Aviation 3030 Pty Ltd (in liq) v Lao Holdings Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
TAXATION LIST

S ECI 2023 03245

BETWEEN:

AVIATION 3030 PTY LTD (in liquidation) (ACN 150 720 317)	Plaintiff
v
LAO HOLDINGS PTY LTD (ACN 160 597 142) as trustee for the Lao Holdings Trust	Defendant

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JUDGE:	Croft J
WHERE HELD:	Melbourne
DATES OF HEARING:	3 and 4 December 2024
DATE OF JUDGMENT:	20 December 2024
CASE MAY BE CITED AS:	Aviation 3030 Pty Ltd (in liq) v Lao Holdings Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 800

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TAXES AND DUTIES — Stamp duty — Landholder provisions — Recovery of duty paid by landholder as a debt — Amount to be recovered following payment — Anti‑avoidance provisions — Duties Act 2000, s 71, 77, 78, 79, 80, 85(1), 85(2) — Oliver Hume Property Funds (Broad Gully Rd) Diamond Creek Pty Ltd v Commissioner of State Revenue [2024] VSCA 175.

ESTOPPEL — Anshun estoppel — Prior proceeding unsuccessful application to void issue of shares ab initio and breach of directors’ duties — Subsequent proceeding for recovery of duty paid for the issue of shares — Whether unreasonable not to include claim in earlier proceeding — Not unreasonable — No risk of inconsistent judgments — Justifiable to refrain from litigating issue in one proceeding — Anshun estoppel not established — Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 — Gibbs v Kinna [1999] 2 VR 19 — Clayton v Bant (2020) 272 CLR 1 — Solak v Registrar of Titles (2011) 33 VR 40 — Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245 — Stokes v Toyne [2023] NSWCA 59.

LIMITATION OF ACTIONS — Whether claim barred under s 5(1)(d) Limitation of Actions Act 1958 — When cause of action accrued — Every material fact necessary for plaintiff to prove case known — Claim not barred under s 5(1)(d) — Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159.

CONTRIBUTION — Equitable or common law contribution — Scope and availability — Co‑ordinate liability — Common burden — Remedy available — Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 — Mahoney v McManus (1981) 180 CLR 370 — Burke v LFOT Pty Ltd [2002] 209 CLR 282.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Andrew Roe and Bernice Chen of Counsel	Ashurst
For the Defendant	Christopher Northrop of Counsel	Black Scammell Mileo

Contents

Introduction

The parties
Background and procedural history

Plaintiff’s claims

Defendant’s position

Witnesses

Statutory framework

Anshun estoppel

Principles of Anshun estoppel
Defendant’s submissions
Plaintiff’s submissions
Is there an Anshun estoppel issue?

Operation of s 85 of the Duties Act

Plaintiff’s submissions
Defendant’s submissions

Limitation period

Section 5(1)(d) of the Limitation of Actions Act

Did the Plaintiff elect not to seek recovery of the duty liability?

Settlement with Taing
Conduct of the liquidation

Plaintiff’s secondary claim for contribution

Conclusion

HIS HONOUR:

Introduction

This is an application filed in the Taxation List by the Liquidators for Aviation 3030 Pty Ltd (in liquidation) (ACN 150 720 317) (the Plaintiff) claiming recovery (as a debt), pursuant to s 85(2) of the Duties Act 2000 or, alternatively, on the basis of contribution, one half of a duty liability paid by the Plaintiff.[1] The Plaintiff seeks to recover one half of the duty paid, being $1,727,058.30, or, alternatively, one third; or one quarter of the duty paid; or such lesser amount than $1,727,058.30.
[1]Further Amended Statement of Claim filed 11 December 2023, [15]–[16].
The central questions are who is ultimately liable for payment of the duty and whether the Plaintiff is entitled to recover part of the duty paid from Lao Holdings Pty Ltd (ACN 160 597 142) as trustee for the Lao Holdings Trust (the Defendant) as a debt, or on the basis of contribution.

The parties

From 29 December 2015 to 26 April 2023, the Plaintiff owned the property known as 756 Aviation Road, Point Cook, Victoria (the Property).[2] The Plaintiff entered into a contract to purchase the Property in May 2011 for $7.8 million.[3]
[2]Further Amended Statement of Claim, [1(c)].
[3]Aviation 3030 Pty Ltd (in liq) v Lao, in the matter of Aviation 3030 Pty Ltd (in liq) [2022] FCA 45, [1].
On 17 March 2016, the Plaintiff issued 76 million fully paid ordinary shares to each of the Defendant and Khay Suong Taing Aviation3030 Pty Ltd as trustee for the Khay Suong Taing Aviation3030 No 1 Trust, being 31.79916 shares each, totalling 63.5983% (Share Transfer).[4] At the relevant time, Taing and the Defendant were both trustees of family trusts for the Plaintiff’s directors.[5]
[4]Further Amended Statement of Claim, [8(b)], [11(a)]; Court Book, 185–186.
[5]Plaintiff’s Opening Submissions (30 July 2024), [1].
On 20 March 2019, the Plaintiff entered liquidation and George Georges and John Lindholm were appointed joint and several liquidators (the Liquidators).[6] At all material times up to the liquidation, Hakly Lao, Chong Huy Taing and Terence Grundy were directors of the Plaintiff.[7]
[6]Further Amended Statement of Claim, [2]; Australian Securities and Investment Commission v Aviation 3030 Pty Ltd [2019] FCA 377.
[7]Amended Defence filed 18 December 2023, [2A].
In October 2018, approximately seven years later, the Plaintiff sold the Property for $135 million.[8]
[8]Aviation 3030 Pty Ltd (in liq) v Lao, in the matter of Aviation 3030 Pty Ltd (in liq) [2022] FCA 45, [1].

