Uber Australia Pty Ltd v Chief Commissioner of State Revenue

INTRODUCTION

1. The Plaintiff (Uber) applies to this Court under s 97 of the Taxation Administration Act 1996 (NSW) [1] to review a decision of the Defendant (the Chief Commissioner) disallowing Uber's objection to six payroll tax assessments totalling $81,515,923 issued by the Chief Commissioner for financial years 2015 to 2020 inclusive (the Assessments), pursuant to the provisions of the Payroll Tax Act 2007 (NSW) (the Act). Uber also seeks to have remitted the premium component of interest imposed on it by the Chief Commissioner.
2. References below to sections are, unless otherwise stated or the context indicates differently, to sections of the Act.
3. Sometimes, Uber is described as a rideshare system. It puts riders who wish to be transported by motor vehicle (riders), in contact with drivers offering the service of picking them up and driving them to their destination (drivers). The connection is achieved by way of Uber's software applications (apps) which include a "Driver App" and a "Rider App".
4. A driver may be an individual operating on his or her own, or a person working for a person carrying on the business of providing transport services, that is, in essence, a taxi company (partners).
5. The Act imposes payroll tax on all taxable wages paid or payable by an employer. Taxable wages are those paid or payable by an employer for or in relation to services performed by an employee wholly in this jurisdiction.
6. Division 7 of the Act (comprising ss 31-36) headed 'Contractor provisions', expands the scope of liability to pay payroll tax by capturing payments made by a person who, during a financial year, supplies services to another person under a contract (relevant contract) under which the first person (designated person) has supplied to the designated person the services of persons for or in relation to the performance of work.
7. The pivotal section for present purposes is s 32(1)(b), which provides: (1) In this Division, a relevant contract in relation to a financial year is a contract under which a person (the designated person) during that financial year, in the course of a business carried on by the designated person - (a) […] (b) has supplied to the designated person the services of persons for or in relation to the performance of work, or
8. Under s 31, 'contract' includes an agreement, arrangement or undertaking, whether formal or informal and whether express or implied.
9. Sections 32(2)(a), (b)(iii), (b)(iv) and (c)(i) (the exclusions), relevantly, exclude from the definition of 'relevant contract' a contract under which the designated person: 1. is supplied with services for or in relation to the performance of work that are ancillary to the use of goods which are the property of the person supplying the services (s 32(2)(a)); 2. is supplied with services for a period not, or not in aggregate, exceeding 90 days and are not services provided by a person by whom similar services are provided to the designated person or for or in relation to the performance of work where any of the persons who perform the work also perform similar work for the designated person for periods that, in the aggregate, exceed 90 days in that financial year (s 32(2)(b)(iii)); 3. is supplied with services which are performed by a person who ordinarily performs services of that kind to the public generally in that financial year (s 32(2)(b)(iv)); and 4. is supplied with services by two or more persons who are employed by or who provide services for the contractor in the course of a business carried on by the contractor (s 32(2)(c)(i)).
10. Under s 32(2B), the exclusions do not apply to a contract under which any additional services or work of a kind not covered by any relevant exclusions are supplied or performed under the contract.
11. Under s 35(1), amounts paid or payable by an employer during a financial year for or in relation to the performance of work relating to a relevant contract are taken to be wages paid or payable.
12. On 24 April 2021, Uber objected to the Assessments. On 31 April 2021, the Chief Commissioner disallowed the objection.
13. The Chief Commissioner assessed Uber to payroll tax on the basis that the majority of amounts collected on behalf of drivers by Uber from riders and remitted to the drivers is taken to be wages, as amounts paid or payable for or in relation to the performance of work relating to a relevant contract.
14. The Chief Commissioner also imposed premium interest on Uber. Uber seeks that it be remitted.
15. The Chief Commissioner's position, over the life of this controversy, on the basis of Uber's liability for payroll tax has, to the manifest frustration of Uber, shifted significantly a number of times. Ultimately, there is nothing impermissible about this shift because the current hearing is a hearing de novo and is not limited to the materials before the Chief Commissioner. The parties are not bound by the grounds of objection to the Chief Commissioner's decision, nor by the reasons for decision on the objection: Milstern Nominees Pty Ltd v Chief Commissioner of State Revenue (2015) 89 NSWLR 43 at [4] per White J (as his Honour then was); Southern Cross Group Services Pty Ltd v Chief Commissioner of State Revenue (2019) 110 ATR 16; [2019] NSWSC 666 at [2] per Ward CJ in Eq (as her Honour then was).
16. Uber is, however, entitled to proceed on the basis that it is not incumbent upon it to do more than successfully disprove, on the balance of probabilities, the basis for assessment advanced by the Chief Commissioner (that is, not some other basis) or, if only questions of law are involved (as is the case here), demonstrate that there is not a legal basis for the assessment: Bailey v Commissioner of Taxation (1977) 136 CLR 214 at 219-221; Southern Cross at [2] per Ward CJ in Eq (as her Honour then was); Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue (2019) 109 ATR 879; [2019] NSWSC 657 at [7] per Ward CJ in Eq (as her Honour then was).
17. What the changes perhaps reveal are the conceptual complexities of applying Division 7 to a system like Uber's, the likes of which did not remotely exist when the Division was introduced. It is worthy of observation that in the Second Reading Speech when Division 7 was introduced, it was said to be "to deal with the practice of using contractors who provide services on a similar basis to ordinary employees but who are regarded at law as independent contractors", as a basis to avoid, amongst others, charges and taxes such as payroll tax. There is no suggestion in this case that the Uber system is structured to avoid tax obligations.
18. The hearing took place over four days. In addition to extensive oral argument from both sides, Uber produced 91 pages of closing written submissions and 19 pages of further submissions in reply and the Chief Commissioner produced 79 pages of written submissions and a number of other writings. There were two additional appearances caused by me raising an issue to which reference is made below. I have had regard to all of the arguments but will not restate them.
19. First, Uber contends that its contracts with drivers are not relevant contracts under s 32(1)(b) because "transportation services" were provided by drivers, not to Uber, but to riders, and were provided, not under the drivers' contract with Uber, but under the drivers' contract with the rider.
20. Second, Uber contends that its arrangements with drivers and partners are excluded from the definition of relevant contract under one or more of the exclusions in s 32(2) (the exclusions) in that: 1. the work was ancillary to the use of goods, namely, a vehicle, which is the property of the driver (s 32(2)(a)); 2. services were provided by drivers for less than 90 days or, in the aggregate, less than 90 days, based on a calculation which treats a day as 7.6 hours of actual driving time (s 32(2)(b)(iii)); and 3. there are Uber drivers whose cars are also registered taxis or hire cars thereby making them persons who ordinarily perform services of that kind (namely, providing driving services) to the public generally (s 32(2)(b)(iv)).
21. Third, it contends that amounts paid by it to drivers were not paid for or in relation to the performance of work under that contract, and thus are not taken under s 35(1) to be wages paid or payable by it.
22. In response to Uber's contentions that its arrangements fall within one or more of the exclusions, the Chief Commissioner puts that, under s 32(2B), the exclusions do not apply because under the contracts between Uber and drivers or partners additional services or work of a kind not covered by any of the relevant exclusions are supplied or performed.
23. The Chief Commissioner now concedes that the exclusion in ss 32(2)(b)(iv) is engaged with respect to some (but not all) drivers and partners. But there is a dispute as to what are the criteria to be applied when determining whether a particular driver ordinarily performed taxi or hire car transport services to the public generally.
24. The Chief Commissioner now also concedes that s 32(2)(c)(i) applies where a partner supplied two or more drivers. The consequence of this is that some adjustment to the Assessments would be required, come what may.
25. For the reasons which follow, I have concluded that: 1. by Uber's arrangements with drivers and partners, they have supplied to it the services of persons for or in relation to the performance of work within s 32(1)(b); 2. Uber was supplied with services for or in relation to the performance of work that are ancillary to the use of goods which are the property of the driver or partner within the exclusion in s 32(2)(a), but s 32(2B) operates against it to take it out of the exclusion because it was supplied services that do not fall within one of the exclusions; 3. with respect to some, but not all, arrangements between Uber and drivers and partners, services provided to Uber were provided for a period that did not exceed 90 days or for periods that, in the aggregate, did not exceed 90 days, in each financial year during the Relevant Period within the exclusion in s 32(2)(b)(iii). However, Uber does not get the benefit of this exclusion either, because of s 32(2B); and 4. amounts paid or payable by Uber to the drivers or partners were not for or in relation to the performance of work relating to a relevant contract within s 35(1) and are not taken to be wages paid or payable.
26. The effect of the finding in (4) above is that Uber succeeds, and the Assessments must be revoked. If s 32(2B) did not operate, the effect of the finding in (3) above would have been that the Assessments would be revoked in part only.

