally resist, the struggle can only continue to the extent that the terms of the legislation permit.
The Court below was aware of the element of discordancy in the result that it favoured. It felt unable to overturn the respondent's assessment. It concluded that the language of the State Act, applied to the facts of the case, was not susceptible to techniques of judicial re-interpretation designed to stretch the words to produce what might be considered a "just" outcome.
I generally favour a purposive construction of legislation[30]. It is the approach that represents the contemporary doctrine of this Court[31]. Indeed, I go further and consider that it is emerging as a common mode of solving problems not only in words contained in written laws made by, or under the authority of, a legislature but also in disputed language in contracts and other legal instruments[32]. Revenue legislation is not in a category immune from the general principles of statutory interpretation[33]. The purposive approach applies to the ascertainment of the meaning of such legislation as to that of other written laws[34].
If the Queensland Parliament had considered in advance the consequences for stamp duty on instruments executed in relation to the transactions in question it might well have provided a clarification, or express exemption, to prevent the imposition of what effectively amounts to a form of double taxation upon what was in essence one inter-dependent transaction. In the end, that Parliament did act. However, it did so too late to assist the appellant.
The other members of this Court have concluded, contrary to the opinion of the Court of Appeal, that the State Act may be interpreted in a way that avoids the apparent injustice of the exaction of a second amount of duty. If I could agree I would, because it is a happy outcome when legal analysis permits a result that accords with a decision-maker's opinion of what is just or fair in the merits sense.
It would be naïve to deny that, in the process of statutory interpretation, judges, at every level of the hierarchy, are affected by their sense of justice in giving meaning to words. It may have been enough in 1872 to say that a court simply ascertains and declares "the real and true meaning of the instrument" sought to be brought to duty[35]. But today we know that the adjectives "real and true" add little to the process of interpretation. Contemporary theories of legal construction - indeed of decision-making more generally - are alive to the much more complex process of reasoning that is ordinarily involved. Presuppositions, unconscious inclinations and other like mysteries doubtless affect a judge's ultimate decision. I will not delve into any of these. It will be enough for me to state briefly the legal considerations on the basis of which I differ from the majority in this Court.
I would uphold the decision of the Court of Appeal and dismiss the appeal.

[57]

Statutory context and legislative intention: The duty of a court, where the law has been reduced to written form (whether in an act of Parliament or a law made with the authority of the same) must be, and only be, to uphold the law so made[36]. A court's duty is not to the principles of the common law that preceded the legislative form nor to early, or other, or foreign statutes. Obedience to the text of legislative provisions is founded on a critical postulate of democratic governance that is inherent in the Australian Constitution. In our Commonwealth it is the first duty of the courts to give effect to a valid legislative purpose where it is expressed in law. The primacy of that obligation derives from the special legitimacy of the written law that may, in turn, be traced to the imputed endorsement of such a law by legislators elected by the people. This means that courts must give effect to the purpose of the lawmaker, ascertained by reference to the language in which that purpose is expressed.
Courts may sometimes perceive, and feel able to overcome, injustices, mistakes and omissions in the written law[37]. But if the text is relevantly clear, and applicable to the case in hand, no court may substitute its own view of what the law should be (or perhaps would have been if only Parliament had considered the case and foreseen the instance that arose to present a difficulty).
The critical term in the State Act in question in this appeal is "purchaser". It is the key word in s 54(6) of that Act. It is true that such a word, like any other, takes its colour and meaning from its context. In a case such as the present, the process of characterisation must necessarily take account of the circumstances of the transaction and the terms of the contract, in order to identify the character and role of each of the parties to that transaction. It must also have regard to the legislative context in order to ascertain the meaning of the term "the purchaser" in the applicable statutory provision. That legislative context undoubtedly includes the succeeding sub-section of the State Act. That sub-section, s 54(6A), reads:

[59]