Background and procedural history

The current proceeding was issued on 20 July 2023 and comes later in time following three relevant earlier proceedings in the Federal Court of Australia.
On 19 March 2019, on the application of the Australian Securities and Investments Commission, O’Callaghan J handed down reasons for decision in Federal Court proceeding VID1223/2018 (Winding Up Proceeding) winding up the Plaintiff in liquidation on just and equitable grounds and appointing George Georges and John Lindholm joint and several liquidators.[9] His Honour ultimately found the Plaintiff was operating an unregistered managed investment scheme in contravention of s 601ED(5) of the Corporations Act2001.[10]
[9] Australian Securities and Investment Commission v Aviation 3030 Pty Ltd [2019] FCA 377.
[10]Australian Securities and Investment Commission v Aviation 3030 Pty Ltd [2019] FCA 377, [223]–[226].
The Plaintiff was later selected for duties investigation by the Commissioner of State Revenue.[11] Following the investigation, the Commissioner determined the Share Transfer was an ‘associated transaction’ and constituted a relevant acquisition pursuant to s 78(1)(a)(ii) of the Duties Act 2000.[12] On 27 August 2019, the Commissioner issued Notice of Assessment no. 20415578 to the Plaintiff in the amount of $4,488,463.52 (made up of $3,418,116 in respect of duty payable under the Act; $854,529 in penalty interest under the Tax Administration Act 1997; and $215,818.52 in interest under the Tax Administration Act) initially due and payable on 30 September 2019 (also referred to as the Duty Liability).[13] The Plaintiff was issued with the Notice of Assessment in its capacity as the landholder.
[11]Defendant’s Opening Submissions (14 August 2024), [1].
[12]
[13]First Lindholm Statement exhibit JRL‑1, 174–177.
The Commissioner, in a letter dated 27 August 2019 accompanying the Notice of Assessment (27 August 2019 Letter), prescribed an unencumbered value of $90 million to the Property.[14] The 27 August 2019 Letter states:[15]
The Commissioner of State Revenue (‘Commissioner’) has determined that the issue of shares by Aviation to each of Lao Holdings and KST on 17 March 2016 gave rise to a liability to duty under Part 2 of Chapter 3 of the Act. The reasons for this decision and its consequences follow.
As at the time of the share issue, Aviation was a landholder for the purposes of the Act as it was a private company entitled to land in Victoria with an unencumbered value of more than $1 million. By virtue of the share issue on 17 March 2016, Lao Holdings and KST each acquired a 31.79916% interest in Aviation (63.5983% in total).
Given that Lao Holdings and KST acquired their respective interests in Aviation as a result of the exercise of options on the same day, pursuant to the same agreement and for the same consideration, the Commissioner has determined that the acquisitions constitute an associated transaction and the making of a relevant acquisition pursuant to section 78(1)(a)(ii) of the Act.
In determining the duty payable, the Commissioner notes that Aviation has entered into a contract to sell its land holding at 756 Aviation Road, Point Cook, 3030 (‘Property’) for $135,000,000 in 2018. With reference to this sale and the sale of other similar properties at and around the time of the share issue, the Commissioner believes that the unencumbered market value of the Property was at least $90,000,000 on 17 March 2016.
Accordingly, the Commissioner has determined that the relevant acquisition made in Aviation by Lao Holdings and KST on 17 March 2016 is chargeable with duty of $3,418,116. Given no duty has been paid, the Commissioner has also determined that penalty tax of 25% and interest at the market rate only is payable under the Taxation Administration Act 1997 on the basis that the tax default occurred because of a failure to take reasonable care.
…
Under section 85 of the Act, Aviation as the landholder and Lao Holdings and KST as the acquirers are jointly and severally liable for the duty chargeable under Chapter 3 of the Act. As a result, an identical assessment to the one issued to Aviation has also been issued to each of Lao Holdings and KST. To ensure the collection of only one lot of duty, a payment made under any of the assessments will be credited as a payment made under all the assessments.
If Aviation is dissatisfied with the assessment, it may not later than 60 days after the date of service of the assessment, lodge a written objection with the Commissioner stating fully and in detail the grounds of the objection. Please note that lodgement of an objection does not in any way defer or remove Aviation’s liability to pay the amount assessed by the due date.
[14]First Lindholm Statement exhibit JRL‑1, 174.
[15]First Lindholm Statement exhibit JRL‑1, 174–175.
On 27 August 2019, the Commissioner issued a similar letter to the Defendant, in its capacity as an acquirer of a relevant acquisition and a person to whom the relevant acquisition results from an aggregation of interests.[16] The Commissioner’s letter to the Defendant also enclosed a Notice of Assessment marked with assessment number no. 20415578.[17] That letter states:[18]
Whilst the evidence indicates no relationship between Lao Holdings and KST as associated persons, the information shows that the acquisition of shares in Aviation by Lao Holdings constituted an associated transaction with the acquisition of an equal number of shares made by KST on the same day. This is because Lao Holdings and KST acquired their respective equal interests in Aviation as a result of the exercise of options on the same day, pursuant to the same agreement and for the same consideration. Accordingly, the acquisitions form, evidence, give effect to or arise from substantially one arrangement, one transaction or one series of transactions. Whilst not necessary to establish an association between the acquisitions in this matter, the available evidence also suggests that the acquisitions have occurred as a result of parties acting in concert.
As a result of the above, Lao Holdings is considered to have made a relevant acquisition of an aggregated 63.5983% interest in Aviation under section 78(1)(a)(ii) of the Act.
[16]
[17]First Stanley Statement exhibit EMS‑3, 10.
[18]First Stanley Statement exhibit EMS‑3, 8–9.
On 1 October 2019, the Commissioner issued a Reminder Notice to the Defendant confirming the balance of the duty liability remains outstanding.[19]
[19]First Stanley Statement exhibit EMS‑3, 11.
On 9 October 2019, the Commissioner submitted a formal proof of debt in the liquidation in the amount of $4,497,391.36 (Proof of Debt).[20]
[20]First Lindholm Statement, [20]; exhibit JRL‑1, 177–178.
Objections to the duty liability were lodged by the Plaintiff, the Defendant and Taing.[21] Taing was the first to lodge an objection on 25 October 2019 (Taing Objection).[22] On 8 November 2019, Sladen Legal, solicitors acting for the Defendant in matters relating to the duty liability, wrote to the Commissioner, objecting to the duty liability on the following basis (Defendant’s Objection):[23]
[21]Witness Statement of Elizabeth Mary Stanley (22 July 2024) (Second Stanley Statement) exhibit EMS‑4, 6–7; First Lindholm Statement exhibit JRL‑1, 343–347; Mileo Statement exhibit MM‑1, 1032–1040.
[22]Second Stanley Statement exhibit EMS‑4, 6–7.
[23]Witness Statement of Mark Mileo (26 June 2024) (Mileo Statement) exhibit MM‑1, 1032–1040.
[The Defendant] objects to the Assessment on the following grounds:
21.1. Landholder duty was not triggered as:
21.1.1.Lao Holdings’ acquisition in Aviation should not be aggregated with the acquisition of [Taing] as they do not form part of an associated transaction; and/or
21.1.2.Lao Holdings did not otherwise make an aggregated acquisition of a 63.5983% interest in Aviation on 17 March;
21.2.In the alternative, the unencumbered value of Aviation’s land holdings of $90 million as at 17 March 2016 as ascertained by the SRO is in error and too high; and
21.3.The penalty and/or interest imposed under the Assessment should be remitted in full and/or reduced.
On 14 November 2019, the Commissioner issued a Creditor’s Statutory Demand to the Defendant seeking payment of the duty liability in the sum of $4,537,566.64 (including amounts for unpaid stamp duty; unpaid penalty tax; and interest from the date payment was due to the date of the Statutory Demand).[24] On 20 November 2019, the solicitors for the Defendant—in matters relating to the duty liability, Sladen Legal—wrote to the Commissioner requesting the Statutory Demand be withdrawn on the basis a genuine dispute exists as to the validity of the Notice of Assessment and duty liability.[25] By email dated 25 November 2019, the Commissioner ‘withdrew’ the Statutory Demand and informed the Defendant (emphasis added):[26]
whilst an objection has been lodged by your client in respect to the assessment, your client is still obliged to satisfy its land tax liabilities under the Land Tax Act 2005 (Vic) and make payment of its debts/liabilities owed to the Commissioner.
[24]First Stanley Statement exhibit EMS‑3, 14–18.
[25]First Stanley Statement exhibit EMS‑3, 22–23.
[26]First Stanley Statement exhibit EMS‑3, 19.
On 12 March 2020, the Liquidators commenced Federal Court proceeding VID174/2020 (2020 Proceeding) against the Defendant, Taing and others, claiming primary relief that the Share Transfer be void ab initio; and, alternatively, that the Defendant and Taing pay an additional amount for the issue of shares; plus compensation/damages in breach of various provisions of the Corporations Act.[27]
[27]Amended Defence, [12B]; Amended Reply filed 22 December 2024, [3]; Plaintiff’s Opening Submissions, [74].
At the Liquidators’ request, and in light of the 2020 Proceeding, the Commissioner—on 11 May 2020—agreed to defer adjudication of the Proof of Debt until shortly after the conclusion of the 2020 Proceeding ‘on the basis that sufficient funds will be withheld to distribute the appropriate dividend to the Commissioner in the event that the application to the Federal Court relating to share transfers is unsuccessful.’[28]
[28]Plaintiff’s Opening Submissions [11]–[12]; First Lindholm Statement, [22]–[23], [34]; exhibit JRL‑1, 179, 319, 320, 348–355; T9.16–25. T13.1–6.
Throughout the liquidation, the Liquidators issued several circulars/updates to creditors and members of the Plaintiff.[29] The circulars provided updates on the liquidation; court proceedings; and the estimated return to creditors and investors. On 30 March 2021, the Liquidators issued an update to creditors and members of the Plaintiff (30 March 2021 Update).[30] The Plaintiff says the updates that follow are all ‘critically anchored’ to the March 2021 Update.[31] The 30 March 2021 Update provided an update on the 2020 Proceeding and stated in that regard:[32]
[O]n 12 March 2020 an originating application in the Federal Court of Australia was filed to commence proceedings against various parties associated with the Companies including Hakly Lao, Chong Huy Taing, Lao Holdings, KST Aviation, Khay Suong Taing, Say Kim Taing and Heng Kim Ou. The purpose of these proceedings is to seek to have the March 2016 share issue reversed or requiring the payment to Aviation 3030 by the defendants of an amount that in the Court’s opinion, fairly represents the benefits the above parties received as a result of the March 2016 share issue.
[29]
[30]First Lindholm Statement, [29]; exhibit JRL‑1, 328–342.
[31]T10.6–8.
[32]First Lindholm Statement exhibit JRL‑1, 333.
The 30 March 2021 Update also provided an update on the estimated return to shareholders which the Liquidators estimated to be between $75,119,337 (a low estimate) and $80,456,028 (a high estimate).[33] These estimates were subject to the following caveats:[34]
[33]First Lindholm Statement exhibit JRL‑1, 336.
[34]First Lindholm Statement, exhibit JRL‑1, 328–342; T10.29‑30, 11.2.
Given the significant uncertainty regarding the March 2016 share issue proceedings and the taxation implications of the sale of the Aviation property, it is premature at this time to provide shareholders and unit holders with guidance in relation to the likely return per share. However, based on information at this time, I estimate that there may be between $75 million and $80 million available for distribution to shareholders. This is an estimate only and is subject to change.
…
Future liquidators’ fees and costs and professional fees are an estimate only and may be subject to change depending on whether a mediated outcome can be achieved, or a full trial is conducted in relation to the March 2016 share issue. Whilst a distribution to unsecured creditors was paid in July 2020, the only creditors’ claims that remain outstanding relate to:
‑A possible claim by the SRO of c.$4.5m, however this may be resolved if the March 2016 shares are voided.
‑A future income tax liability of c.$34.2m once the property settles.
‑An amount of c.$22,000 claimed by related party creditors which was deferred pending resolution of the March 2016 share issue.
‑ Any statutory interest payable to creditors of the Company.
…
The above estimated outcome ignores any possible outcome/s to the Company that may be achieved as a result of the March 2016 share litigation that is currently on foot.
Trial in the 2020 Proceeding commenced on 19 April 2021, and was originally estimated to run for 10 days.[35] At the conclusion of the 10^th day, the proceeding was adjourned part heard.[36] Orders were made by consent referring the proceeding to mediation which occurred on 12 May 2021.[37] Ultimately, Taing, and parties related to it, negotiated a settlement with the Plaintiff.[38]
[35]First Lindholm Statement, [35]–[36].
[36]Witness Statement of John Ross Lindholm (16 July 2024) (Second Lindholm Statement), [18].
[37]First Lindholm Statement, [36]–[37]; Second Lindholm Statement, [5]–[6].
[38]Second Lindholm Statement, [7]–[8].
On 28 May 2021, KPMG, on behalf of the Liquidators, wrote to the Commissioner by email seeking ‘confirmation’ that:[39]
1.Should one party settle the duty liability in full, it will also eliminate the liability owed by the other two parties in full; and
2.Should the liability be settled in full and subsequently a reduction in the liability is effected by the results of the proceedings, the SRO will refund the difference to the party that settled the liability initially.
[39]First Lindholm Statement, 444.