HOW UBER WORKS

1. The following summary of how Uber works is derived from a combination of the written submissions, evidence given and documents tendered. It reflects the position during the period to which the Assessments relate (Relevant Period).
2. The facts are not in dispute.
3. The term 'Uber' has now entered the English lexicon meaning, depending on the context, the company or companies which trade under that name, or the car itself which is used to take a trip. The term 'Uber driver' has also entered the lexicon, denoting the driver of an Uber car. Uber takes its name from Uber B.V., a private limited liability company incorporated under the laws of the Netherlands, with its registered seat in Amsterdam. The plaintiff is a wholly owned subsidiary incorporated in Australia.
4. Uber has developed two software applications or "apps" - the 'Driver App' (used by drivers) and the 'Rider App' (used by riders). The apps are platforms which enable drivers and riders to connect, which in turn enables drivers to be available to provide transport to riders.
5. The apps incorporate a system which allows riders to rate the drivers and drivers to rate the riders (and Uber itself gets the information). At the end of a trip, the driver is prompted to rate the rider.
6. If a rider makes a trip request through the Rider App, it is passed on to a driver (usually, but not always, the nearest one) via the Driver App.
7. The apps use a process of "batched matching" to minimise overall wait times for riders (as opposed to a single rider). The driver is shown the rider's rating, the distance and estimated time to the pick-up point, and any applicable "surge" pricing multiplier. Surge pricing is an algorithmic tool designed to increase marketplace reliability when demand significantly outstrips supply.
8. Uber allocates an identification and password key allowing the driver to access and use the Driver App.
9. A driver can accept, ignore or reject a request. If the driver ignores or rejects it, it is presented to another available driver, if there is one.
10. If a driver accepts the request, the driver is given the rider's name and location, and the rider is shown the driver's location, estimated time of arrival, the driver's first name, vehicle model and registration number.

