Aquanorth Pty Ltd v Chief Commissioner of Taxation

[2025] NSWCATAD 180

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Aquanorth Pty Ltd v Chief Commissioner of Taxation [2025] NSWCATAD 180

Hearing dates:

19 May 2025

Date of orders:

24 July 2025

Decision date:

24 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Sullivan, Senior Member

Decision:

The assessment under review is affirmed.

Catchwords:

TAXATION AND REVENUE – concession in s 55 of the Duties Act 1997 (NSW) – onus of proof not satisfied

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Duties Act 1997 (NSW)

Taxation Administration Act 1996 (NSW)

Taxation Administration Act 1999 (NSW)

Cases Cited:

Al Haddad v Chief Commissioner of State Revenue [2018] NSWCATAD 91

Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495

Baynes v Chief Commissioner of State Revenue [2020] NSWCATAD 106

Calverley v Green (1984) 155 CLR 242

Cornish Investments Pty Ltd v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25

Della-Franca & Anor v Chief Commissioner of State Revenue [2005] NSWADT 106

Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614

Rajan v Chief Commissioner of State Revenue [2013] NSWADT 125

Ryan v Dries [2002] NSWCA 3

Sportscorp v Chief Commissioner of State Revenue [2004] NSWSC 1029

Triantifilis v Commissioner of Stamp Duties (NSW) 95 ATC 2655

Triantifilis v Commissioner of Stamp Duties (NSW) 98 ATC 4484

Tzovaras and Rafael v Chief Commissioner of State Revenue [2021] NSWCATAD 218

Wykrota v Chief Commissioner of State Revenue [2019] NSWCATAD 106

Zhang v Metcalf [2020] NSWCA 228

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

Aquanorth Pty Ltd (Applicant)
Chief Commissioner of Statement Revenue (Respondent)

Representation:

B Abrahams (Agent) (Applicant)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2024/00381442

Publication restriction:

None

REASONS FOR DECISION

1. In 2023, the Respondent assessed Aquanorth Pty Ltd (the Applicant) for duty of $10,085 (plus interest) in respect of a declaration of trust that it made in 2019.

2. The declaration of trust was made by the Applicant over a commercial property at Avro St Tamworth NSW (“the Property”) for BretLynn Pty Ltd as trustee for the Lynn Brett Superannuation Fund (“the Lynn Brett Superfund”).

3. The Applicant says the declaration of trust should only have been assessed to nominal duty under the concession in s 55(1)(a)(i) of the Duties Act, as the Property vested in the Applicant as apparent purchaser in trust for the beneficiaries of the Lynn Brett Bare Trust and the Fields Bare Trust, who were the real purchasers.

4. That section relevantly provides:

55   Property vested in an apparent purchaser

(1)  Duty of $100 is chargeable in respect of—

(a)  a declaration of trust made by an apparent purchaser in respect of identified dutiable property—

(i)  vested in the apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property…

5. The Respondent confirmed that s 55(1)(a)(ii), which is not reproduced above, is not relevant to these proceedings.

6. The Respondent says the Applicant is not entitled to the concession under s 55(1)(a)(i) because it has not established that 50% of the money for the purchase of the Property was provided by Bretlynn as real purchaser.

7. I have found that the Applicant has not satisfied the onus of proof, and the assessment by the Respondent is confirmed.

Materials before the Tribunal

8. The Applicant filed its application to the Tribunal on 14 October 2024 together with submissions and attached documents.

9. The Respondent filed documents under s 58 of the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”), supplementary s 58 documents, written submissions and a tender bundle. All relevant materials were combined into a Tribunal Book, referred to below as TB. A bundle of authorities was also prepared and provided.

Background

10. Brett Abrahams was the Applicant’s agent at the hearing.

11. Brett Abrahams and Lynn Abrahams are husband and wife.

12. Aquanorth Pty Ltd (“Aquanorth”) was a company which they established in 2006. It conducts a business. The current directors of Aquanorth are Mr Abrahams and Kerry Fields. The shareholdings of Aquanorth were as follows according to ASIC records:

1. Lynne Abrahams was the sole shareholder until 7 February 2011;

2. From 7 February 2011 until 31 May 2019, Lynn Abrahams and Fetrona Pty Ltd (“Fetrona”) held 1 share each;

3. Since 31 May 2019, the sole shareholder is Aqua Irrigation Holdings Pty Ltd.

13. Brett and Lynn Abrahams are members of the Lynn Brett Superannuation Fund which was established on 8 October 2009 with Bretlynn Pty Ltd (“Bretlynn”) as the trustee. Brett and Lynn Abrahams were the directors and shareholders of Bretlynn at all relevant times.