On 31 May 2021, the Commissioner provided the following response by email:[40]
In the event that the assessment is paid in full, there would be no liabilities owed by the other parties to the assessment.
…
In the event that the assessment is paid, and a reduction in the liability is effected by the outcome of the proceedings, an out of time objection would first need to be lodged against the assessment. If successful, a refund of any overpayments would be made to the liable party (or at their direction). As only one objection can be lodged to an assessment, to preserve future rights to claim the refund under an out of time objection, the liable parties may wish to consider withdrawing their current objections.
[40]First Lindholm Statement, 443.
On 31 May 2021, trial in the 2020 Proceeding resumed and was, again, adjourned part‑heard.[41]
[41]First Lindholm Statement, [36]; Second Lindholm Statement, [18].
On 3 June 2021, the solicitors for the Plaintiff wrote to the Commissioner, by email, regarding an out of time objection to the Notice of Assessment.[42] That email stated:[43]
We seek your written agreement prior to the full payment of the Assessment that if we procure Khay Suong Taing Aviation 3030 Pty Ltd to withdraw their objection to the Assessment that was lodged on 25 October 2019, the Commissioner will accept an out of time objection lodged by Aviation 3030 Pty Ltd under section 100 of the Taxation Administration Act 1997 (Vic) (TAA).
We intend to lodge an out of time objection on behalf of Aviation 3030 Pty Ltd in substitution for the above objection and, subject to the Commissioner’s response to the above, we will do so within a few weeks. We request that the Commissioner provide confirmation as soon as possible as the Commissioner’s response will determine how the parties will seek to resolve the proceedings between the parties, the settlement of which is a condition precedent to the Liquidators’ agreement to procure payment of the Assessment in full by the landholder. Please note that once our objection on behalf of the landholder is lodged we request written confirmation as a matter of urgency that it has been accepted out of time under section 100 of the TAA. Please confirm in writing that this confirmation will be provided within a week of lodgement of the objection.
[42]First Lindholm Statement exhibit JRL‑1, 352.
[43]First Lindholm Statement exhibit JRL‑1, 352.
On 23 June 2021, the Plaintiff lodged the foreshadowed out of time objection to the Notice of Assessment in accordance with ss 100 and 96(1)(a) of the Tax Administration Act 1997 on the following grounds (Plaintiff’s Objection):[44]
[44]First Lindholm Statement, [32]; exhibit JRL‑1 343–347; Further Amended Statement of Claim, [12A].
(a)No relevant acquisition to the extent that the share issue is void ab initio [ground 1]
Aviation objects on the basis there would be no relevant acquisition for the purposes of section 78 of the Duties Act to the extent that the share issue is void ab initio if so determined by the proceedings.
The VID174/2020 – Aviation 3030 Pty Ltd (In Liquidation) & Ors v Hakly Lao & Ors proceedings seek relief from the Federal Court of Australia that the share issues are void under section 588FE and 588FF of the Corporations Act 2001 (Cth) as an unreasonable director‑related transaction of Aviation within the meaning of the Corporations Act 2001 (Cth).
A transaction that is void has the effect of being unenforceable and as if it did not occur.
Section 78 of the Duties Act states that a person makes a relevant acquisition if a person acquires an interest in a landholder that it is in itself a significant interest in the landholder, or aggregated together to amount to a significant interest. To the extent that the shares are declared void ab initio by the Federal Court of Australia, no relevant acquisition would have occurred as the shareholders of Aviation as at 17 March 2016 would not have acquired a significant interest in Aviation because the share issue would now be taken to have never occurred.
Section 77 of the Duties Act also states that liability for landholder duty arises when a relevant acquisition is made. Accordingly, if there was no relevant acquisition under section 78 of the Duties Act, then no landholder duty would be payable.
(b) Unencumbered market value of the Land [ground 2]
Consistent with the Taing’s Objection, Aviation objects on the basis that the Assessment is excessive as it is based on a value of Land, $90 million, that is too high.
Under section 97(3) of the TAA, Aviation is entitled to object in respect of the value of the Land as it is not an of land tax based on a Valuer‑General valuation or one on behalf of the Commissioner under section 21(1)(b) of the Land Tax Act 2005 (Vic).
In the SRO Letter, it was outlined that:
“The Commissioner notes that Aviation has entered into a contract to sell its land holding at 756 Aviation Road, Point Cook 3030 for $135 million in 2018. With reference to this sale and the sale of the similar properties at and around the same time of the share issue, the Commissioner believes that the unencumbered value of the market value of the property was at least $90 million on 17 March 2016.”
Aviation entered into a contract of sale to purchase the Land on 20 May 2011 for $7.8 million. It is unclear how the Commissioner has determined that the relevant unencumbered value of the Land is $90 million. The Commissioner did not provide any sales figures in the SRO Letter to support his contention.
Based on Aviation’s calculations, the estimated unencumbered market value of the land should have been $28.8 million on a straight line extrapolation of the Charter Keck Cramer valuation as at 21 October 2015 and 1 November 2017 valuing the Land at $24.4 million and $46.75 million respectively. The council rate notices for 2016 / 2017 valued the Land as $15.5 million as at 1 January 2016. These documents were provided in the Taing’s Objection.
We request that the Charter Keck Cramer documents be referred to when considering this ground of objection.
We further note that the 2018/2019 council rate year, the capital improved value of the Land was valued at $13 million as at 1 January 2018. The capital improved value of the Land has decreased since 2016 and supports our submission that the unencumbered value of the Land in respect of the Assessment is too high.
(c) Interest and penalties [ground 3]
Aviation objects to the interest and penalties imposed under the Assessment as excessive on the basis that there is no primary duty. Section 24 of the TAA states that if a tax default occurs, the taxpayer is liable to pay interest on the amount of tax unpaid calculated on a daily basis. Similarly, section 29 of the TAA states that if a tax default occurs, the taxpayer is liable to pay penalty tax.
A tax default is defined in section 3(1) of the TAA to mean a failure by a taxpayer to pay, in accordance with a taxation law, the whole or part of tax that the taxpayer is liable to pay. To the extent that the primary duty should be reduced, so to should the interest and penalties.
The Plaintiff’s Objection was put to the Commissioner on the basis that it substitutes the Taing Objection.[45]
[45]First Lindholm Statement exhibit JRL‑1, 442.
The Commissioner allowed the objection, exercising its discretion under s 100 of the Tax Administration Act, but deferred determination of the objection until after judgment in the 2020 Proceeding.[46]
[46]First Lindholm Statement [34]; exhibit JRL‑1, 348.
On 19 August 2021, the Plaintiff commenced proceeding no. VID476/2021 in the Federal Court seeking approval (under s 477(2B) of the Corporations Act) to enter into the settlement agreement with Taing and the related parties (Approval Proceeding).[47] On 14 October 2021, Justice Anderson of the Federal Court handed down reasons for the decision, allowing the Liquidators to enter into the settlement agreement.[48] Justice Anderson states in his reasons for decision:[49]
I am satisfied that the terms of the proposed settlement are clear. Whilst the deeds of settlement are complex, I am satisfied that the deeds have been drafted with care to set out how the settlement is to operate, what is to occur upon court approval if obtained, what is to occur upon settlement of the Property, and how the obligations are to interact with the administrative processes of the liquidation.
[47]Lindholm (liquidator), in the matter of Aviation 3030 Pty Ltd (in liq) [2021] FCA 1244; First Lindholm Statement, [38]–[39].
[48]Lindholm (liquidator), in the matter of Aviation 3030 Pty Ltd (in liq) [2021] FCA 1244.
[49]Lindholm (liquidator), in the matter of Aviation 3030 Pty Ltd (in liq) [2021] FCA 1244, [77].
On 24 August 2021, the Liquidators issued an update to creditors and members of the Plaintiff (24 August 2021 Circular).[50] This update notified creditors and members of the in principle settlement agreement reached with Taing and others in the 2020 Proceeding and the outcome of negotiations with the Defendant. Relevantly, the 24 August 2021 Circular states:[51]
[50]First Lindholm Statement, [41]; exhibit JRL‑1, 432–435.
[51]First Lindholm Statement, [41]; exhibit JRL‑1, 432–433.
1. What is the proposed settlement?
The settlement is with Khay Suong Taing, Chong Huy Taing, Say Kim Taing and Khay Suong Taing Aviation3030 (the Taing Parties) and only affects the shares received by Khay Suong Taing Aviation3030 as trustee for The Khay Suong Taing Aviation3030 No 1 Trust in March 2016 (the Taing Shares).
Under the settlement, the minority shareholders will receive the benefit of the final liquidation distribution arising from 40 million of the Taing Shares (16.67% of the total shares issued in Aviation 3030), subject to tax adjustments with the Taing Parties. The Taing Parties will retain 37 million of the Taing Shares (15% of the total shares issued in Aviation 3030).
