1. As a result of that finding, Dr Glover concluded 'that none of the trusts alleged by the 11 applicants existed at relevant times to substantiate the trust ground of objection'.[42] This finding included the 20th Cor Family Trust.[43]
2. As a result of that decision, the question that arises in these proceedings is, in what capacity did Mr Nicholas Corcoris hold the shares in CM 2001 Pty Ltd?
3. The Applicants contend that as a result of the failure of the 20th Cor Family Trust, there was no certainty as to the objects of the trust on which Mr Corcoris held the shares in CM 2001 Pty Ltd and, as such, those shares were held by Mr Nicholas Corcoris on resulting trust for himself, as settlor, and by consequence of a person not being able to be both trustee and beneficiary, the legal and beneficial estates merged.[44]
4. The Applicants also note that CM 2001 Pty Ltd was registered on 11 May 2001 and the shares issued to Mr Nicholas Corcoris on 24 May 2001,[45] while Thereus was not registered until 12 November 2001.[46] It follows that, even if Mr Corcoris actually held the shares on trust, it could not have been for Thereus Pty Ltd.
5. The Commissioner contends that, while the 20th Cor Family Trust failed, this doesn't mean the trust relationship between Mr Nicholas Corcoris and the trustee of that purported trust also fails, notwithstanding any mistaken assumption as to the capacity in which the trustee might then hold the legal or beneficial estate in those shares.
6. The Commissioner suggested that it is possible that the shares were held by Thereus Pty Ltd on constructive trust for the benefit of the beneficiaries of the purported trust.
7. The Commissioner also relies on a letter provided by the solicitor for the Applicants to the Commissioner on 10 September 2010 that 'Nicholas Corcoris has instructed us that he holds the shares in CM 2001 Pty Ltd on behalf of the trustee of the 20th Cor Family Trust'.[47] As Thereus Pty Ltd was the trustee in 2010, the Commissioner says that the Applicants 'have not rebutted the inference from the statement in the solicitor's letter dated 10 September 2010 that Nicholas Corcoris held his CM 2001 shares on behalf of Thereus'.[48]
8. In reply, the Applicant says that as:
   • at the time the 20th Cor Family Trust was purported to be established on 1 July 1994, the trustee was Maclaw No 172 Pty Ltd;
   • the shares in CM 2001 Pty Ltd were acquired on 25 May 2001;
   • Thereus Pty Ltd was not registered until 12 November 2001; and
   • Thereus Pty Ltd did not become trustee of the (purported) 20th Cor Family Trust until 1 March 2002,

it follows that either the trust on which Mr Nicholas Corcoris held the shares in CM 2001 Pty Ltd failed or, if the trust did not fail, then the shares were held on trust for Maclaw No 172 Pty Ltd, which (as a result of the failure of the 20th Cor Family Trust) was acting in its own right.