14. Kerry Fields is a business partner of Brett and Lynn Abrahams.

15. Kerry Fields and Ngaire Fields are members of the Fields Superannuation Fund which was established on 23 June 1997. Fetrona is the trustee of the Fields Superannuation Fund. The directors and shareholders of Fetrona are Ngaire Fields and Kerry Fields.

16. Aquanorth is the trustee for the Lynn Brett Bare Trust and the Fields Bare Trust.

17. The Lynn Brett Bare Trust was created by trust deed on 8 October 2009. Clause 2(b) of the trust deed provided that:

“the trustee [Aquanorth] will hold the Asset [a 50% estate and interest in the Property] as trustee for the Beneficiary [Bretlynn as trustee for the Lynn Brett Superannuation Fund] upon the trust contained in this Deed”.

18. The Fields Bare Trust was created by trust deed on 14 October 2009. Aquanorth declared it would hold a 50% interest in the Property on trust for Fetrona ATF the Fields Superannuation Fund.

Purchase of the Property

19. On 16 December 2009, Aquanorth entered into the contract to purchase the Property. The purchase price was stated to be $620,000, with a deposit of $62,000.

20. Settlement of the Property occurred on 14 January 2010.

Assessment and Objection Process

21. On 24 May 2023, Leyden Law, on behalf of Aquanorth, lodged the trust deeds for the Lynn Brett Bare Trust and the Fields Bare Trust with the Respondent and sought a concession from duty under s 62B of the Duties Act.

22. On 14 November 2023, the Respondent denied the application for concessional duty and issued notices of assessment. Relevantly, a Duties Notice of Assessment 10766655-001 in the sum of $26,422.42 (comprising $10,835.00 in duty and $15,587.42 in interest) was issued to Aquanorth in respect of the declaration of trust in relation to the Lynn Brett Bare Trust. (TB 175).

23. On 10 January 2024, objections were lodged. The objection stated, relevantly:

“Pursuant to a Contract dated 16 December 2009 (“Contract”), Aquanorth Pty Ltd in its capacity as trustee for the Fields Bare Trust and Lynne Brett Bare Trust acquired [the Property].

The Contract does not refer to the Fields Bare Trust or the Lynne Brett Bare Trust as the purchasers, however, the intention was for Aquanorth to acquire the Property as trustee of the trusts to be held for the benefit of the Fields Super Fund and the Lynn Brett Super Fund pursuant to a limited recourse borrowing arrangement under section 67(4A) of the Superannuation Industry (Supervision) Act 1997 (“SIS Act”) (which was the relevant section applying to limited recourse borrowing arrangements, known as Instalment Warrants at the time, when the Fields Bare Trust Deed and Lynn Bare Trust Deeds were executed in 2009).”

24. In respect of the funding of the purchase price, the objection said:

“Part of the funds for the purchase of the property came from a Westpac loan under the terms of a limited recourse borrowing arrangement (“Westpac Loan”).

…

The $403,000 borrowed from Westpac by the Fields Superfund.. . was then used towards payment of the purchase price;

The withdrawal of $94,950 by the Lynn Brett Superfund… was then paid to Aquanorth to be used towards the purchase price;”

25. It also referred to “further bank statements (which our client is still in the process of collating) which show that the rest of the purchase price came from the Superfunds”.

26. On 12 April 2024 and 14 June 2024, the Respondent requested further information in support of the objection. Responses were provided on 6 May 2024 and 29 July 2024 respectively.

27. On 16 August 2024, the Respondent determined the objections. Relevant to the Applicant, the objection was disallowed on the basis that s 55(1)(a) of the Duties Act was not satisfied.