…
We have not been able to come to a settlement with Hakly Lao, Heng Kim Ou or Lao Holdings Pty Ltd (the Lao Parties) or in relation to the shares issued in March 2016 to the Lao Parties (the Lao Shares). The Proceeding will continue against the Lao Parties and is currently scheduled for further hearing dates in August 2021. The Proceeding will not continue against the Taing Parties if Court Approval is granted.
The 24 August 2021 Circular also outlined the following reasons as to why court approval is required and informed creditors and members of the commencement of the Approval Proceeding.[52] This update also provided a breakdown of the estimated return to investors based on ‘there being $75 million available for distribution to shareholders once other taxes and fees are paid (as set out in the 30 March 2021 Update to Creditors and Members).’[53] The Liquidators set out estimates of a return in scenarios where there is no resolution of the 2020 Proceeding; where the Taing parties and the Plaintiff enter into a settlement agreement and the shares issued to the Lao parties are voided; and where the Taing parties and the Plaintiff enter into a settlement agreement and the shares issued to the Lao parties are not voided.[54] The estimates are provided with the caveat that ‘these are estimates only and may be subject to change.’[55]
[52]First Lindholm Statement, [41]; exhibit JRL‑1, 433–434.
[53]First Lindholm Statement exhibit JRL‑1, 434.
[54]First Lindholm Statement exhibit JRL‑1, 434.
[55]First Lindholm Statement exhibit JRL‑1, 434.
On 19 October 2021, the plaintiffs in the 2020 Proceeding, Taing and its related parties entered into a deed of settlement; deed of share transfer and settlement; and trust deed for the Aviation 3030 Settlement Trust (collectively the ‘Deeds’ giving rise to the ‘Taing Settlement’).[56] The Taing Settlement made provision for the Plaintiff to pay the duty liability and the Plaintiff waived its right to recover the duty liability from Taing.[57]
[56]Amended Defence [12J]; Amended Reply, [11].
[57]Plaintiff’s Opening Submissions, [14].
On 20 October 2021, the Plaintiff paid the duty liability, as it presently was, in the amount of $4,497,391.36, discharging the Proof of Debt.[58]
[58]First Lindholm Statement, [45]; exhibit JRL‑1, 436.
On 22 October 2021, Anastassiou J made orders by consent discontinuing the 2020 Proceeding against Taing and parties related to it.[59]
[59]First Lindholm Statement, [46]; Mileo Statement, [21]; exhibit MM‑1, 846–847.
By letter dated 7 December 2021, the Plaintiff’s solicitors wrote to the solicitors for Taing—in response to a letter from the solicitors for Taing requesting copies of the Settlement Deeds—stating:[60]
Accordingly, any apprehended effect of the settlement on the Plaintiffs’ claim against your clients (or Hakly Lao) in this proceeding can be determined by reference to the Circular. In particular, the [24 August 2021] Circular states that:
·the Taing defendants have agreed to give up their right to the economic benefit of 40 million of the 76 million shares that Khay Suong Taing Aviation3030 as trustee for the Khay Suong Taing Aviation3030 No 1 Trust in March 2016.
·The Plaintiffs have also agreed to pay the stamp duty liability on the issue of the Taing Shares in March 2016, and a tax indemnity to the Taing Parties will be provided.
The Plaintiffs have properly compromised their claim against the Taing Parties. These terms do not reduce or affect the quantum of the claim against your clients or Hakly Lao.
In the circumstances, and given the comprehensive disclosure of the key commercial terms of the settlement deeds in the Circular, it is not clear how the settlement deeds could have any relevance to the issues in dispute in this proceeding insofar as potential discovery of those documents is concerned. We further note that the settlement deeds were the subject of confidentiality orders made by Anderson J in the course of the settlement approval hearing, in which your clients made a deliberate forensic decision not to be heard on the question.
Accordingly, please advise what relevance your clients contend the settlement deeds have to the issues in dispute in this proceeding, and on what basis your clients contend that these documents are potentially discoverable by the Plaintiffs.
[60]Mileo Statement, 844–845.
Justice Anastassiou made orders by consent allowing the production of the Settlement Deeds, by way of discovery, to the Defendant’s solicitors and Counsel, amongst others.[61]
[61]Second Lindholm Statement, [12]–[13]; Mileo Statement, [22]; exhibit MM‑1, 848–849.
The hearing of the 2020 Proceeding continued as against the Defendant and its associated entities on 28 February 2022 and was adjourned to 21 to 23 March 2022, at which time Anastassiou J reserved his decision.[62] At the conclusion of the trial, Anastassiou J requested the parties provide ‘worked examples’ of what ‘should’ be paid by the Defendant.[63] Both the solicitors for the Plaintiff and the solicitors for the Defendant provided Anastassiou J with separate ‘worked examples’ which his Honour had regard to in his decision.[64] The parties are in contention regarding the form of the worked examples provided to Anastassiou J. The Plaintiff’s ‘worked examples’:
(a)estimated that the return to shareholders in the liquidation ‘may be between $75 million and $80 million’;[65]
(b)used the lower of the two estimates ($75 million) for the ‘assumed liquidation surplus’;[66]
(c)used an estimate of $4.5 million owing to the Commissioner;[67]
(d)provided ‘illustratively only’ examples ‘as the composite calculations, and the steps, involved in calculating notional distributions to shareholders at the conclusion of the liquidation have been simplified for clarity’;[68] and
(e)made direct reference to the circular to creditors and investors dated 30 March 2021 which indicated the estimates ‘are estimates only and may be subject to change’.[69]
The Defendant says that if the Plaintiff intended to recover a portion of the duty liability from the Defendant, the Plaintiff ought to have included the ‘notional recovery’ amount in the calculations provided to Anastassiou J.[70]
[62]First Lindholm Statement, [47]; Mileo Statement, [31].
[63]Mileo Statement, [32]–[35]; Second Lindholm Statement, [24]–[26].
[64]
[65]Second Lindholm Statement, [24].
[66]Second Lindholm Statement, [24].
[67]Mileo Statement, [33]; First Lindholm Statement exhibit JRL‑1, 336.
[68]Second Lindholm Statement, [26].
[69]Plaintiff’s Opening Submissions in Reply (21 August 2024), [20].
[70]Defendant’s Opening Submissions, [8].
Ultimately, on 29 April 2022, Anastassiou J handed down his reasons. His Honour did not grant the primary relief sought by the Plaintiffs (voiding the Share Transfer ab initio).[71] His Honour, however, found that the shares issued to the Defendant were an unreasonable director‑related transaction pursuant to s 588FDA of the Corporations Act.[72] The following orders were made:[73]
1.The Court declares that the March 2016 Share Issue is an unreasonable director‑related transaction within the meaning of s 588FDA of the Corporations Act 2001 (Cth).
2.Under and pursuant to s 588FF(4) of the Corporations Act, Lao Holdings Pty Ltd pay the sum of $9,044,000 in respect of the 76 million shares issued to it pursuant to the March 2016 Share Issue.
3.The payment of the sum of $9,044,000 referred to in paragraph (2) of these orders is stayed pending the final distribution of the net assets of Aviation 3030 Pty Ltd (in liquidation). I direct the Plaintiff liquidators of Aviation 3030 to set off that sum against the distribution of the net assets of Aviation 3030 to which Lao Holdings is entitled, in accordance with paragraph [450] of these reasons.
4.The Plaintiffs’ costs of and incidental to this proceeding be assessed on an indemnity basis and paid as to 50% thereof by Lao Holdings. The payment of those costs in the sum assessed be stayed pending the final distribution of the net assets of Aviation 3030. I direct the Plaintiff liquidators of Aviation 3030 to set off those costs from the final distribution of the net assets of Aviation 3030 to which Lao Holdings is entitled, in accordance with paragraph [462] of these reasons.
5.The proceeding against the Seventh Defendant be dismissed with no orders as to costs.
[71]Plaintiff’s Opening Submissions, [15]; T9.4–15.
[72]Plaintiff’s Opening Submissions, [15].
[73] Aviation 3030 Pty Ltd (in liq) v Lao, in the matter of Aviation 3030 Pty Ltd (in liq) [2022] FCA 458 [466].
At [450] his Honour states:[74]
The ‘mechanics’ to achieve the remedy I have suggested are, I believe, quite simple. I shall direct that the Lao Holdings nominally pay the additional sum of $9,044,000 to Aviation 3030. That sum reflects the net ‘market value’ of 76,000,000 shares at a cost of $0.12 per share, deducting the $76,000 already paid for those shares. The Plaintiffs, as liquidators, are to in turn distribute the aggregate sum, once Aviation 3030 has been wound up, pari passu between all shareholders (including Lao Holdings) who have separately reached a resolution with the Plaintiffs concerning the matters that arise in this proceeding. A high level worked example provided by the Third and Seventh Defendants of the ‘mechanics’ necessary to give effect to this remedy is reproduced at Annexure I. In addition, as I shall explain below, prior to making the pari passu distribution the Plaintiffs will need to account for the orders I have made as to costs (see [461] and ff.).
[74]Aviation 3030 Pty Ltd (in liq) v Lao, in the matter of Aviation 3030 Pty Ltd (in liq) [2022] FCA 458.