DRIVER CONTRACTS AND PARTNER CONTRACTS

1. At various times during the Relevant Period, different forms of written contract governed the relationship respectively between Uber and drivers who were individual operators [2] (Driver Contracts) and the relationship between Uber and partners [3] (Partner Contracts). Where it is not necessary to distinguish between the two, they will be referred to collectively as the Contracts.
2. Drivers and partners were required to agree to updated terms from time to time. These were variously described as Partner Terms, Transportation Provider Service Agreement and Services Agreement.
3. It is not (with one possible exception) [4] suggested that differences between the forms of contract are material to the present dispute.
4. The specific Uber entity which is party to the agreements is not always the same but nothing turns on this.
5. The majority of drivers were individual operators. The Uber service using standard cars is commonly referred to as UberX. There is also an Uber service which uses hire cars (called UberBlack) and, as well, drivers with a registered taxi licence can offer an Uber Taxi service. The latter two services have a minimal role to play in these proceedings and their only relevance is to the possible operation of one exclusion.
6. The following are specific relevant features of the provisions in almost all Driver Contracts and Partner Contracts. There are one or two exceptions but no provisions in the exceptions are inconsistent with the features now identified. The references in the next paragraph to clauses are, respectively, to 1 December 2017 versions of the Contracts.
7. The Contracts: 1. recite or acknowledge that Uber does not provide transportation services and is not a transportation carrier, but that its business is to provide access to its lead generation services rendered via the apps in consideration for a service fee (cl 1; cl 1); 2. authorise or license the driver or partner, as the case may be, to use the Driver App (cl 2; cl 2); 3. include an acknowledgement that in providing services to riders, the driver or partner has a legal and business relationship with the rider and not Uber (cl 3; cl 3); 4. require the driver to exercise due care and skill when transporting riders, or the partner to represent that the driving service will be provided with due care and diligence (cl 6; cl 7); 5. bind the driver or partner to comply with Uber's policies and terms which permit (amongst others) Uber to deny or suspend access to drivers who breach them. The policies include an incentive program under which drivers are paid referral fees for introducing new Uber drivers (cl 32; cl 32) 6. provide that the driver is entitled to charge the rider a fare for each completed trip and that Uber is appointed as a limited payment collection agent for the driver or otherwise will collect the fare from riders for and on behalf of the driver (cl 8.1; cl 9.1); 7. record that Uber shall not be deemed to exercise any control over the driver or partner generally or in the performance under the contract (cl 4; cl 4); 8. reserve to the driver the sole right to decide when and for how long they will use the Driver App or the Uber Services (cl 4; cl 4); 9. provide that Uber will determine the fare calculation but allow the driver to charge fares lower than those calculated by Uber (cl 8.2; cl 9.2); 10. provide that Uber will remit to the driver the fare less any applicable service fee charged by Uber (cl 10; cl 11); 11. impose on the driver an obligation of confidentiality and not to reverse engineer the Software (cl 19; cll 20 and 21); 12. permit Uber unilaterally to adjust the amount paid in respect of a particular fare (cl 8.2; cl 22); 13. require the driver to perform ride requests once accepted and transport riders directly to their destination without unauthorised interruptions or stops (cl 3; cl 3); 14. do not permit the driver to transport people in their vehicles other than the rider or a passenger authorised by the rider (cl 3; cl 3); and 15. record that the driver will be asked or prompted to provide a rating for the rider (cl 5; cl 6).

RIDER CONTRACTS

1. During the Relevant Period, there were six forms of written contract which respectively governed the relationship between Uber and riders (Rider Contracts). [5]
2. Once again, the differences between the versions are not material to the present controversy. The references in the next paragraph to clauses are to the 10 June 2020 version of the Rider Contracts.
3. The Rider Contracts: 1. govern riders' access to the services made available by Uber which are described as constituting a technology platform that enables users of the Rider App to arrange and schedule transportation with independent third-party providers of such services (cl 2); 2. include an acknowledgement by the rider that Uber does not provide transportation services or function as a transportation carrier and that all such transportation is provided by independent third-party contractors who are not employed by Uber or any of its affiliates (meaning drivers or partners) (cl 2); 3. contain confirmation by the rider that use of the services may result in charges to the rider for the services they receive from a third-party provider (cl 4); 4. provide that Uber will facilitate the rider's payment of the applicable charges on behalf of the third-party provider as the provider's limited payment collection agent, and that payment in that matter shall be considered the same as payment made directly by the rider to the third-party provider (cl 4); 5. provide that Uber has the right to establish, remove or revise charges for any or all services obtained through the use of the services in Uber's sole discretion (cl 4); 6. provide for the possibility of the payment of cancellation fees and repair or cleaning fees (cl 4); and 7. contain disclaimers and limitations of liability including an acknowledgement that the rider agrees that Uber has no responsibility or liability to the rider related to any transportation services provided to the rider by third-party providers other than as expressly set forth in the contracts (of which there is no example) (cl 5).

THE ACT

1. The preamble to the Act describes it, relevantly, as an Act to provide for a tax on employers in respect of certain wages.
2. Under s 6, payroll tax is imposed on all taxable wages.
3. Under s 7, an employer, by whom taxable wages are paid or payable, is liable to pay payroll tax on the wages.
4. Section 11 provides, relevantly, that wages are taxable if they were paid or payable by an employer for or in relation to services performed by an employee wholly in this jurisdiction.
5. Section 13(1)(e) provides that for the purposes of the Act wages means wages, remuneration, salary, commission, bonuses or allowances paid or payable to an employee, including an amount that is included or as taken to be wages by any other provision of this Act.
6. As mentioned earlier, Division 7 is entitled 'Contractor provisions'. The following sections in that Division are pertinent. Division 7 Contractor provisions 31 Definitions In this Division - contract includes an agreement, arrangement or undertaking, whether formal or informal and whether express or implied. relevant contract has the meaning given in section 32. re-supply of goods acquired from a person includes - (a) a supply to the person of goods in an altered form or condition, and (b) a supply to the person of goods in which the first-mentioned goods have been incorporated. services includes results (whether goods or services) of work performed. supply includes supply by way of sale, exchange, lease, hire or hire-purchase, and in relation to services includes the providing, granting or conferring of services. 32 What is a relevant contract? (1) In this Division, a relevant contract in relation to a financial year is a contract under which a person (the designated person) during that financial year, in the course of a business carried on by the designated person - (a) supplies to another person services for or in relation to the performance of work, or (b) has supplied to the designated person the services of persons for or in relation to the performance of work, or (c) gives out goods to natural persons for work to be performed by those persons in respect of those goods and for re-supply of the goods to the designated person or, where the designated person is a member of a group, to another member of that group. (2) However, a relevant contract does not include a contract of service or a contract under which a person (the designated person) during a financial year in the course of a business carried on by the designated person - (a) is supplied with services for or in relation to the performance of work that are ancillary to the supply of goods under the contract by the person by whom the services are supplied or to the use of goods which are the property of that person, or (b) is supplied with services for or in relation to the performance of work where-- […] (iii) those services are provided for a period that does not exceed 90 days or for periods that, in the aggregate, do not exceed 90 days in that financial year and are not services-- (A) provided by a person by whom similar services are provided to the designated person, or (B) for or in relation to the performance of work where any of the persons who perform the work also perform similar work for the designated person, for periods that, in the aggregate, exceed 90 days in that financial year, or (iv) those services are supplied under a contract to which subparagraphs (i)-(iii) do not apply and the Chief Commissioner is satisfied that those services are performed by a person who ordinarily performs services of that kind to the public generally in that financial year, (c) is supplied by a person (the "contractor") with services for or in relation to the performance of work under a contract to which paragraphs (a) and (b) do not apply where the work to which the services relate is performed-- (i) by two or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor, […] (2B) Subsection (2) (a), (b), (c) or (d) does not apply to a contract under which any additional services or work (of a kind not covered by the relevant paragraph) are supplied or performed under the contract. 33 Persons taken to be employers (1) For the purposes of this Act, a person - (a) who during a financial year, under a relevant contract, supplies services to another person, or (b) to whom during a financial year, under a relevant contract, the services of persons are supplied for or in relation to the performance of work, or (c) […] is taken to be an employer in respect of that financial year. (2) If a contract is a relevant contract under both section 32(1)(a) and (b) - (a) the person to whom, under the contract, the services of persons are supplied for or in relation to the performance of work is taken to be an employer, and (b) despite subsection (1)(a), the person who under the contract supplies the services is taken not to be an employer. 34 Persons taken to be employees For the purposes of this Act, a person who during a financial year - (a) performs work for or in relation to which services are supplied to another person under a relevant contract, or (b) […] is taken to be an employee in respect of that financial year. 35 Amounts under relevant contracts taken to be wages (1) For the purposes of this Act, amounts paid or payable by an employer during a financial year for or in relation to the performance of work relating to a relevant contract or the re-supply of goods by an employee under a relevant contract are taken to be wages paid or payable during that financial year. […]