1. Mr Korman says that, in order for the Commissioner to succeed, it is essential that the shares were held by Mr Nicholas Corcoris for the trustee for the time being of the 20th Cor Family Trust, such that the beneficial ownership changed when Thereus Pty Ltd purported to replace Maclaw No 172 Pty Ltd as trustee. However, he says this cannot be the case.
2. Rather, while he accepts the evidence of Mr Corcoris is unclear about the source of payment for the shares in CM 2001 Pty Ltd, if there is any resulting trust, the shares must be held for Maclaw No 172 Pty Ltd in its own right.
3. The consequences of the failure of the 20th Cor Family Trust on the ownership of CM 2001 Pty Ltd were not dealt with by Member Glover in the Aston decision.
4. The competing views are that the failure of the 20th Cor Family Trust means that:
   • the trust on which Mr Nicholas Corcoris held the shares also failed, with the shares being held on resulting trust for Mr Corcoris or perhaps for Maclaw No 172 Pty Ltd in its own right, as settlor; or.
   • the shares continued to be held by Mr Nicholas Corcoris on trust for the purported trustee of the 20th Cor Family Trust from time to time, ie. Maclaw No 172 Pty Ltd initially, and then Thereus Pty Ltd, with the beneficiary potentially holding them for the benefit of others under a further constructive trust.
5. In my view, just because the 20th Cor Family Trust failed does not mean that the trust that Mr Nicholas Corcoris intended to create at the time of acquisition of the shares in CM 2001 Pty Ltd (nominee trust) also failed. As a trust is not a separate legal entity, he could only hold the shares on trust for the trustee of the 20th Cor Family Trust. This fixes the identity of the beneficiary of the nominee trust as the legal entity acting as the trustee at the time the purported trust was created: Maclaw No 172 Pty Ltd. Thus, the nominee trust can be seen to have been validly created.
6. Even if this was not the case, the oral evidence given by Mr Nicholas Corcoris was that the funds for the acquisition of the shares came from the trustee of the 20th Cor Family Trust. Therefore, in my view the beneficiary of any resulting trust would be Maclaw No 172 Pty Ltd.
7. The other issue to address is whether, as a result of the (purported) change of trustee of the (failed) 20th Cor Family Trust from Maclaw No 172 Pty Ltd to Thereus Pty Ltd, the beneficial interest under the nominee trust passed to Thereus Pty Ltd.
8. It seems to me that this would only be possible if Maclaw No 172 Pty Ltd was taken to hold the beneficial interest in the shares (and any other assets which were intended to be settled on the 20th Cor Family Trust) on constructive trust for some or all of the beneficiaries of the 20th Cor Family Trust. In the absence of a constructive trust, Maclaw No 172 Pty Ltd would hold the beneficial ownership in the shares in its own right, such that beneficial ownership could only pass to Thereus Pty Ltd by some express transfer.[49]
9. The difficulty with finding a constructive trust to have existed is that the (failed) 20th Cor Family Trust was intended to be a discretionary trust, with any distributions of income or capital subject to appointment by the trustee.[50] As with most discretionary trusts, there were specified takers in default, being Helen,[51] Michael, Nicholas and Jennifer Corcoris.[52] However, the entitlements of the takers in default depends on a failure to appoint beneficiaries to receive any distributions of income or capital.
10. While a court (and presumably a Tribunal) can declare a constructive trust to exist, which might subsume any resulting trust that otherwise arises,[53] there needs to be some clear beneficiary or beneficiaries of that trust. In the present case, because the trust that failed was a discretionary trust, it is not possible to identify one or more beneficiaries who were entitled to the interest in the shares.
11. It follows, in my view, that when the 20th Cor Family Trust failed, Mr Nicholas Corcoris held the shares in CM 2001 Pty Ltd on the nominee trust for the benefit of Maclaw No 172 Pty Ltd, but Maclaw No 172 Pty Ltd did not in turn hold the beneficial interest in the share on trust for any beneficiary. As such, in the absence of any transfer, there was no change in beneficial ownership of the shares when Thereus Pty Ltd purported to replace Maclaw No 172 Pty Ltd as the trustee of the 20th Cor Family Trust.

1. The Applicants contend that even if the technical basis for grouping is made out, the Tribunal should not exercise the discretion in section 50 of the LT Act to group Kentman Pty Ltd and Genetic Fund Pty Ltd, or CM 2001 Pty Ltd and Thereus Pty Ltd.
2. However, given my findings that CM 2001 Pty Ltd and Thereus Pty Ltd do not fall within the technical grouping provisions, the discretion does not need to be considered in relation to that group.
3. The ability of the Applicants to raise this contention is a matter of some controversy between the parties. In particular, the Commissioner submits that the Applicants conceded this point (see paragraph 3 in Appendix 4), and should not be permitted to raise it given the prejudice to the Commissioner.
4. In order to understand the objection raised by the Commissioner, it is necessary to consider the written material filed by the parties in these proceedings.
5. In the objections filed by the Applicants,[54] the Applicants essentially took issue with the considerations taken into account by the Commissioner in reaching his decision to group, ie. the objection was made on judicial review type grounds. It was the adverse determination of these objections that was the subject of referral to the Tribunal.
6. The Grouping Ground is addressed in paragraphs 8 to 17 of the Applicants' Statement of Legal Contentions. There is no reference in that document to the considerations impacting on the exercise of the discretion.
7. The Commissioner addressed the Grouping Ground in paragraphs 23 to 58 of the Respondent's Statement of Legal Contentions dated 26 March 2018, including the exercise of the discretion in section 50 of the LT Act at paragraphs 38 to 58.
8. In particular, at paragraph 44, the Commissioner contended that:

Given the ownership structures, directorships and business activities of the Applicants, together with the ultimate uses of the land they owned, the Commissioner was correct to exercise his discretion to group the Applicants.