At [462] his Honour notes:[75]
Taking into account: (a) the sum of $9,044,000 to be paid by Lao Holdings, which as I have indicated should be set off against its entitlement to a pari passu distribution, and (b) the broader utility of the proceeding and indirect benefit of it to the Early Investors, in my view the appropriate order as to the costs of this proceeding is as follows. The costs of and incidental to this proceeding be assessed on an indemnity basis and paid in the first instance by Aviation 3030. Following settlement of the Contract of Sale, which is expected to occur in April 2023, and upon the distribution of the net assets of Aviation 3030 in the finalisation of the winding up, a sum equal to half of the costs of the proceeding, be deducted by the Plaintiffs, in their capacity as liquidators of Aviation 3030, from the distribution to which Lao Holdings would otherwise have been entitled. For the avoidance of doubt, in determining the Early Investors’ entitlement to a distribution, the costs which are to be borne by the Lao Defendants ought not be deducted from the broader pool for distribution. In other words, in addition to the sum of $9,044,000 to be deducted from the distribution to Lao Holdings, a further sum equal to half of the costs of this proceeding, assessed on an indemnity basis, also be deducted from the distribution.
[75]Aviation 3030 Pty Ltd (in liq) v Lao, in the matter of Aviation 3030 Pty Ltd (in liq) [2022] FCA 458.
On 23 May 2022, the Liquidators issued a further update to the investors of the Plaintiff confirming the outcome of the settlement with the Taing parties; indicating that Judgment had been delivered in the 2020 Proceeding; and providing an update on the return to investors in the liquidation (23 May 2022 Circular).[76] The 23 May 2022 Circular confirmed the effect of the settlement agreement with the Taing parties noting:[77]
Under the settlement, the minority shareholders will receive the benefit of the final liquidation distribution arising from 40 million of the Taing Shares (16.67% of the total shares issued in Aviation 3030 Pty Ltd), subject to tax adjustments with the Taing Parties. The Taing Parties will retain 37 million of the Taing Shares (15% of the total shares issued in Aviation 3030 Pty Ltd).
[76]Mileo Statement, [40]; exhibit MM‑1, 1021–1024.
[77]Mileo Statement exhibit MM‑1, 1021.
The 23 May 2022 Circular also provides an estimate of the return to investors based on $75 million (the low estimate) being available for distribution to shareholders once other taxes and fees are paid.[78] The Liquidators estimate the minority shareholders will receive a return of approximately $522,691 per million shares.[79] The estimate is provided with the caveat that it is ‘an estimate only and is subject to change.’[80] The 23 May 2022 Circular sets out the estimated return to the various interests in the liquidation based on two scenarios. First, a ‘pre‑litigation’ estimate calculating the return prior to the settlement with the Taing parties or the determination of the 2020 Proceeding and, secondly, a ‘post‑litigation’ estimate following settlement with the Taing parties and the decision of Anastassiou J.[81]
[78]Mileo Statement exhibit MM‑1, 1022.
[79]Mileo Statement exhibit MM‑1, 1022.
[80]Mileo Statement exhibit MM‑1, 1022.
[81]Mileo Statement exhibit MM‑1, 1022.
On 12 July 2022, the solicitors for the Plaintiff wrote to the Defendant’s solicitors setting out the Plaintiff’s intention to recover (pursuant to s 85(2) of the Act) 50% of the duty liability, and proposed to offset 50% of the liability against the Defendant’s liquidation distribution (12 July 2022 Letter).[82] The 12 July 2022 Letter states:[83]
On 21 October 2021, Aviation 3030 Pty Ltd (in liquidation) (Aviation 3030) paid $4,497,391.36 to the State Revenue Office pursuant to the Formal Proof of Debt Claim dated 9 October 2019 (enclosed). That Formal Proof of Debt of Claim was issued in respect of the acquisition of an aggregated 63.5983% interest on 17 March 2016 (the March 2016 Share Issue), of which your client received one half.
Under s 85(2) of the Duties Act 2000 (Vic), Aviation 3030 as landholder is entitled to recover as a debt from Lao Holdings Pty Ltd 50% of the stamp duty which Aviation 3030 paid on the March 2016 Share Issue including any penalties paid. This amount is $2,248,695.68.
We propose that this amount be offset (in addition the costs claimed [in the 2020 Proceeding] from Lao Holdings Pty Ltd’s final distribution in the liquidation of Aviation 3030.
[82]Mileo Statement exhibit MM‑1, 1025–1026.
[83]First Stanley Statement, [8]; Mileo Statement exhibit MM‑1, 1025–1026.
On 25 July 2022, the Defendant’s solicitor responded to the 12 July 2022 Letter rejecting the proposal and insisting the orders made by Anastassiou J on 29 April 2022 be complied with (25 July 2022 Letter).[84] The 25 July 2022 Letter states:[85]
[84]Mileo Statement, [42]; exhibit MM‑1, 1029–1031.
[85]Mileo Statement, [42]; exhibit MM‑1, 1029–1031.
My client rejects the proposal and will insist that the orders of the Federal Court are complied with.
On 29 April 2022 the Federal Court made an order that Aviation 3030 Pty Ltd (in liq) set off two amounts against the distribution of the assets of the company to which Lao Holdings is entitled.
Paragraph 450 states the initial distribution is pari passu between all shareholders and refers to Annexure 1.
The orders do not permit the liquidators to deduct other amounts. As officers of the court, the liquidators should ensure they comply with the order and a failure to do so may amount to a contempt of court.
In addition to the terms of the orders that were made, I note the following:
1.The formal proof of debt attached to your letter is dated 9 October 2019, several months prior to the commencement of the Federal Court proceeding.
2.The claims made by the plaintiff included claims based on breaches of fiduciary and statutory duties. The damages claimed included costs and expense allegedly incurred as the result of the issue of shares in March 2016.
3.Any liability to pay duty arises from the issue of shares in March 2016. A claim to recover of the amount of duty payable by the company could have been included in the proceeding from its commencement, either as damages or as a debt.
4.No claim was made in the proceeding.
5.Had a claim been included in the proceeding it would have been disputed. As you know, both Lao Holdings and the fourth defendant objected to the assessment.
6.On the first day of the trial the plaintiffs tendered an update to creditors dated 30 March 2021 which estimated the distribution to shareholders of between $75 and $80 million. The update makes specific reference to the claim for duty by the SRO.
7.Your clients settled the claim against the Taing parties in October 2021.
8.Following the settlement in October 2021 your clients assured the Court on several occasions that the settlement did not affect the claims against the remaining defendants.
9.Your clients paid the amount claimed by the SRO in October 2021 despite knowing the assessments were disputed. Lao Holdings had no knowledge that the payment would be or had been made.
10.Having paid the SRO, the plaintiffs did not seek to amend their claim to include the amount paid as damages or as a debt. Had they done so, Lao Holdings would have objected. If an amendment had been allowed, Lao Holdings would have defended the claim on various bases and sought recovery or contribution from the fourth defendant.
11.During the course of final submissions the plaintiffs prepared two tables giving examples of amounts that would be paid to Lao Holdings depending on the price to be attributed to the shares issued in March 2016.
12.Before the table was provided to the Court I sought and received an assurance that expenses had not increased significantly since the update tendered in evidence.
13.The tables were provided to the Court knowing it would use them as part of the decision making process. The tables did not include any amount in respect of duty.
14.I made a further calculation based on a different share price and provided it to the court. This table is attached to the reasons for decision and is incorporated into the orders that were made.
15.After the Court published its reasons on 29 April 2022 it gave the parties an opportunity to make submissions regarding the proposed form of orders. The plaintiffs did not suggest there should be any additional deductions from the amounts to be distributed to Lao Holdings.
16.On 23 May 2022 Mr Lindholme sent a circular to investors which estimated the amount to be paid to Lao Holdings as $16,066,600. Lao Holdings relied on this document when considering whether or not to appeal the judgment of 29 April.
Lao Holdings disputes your clients’ new claim. Your clients cannot now seek recovery of amounts which could have been sought in the recently concluded Federal Court proceeding. The principles of Anshun estoppel apply, in addition to res judicata, waiver, election, abandonment, and estoppel more generally.
Your clients must comply with the judgment of the Court. They cannot make new claims at this stage.
On 18 August 2022, the solicitors for the Plaintiff responded to the 25 July 2022 Letter disagreeing with the Defendant’s position; asserting it is entitled to recover a portion of the duty from the Defendant; and again putting forward the proposal contained in the 12 July 2022 Letter (18 August 2022 Letter).[86] That letter states:[87]
[86]Mileo Statement, [44]; exhibit MM‑1, 1041–1043.
[87]Mileo Statement, [44]; exhibit MM‑1, 1041–1043.
His Honour’s orders were determinative of the claims made in the Proceeding. It was not and could not be a comprehensive determination of how [the liquidators of the Plaintiff] is to distribute funds in the liquidation of the Aviation entities.
As you repeatedly note in your letter, stamp duty for the March 2016 Share Issue was not pleaded or claimed in the Proceeding. Self‑evidently, his Honour’s orders could not be determinative of every potential issue which could arise in the mechanics of the liquidation distribution of the Aviation entities, including your client’s stamp duty liability. This also suffices to deal with your general assertions regarding the applicability of res judicata.
…
The stamp duty debt is presently due and owing. As well as a deduction from a liquidation distribution, there are other mechanisms by which that outstanding liability may be satisfied. Our clients are entitled to bring proceedings for immediate payment of that liability to Aviation 3030 or otherwise seek directions from the court (and reserve all their rights in that regard).