ARE THE CONTRACTS RELEVANT CONTRACTS UNDER S 32(1)(b)?

1. Whether on the facts and in the circumstances of this case s 32(1)(b) is engaged or not is a question of the statutory construction of that provision.
2. The answer depends upon whether, upon that proper construction, each of the following questions is answered in the affirmative (observing that where I refer to a contract, I am referring to a contract as defined in s 31): 1. was Uber supplied with services of persons for or in relation to the performance of work? 2. were those services supplied to Uber under a contract?
3. The approach which the Court must take to construing the provisions of the Act is that laid down in Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 346, where McHugh J cited, with approval, Lord Radcliffe's statement in Attorney-General (Canada) v Hallet & Carey Ltd [1952] AC 427, 449 that "the paramount rule remains that every statute is to be expounded according to its manifest or expressed intention." His Honour went on to say that: The first step in the process of statutory construction is the ascertainment of the ordinary grammatical meaning of the legislative provision in question. However, ascertaining the ordinary grammatical meaning of a legislative provision is only the first step in the process of statutory construction, for the object of that process is to ascertain the meaning which Parliament intended. The grammatical meaning of a provision is not always the meaning which Parliament intended the statute to have. For the purpose of ascertaining the statutory or legal meaning of an enactment, it is necessary to take into account various rules of construction which Parliament is presumed to have intended to be used to ascertain the meaning of its legislation. The application of these rules often results in the statutory or legal meaning being different from the grammatical meaning of an enactment. Thus, it is a rule of construction that the purpose of the legislation must be taken into account in determining the statutory meaning of one of its provisions. The application of this rule may have the effect of modifying the grammatical meaning of the provision. Likewise, it is a rule of construction that, in the absence of a clear contrary indication, legislation is not to be interpreted as abolishing basic common law rights and privileges. The application of this rule may require the reading down of the literal meaning of general words in an enactment.

Was Uber supplied with the services of persons for or in relation to the performance of work?

1. The answer to this question requires identification of services supplied to Uber and the existence of a relationship between those services and the performance of work which results in those services being "for or in relation to" that work.

Services

1. The term 'services' is of wide import (even leaving aside the extended definition in s 31): see IW v City of Perth (1997) 191 CLR 1 at 11. The Macquarie Dictionary, 4th ed (2006) defines it, relevantly, to include "an act of helpful activity".
2. The Chief Commissioner appropriately abandoned the untenable contention that partners provided a service to Uber by procuring that drivers who worked for them agreed to and adhered to the Partner Contract or an addendum to it.
3. The Chief Commissioner argued that the following (individually or collectively) were services supplied by drivers and partners to Uber: 1. transporting riders, that is, driving to the pickup point, taking the rider on board and driving them to their destination (driving); 2. giving feedback about riders (by rating them - with or without additional comments) at the end of the trip (rating); and 3. referring people to Uber for the purpose of them becoming drivers (referring).
4. The Chief Commissioner argued that these activities are services to Uber because they assist and confer benefits on Uber including the generation of service fees and the increased attractiveness of the Uber platform to riders by making it more efficient, and therefore generating an economic benefit for Uber.
5. He argued that rating riders is of significant value to Uber because it contributes, amongst others, to the enhancement of safety by reducing road safety incidents and interpersonal conflict between drivers and unreliable or uncivil riders. He says that the driver has no practical option but to give a rating. He sought to make the point that, given the 90-day exclusion in s 32(2)(b)(iii) applies, each driver covered by the assessment must have given a rating on at least 90 days.
6. The Chief Commissioner accepts that drivers provided a transport service for riders, but says that drivers also did so for Uber.
7. Uber accepts that drivers supplied the service of transporting riders. But it says that they did not provide that service to it, but rather, that they supplied it to riders. Uber characterises its system as a marketplace through which drivers and riders can identify and contract with one another. It is apt to observe that both parties agree that the principal object of the Contracts was to make the apps available to drivers or partners. The Court was informed that the Chief Commissioner does not contend that payroll tax is payable on amounts paid to drivers or partners for rating or under the referral scheme if the amounts otherwise paid to drivers or partners (for their driving) are not assessable.