It is a serious error of interpretation to approach the meaning of "purchaser" in s 54(6) of the State Act without paying regard to the elaboration of that sub-section introduced by s 54(6A). The need to interpret the two sub-sections together is signalled by the opening words of s 54(6A) and by the highly specific language in which the qualification thereby introduced is stated. The Queensland Parliament has addressed the identification of the "purchaser" for the purposes of s 54(6) of the State Act in very precise language. Presumably it has done so to overcome the risk of schemes of tax avoidance whereby a person might claim that someone else, and not it, was the "purchaser" and thus liable to duty. To avoid such disputes, strict preconditions to the application of s 54(6) are laid down, since that provision affords a mechanism for exemption from duty that would otherwise be levied.
Relevantly, the "purchaser" must be "named as [such] in the contract or agreement for sale" unless the Commissioner reaches a satisfaction (not available in the present case) that the person named as "purchaser" was acting as an agent under authority. The high particularity of the conditions for receiving the benefits of the effective exemption from duty in s 54(6) speak strongly against the construction urged by the appellant. If the Queensland Parliament took the trouble to address, in such a specific way, the prerequisites to the application of the exemption, it is no part of the function of this Court to brush those preconditions aside and to read s 54(6) as if s 54(6A) did not exist.
A statutory text must be read as a whole. Words or sub-sections should not be read in isolation[38]. The only proper way to ascertain the relevant purpose of Parliament is to read the entire Act, or at least the Chapter or Part in question, and certainly the whole section of the provision in dispute. With respect, s 54(6A) does not say that s 54(6) may apply where the Commissioner is satisfied of various matters although the instrument is a conveyance or transfer made to a person other than the person named as purchaser in the contract or agreement for sale to which the conveyance or transfer is intended to be pursuant. On the contrary, by its terms, s 54(6A) clearly states that "[s]ubsection (6) does not apply" in the particular circumstances.
The first logical step in considering a suggested invocation of s 54(6) of the State Act in the particular case is therefore to ask the question: "First, does s 54(6) apply at all?" In the present case, the transfer pursuant to the contract for sale was to a person "other than the person named as purchaser in the contract", namely the appellant. The appellant was identified in the contract as the "custodian". Further, as the Court of Appeal recognised, the person identified as the "purchaser" in the contract for sale (Cromwell Property Securities Ltd) could not be characterised as the appellant's agent. Therefore, the relief against the payment of duty on the instrument of transfer pursuant to s 54(6) (as expanded by s 54(6A)) was not available to the appellant. Within the four walls of the applicable section, this tells against the construction urged by the appellant.
Self-description and identifying the purchaser: It is true that the word "purchaser" is not expressly defined either in the State Act or the instrument in question in this case and, as a general proposition, is susceptible to various meanings depending on the context[39]. However, the position of the appellant can only be described as the "purchaser" in the present case by doing a measure of violence to that concept as it is ordinarily understood in the English language. This Court should not undertake such a course simply to avoid what may seem to be an instance of "double taxation"[40].
The appellant was not the "purchaser" within the ordinary meaning of that word. As contemplated by s 54(1) of the State Act, a "purchaser", under a relevant contract, was the person bearing the contractual obligations ordinarily borne by a purchaser. Principally, these obligations include the purchaser's contractual obligation to pay the purchase price. No such obligation was assumed by the appellant. To be a "purchaser" a person must normally assume a purchaser's obligations as well as enjoy its rights[41]. In the cases, a distinction is commonly drawn between a person entitled to take a conveyance, on the one hand, and a "purchaser" on the other[42]. According to such authority, the appellant is not readily characterised as the "purchaser" of the subject property. As the respondent submitted before this Court, any obligations undertaken by the appellant under the contract for sale were minimal.
This is an unsurprising conclusion given that, in the contract for sale, another party (Cromwell) is specifically named as the "purchaser". As the text of that instrument, set out with added emphasis in the reasons of Callinan J[43] shows, there was a perfectly good "purchaser" in these transactions. That was Cromwell. For this Court now to say, contrary to the terms of the instruments and notwithstanding the nomenclature used by the parties to describe the way they saw themselves, that there were in fact two "purchasers", namely the appellant as well as Cromwell, is unconvincing.
Self-description cannot compel a particular decision under the State Act concerning the character of a party propounded as a "purchaser". But whilst the descriptions adopted by the parties are not determinative of the effect of the statutory provisions on the relevant instruments, in the present instance, as the Court of Appeal correctly recognised, the identification of the parties accords with the roles they respectively performed as understood after reading the applicable statutory provisions. It is therefore unsurprising that the Court of Appeal should have taken the instrument and the requisite character of the appellant at face value. Its opinion that the appellant was not the "purchaser" for the purposes of s 54(6) of the State Act is unremarkable. Without more, I would reach the same conclusion.