…
(a)In response to paragraph 2, our client’s Statement of Claim alleged specific damages, namely the loss of the below market share issue and costs of defending subsequent legal proceedings.
(b)In response to paragraphs 3 and 4, it was not “unreasonable”, in the sense that term is used in the authorities on Anshun estoppel, for our client to seek recovery of your client’s stamp duty liability after the Proceeding. The stamp duty claim arises from the fact of the March 2016 Share Issue, not from the wrongful nature of the Share Issue as an unreasonable director‑related transaction. The claim is legally and factually distinct from the Proceeding, which is borne out by the fact that there is no risk of inconsistent judgments arising as between the Proceeding and any further case to satisfy the outstanding stamp duty liability. Our client was under no obligation to make a claim for a stamp duty liability – a State tax for which recovery is typically brought in a State court – in what were already complicated and protracted proceedings before the Federal Court. In any event, the pleading of this claim would have been inconsistent with our primary case.
(c)In response to paragraphs 5 and 9, it was (and remains) your client’s obligation as the acquirer of the shares to object to the State Revenue Office assessment, if such an objection were justified and we understand that your client did in fact lodge an objection to the assessment. Payment of the stamp duty owing does not extinguish a taxpayer’s right to object to the assessment. Nor does it prevent the taxpayer appealing the objection determination. Your client has suffered no prejudice as a result of our client’s payment; if anything your client has been enriched, as our client’s payment prevented further interest and penalty tax accruing on the assessment amount.
(d)In response to paragraph 6, we refer you to the text which accompanied that estimated return to creditors (bold underline emphasis in the original, additional emphasis in bold):
Given the significant uncertainty regarding the March 2016 share issue proceedings and the taxation implications of the sale of the Aviation property, it is premature at this time to provide shareholders and unit holders with guidance in relation to the likely return per share. However, based on information at this time, I estimate that there may be between $75 million and $80 million available for distribution to shareholders. This is an estimate only and is subject to change.
…
Whilst a distribution to unsecured creditors was paid in July 2020, the only creditors’ claims that remain outstanding relate to:
‑A possible claim by the SRO of c.$4.5m, however this may be resolved if the March 2016 shares are voided.
Self‑evidently, the estimated distribution to shareholders was an estimate only, and subject to adjustments including a possible claim by the SRO of c.$4.5m. We do not understand the substance of your complaint in paragraph 6.
(e)In response to paragraphs 7 and 8, the Taing settlement did not affect your client’s interest in the transaction which gave rise to the stamp duty liability. Consequently, the settlement did not reduce or otherwise affect the liquidators’ right of recovery.
(f)We reject your assertion in paragraph 10 that you have foregone the ability to oppose the claim for recovery. By your letter, you are presently resisting the claim and retain the opportunity to ventilate your reasoning before a court.
(g)In response to paragraphs 10 to 15, we refer again to the fact (as is noted in your letter) that stamp duty liability was not claimed or otherwise in issue in the Proceeding. There was no reason for the “Worked Examples” (as they were described) to include a deduction for stamp duty.
(h)In response to paragraph 16, we refer to the text of the circular (emphasis in the original):
We estimate that minority shareholders will receive a return of approximately $522,691 per million shares.
This is an estimate only and is subject to change.
Plainly, the listed total return of $16,066,600 to Lao Holdings Pty Ltd was an estimate only. Further, this figure was stipulated to be the estimated return “after…the determination of the Proceedings”. The “Proceedings” referred to in the circular are those for which Justice Anastassiou delivered judgment on 29 April 2022. As you correctly assert in your letter, stamp duty was not pleaded or claimed in the Proceeding.
…
Your letter refers to a smorgasbord of additional claims resisting our proposal, without particularity or reasoning. Our clients reject those claims. That we have not sought to respond to those claims in this letter in detail should not be taken as an acceptance of the merits of those arguments – the opposite is true.
In light of the above, the amount of $2,248,695.68, being 50% of the amount of the total stamp duty paid by Aviation 3030 in connection with the March 2016 Share Issue, remains due and owing by your client. To facilitate payment of this amount, we repeat our proposal to offset the amount from Lao Holdings Pty Ltd’s final distribution in the liquidation of Aviation 3030.
On 6 September 2022, the solicitors for the Defendant responded to the 18 August 2022 Letter disagreeing with the Plaintiff’s position and, again, rejecting the proposal to set off the duty liability from the Defendant’s liquidation distribution.[88] The letter stated:[89]
Your letter incorrectly states stamp duty is presently due and owing. Lao Holdings disputes the existence of any debt, and Aviation 3030’s entitlement to seek recovery, for two primary reasons.
First, Lao Holdings disputes that duty was chargeable on the relevant transaction. An objection was lodged by Lao Holdings seeking to have the assessment set aside. Moreover, a statutory demand served by the SRO was withdrawn on the basis there was a genuine dispute. The fact that Aviation 3030 chose to pay an amount in October 2021 does not establish that duty was chargeable under the Act.
Secondly, the basis on which the claim is disputed arises from the conduct of the Federal Court proceeding. … it appears that prior to commencing the proceeding in 2020 the plaintiffs made a deliberate decision not to include the amount now claimed.
Given that the alleged duty is based on the terms of the option agreement and the issue of shares in March 2016, which were both central to the Federal Court proceeding, there was no logical reason for not including the claim.
[88]Mileo Statement, [45]; exhibit MM‑1, 1044–1045.
[89]Mileo Statement, [45]; exhibit MM‑1, 1044–1045.
On 21 October 2022, the solicitors for the Plaintiff wrote to the Commissioner indicating that Anastassiou J handed down judgment in the 2020 Proceeding and sought that the objection be reopened. The letter noted that, ‘for the purposes of the objection’ the shares were not void ab initio; ‘as such, a relevant acquisition was made’; and the Liquidators now seek to recover the duty already paid from the acquirer.[90] The letter requested the first ground (that no relevant acquisition occurred) in the Plaintiff’s Objection be withdrawn and only the second ground be determined (that the unencumbered market value of the land included in the assessment is excessive).[91]
[90]First Lindholm Statement, [52]; exhibit JRL‑1, 437–446.
[91]First Lindholm Statement, [52]; exhibit JRL‑1, 437.
On 17 November 2022, the Liquidators issued a further update addressed to ‘Sour Loeung Seak Ngim Loeung’ (17 November 2022 Circular).[92] It is assumed that this circular was also issued to all investors and members of the Plaintiff. The 17 November 2022 Circular provides an update on the return to investors in the liquidation based on $75 million being available for distribution to shareholders once other taxes and fees are paid.[93] The Liquidators estimated that minority shareholders will receive a return of approximately $522,691 per million shares, subject to the caveat that it is ‘an estimate only and is subject to change.’[94] This Circular sets out estimates of the return to the various interests based on two scenarios. First, a ‘pre‑litigation’ estimate prior to settlement with the Taing parties and the determination of the 2020 Proceeding.[95] Second, a ‘post‑litigation’ estimate following settlement with the Taing parties and the decision of Anastassiou J. The second ‘post‑litigation’ estimate is provided with the caveat that the estimate ‘is calculated with reference to the “notional estimated funds available for distribution” of $86.24 million.’
[92]Mileo Statement, [46]; exhibit MM‑1, 1046–1049.
[93]Mileo Statement exhibit MM‑1, 1046.
[94]Mileo Statement exhibit MM‑1, 1046–1047.
[95]Mileo Statement exhibit MM‑1, 1047.
On about 8 June 2023, the Commissioner made enquiries with the Defendant directly and with Mr Mileo of Scammell Black Mileo regarding the status of the Defendant’s Objection and whether it was to be withdrawn.[96] Scammell Black Mileo wrote to the Commissioner seeking an ‘assurance that in the event that Lao Holdings Pty. Ltd., does not wish to pursue its objections no further amounts will be sought from it’ with respect to the duty liability.[97] On 13 June 2023, the Commissioner responded indicating Notice of Assessment no. 20415578 was ‘fully paid by another party’ and ‘accordingly, no further debt is owed to the State Revenue Office in respect of the Assessment by Lao Holdings Pty Ltd … in the event LH Co withdraws the objection to the Assessment lodged on its behalf.’[98] It follows that on 20 June 2023, Scammell Black Mileo wrote to the Commissioner stating:[99]
Whilst Lao Holdings Pty. Ltd., does not concede there was ever a debt owing by it to the State Revenue Office, it is noted that the State Revenue Office assessment has been fully paid and there is “no further debt…owed to the State Revenue Office”.
I further note that your email states that there would be no further debt owing “in the event that LH Co withdraws the objection to the Assessment lodged on its behalf”.
That point was clarified with you in our telephone discussions during which you confirmed that there is no debt or further debt owing to the State Revenue Office in respect of the assessment.
In those circumstances my client will not proceed with its objection to the notice of assessment.
[96]First Stanely Statement exhibit EMS‑3, 26–27.
[97]First Stanely Statement exhibit EMS‑3, 29.
[98]First Stanely Statement exhibit EMS‑3, 30.
[99]First Stanely Statement, [12].