28. The Applicant filed the application to the Tribunal on 14 October 2024.

The evidence before the Tribunal

29. Mr Abrahams attended by AVL and subsequently by phone due to technical issues with the video quality. He was cross-examined by Ms Morgan in respect of his two statutory declarations, and the following points emerged:

1. The Applicant had submitted that the Aquanorth No 2 account was set up by Fetrona and Bretlynn to facilitate payments for the purchase of the Property by Aquanorth on their behalf, and that payments were made from that account to pay the purchase price.

2. Although he had stated that there was a partnership formed between Fetrona and Bretlynn under the trust arrangements (to hold the Property in partnership, and receive rent for the benefit of the superannuation funds), he described it as “an informal agreement between Mr Field, myself and the accountant for the structure”. He confirmed no documentation could be located. He thought it had been formed, as a “rough guess” in January 2010.

3. He confirmed that rental income from the Property was received into the Westpac bank account titled Aquanorth 2, which was an account in the name of Aquanorth, and not in the name of the partnership. He acknowledged that there was some confusion regarding the bank accounts being in the name of Aquanorth with no reference to the partnership.

4. He confirmed that no lease between Aquanorth and the “partnership” had been provided, or was able to be located.

5. He mentioned that Aquanorth had “subleased” part of the Property to a 4WD business. He was taken to a copy of a 5 year lease of “Suite 1” which showed Aquanorth as the lessor and Goodrich as the lessee, with a commencement date of 1 July 2010: TB 630.

6. He referred, on several occasions, to records not being available any longer. He said his accountant had died. He said that records had been destroyed “by an event”.

The purchase price of the Property

30. The trust deeds and other documents before the Tribunal are not relevantly in dispute.

31. The purchase price of the Property on the contract was $620,000. Adjustments (rates and other adjustments of $569.16 + $917.26), stamp duty ($26,200.00) and GST ($62,148.64) brought the total purchase price to $709,835.06. The GST was refunded, as will be explained below.

32. Of the total purchase price:

1. $62,000 was paid by Aquanorth on 16 December 2019 (as the deposit): the Settlement Sheet confirmed receipt at TB313, but this was not paid from the No.2 account (which had its first transaction on 4 January 2010);

2. The balance paid on settlement on 14 January 2010 was $647.835.06, comprising:

1. $403,000 paid by Westpac, representing a loan from Westpac to Fetrona ATF the Field Superannuation Fund; and

2. $244,835.06 withdrawn from the No.2 account: ref TB309/674.

33. Mr Abrahams was taken to his Statutory Declaration dated 25 July 2024 with attachments (TB 304):

1. He was cross-examined on paragraph [13] which read:

The amount of $62,000 was paid by way of deposit to the real estate agent’s trust account from the bank account of Aquanorth Pty Ltd. The deposit amount was treated as a loan to shareholders in the books of Aquanorth Pty Ltd and was repaid on 15 April 2010.

2. He confirmed that the only shareholder of Aquanorth at that time was Lynn Abrahams, so there was only a “shareholder”, not “shareholders” of Aquanorth.

3. He confirmed that he did not annex the “books of Aquanorth” to this Statutory Declaration, he did not have access to those books when he made the statement, he could not recall when he last saw those documents, and he therefore conceded that the statement was made to the best of his knowledge.

The Westpac loan

34. The Westpac loan document was a Business Finance Agreement dated 8 January 2010 (TB344-365). The guarantors for that loan were Kerry Fields and Ngaire Fields. Neither Bretlynn nor Aquanorth were parties to that loan agreement in any capacity.

35. The payment of $403,000 was debited to a Bank Bill Business Loan bank account in the name of “Fetrona Pty Ltd” xx 5341 (“Fetrona account”). Some (but not all) bank statements for the Fetrona account were before the Tribunal, including a statement for the period 14 Jan 2010 to 14 July 2010 (TB 673).

Analysis of the Aquanorth No 2 account

36. Some statements were also available for the Aquanorth No 2 account, but again they were incomplete.

37. The first entry to the account was 4 January 2010. Between that date and the payment of the $244,835.06 on settlement, several deposits were made:

38. As noted by the Respondent, as at 14 January 2010, the Aquanorth No 2 account contained $247,500. Those funds were made up of five deposits which were then the source of the payment made to the real estate agent on settlement:

4 January 2010 – Deposit 1 $94,950

39. The description of this deposit was “Deposit Tamworth NSW”.

40. The Respondent accepts that this amount came from a bank account of Bretlynn as trustee for the Lynne Brett Superannuation Fund: refer TB667 (debit to Bretlynn Westpac Account), TB669 (No. 2 account credit), TB257 (deposit slip 4 January 2010).