For or in relation to the performance of work

1. Division 2 (comprising ss 10, 11, 11A, 11B and 11C) is headed 'Taxable wages'. It delineates the wages which are taxable. Whether they are taxable or not depends, relevantly, on them being paid or payable by an employer for or in relation to services performed by an employee (s 11(1)(a)). The term 'work' is not used in that Division.
2. By contrast, Division 7, in various places, refers to both 'services' and to 'work', indicating that the two do not have precisely the same meaning. The concept of 'work' may be thought to be narrower than 'services' but there is no bright line distinction between the two.
3. In Accident Compensation Commission v Odco Pty Ltd (1990) 95 ALR 641, the High Court considered provisions in the Victorian Accident Compensation Act 1985 (Vic), some of which were in the same terms as provisions of the Act now under consideration, including sections which used the expression "services for or in relation to the performance of work". The Full Court (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) said at 650-651: The notion that the supply of services and the performance of the work referred to in s 9 are necessarily distinct and separate concepts is not borne out by examination of the provisions. Likewise, the notion that the person supplying the services or the person supplying the services of persons is necessarily different from the person performing the work cannot be made out. It is a mistake to read the expression "for or in relation to the performance of work", where it appears in s 9(1) and elsewhere, as doing anything more than qualifying the content or scope of the word "services". All that the expression is saying is that "services" must be work-related; it is not stipulating that the services are wholly distinct from the work or that the supplier of the services is a person other than the performer of the work. Some indication that this is so may be gathered from s 9(6)(d) which provides that: "a reference to services includes a reference to results (whether goods or services) of work performed."
4. Whilst the services need not be wholly distinct from the work which s 32(1)(b) has in mind, applying orthodox canons of construction, it cannot be assumed that the legislature intended different words to have exactly the same meaning and that no distinction is to be drawn between the two concepts: see Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579, 590 (Higgins J); King v Jones (1972) 128 CLR 221, 266 (Gibbs J).

Were the services supplied to Uber under a contract?

1. This question requires identification of terms of a contract between Uber on the one hand, and drivers and partners on the other, and the existence of a sufficient connection between those terms and the services, to make them services supplied under that contract.
2. The Chief Commissioner argued that the relevant contracts are a combination of: 1. the Contracts; and 2. the terms on which the referral scheme operated, either as a freestanding arrangement or as incorporated into the Contracts by either or both of clauses 13 and 31 which provide: 13. Incentives. From time to time, [Uber] may make an incentive payment(s) to you as consideration for your satisfaction of certain conditions as determined by [Uber] in its discretion ("Conditions"). These Conditions may be included in promotional materials, and/or may be communicated to you, including via text message and email. You acknowledge and agree that any incentive payment(s) is made to you at [Uber]'s sole discretion, subject to the Conditions. […] 31. Supplemental Terms. Supplemental terms may apply to your use of the Uber Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time ("Supplemental Terms"). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. [Uber] will provide you with 14 days' notice in the event that it adds or modifies Supplemental Terms in a manner that it reasonably considers materially alters your rights under the Agreement, provided that in such event you shall have the right to terminate the Agreement immediately upon receiving notice from [Uber]. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
3. I interpolate that, in my opinion, the referral scheme comes within cl 13 but not within cl 31. The material in evidence which describes how the referral scheme operated does not relate to features and functionality of the system. Additionally, there is no evidence that the drivers were 'presented' with that material as Supplemental Terms.
4. The meaning of the phrase "under which" (which appears in ss 32(1) and 32(2)) has been the subject of judicial consideration.
5. In Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 at [49], the High Court (Gleeson CJ, Gaudron, McHugh and Hayne JJ) said that the contract "under" which something occurs is to be identified by determining whether it is "properly to be seen as the source of the obligation" to do that thing. I take this to include the corollary that, if what is done is the exercise of a right, the determination is whether the contract is properly to be seen as the source of that right. I take this to comprehend that whether an identified thing has been done under an identified contract is a corresponding equation with the same integers: see Commissioner of Taxation v Energy Resources of Australia Ltd (1994) 54 FCR 25 at 53 per Gummow J.

Section 32(2)(a) - the "ancillary" exclusion

1. For the exclusion in s 32(2)(a) to apply: 1. the services supplied by a driver to Uber must be ancillary to the use of the vehicle; and 2. the vehicle must be the property of the driver.

Ancillary

1. According to the authorities, the term 'ancillary': 1. means supplemental or auxiliary or accessory: Downer EDI Engineering Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 743 at [139] per Payne JA; 2. does not require the services to be subordinate or subservient to the supply or use of the goods: Smith's Snackfood at [78] per Gleeson JA; 3. does not require that the services be minor in quantitative terms: Chief Commissioner of State Revenue v Downer EDI Engineering Pty Ltd (2020) 103 NSWLR 772; [2020] NSWCA 126 at [96] per Bathurst CJ; and 4. includes services which tend to assist, go naturally with, or are in substance bound up with the use of the goods: Navy Health Ltd v Federal Commissioner of Taxation (2007) 163 FCR 1; [2007] FCA 931 at [65] per Jessup J.
2. These authorities allow two things to be ancillary to each other.
3. In this context, the Chief Commissioner submitted that a service is ancillary to the supply or use of goods where the primary or principal matter or object of the contract is the supply or use of the goods (not the supply of labour), and the services are ancillary to that object. In support of this, the Chief Commissioner relied on the Explanatory Memorandum to the equivalent to s 32(2)(a) introduced in Victoria in 1983: For example, if A enters into a contract with B for B to supply the use of a crane in A's business and B also insists on supplying the crane driver, the contract would be regarded primarily as one for the supply of the crane and any payment attributable to the crane driver's labour would not be caught. [Emphasis added]
4. In my view, this approach, which requires primacy to be attributed to the supply or use of the goods, does not accord with the approach taken in the appellate authorities referred to earlier, which bind me.
5. Once again, Uber's and the Chief Commissioner's arguments on this topic were framed on the trichotomy analysis.
6. As to driving, I do not consider that it can properly be described as a service ancillary to the use of the vehicle. Categorising driving as a service obscures the reality that driving, in that sense, means driving a car. There is no room for separating the two into elements, one of which is capable of being ancillary to the other.
7. However, rating a rider after they have been driven in a vehicle is undoubtedly a service ancillary to the use of that vehicle. It is bound up with that use. A driver cannot rate a rider if they have not used a vehicle.