1. In the Applicants' Reply dated 18 June 2018, which appears to have been settled by Mr Korman, the following comment is made at paragraph 4:

[The Applicants] take issue with the Commissioner's Contentions regarding the first two of the sub-grounds raised in the Objection. The third issue, regarding the exercise of the Commissioner's discretion under s 50 is no longer pressed.

1. After the reference to section 50, there is a footnote which cross-references to paragraphs 38 to 44 of the Respondent's Statement of Legal Contentions.
2. Finally, at paragraph 2 of the Respondent's Further Statement of Legal Contentions dated 6 August 2018, the Commissioner observed that '[t]he Applicants have indicated that they no longer press the sub-issue concerning the exercise of the discretion under s 50 of the Act'.
3. Mr Korman submitted that the Reply reflected a miscommunication. What was intended to be conveyed was that the Applicants conceded that the contentions made in their objection in relation to grouping,[55] expressed in judicial review terms, were misconceived. It was that aspect of the Grouping Ground that was no longer pressed.
4. Mr Korman says that the exercise of the discretion does not turn on evidence and the Commissioner can be granted leave to put on further written submissions as to the exercise of the discretion.
5. The Commissioner submits that it is clear from the written material filed by the parties that what was 'no longer pressed' was the validity of the exercise of the discretion if the technical grouping was made out.
6. The Commissioner contends that the exercise of the discretion is a matter that turns on the evidence and 'dramatically changes the whole case'. The Commissioner says he is prejudiced as he did not require Mr Michael Corcoris to attend for cross-examination, did not prepare for cross-examination of Mr Nicholas Corcoris on matters going to the discretion, and has not considered whether he wishes to call any additional evidence on this matter.
7. The Commissioner notes the observations I made in Gasflow Pty Ltd v Commissioner of State Revenue[56] as follows:[57]

When a taxation matter is referred to VCAT for review, a timetable is set with orders made for the filing and exchange of the parties' legal contentions and the evidence on which they will seek to rely (including witness statements). It is only after the submissions and evidence have been filed that an administrative mention is scheduled to set the date for the hearing.

The above procedures reflect the need for VCAT to ensure that matters proceed efficiently in accordance with obligations under the VCAT Act to 'determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit'.

While VCAT is bound to act fairly and according to the substantial merits of the case, parties are expected to adhere to those procedures, particularly where they are represented.

1. In reply, Mr Korman submits that the Tribunal's task under section 50 of the LT Act can't be delegated to the parties and that 'if the facts come to light, the Tribunal needs to exercise the discretion' and cannot be a 'rubber stamp'.
2. The Tribunal's procedural orders of 23 November 2017 made it clear that the parties are limited to the case set out in their written materials filed with the Tribunal, subject to leave of the Tribunal hearing the proceedings.
3. In my view, the relevant considerations which go to the granting of leave for a case which differs from the materials filed are the same or similar to those considered by Pagone J in Conder Towers Pty Ltd v Commissioner of State Revenue[58] and Hollingworth J in Harry One Pty Ltd v Commissioner of State Revenue[59] in relation to grounds not raised in an objection.
4. I refuse leave for the discretion sub-issue to be relied upon having regard to the following matters:-
   • Insufficient notice that the discretion sub-issue was to be re-agitated was given to the Commissioner. It was only raised on the morning of the first day of hearing, even though any 'miscommunication' should have been clear from at least 6 August 2018, when the Respondent's Further Statement of Legal Contentions was filed.
   • I accept the Commissioner's contentions that prejudice will be caused to it if the Applicants are permitted to rely on the discretion issue, in terms of having no opportunity to cross-examine Mr Michael Corcoris or adduce its own evidence, and insufficient opportunity to cross-examine Mr Nicholas Corcoris on issues going to the exercise of the discretion.
   • As made clear in Tadcaster Sorrento, the exercise of the discretion involves consideration of a range of factual issues including the degree of relatedness of the companies under consideration, the degree of control by the directors of day to day operations and the uses to which the separate parcels of land in question are put.[60] None of the witness statements filed by the Applicants go to any of these matters. While there is some material in the T Documents which are no doubt relevant to the question of the discretion, in the absence of any evidence from witnesses, it is difficult to form an assessment of the weight to be given to that material.
5. The difficulties referred to in the last point above are evidenced by reference to one of the T Documents. In the course of closing submissions, I asked counsel for the Commissioner and the Applicants as to the relevance (or otherwise) of T347, which is an extract of a website for 'The Corcoris Group' which states:

Originally established by Nicholas Corcoris in 1978, The Corcoris Group has a proven history of success in residential and industrial subdivisions and the construction of residential, commercial and industrial developments. The company has successfully undertaken a wide range of development projects in Victoria, New South Wales, Queensland and South Australia.

1. The website goes on to list a range of properties over 3 pages that are presumably those developed by whatever comprises 'The Corcoris Group'.
2. The Commissioner said that he would seek to rely on T347 if there were any properties mixed between the different groups. He later identified that there were in fact a number of properties listed that went beyond the companies owned and controlled by Mr Nicholas Corcoris as follows:-

1. In reply, the Applicants say that the website at T347 is a marketing document, taken by the Commissioner from the internet. While not expressly stated, presumably it is contended that this document should be given little weight.
2. On its face, the website is a powerful indicator that the developments purportedly carried on independently by companies owned by each of Mr Nicholas Corcoris, Mr Michael Corcoris and Mrs Jennifer Corcoris are, in fact, carried on in some joint endeavour through 'The Corcoris Group'.
3. While it is true that there is no onus on the taxpayer in relation to the exercise of the discretion in section 50 of the LT Act, that does not mean that a taxpayer does not have to provide rational and probative evidence to convince the Tribunal to refuse to exercise the discretion, including evidence to rebut any inconsistent evidence.
4. The striking thing is that the witness statement of Mr Nicholas Corcoris, which was signed on 31 October 2018 (a week before the hearing), is just two pages, all of which is focused on the relationship between CM 2001 Pty Ltd and Thereus Pty Ltd. There is no reference to any of the evidence in the T Documents upon which the Applicants now seek to rely and no attempt to address T347 or any other inconsistent documents that may be in the T Documents.
5. While I accept Mr Korman's submission there has been no attempt to ambush the Commissioner by raising the discretion sub-issue, in my view the Applicants have run their case in a way that has clearly prejudiced the Commissioner and, as pointed out above, makes it difficult for the Tribunal to assess the weight to be given to the competing documentary evidence.

1. Under section 111 of the TA Act, on a referral of a decision or assessment for review, VCAT 'may confirm, reduce, increase or vary the assessment or decision'.
2. Generally, the Tribunal will seek to specify the manner in which any assessment should be varied, quantified by reference to the amounts in dispute. However, in the present case, there is insufficient information before me to identify the impact of my decisions.
3. Accordingly, my orders[61] will simply be to vary the assessments and decisions to reflect both:
   1. the concessions made by the Commissioner, as recorded at paragraph [4] of Appendix 4 to these reasons; and
   2. my finding at paragraph [73] of these reasons that CM 2001 Pty Ltd and Thereus Pty Ltd are not to be grouped,

with provision for further directions or orders, if required.

1. Redstripe Holdings Pty Ltd
2. Forrest Creek Developments Pty Ltd
3. Victorian Tyche Group Pty Ltd
4. Mitor Pty Ltd
5. Australian Land Group Pty Ltd
6. Officer Industrial Park Pty Ltd
7. Preland Pty Ltd