41. I therefore find that $94,950 paid by Bretlynn formed part of the payment of $244,836.06 from the No.2 account on settlement on 14 January 2010.

6 January 2010 – Deposit 2 $25,050

42. On 6 January 2010, a payment of $25,050 was deposited.

43. The description of this deposit was “Internet online banking 2246958 fnds ffr maxidirect aqunrt”.

44. In the objection, Aquanorth’s accountant stated that Aquanorth made this payment and it was debited to the “shareholder loan account”. In the grounds for the application for the review, the Applicant stated that the amount was credited as members contributions in the accounts of the Lynn Brett Superannuation Fund for the year ended 30 June 2010. That was also the position put to the Tribunal at the hearing.

45. In the absence of any further documentation (such as accounts or other information confirming a credit to the member balances for the Lynn Brett Superannuation Fund, or a direction by Bretlynn to Aquanorth to pay the member contribution to the partnership), I cannot be satisfied that this payment was made by Bretlynn as trustee for the Lynn Brett Superannuation Fund and not by Aquanorth.

46. I am unable to conclude that $25,050 was a payment by Bretlynn for the purchase of the Property.

6 January 2010 – Deposit of $120,000

47. On 6 January 2010, a payment of $120,000 was deposited.

48. The description was “Dubbo NSW”.

49. The Applicant said that this was drawn from an unknown account controlled by K & N Field, and it is not claimed to be an amount provided by Bretlynn.

7 and 13 January 2010 – Deposits of $5,000 and $2,500

50. A deposit of $5,000 was made on 7 January 2010.The description was “fns tfr 1^st mth rent”.

51. A deposit of $2,500 was made on 13 January 2010. The description was “internet online banking 2656904 fns fr fees payment”.

52. Neither amount was asserted by the Applicant to have been sourced from Bretlynn as trustee for the Lynn Brett Superannuation Fund and I find that they were not.

14 January 2010 - Settlement Payment of $244,835

53. The amount of $244,835 withdrawn on 14 January 2010 was for the settlement of the Property, as explained above.

April 2010 - Deposit from ATO ($62,742.27 13 April 2010) and payment to Aquanorth ($62,000 – 15 April 2010)

54. There appeared to be a claim that Bretlynn paid $62,000 to Aquanorth in repayment of the deposit. However, I find that Bretlynn paid $31,000 for the purchase of the Property by repaying its share of the $62,000 deposit to Aquanorth on 15 April 2010.

55. This is because I find that half of the amount of $62,742.27 paid into Account No 2 (of Aquanorth) on 13 April 2020 by the ATO, being $31,371.13 was received for the benefit of Bretlynn, of which $31,000 represented its share of the $62,000 deposit which was repaid to Aquanorth from the No.2 account on 15 April 2010.

56. In the Applicant’s submissions, Mr Abrahams stated:

1.   Money for Purchase

The money for purchase was provided as follows:

Deposit $62,000 was provided by Aquanorth Pty Ltd as a loan – the amount was equal to GST on the purchase and was expected to be repaid to Aquanorth Pty Ltd; and a repayment in fact did occur, being from the funds received from the Australian Taxation Office as a consequence of lodging a Business Activity Statement on behalf of Bretlynn and Fetrona. The amount of $62,000 was repaid to Aquanorth Pty Ltd on 15 April 2010.

57. Although not directly discussed at the hearing, the following were in evidence as attachments to the Statutory Declaration:

1. a certified copy of the activity statement for “Fields Bare Trust & Abrahams Bare Trust” (at TB310) showing an ABN had been issued (which I take to be for the “partnership” conducting the rental business for the Property, noting the only beneficiaries of those bare trusts were the two superannuation funds);

2. the activity statement was lodged for the quarter ended 31 March 2010 on 26 March 2010 and a refund amount of $62,722 was payable by the ATO;

3. a handwritten note at (TB312) and supporting documents showing GST recoverable on the acquisition of the Property of $62,148.64, GST recoverable on legal fees and disbursements ($378 + 196.33), which totalled to $62,722.97; and

4. a credit to Account No 2 dated 13 April 2010 of $62,742.27 just prior to payment of the deposit from that account on 15 April 2010 (TB309).