The property of the driver

1. The Chief Commissioner put that: 1. the phrase "the property of" in s 32(2)(a) means more than physical custody; 2. it requires the driver or partner to have a recognised property interest in the vehicle such as a possessory interest or ownership; and 3. Uber has not established that the driver or partner had such an interest in the vehicle.
2. The thrust of this submission is that the onus lies upon Uber to prove, on the probabilities, that each car used by each driver for each trip is one in which the driver had a recognised property interest.
3. Uber put that no proprietary interest is required and that, in its context, "the property of" means goods the use of which are brought to the bargain by the supplier of the service, ie. the driver (not Uber). Uber put that it suffices for the driver to be in lawful possession of the vehicle and to be able to assert lawful possession against the designated person (ie. Uber).
4. I consider that the words "the property of" are not used in any technical legal sense or as a term of art. As with all other terms, it takes its meaning from the context in which it is used.
5. Schedule 4 of the Interpretation Act 1987 (NSW) contains the following definition of property: "property" means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description, including money, and includes things in action.
6. In the phrase "which are the property of", the word is plainly not used in the sense connoted by the statutory definition. The phrase in the section denotes the relationship of the person to property, in the section "the goods", and not the thing in which the person has any legal or equitable estate.
7. The term 'property' has been described as ambiguous: Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 276. It has also been described as the most comprehensive of all terms which can be used, in as much as it is indicative and descriptive, of every possible interest that a party can have: Jones v Skinner (1835) 5 LJ Ch 90.
8. It is used in this section to denote a relationship between the person supplying the services and the goods to which those services are ancillary. In that context and used in its common English language sense (see Queensbury Industrial Society v Pickles (1865) LR 1 Exch 1 at 4 per Bramwell B), I take it to mean the use of a car which is theirs to use, as opposed to the designated person's.

Section 32(2)(b)(iii) - the "90-day" exclusion

1. Whether the exclusion in s 32(2)(b)(iii) applies depends, in relation to each driver, on whether the services (if any) provided by that driver were supplied for less than 90 days during the financial year.
2. The Chief Commissioner argued that services supplied for a period exceeding 90 days means services supplied on more than 90 single days (irrespective of the hours over which those services were supplied) in the financial year. In other words, if a driver supplied services of any kind in a day, that day is a day for the purpose of the calculation.
3. Uber argued, as I understood it, that working for a period of a day means working for that many hours notionally equivalent to those which would be worked by a full-time employee. Uber referred to the Explanatory Memorandum to the Pay-roll Tax (Amendment) Bill 1983 (Vic) which, with respect to the 90-day exclusion provision, said: Sub-paragraph (iii) exempts contracts which are for services that are provided by a person for less than 90 days in a financial year notwithstanding that they may be of a kind which are ordinarily required by the person to whom they are supplied for more than 180 days a year. This is designed to exempt short term engagements having regard to the fact that the general thrust of the legislative amendments is to tax payments under contracts which are long term and which are replacing the traditional contract of employment.
4. Uber argued that the most meaningful comparator for a "traditional contract of employment" is the Passenger Vehicle Transportation Award 2010 (Cth) cl 10.3(a) which provides that a full-time employee in the passenger vehicle transportation industry is an employee who is engaged to work an average of 38 hours per week, which is the equivalent of five 7.6-hour days.
5. Accordingly, argued Uber, if in the financial year the actual number of driving hours did not exceed 90 x 7.6, the 90-day threshold would not be reached.
6. I uphold the Chief Commissioner's argument. It accords with the plain English meaning of s 32(2)(b)(iii). On the other hand, Uber's argument is untenable, and I reject it. No foundation for it can be found within the words of the Act. The selection of 7.6 hour days is random and imports ambulatory operation.
7. Moreover, Uber's approach is to equate the provision of services only with driving, whereas the services provided by drivers and partners are not properly to be equated only with driving.

Section 32(2)(b)(iv) - the "to the public generally" exclusion

1. Whether the exclusion in s 32(2)(b)(iv) applies depends on whether the services (if any) performed by the drivers are of the type ordinarily performed by that driver to the public generally.
2. Uber's contention is that there are drivers who held taxi licences and hire car licences in the Relevant Period. Uber argued that the services supplied by drivers to Uber (which, for this purpose, Uber equated with driving for hire) are of the same kind provided to the public by taxi drivers and hire car drivers, and that the Court should infer that those drivers ordinarily performed services of that kind.
3. There was no evidence led by Uber as to the frequency of taxi or hire car driving by those drivers, to enable the Court to conclude that they ordinarily engaged in that activity. Uber accordingly failed to prove a fact necessary to bring it within the exclusion.

Section 32(2)(c)(i) - the "two or more" exclusion

1. Whether the exclusion in s 32(2)(c)(i) applies depends on whether the services (if any) performed by the drivers are performed by two or more persons employed by, or who provide services for, the partner in the course of a business carried on by the partner.
2. As noted earlier, the Chief Commissioner conceded that this exclusion applies to some but not all of the drivers or partners, necessitating a variation to the Assessments in any event.

Section 32(2B) - the carve out from the exclusions

1. Section 32(2B) applies where, under the contract, additional services or work not covered by, relevantly, s 32(2)(a) and (b), are supplied or performed.
2. The Explanatory Memorandum to the State Tax Laws Amendment (Budget and Other Measures) Bill 2013 (Vic) which introduced sub-ss 32(2A) and (2B) into Victoria's payroll tax legislation provides: In The Smith's Snackfood Company Limited v Chief Commissioner of State Revenue (NSW) [2012] NSWSC 998, the Supreme Court of NSW observed that the language of the equivalent provision in the Payroll Tax Act 2007 (NSW) was such that it did not provide an exemption for contracts for the conveyance of goods by owner drivers, but only for those services ancillary to the conveyance of goods. To ensure that this exemption covers both, and is limited solely to those purposes, this amendment expressly provides that a relevant contract does not include a contract under which the principal is supplied with services solely for the conveyance of goods, or services that are ancillary to that conveyance, using a vehicle provided by the person conveying the goods. […] New section 32(2A) provides that subsection (2)(a), (2)(b)(i), (2)(b)(iv) or (2)(d) does not apply to a contract under which services not referred to in any of those subsections are supplied in addition to services referred to in the relevant subsection. New section 32(2B) provides that subsection (2)(b)(ii) or (iii) does not apply to - (a) a contract under which services not referred to in that subsection are supplied in addition to services referred to in that subsection; or (b) a contract under which services referred to in that subsection are provided for a period exceeding a period referred to in that subsection.
3. In the Explanatory Note to the State Revenue Legislation Further Amendment Bill 2014 (NSW) which inserted s 32(2B) into the Act, it provides: [s 32(2B)] makes it clear that an exemption for a contract under which a particular kind of services are supplied, or a particular kind of work is performed, does not apply if additional services or work are supplied or performed under the contract.
4. The Chief Commissioner argued that where s 32(2B) refers to "additional services or work", this can be services supplied or work performed by the designated person because the word "additional" is preceded by the word "any" and is therefore not restricted to services supplied or work performed by the person supplying services to the designated person.