LIST OF DEREGISTERED COMPANIES INCLUDED IN ASSESSMENTS

1. Everjest Pty Ltd
2. Hierapolis Pty Ltd
3. Srichuang Pty Ltd
4. Thereus Pty Ltd
5. Thextons Pty Ltd
6. CM 2001 Pty Ltd

1. Originally, the Applicants objected to the assessments on four grounds, being:
   • The Grouping Ground.
   • The Primary Production Ground in relation to the Plumpton Land and the Land held by Preland Pty Ltd at 2-64 High Street, Preston (Preston Land).
   • Land held by Mitor Pty Ltd at 176-180 Stud Road, Dandenong North was being used by Three Seas Community Culture Confidence Incorporated for charitable purposes and so was exempt from land tax (Charitable Purpose Ground).
   • The assessments which had been issued by the Commissioner were not served in the manner required by the TA Act (Proper Service Ground).
2. Since that time, there have been concessions by both the Applicants and the Commissioner.
3. In the Applicants' Statement of Legal Contentions, the Applicants indicated they were not pursuing the Primary Production Ground in respect of the Preston Land. Subsequently, in the Applicants' Reply dated 18 June 2018, the Applicants indicated that they no longer pressed the Proper Service Ground. In that reply, it was also said they 'no longer press the exercise of the grouping discretion' although, as explained in the body of the reasons, there is some debate as to what this concession meant.

For its part, in the Respondent's Further Statement of Legal Contentions dated 6 August 2018, the Commissioner conceded the Charitable Purpose Ground and accepted that the property held by Michael J Corcoris Pty Ltd at 202 Evans Road, Cranbourne and the Preston Land owned by Preland Pty Ltd were held by those companies on trust and so should not be included in the assessments issued to the LT Group.

LT GROUPS AS ASSESSED BY COMMISSIONER FOR THE 2007 LAND TAX YEAR

[2] By letters dated 20 December 2013 (in respect of the 2007 to 2013 land tax years) and 8 May 2014 (in respect of the 2014 land tax year).

[7] Longford Investments Pty Ltd v Commissioner of Land Tax (NSW) (1978) 8 ATR 656 at 660; Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue (2010) 80 ATR 68 at 70.

[8] [2016] VSC 322.

[9] Ibid [16]-[22]. Footnotes and paragraph numbering omitted.

[10] [2017] VSCA 89.

[16] [2016] VSC 322 [35]. Footnotes omitted.

[19] [2015] VCAT 611.

[27] (1980) 12 ATR 7.

[28] [2016] VCAT 402.

[29] [2017] VCAT 1418.

[30] Galea v Commissioner of State Revenue [2016] VCAT 1865.

[31] Harper v Commissioner of State Revenue [2005] VCAT 325; (2005) 58 ATR 432.

[32] [1983] 1 NSWLR 233.

[34] Ibid. (See, to similar effect, Samuels JA at 226 and Mahoney JA at 229.)

[36] [2015] VCAT 611 [131].

[40] [2012] VCAT 48.

[43] It is noted that section 91 of the Evidence Act 2008 (Vic) provides that '[e]vidence of the decision, or finding of fact, in an Australian ... proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding'. However, as VCAT is not bound by the rules of evidence, the Aston proceedings concerned similar issues and neither party sought to argue against that finding, I consider it appropriate to have regard to Dr Glover's decision.

[44] J Heydon and M Leeming, 'Jacobs' Law of Trusts in Australia' (LexisNexis Butterworths, Australia, 2006) [107], [524], [529].

[48] Respondent's Further Statement of Legal Contentions dated 6 August 2018 [9].

[49] The documents relating to Maclaw No 172 Pty Ltd's resignation and Thereus Pty Ltd's appointment (T25-T28) do not purport to transfer any assets between them.

[50] See the trust deed for the 20th Cor Family Trust (T68) at clauses 3(1)(a) (in relation to income) and 4(1) (in relation to capital).

[51] Helen Corcoris is the daughter of Nicholas and Jennifer Corcoris.

[52] Ibid, clause 3(4) (for income) and clauses 4(2) to 4(4) (for capital).

[53] Anson v Anson [2004] NSWSC 766 [36] (per Campbell J).

[56] [2018] VCAT 1702.

[57] Ibid [38] to [40] (footnotes omitted).

[58] [2012] VSC 107 [33].

[59] [2007] VSC 13 [30]-[31].

[60] [2015] VCAT 611 [132]

[61] With these reasons forming part of my orders: Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 117(6).