58. In those circumstances, I find that the GST refund was paid into the No.2 account by the ATO to the “partnership”, recorded as Fields Bare Trust & Abrahams Bare Trust; that 50% of that amount was received into No.2 account by Aquanorth as trustee for the Abrahams Bare Trust which had as its only beneficiary Bretlynn as trustee for the Lynn Brett Superannuation Fund, and that $31,000 (50% of the $62,000 paid from the No.2 account to Aquanorth on 15 April 2010) was a payment by Bretlynn for the purchase price.

Repayment of the Fetrona Westpac loan?

59. The Applicant submits that the $403,000 loan was repaid to Westpac in full by January 2017, and that Bretlynn contributed to this repayment through all transfers made from the No.2 account to the Fetrona account (the funds received by Fetrona being applied as repayment of the Westpac loan).

60. Unfortunately, as noted above (and accepted that the Applicant), the statements and records are incomplete. Nor was any comprehensive analysis prepared by the Applicant setting out each relevant payment. The Crown Solicitor’s office sought to do so by compiling relevant statements together and preparing a draft list, which was discussed at the hearing. It clearly remained incomplete.

61. In this regard:

1. The Respondent accepted that there was a $30,000 payment made by Bretlynn to the No. 2 account on 3 May 2016, which formed part of a transfer from the No. 2 account to the Fetrona account on the same day. I agree that this full amount of $30,000 was the repayment of part of the loan to Fetrona by Bretlynn.

2. The Respondent confirmed that there was a payment of $25,000 detailed in the Fetrona account for the period 14 July 2014 to 14 Jan 2015 at TB 677. However, there was no evidence of a corresponding payment from the No. 2 account for this period. I accept that payments made from the No.2 account to the Westpac Loan account may represent a payment of surplus funds in repayment of the loan. However, only 50% would relate to Bretlynn unless there is evidence to the contrary. Further, in the absence of clear and complete records regarding the source of the funds, it is unsafe to make general assumptions regarding the source of all repayments.

Jurisdiction

62. The Taxation Administration Act 1996 (NSW) (“TA Act”) applies in respect of ”taxation laws” which are defined in s 4 to include the Duties Act.

63. Section 96 of the TA Act provides that a taxpayer may apply to the Tribunal for an administrative review of a decision of the Respondent that has been the subject of an objection. The assessment was the subject of an objection, and the Tribunal therefore has administrative review jurisdiction to hear and determine this application under s 96 of the TA Act and s 9 of the ADR Act.

64. The Tribunal’s task is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63.

Legislation

65. There is no dispute that the Property was land in New South Wales and therefore dutiable property as defined in s 11(1)(a) of the Duties Act.

66. Section 8(1)(b)(ii) of the Duties Act provides that a declaration of trust over dutiable property is a dutiable transaction on which duty is charged.

67. Declaration of trust is defined in s 8(3) of the Duties Act as:

“any declaration (other than by a will or testamentary instrument) that any identified property vested or to be vested in the person making the declaration is or is to be held in trust for the person or persons, or the purpose or purposes, mentioned in the declaration although the beneficial owner of the property, or the person entitled to appoint the property, may not have joined in or assented to the declaration.”

68. A liability for duty arises when a transfer of dutiable property occurs: s 12 of the Duties Act. For the purposes of a declaration of trust, that is when the declaration is made: see column 4 of the Table in s 9(2) of the Duties Act.

69. Duty charged is payable by the transferee under s 13 of the Duties Act. for the purposes of a declaration of trust, that is the person declaring the trust (here, Aquanorth): see column 3 of the Table in s 9(2) of the Duties Act.

70. The full text of s 55 of the Duties Act provides as follows:

55 Property vested in an apparent purchaser

(1) Duty of $50 is chargeable in respect of:

(a)   a declaration of trust made by an apparent purchaser in respect of identified dutiable property:

(i) vested in the apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property, or

(ii) to be vested in the apparent purchaser upon trust for the real purchaser, if the Chief Commissioner is satisfied that the money for the purchase of the dutiable property has been or will be provided by the real purchaser, or

(b)   a transfer of dutiable property from an apparent purchaser to the real purchaser if:

(i) the dutiable property is property, or part of property, vested in the apparent purchaser upon trust for the real purchaser, and

(ii) the real purchaser provided the money for the purchase of the dutiable property and for any improvements made to the dutiable property after the purchase.