ARE AMOUNTS PAID OR PAYABLE BY UBER TAKEN TO BE WAGES PAID OR PAYABLE UNDER S 35(1)?

1. Section 35(1) requires identification of a connection between the payments made by Uber the subject of the Assessments, and work done by drivers under the Contracts so as to make the payments "for or in relation to" that work.
2. Uber put that: 1. section 35(1) applies only to payments in the character of remuneration for work performed; 2. the only work in this case is driving; and 3. the rider, not Uber, paid for it, with the consequence that Uber's payment was not in the character of remuneration for the work.
3. The Chief Commissioner put that there was a direct relationship between the payments made by Uber and the performance of work by drivers under the Contracts because Uber paid drivers for the work they performed that was permitted and regulated by the Contracts.
4. The words "in relation to" are no doubt very wide, but they must still be construed in the context in which they are to be found, and having regard to various rules of construction which Parliament is presumed to have intended to be used to ascertain the meaning of its legislation: see Yuill at 346.
5. One of those rules, noscitur a sociis, was referred to, and applied by, Spigelman CJ in Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207. At [30], the Chief Justice referred to the general principle of the law of interpretation that the meaning of a word can be gathered from its associated words, and that the linking of words indicates that they should be understood in the same sense: see too Deputy Commissioner v Dick (2007) 226 FLR 388.
6. The words "for" and "in relation to" are linked in sub-s (1) by the preposition "or".
7. The ordinary English meaning of "for" in s 35(1) is number 6 in the Macquarie Dictionary, 4th ed (2006), namely, "in return for" or "in consideration of". So read, Uber's submission in relation to "for", that the payment must be in the character of remuneration, has force. The payments made by Uber to the drivers and partners do not have that character.
8. However, and whilst "in relation to" is to be construed in the same sense, it is of wider ambit than "for". To be "in relation to" the work, the payment does not have to have the character of remuneration (not least of all because the person receiving the money does not have to be the person who does the work)/ But some form of reciprocity or ascertainable calibration between the money paid and the work done is required. Not just any relationship of any kind whatsoever will suffice: cf Loan Market Group Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 390 at [288]. An evaluative judgement is required, which must be made with the objects of Division 7 squarely in mind.

Driver Contract

1. Clause 8.1 relevantly provides: You can charge a fare to Users for each instance of completed Transportation Services that you provide to a User that are obtained via the Uber Services ("Fare"). [Uber] will calculate a recommendation of the Fare that you can elect to charge Users ("Fare Calculation"). As at 1 December 2017, [Uber] determines the Fare Calculation as a base fare amount plus distance (as determined by [Uber] using location-based services enabled through your mobile device and/or time amounts, as detailed at www.uber.com/cities for the applicable Territory). You can also charge the User for any applicable road, bridge, ferry, tunnel and airport charges and any other fees (including innercity congestion, environmental or miscellaneous charges as reasonably determined by the Uber Services) ("Tolls"), taxes and/or fees incurred during the provision of Transportation Services, whether charged by a third party or [Uber]. [Uber] reserves the right to change the Fare Calculation at any time in [Uber]'s discretion. [Uber] will provide you with notice in the event that any such change would result in a change in the recommended Fare. Continued use of the Uber Services after any such change shall constitute your consent to such change. You appoint [Uber] as your limited payment collection agent solely to accept the Fare, applicable Tolls, and, depending on the region and/or if requested by you, applicable taxes and fees from the User on your behalf via the Uber Services' payment processing functionality, and agree that the User's payment to [Uber] shall be considered the same as payment made directly by the User to you. If a User cancels their request for Transportation Services prior to your arrival, [Uber] may charge that User a cancellation fee on your behalf, and a Service Fee will be payable to [Uber]. [Emphasis added]

Partner Contract

1. Clause 9.1 of the Partner Contract provides: Customer can charge a fare to Users for each instance of completed Transportation Services provided to a User that are obtained via the Uber Services ("Fare"). [Uber] will calculate a recommendation of the fare that Customer can elect to charge Users ("Fare Calculation"). As at 1 December 2017, [Uber] determines the Fare Calculation as a base fare amount plus distance (as determined by [Uber] using location-based services enabled through the applicable Driver's mobile device and/or time amounts, as detailed at www.uber.com/cities for the applicable Territory). Customer can also charge the User for any applicable road, bridge, ferry, tunnel and airport charges and any other fees (including inner-city congestion, environmental or miscellaneous charges as reasonably determined by the Uber Services) ("Tolls"), taxes and/or fees incurred during the provision of Transportation Services, whether charged by a third party or [Uber]. [Uber] reserves the right to change the Fare Calculation at any time in [Uber]'s discretion. [Uber] will provide Customer with notice in the event that any such change would result in a change in the recommended Fare. Continued use of the Uber Services after any such change shall constitute Customer's consent to such change. Customer appoints [Uber] as Customer's limited payment collection agent solely to accept the Fare, applicable Tolls, and, depending on the region and/or if requested by Customer, applicable taxes and fees from the User on Customer's behalf via the Uber Services' payment processing functionality, and agrees that the User's payment to [Uber] shall be considered the same as payment made directly by the User to Customer. If a User cancels their request for Transportation Services prior to a Driver's arrival, [Uber] may charge that User a cancellation fee on Customer's behalf, and a Service Fee will be payable to [Uber]. [Emphasis added]