The supervening federal law: This conclusion is strongly reinforced when it is remembered that the true character of the appellant for the purposes of the scheme and the instant transaction was that introduced into the Corporations Law following the passage of the federal law. It introduced a capacity quite distinct from that of a "purchaser" under the State Act. Indeed, the distinct capacity was superimposed by law upon the private intentions of the parties (if any) as evidenced in their written instruments.
Put shortly, the appellant was appointed as a "custodian", as contemplated by the legislative scheme instituted by the Corporations Law[44]. That arrangement operated throughout Australia for the purposes of regulating a "managed investment scheme". Pursuant to the legislative scheme, initiated by the federal law for the protection of the investing public in Australia, and given effect by the amendments to the Corporations Law, the appellant had a special statutory function. Whilst, in some cases, it might be possible for such a person to be a "purchaser" under the State Act, or under a private instrument, in my view, that was not the scheme contemplated by the law applicable to this case. Under that law, the status assigned to the appellant was that of a special kind of statutory "trustee".
The appellant was thus interposed between the "vendor" and the "purchaser" (namely, Riverfront Developments Pty Ltd and Cromwell). As contemplated by the legislative scheme (and consistent with the identification of the parties in the contract for sale), the appellant was neither the "vendor" nor the "purchaser". The duties and functions required of the appellant by the Corporations Law deny either appellation to it. Specifically, they deny that the appellant was, or could be, a "purchaser" for the purposes of s 54(6) of the State Act. The federal law and consequent amendment to the Corporations Law are each expressed in terms of "trustee" and "beneficiary"[45].
To the complaint that this construction is unduly narrow and condones a form of double taxation, the answer is that it is the meaning clearly expressed by the law enacted by the Queensland Parliament. There are two aspects to the legislative purpose evidenced in s 54(6) of the State Act, as read in its statutory context, and the distinction there drawn between a purchaser and a transferee. On the one hand, the provision aims to ensure that any instrument of transfer of real property pursuant to a contract for sale is dutiable if the transfer is to someone other than the purchaser. As a corollary, the purchaser is relieved from paying double duty where duty has been paid on the contract for sale. Therefore, Parliament considered that in some instances the transferee of property would not be the same as the purchaser. Such an arrangement can be effected for a variety of reasons, sometimes commercial, or sometimes in order to comply with statutory conditions similar to those imposed on Cromwell as the responsible entity of the managed investment scheme in the present instance. Had Cromwell purchased the property first, and then sought to put in place the arrangement with the appellant as a custodian in order to comply with its licence, duty would have been payable on both steps of that transaction.
When Parliament enacted s 54(6) of the State Act, it had no reason to anticipate, or provide for, the eventuality that supervened with the passage of the federal and State laws requiring the interposition between the vendor and purchaser of a party having the "custodial" or "trustee" functions of the appellant. The Queensland Parliament can therefore scarcely be blamed for not having anticipated, and provided for, such a statutory development.
Taxation and serial property transactions: The supposed presumption against a construction of revenue laws that results in "double taxation"[46] does not, in my view, represent the present approach of this Court to the interpretation of ambiguous taxing legislation. Old approaches of this kind, favouring the taxpayer, are less persuasive today given the democratic legitimacy of the legislature to enact revenue laws as it chooses, the larger needs of modern government served by taxation and the proliferation of sophisticated schemes for tax avoidance[47]. However that may be, I agree with Gummow and Hayne JJ[48] that any such presumption as stated by Dixon J in Executor Trustee & Agency Co of South Australia Ltd v Federal Commissioner of Taxation[49], is not available in this case. Dixon J was there dealing with income taxation. Different considerations arise in cases of stamp duty. As illustrated by the present case, the impost of the latter form of taxation may fall upon the business dealings of propertied interests. In such cases it cannot necessarily always be assumed that Parliament intended to avoid double taxation. It remains, in each instance, to ascertain the meaning of the statutory provision from its language.
In this area of the law, duty is typically levied upon the instruments executed by the parties and not upon their substantive dealings or transactions[50]. Like other statutes of this kind, the State Act levies duty on instruments, rather than on transactions (with some specific amelioration provided in s 54(6), as elaborated and expanded by s 54(6A)). In a particular case, by focusing on the instruments, this approach may occasionally produce an outcome that may seem to impose an unfair result given the "real" or "practical" effect of composite transactions or inter-related dealings between the parties. However, as this is the way such revenue laws are typically expressed (and as the State Act is expressed here), it is beside the point to emphasise the nature of the transactions or dealings if the analysis of the instruments in question results in a different conclusion, as it does here.
There is no reason why the present State Act should be assumed to depart from the foregoing basic principle. It is a principle that applies the purposive rule of construction to legislation that imposes taxation. As Rowlatt J noted in Cape Brandy Syndicate v Inland Revenue Commissioners[51]:

[64]

In effect, the amendments enacted by the Queensland Parliament in 2000 acknowledged that an adjustment to the State Act was needed to remove a potential source of unfairness and prospects of double taxation. This was, in substance, the response of the Queensland Parliament to the alteration in the Corporations Law in consequence of the supervening federal law, whose impact had, by inference, not been foreseen or appreciated at the relevant time.
It is possible (as Callinan J considers) that, in enacting its amending statute in 2000, to correct the position for future cases like the appellant's case, the Queensland Parliament was making a mistake. I would certainly not go so far as to say that it was necessarily confirming the application of the previous law or decisions of courts (if any) and decisions of the respondent as to the view of the State Act that is under scrutiny in this appeal. However, the alternative interpretation of the amendment is that an unintended legislative disharmony arising from laws originating from different Australian law-makers was eventually noted and corrected where it should be - by the legislature, and not by a court.
Respecting limited parliamentary reform: Much has recently been made of the duty of courts, including this Court, to give effect to legislation and to leave amendment to the proper place in Parliament. Where, as here, the relevant Parliament has acted with due speed, this Court should hesitate long to come to the view that it enacted a futility.
Unfortunately for the appellant, the amending Act of 2000 was not expressed to have retrospective operation so as to apply to the appellant's case. That omission itself seems to affirm the purpose of the Queensland Parliament that, for cases such as that of the appellant, falling in the interval between the passage of the amendment to the Corporations Law (following the enactment of the federal law) and the passage of the amendment to the State Act, the successive instruments would be brought to tax according to their respective terms and in accordance with the State Act as it stood at that time. Were it otherwise, it would have been easy to provide that the amendment should have had a retrospective application. But that was not done.

[65]

The result is that, in my view, the Court of Appeal was correct in the conclusion that it reached about the meaning of the State Act as derived from the language in which that Act was then expressed. The respondent was correct to assess the Form 1 transfer, in issue in the case, as an instrument within the State Act[60]. He was right to conclude that such instrument was liable to duty as the Act then stood. The exemptions provided for in the State Act had no application. The specifically worded concession did not apply. The subsequent statutory reform gave no relief. The Court of Appeal was right to uphold the respondent's decision.
When future problems of statutory interpretation are presented to this and other courts the outcome in the present appeal may be cited to emphasise the scope of judicial choice in discharging the interpretive function. Choice in such matters is inescapable, as the division of judicial opinion about the meaning of the legislation in this case shows. But the selection of the preferred choice, that is ultimately made by a court, is more transparent if the relevant considerations of legal history, principle and policy are identified. Rarely is the choice to be elucidated solely from the language of the statutory text. What is "over-simplified", or "narrow" and "inflexible" to one judge is simply fidelity to the proper understanding of the legislation for another[61].
The appeal should be dismissed with costs. The answers given to the Case Stated by the Court of Appeal of the Supreme Court of Queensland were correct and should be confirmed.
CALLINAN J. Cromwell Property Securities Limited ("Cromwell") was granted a dealer's licence under s 784 of the Corporations Law on 1 September 1997. The licence authorized Cromwell to operate managed investment schemes relating to real property and to carry on a securities business as the responsible "entity" of those schemes. It was a relevant condition of the licence that Cromwell not hold scheme property in its own name but appoint a custodian to do so. Managed investment schemes are subject to the provisions of Ch 5C of the Corporations Law (ss 601EA to 601QB), which commenced on 1 July 1998. Under s 601FB(2) of that Law the responsible "entity" of a registered scheme has the power to appoint an agent, or otherwise engage a person, to do anything that it is authorized to do in connexion with the scheme. One purpose of the sub‑section is to permit the appointment of a custodian[62]. A custodianship agreement between Trust Company of Australia Limited (the appellant) and Cromwell (as manager) was executed on 4 October 1999. The agreement contained these recitals:

[187]

I would reject the respondent's arguments. Among other matters, they fail to give due effect to s 54(1) of the Act in respect of which these points need be made. First, it refers to a "contract ... for sale of any property". The emphasis should be upon the singular: a contract, that is an arrangement for [one] sale of … [the] property: an entitlement to the [one] conveyance or [one] transfer of … property. The second matter to notice is that it does not use the word "purchase", "purchaser" or "transferee", but instead the person "entitled to the conveyance or transfer". Right from the outset here it was always intended, and the contract made clear that there would be only one and the same transferee under it, to the appellant.
The contract here was a contract within the meaning of s 54(1) of the Act. It was a contract for the sale of a property. And it was one whereby a person, the appellant, became entitled to a transfer or conveyance of the property. Indeed, cl 10.1 of the contract obliged the vendor to ensure that the appellant obtain a good and valid title to it. The appellant acquired other rights under the contract. Each of these was enforceable by it. That is so in terms of the contract itself without recourse to ss 54 and 55[77] of the Property Law Act 1974 (Q) which almost certainly would also have independently conferred a right upon the appellant to call for the [one] transfer of the property. What is obvious is that the drafter of the contract did not pay sufficient attention to the formulation of the various parties' rights and obligations arising under it. The provisions of cl 4(1) which imposed the duty of purchasing upon the appellant (and not Cromwell) was, for a start, apparently overlooked. But the true nature of the transaction is equally obvious from the contract itself: as one of sale to be effected by one vendor to one transferee, as legal owner, for money from one original source, the investors. Accordingly the contract was chargeable "with the same duty as if it were an [or the] instrument of conveyance of the property" in accordance with s 54(1) of the Act. The fact of only one sale, one contract, one purchase price, and one person entitled to the transfer, all strongly suggests, and the language of s 54(1) in my opinion, requires, that there should, and will be only one exaction of stamp duty.
Duty has, therefore, to use the language of s 54(6) "been duly paid in conformity with [one of] the foregoing provisions", that is s 54(1) of the Act. Even so, the respondent submits, there is a further requirement imposed by sub-s (6), that the transfer be made to "the purchaser", a requirement that is not satisfied here.
It is true that the legal personality identified as the purchaser in the contract is Cromwell. It is also true that the solicitors who submitted the contract and the transfer to the respondent for assessment of stamp duty described Cromwell as the "proper party to be nominated as the Purchaser in the Contract of Sale" in their letter of 3 December 1999 which I earlier set out. Neither a description nor a misdescription in the letter, or indeed in the contract itself, can be determinative of the question whether the appellant is capable of being "the purchaser" within the meaning of s 54 of the Act, any more than a misdescription of a purchaser as someone other than a purchaser could be determinative of the application of the section.
The Act does not contain any definition of a purchaser. There is no reason here why "purchaser" as used in s 54(6) should not be regarded as a term which is relevantly interchangeable with the expression, "whereby a person becomes entitled ... to the ... transfer" pursuant to the contract, referred to in s 54(1). The language of the whole section does not dictate any contrary conclusion. Furthermore, an analysis of the contract itself does not require any different an answer.
The appellant was at all times intended to be, and is described as "the custodian", an expression which has no particular significance except for the purposes of the Corporations Law. As a result of the amendments to the standard form contract, the appellant became entitled, for example, to all documents in the possession of the vendor which it or Cromwell might reasonably require to manage the property, and to prepare custodian terms in respect of it. By the amended cl 7.4 of the contract, the custodian or Cromwell was entitled to terminate the contract in the event of default by the vendor. And in the event of such a termination, the custodian would be entitled to a refund of the deposit and other money that may have been paid to the vendor pursuant to the contract. These provisions are sufficient to indicate that the appellant, which was a party to the contract, had real and substantial rights