(1A)   For the purposes of subsection (1), money provided by a person other than the real purchaser is taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser.

(1B)   This section applies whether or not there has been a change in the legal description of the dutiable property between the purchase of the property by the apparent purchaser and the transfer to the real purchaser.

Note—

For example, if the dutiable property is land, this section continues to apply if there is a change in the legal description of the dutiable property as a consequence of the subdivision of the land.

(2) In this section, purchase includes an allotment.

Onus of Proof

71. In this case, the Applicant (Aquanorth) bears the onus of proving its case on the balance of probabilities: s 100(3) of the Taxation Administration Act 1996 (NSW) (“TA Act”).

72. There is no onus on the Respondent to show that the assessments were correctly made, nor any requirement that the assessments should be sustained or supported by evidence: Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614 (“Dalco”) at [624] as adopted in the context of s 100(3) of the TA Act in this Tribunal in Cornish Investments Pty Ltd v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 (“Cornish Investments”); BD Corporation Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 163; Rajan v Chief Commissioner of State Revenue [2013] NSWADT 125.

73. The onus therefore rests with Aquanorth to establish that it is entitled to a concession from duty, having regard to the relevant statutory criteria. It must prove all matters necessary to enable the Tribunal to answer the statutory question(s) in its favour. In the absence of that evidence the assessment will prevail as correct, as the starting point is that there is no entitlement to the concession: see Cornish Investments at [36]; Dalco at 624.

Consideration

Declaration of Trust is a dutiable transaction

74. The Lynn Brett Bare Trust Deed is a declaration of trust as defined for the purposes of s 8(3) of the Duties Act. It is a declaration that identified property (the Property) to be vested in the person making the declaration (Aquanorth) is to be held in trust for the person mentioned in the declaration (50 percent of the Property held on trust for “the Beneficiary”, being Bretlynn ATF the Lynn Brett Superannuation Fund).

75. The declaration of trust is deemed to be a transfer for the purpose of the Duties Act by s 9.

76. The liability for duty arose at the time the declaration was made.

77. Accordingly, the Lynn Brett Bare Trust Deed is a dutiable transaction and liable to ad valorem duty unless an exemption or concession applies.

Application of s 55 of the Duties Act

78. As noted by the Respondent in its written submissions (at [38]), s 55 of the Duties Act will apply where:

1. There is a resulting trust as a result of a person (the “real purchaser”) providing the purchase monies for the property and so taking beneficial ownership of the property; and

2. The property is vested in another person (the “apparent purchaser”) who holds the property on trust for the real purchaser.

79. A resulting trust will arise at law where one person causes the conferral of title to property on another person but does not intend to confer the whole beneficial interest in the property on that other person. The principle was stated in Calverley v Green (1984) 155 CLR 242 at [3] as follows:

“Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person… acquires a beneficial interest in the property depends on the intention of the purchaser.”

80. In this case, the Applicant says that the property was purchased in the name of Aquanorth, there was a trust in favour of the “real party” to the purchase as to 50% (being Bretlynn ATF the Lynn Brett Superannuation Fund), and that Bretlynn – in that capacity – provided (or repaid) the purchase money for its share of the Property.

81. It is not sufficient that some of the purchase money has been, or will be, provided by Bretlynn. It is necessary that Aquanorth establishes that 50 percent of the purchase money for the Property was provided by Bretlynn as the real purchaser. This was the position as found in respect of the predecessor provision to s 55 in Triantifilis v Commissioner of Stamp Duties (NSW) 95 ATC 2655 upheld on appeal in Triantifilis v Commissioner of Stamp Duties (NSW) 98 ATC 4484. This construction has been adopted and confirmed in respect of the present concession in s 55 of the Duties Act in Sportscorp v Chief Commissioner of State Revenue [2004] NSWSC 1029, Al Haddad v Chief Commissioner of State Revenue [2018] NSWCATAD 91, Baynes v Chief Commissioner of State Revenue [2020] NSWCATAD 106 (“Baynes”) and Rafael v Chief Commissioner of State Revenue [2021] NSWCATAD 218. It was described in Baynes at [39] as an “all or nothing question”. It was noted by SM Hamilton Hamilton SC in Wykrota v Chief Commissioner of State Revenue [2019] NSWCATAD 106 that the test is strict and the onus is heavy. (See also Revenue Ruling DUT 30.)