Rider Contract

1. Clause 4 of the Rider Contract provides: You understand that use of the Services may result in charges to you for the services or goods you receive from a Third Party Provider ("Charges"). After you have received services or goods obtained through your use of the Service, Uber will facilitate your payment of the applicable Charges on behalf of the Third Party Provider as such Third Party Provider's limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Provider. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Uber or required by the Australian Consumer Law. Under the Australian Consumer Law, you may be entitled to a refund for a major failure of the Services, or other remedies for a minor failure. You retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods. Uber will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good. All Charges are due immediately and payment will be facilitated by Uber using the preferred payment method designated in your Account, after which Uber will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Uber may, as the Third Party Provider's limited payment collection agent, use a secondary payment method in your Account, if available. As between you and Uber, Uber reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in Uber's sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. Uber will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. Uber may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services or goods from a Third Party Provider at any time prior to such Third Party Provider's arrival, in which case you may be charged a cancellation fee. This payment structure is intended to fully compensate the Third Party Provider for the services or goods provided. Except with respect to taxicab transportation services requested through the Application, Uber does not designate any portion of your payment as a tip or gratuity to the Third Party Provider. Any representation by Uber (on Uber's website, in the Application, or in Uber's marketing materials) to the effect that tipping is "voluntary," "not required," and/or "included" in the payments you make for services or goods provided is not intended to suggest that Uber provides any additional amounts, beyond those described above, to the Third Party Provider. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback about your Third Party Provider. [Emphasis added]

PREMIUM INTEREST

1. Division 1 of Part 5 of the Taxation Administration Act 1996 (NSW) headed 'Interest' is reproduced below. 21 Interest in respect of tax defaults (1) If a tax default occurs, the taxpayer is liable to pay interest on the amount of tax unpaid calculated on a daily basis from the end of the last day for payment until the day it is paid at the interest rate from time to time applying under this Division. (2) Interest is payable under this section in respect of a tax default that consists of a failure to pay penalty tax under Division 2 but is not payable in respect of any failure to pay interest under this Division. 22 Interest rate (1) The interest rate is the sum of - (a) the market rate component, and (b) the premium component. (2) The market rate component is - (a) unless an order is in force under paragraph (b), the Bank Accepted Bill rate rounded to the second decimal place (rounding 0.005 upwards), or (b) the rate specified for the time being by order of the Minister published in the Gazette. (3) The premium component is 8% per annum. (4) In this section, the Bank Accepted Bill rate in respect of any day within a period specified in Column 1 of the Table to this subsection is the monthly average yield of 90-day Bank Accepted Bills published by the Reserve Bank for the month specified in Column 2 of that Table opposite that period. […] (5) If the monthly average yield of 90-day Bank Accepted Bills for a particular month is not published by the Reserve Bank before the beginning of the relevant period, it is taken to be the same as the last monthly average yield of 90-day Bank Accepted Bills published by the Reserve Bank before that month. 23 Liability to payment of small amounts of interest There is no liability imposed by a taxation law to pay an amount of interest if the amount is less than $20. 24 Interest rate to prevail over interest otherwise payable on a judgment debt If judgment is given by or entered in a court for an amount of unpaid tax (or an amount that includes an amount of unpaid tax), the interest rate determined in accordance with this Division continues to apply, to the exclusion of any other interest rate, until the tax is paid. 25 Remission of interest (1) The Chief Commissioner may remit interest. (2) The Chief Commissioner may issue guidelines setting out how interest must be remitted under this division. (3) If guidelines are issued, interest must be remitted only in accordance with the guidelines. (4) The imposition or remission of penalty tax is not relevant to the imposition or remission of interest.

CONCLUSION

1. The Court makes the following orders: 1. The following assessments made by the Defendant are revoked: 1. the assessment that is shown in the notice of assessment for the financial year ended 30 June 2015 issued on 25 February 2021 with assessment number 11504055; 2. the assessment that is shown in the notice of assessment for the financial year ended 30 June 2016 issued on 25 February 2021 with assessment number 11504057; 3. the assessment that is shown in the notice of assessment for the financial year ended 30 June 2017 issued on 25 February 2021 with assessment number 11504058; 4. the assessment that is shown in the notice of assessment for the financial year ended 30 June 2018 issued on 25 February 2021 with assessment number 11504059; 5. the assessment that is shown in the notice of assessment for the financial year ended 30 June 2019 issued on 25 February 2021 with assessment number 11504060; and 6. the assessment that is shown in the notice of assessment for the financial year ended 30 June 2020 issued on 25 February 2021 with assessment number 11504061. 1. The premium component of interest imposed on the plaintiff in relation to the Assessments is remitted. 2. I will stand the matter over to allow the parties to bring in short minutes reflecting the assessments that should be made in place of the Assessments and to draw to my attention any further matters which require to be dealt with.
2. I will hear the parties on costs if necessary. The exhibits are to be returned.

Endnotes

1. Section 97(1)(a) provides "A taxpayer may apply to the Supreme Court for a review of a decision of the Chief Commissioner that has been the subject of an objection under Division 1 if … the taxpayer is dissatisfied with the Chief Commissioner's determination of the taxpayer's objection". See also s 101(1) of the Taxation Administration Act 1996 (NSW).
2. Driver Terms and conditions dated 1 May 2014, 4 November 2015, 23 December 2015, 17 November 2016 and 1 December 2017.
3. Partner Terms and conditions dated 1 July 2013, 4 November 2015, 23 December 2015 and 1 December 2017.
4. The 1 May 2014 Driver Terms & Conditions do not (unlike other contracts) appoint Uber as a payment collection agent for the driver or that Uber will collect the fare from riders for and on behalf of the driver. It was not suggested that Uber did not in fact act as a collection agent or did not collect the fares for or on behalf of the driver during the period where that contract was in force.
5. Terms and Conditions between Uber and Riders dated 21 March 2013, 4 November 2015, 16 March 2017, 4 December 2017, 24 August 2019 and 10 June 2020.
6. This accords with the common law of agency: see GE Dal Pont, Law of Agency (4th ed, 2020, LexisNexis) at [13.6]-[13.9]. The parties did not address the question of whether a trust is created. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2024