On 20 July 2023, this proceeding was commenced by the Liquidators.
On 27 October 2023, the Commissioner issued its Notice of Determination on Objection to Notice of Assessment 20415578.[100] The letter from the Commissioner to the solicitors for the Plaintiff dated 27 October 2023 states:[101]
[T]he Objection has been fully allowed. As a result of this determination, the liability under the Assessment has been reduced from $4,488,463.52 to $3,454,116.59. As the Assessment has been fully paid, any overpaid amounts, together with market interest, will be processed and refunded to the Company in due course.
[100]First Lindholm Statement, [54]; exhibit JRL‑1, 447.
[101]First Lindholm Statement, [54]; exhibit JRL‑1, 447.
On 27 October 2023, the Liquidators issued a further update to creditors and investors (27 October 2023 Circular).[102] The 27 October 2023 Circular provides, amongst other things, an update on the return to investors in the liquidation and estimates that minority shareholders will receive a return between approximately $482,892 (low estimate) and $517,551 (high estimate) per million shares, in the post‑litigation scenario. The high estimate includes the sum of $2,248,695 for ‘stamp duty recovery’.[103]
[102]Mileo Statement exhibit MM‑1, 1050–1081.
[103]Mileo Statement exhibit MM‑1, 1055.
On 13 November 2023, the Commissioner issued Notice of Re‑Assessment no. 20415578 to Aviation 3030 Pty Ltd (under external administration) pursuant to s 9 of the Tax Administration Act.[104] The Notice of Re‑Assessment re‑assesses the total duty liability relating to the ‘relevant acquisition’ of the aggregated 63.5983% interest in the amount of $3,454,116.59 (comprising $2,630,426 in duty; $657,606.50 in penalty tax; and $166,084.09 in interest).[105] The Notice of Re‑Assessment was ultimately issued to the Plaintiff.[106]
[104]First Lindholm Statement, [55], exhibit JRL‑1, 448.
[105]First Lindholm Statement, [55], exhibit JRL‑1, 448.
[106]First Lindholm Statement, [55], exhibit JRL‑1, 448.
On 2 and 22 November 2023, the Commissioner refunded, to an account nominated by the Liquidators, the difference between the Re‑Assessment Notice and the Duty Assessment, being:[107]
(a)the difference between the duty re‑assessment and the initial duty assessment in the amount of $1,043,274.77; and
(b)interest on $1,043,274.77 in the amount of $24,654.72.
[107]Further Amended Statement of Claim, [13A]–[13C]; First Lindholm Statement, [56].