82. The Respondent also pointed (at [46]) to the following statement by President O’Connor in Della-Franca & Anor v Chief Commissioner of State Revenue [2005] NSWADT 106 at [35]:

“… The ‘true purchaser’ must, the Tribunal considers, be a purchaser for full value; and there needs to be good evidence that at the time of the purchase transaction the ‘true purchaser’ had supplied the funds; or, perhaps, had within the framework of a broader venture had sufficient credits due to him, which were clearly allowed as credits in his favour for the purpose of the purchase. In an instance where a mortgage had been raised, there would also need to be clear evidence that the mortgage repayments attributable to the property of the ‘true purchaser’ were being met, either directly or by reimbursement or through specific credits, by the ‘true purchaser’. It is impossible, the Tribunal considers, to reach the necessary state of satisfaction on the evidence here.”

Findings and conclusion

83. The “money for the purchase” comprises the deposit under the contract, the balance of the purchase price and the incidental expenses of buying the property, that is, “the totality of the money which the purchasers have in truth outlaid to obtain the property” (Zhang v Metcalf [2020] NSWCA 228 at [49], Ryan v Dries [2002] NSWCA 3 at [53]) and includes the duty paid on the transaction (Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 at [167]).

84. I have found above that the total amount payable for the purchase of the Property was $709,835.06. After the refund of GST, the totality of the amount outlaid was “in truth” $647,686.42.

85. Of that amount, 50% ($323,843.21) was therefore required to be paid by the “real purchaser”, Bretlynn (in its capacity as trustee for the Lynn and Brett Superannuation Fund) for its acquisition of the 50% interest in the “Asset” under the declaration of trust by Aquanorth.

86. The Applicant has fallen short of establishing that occurred.

1. I have accepted that $94,050 was paid on 4 January 2010;

2. I have not accepted that $25,050 was paid on 6 January 2010 because there is insufficient evidence to conclude it was a payment (by direction) made by Bretlynn as trustee of that superannuation fund as claimed by the Applicant, rather than by Aquanorth;

3. I have found that only 50% of the $62,000 payment made from the No 2 account on 15 April 2010 represented funds to which Bretlynn was entitled; and

4. I have accepted that a $30,000 payment was made on 3 May 2016.

87. Other payments by Bretlynn may have been made. But the evidence relating to other transfers and payments, including those made to the Fetrona account from the No.2 account (even take at their highest), are insufficient to make up the shortfall.

88. I accept that some documents are no longer able to be located. Nonetheless, the Applicant has the onus of proof under s 100(3) of the TA Act. That onus has not been discharged.

89. The correct and preferable decision is that the requirements of s 55(1)(a) of the Duties Act have not been satisfied and the assessment to duty is affirmed.

Interest

90. No penalties were imposed under the assessment.

91. Interest was imposed at the market and premium rates under the provisions of the TA Act.

92. There were no separate submissions made by the Applicant in respect of the interest imposed. Nor was any explanation given for the delay in time, from 2019 to 2023, until the lawyer lodged the Bare Trust Deeds for assessment by the Respondent to duty.

93. Given the facts and conclusions which I have set out above, the key issue that arises from these proceedings is that the Applicant has not met its onus of proof.

94. I agree with the oral submissions of the Respondent that the Tribunal cannot be satisfied that there are any circumstances that warrant the exercise of the broad discretion in s 25 of the TA Act to remit part or all of the premium rate of interest; nor exceptional or other circumstances relevant to any remission of the market rate of interest.

95. For completeness, I note that this matter was heard by the Tribunal prior to the issue of guidelines by the Commissioner for the purpose of s 25(2) of the TA Act, a matter confirmed by the Respondent at the hearing.

Orders

96. I make the following order:

1. The assessment under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 24 July 2025