under it, including its enforcement, rights in effect as an alternative to Cromwell. It was always contemplated that the custodian would become the legal owner, that is to say, the registered owner under the Land Titles Act 1994 (Qld) of the property. This follows from the express language of cll 11.1 and 11.2 of the contract. And cl 11.6 is an acknowledgment by the vendor that Cromwell and the appellant entered into the contract as "responsible entity" and as "custodian" of the scheme and in no other capacity, and that accordingly their liability under the contract is strictly limited to the extent that it can be satisfied out of the property of the scheme, and to the extent that they can be actually indemnified for any such liability.
It seems to me that there is no reason why, under the contract the appellant might, or could not have been described as the purchaser. Indeed, the custodianship agreement expressly contemplated it. It was no more the original source of the purchase price than the appellant was. The funds for the purchase were sourced from the money provided by the investors under the scheme which both Cromwell and the appellant were bound to use strictly in accordance with it, including the provision of one purchase price to the vendor to enable, not Cromwell but the appellant to take one transfer and title to the property. Cromwell had no right to nominate any other transferee or purchaser. Only the appellant could be the transferee. It seems to me to have been a misnomer to describe Cromwell, which was the mere manager, and relevantly a conduit pipe of the investor's funds to the vendor, as the purchaser. Again, to paraphrase language used by Dixon J, this was a case in which "the [that is one] contract entered into by the appellant contemplated and the [appellant] … took the transfer because that is what the parties to the contract intended.[78]" In those circumstances, the requirements of s 54(1) have been satisfied. I am prepared to read "purchaser" in s 54(6) as a reference to the appellant, as the legal personality actually taking the transfer following production of the agreement under, and in pursuance of which it was executed. It may also be noted that it was not suggested by the respondent that a reading of the sub-section in this way had any bearing upon, or implications for the operation of any other sections of the Act.
Something should be said about s 54(6A) of the Act. It could not in my opinion operate to exclude the operation of s 54(6) even if the appellant were not "named as purchaser in the contract". Cromwell is nowhere described as an agent, but the relationship between it and the appellant was governed by obligations of a fiduciary kind and of a strict nature well capable of being described as giving rise to a relationship of agency. Indeed, the custodianship agreement did not permit Cromwell to purchase the property or take a transfer of it itself. Accordingly, in entering the contract, Cromwell must have been acting in a fiduciary capacity or as an agent on behalf of the appellant (and ultimately the scheme members) for the proposed legal owner, the appellant. Furthermore, there was in existence before the execution of the contract an authority, the custodianship agreement itself, obliging Cromwell not to take the transfer, but so to conduct itself as to ensure that the appellant did so.
One of the respondent's arguments was that amendments which were made to the Act in 2000 were designed to cover this situation, and to relieve a custodian such as the appellant from liability for duty on the transfer: accordingly, if the Act before 2000 had that effect, the amendments were unnecessary. Assuming, as I am prepared to do, that the amendments would cover this case and operate to relieve the appellant from a liability for duty, I still do not regard the fact of the amendments as requiring a different interpretation of s 54 as it stood at the time of this transaction. Section 54 before 2000 is far from pellucid. The amendments may have been designed to make clear what was obscure before. Recently, this Court has expressed reservations about the use to which amendments to enactments may be put to construe pre‑amendment legislation[79]. Misapprehensions are from time to time held by legislatures about the effect of legislation: for example, in Queensland Electricity Generating Board v New Hope Collieries Pty Ltd[80] the Privy Council held that an enactment of the United Kingdom Parliament which had been expressly repealed by the Queensland Legislature had never applied in the State.
I would allow the appeal with costs and make the following orders.
The questions posed in the Case Stated to the Queensland Court of Appeal should be answered as follows:

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