Plaintiff’s claims

The Plaintiff’s primary claim is that pursuant to s 85(2) of the Act, it is entitled to recover—as a debt from the Defendant—one half of the duty paid under the Notice of Re‑Assessment, or some lesser amount, plus interest and costs.[108] The primary amount claimed by the Plaintiff is $1,727,058.30 (one half of the of the duty liability pursuant to the Notice of Re‑Assessment); further or alternatively, $1,151,372.20 (one third of the duty liability pursuant to the Notice of Re‑Assessment); further or alternatively, $863,529.14 (one quarter of the duty liability pursuant to the Notice of Re‑Assessment) (Primary Amount).[109] The Plaintiff claims that the Defendant had a common obligation to pay the duty liability—and associated Proof of Debt—arising pursuant to s 85 of the Duties Act.[110] In the alternative, it claims in equity based on the parties’ coordinate liability to make good the loss arising from the duty liability, or on the basis the Notice of Assessment and/or the Notice of Re‑Assessment was issued to both parties who shared a common interest and burden in respect of the liability.[111] On these bases, the alternative amount claimed by the Plaintiff is $1,151,372.20 (one third of the Notice of Re‑Assessment); further or alternatively, $863,529.14 (one quarter of the Notice of Re‑Assessment) (Alternative Amount).[112]
[108]Further Amended Statement of Claim; Plaintiff’s Opening Submissions, [3].
[109]Further Amended Statement of Claim, [15]–[16].
[110]Further Amended Statement of Claim, [17].
[111]Further Amended Statement of Claim, [17].
[112]Further Amended Statement of Claim, [18].
The Plaintiff makes a secondary claim pursuant to the common law doctrine of contribution, in which it says it is entitled to recover part of the duty liability from the Defendant.[113]
[113]Further Amended Statement of Claim, [17]; Plaintiff’s Opening Submissions, [38].

Defendant’s position

The Defendant contends the Plaintiff’s claims should fail for the following reasons:
(a)The claims are Anshun estopped, in circumstances where the Plaintiff could have reasonably claimed a portion of the duty liability from the Defendant in the 2020 Proceeding.[114]
(b)The Plaintiff should have sought to recover the debt prior to payment, as the Defendant interprets s 85(2) allows a ‘claimant’ to make a ‘claim’ where duty is chargeable before payment is made.[115]
(c)The claim is statute‑barred pursuant to s 5(1)(d) of the Limitation of Actions Act 1958.[116]
(d)The settlement between Taing and the Plaintiff evinces an intention not to recover a portion of the duty liability from the Defendant and, specifically, an election to recover from Taing only.[117]
(e)Further, the Plaintiff became contractually bound to pay the duty liability in accordance with its obligations arising out of the Taing Settlement, and payment was made in satisfaction of the terms of the Settlement Deed.[118]
(f)Any joint and several liability or coordinate liability to pay the duty ceased when the Plaintiff entered into the Taing Settlement and at the time the payment was made.[119]
(g)The Liquidators’ updates/circulars to creditors and investors evince an intention not to recover a portion of the duty liability paid by the Plaintiff.[120]
(h)The Plaintiff’s alternative claim should fail as s 85(2) confers a right of recovery between taxpayers, in replacement of the right to contribution.[121] The Defendant says the intention of s 85(2) is to introduce rights of contribution into the statutory regime.[122] With respect to the Plaintiff’s claim for contribution, the Defendant says the doctrine of laches is enlivened.[123]
(i)Despite the above, the Defendant does not accept that duty was chargeable following the Share Transfer.[124]
[114]Defendant’s Opening Submissions, [36]; Amended Defence, [20A], [21]–[22].
[115]Defendant’s Opening Submissions, [31].
[116]Defendant’s Opening Submissions, [70]; Amended Defence [15A]–[15B].
[117]Amended Defence, [20B].
[118]Amended Defence, [12JB], [13(ba)], [13AA].
[119]Amended Defence, [14C].
[120]Defendant’s Opening Submissions, [5]; T152.25–31.
[121]Defendant’s Opening Submissions, [67].
[122]Defendant’s Opening Submissions, [34].
[123]Amended Defence, [23].
[124]Defendant’s Opening Submissions, [58]; T172.11–13.

Witnesses

For the Plaintiff, Mr Lindholm, Liquidator for the Plaintiff, gave oral evidence and Ms Elizabeth Stanley, solicitor, gave evidence by witness statement. Mr Lindholm was cross‑examined extensively on the conduct of the litigation and the timing for recovery of the duty liability.
For the Defendant, Mr Mark Mileo, solicitor, gave evidence by witness statement.
Mr Lindholm was the only witness cross‑examined. The witness statements for Ms Stanley and Mr Mileo were admitted without need for examination.

Statutory framework

The Plaintiff’s primary claim arises from s 85(2) of the Act. The key provisions of the Act are relevantly set out below.
Section 77 of the Act sets out that ‘a liability for duty charged by [Part 2] arises when a relevant acquisition is made.’[125] A ‘relevant acquisition’ is helpfully defined, in s 78,[126] as follows:
[125]Duties Act 2000, s 77.
[126]Duties Act 2000, s 78.
What is a relevant acquisition?
(1)For the purposes of this Part, a person makes a relevant acquisition if—
(a)the person acquires an interest in a landholder—
(i)that is of itself a significant interest in the landholder; or
(ii)that amounts to a significant interest in the landholder when aggregated with other interests in the landholder acquired by all or any of the following—
(A)the person; or
(B)an associated person; or
(C)any other person in an associated transaction …
A ‘landholder’ includes a ‘private company’ which ‘has land holdings in Victoria with a total unencumbered value of $1,000,000 or more’ as defined in s 71(1)(b) of the Act. It is common ground that the Plaintiff is a ‘landholder’ for the purposes of s 71 of the Act.
Section 3(1) of the Act defines an ‘associated transaction’ in the following way:
“associated transaction”, in relation to the acquisition of an interest in a landholder by a person, means an acquisition of an interest in the landholder by another person in circumstances in which—
(a)those persons are acting in concert; or
(b)the acquisitions form, evidence, give effect to or arise from substantially one arrangement, one transaction or one series of transactions …
Section 80 of the Act makes provision for how an interest may be acquired and relevantly provides:
(1)A person acquires an interest in a landholder if the person obtains an interest beneficially, including if the person’s interest increases, in the landholder, regardless of how it is obtained or increased.
(2)Without limiting subsection (1), a person may acquire an interest in a landholder in the following ways—
(a)       the purchase, gift, allotment or issue of a unit or share;
(b)       the cancellation, redemption or surrender of a unit or share;
(c)the abrogation or alteration of a right pertaining to a unit or share;
(d)      the payment of an amount owing for a unit or share.
A ‘significant interest’ is defined, in s 79(2)(b) of the Act, to include an interest of a person in a landholder that is a private company that would entitle the person to 50% or more of the property of the landholder, should all the property of the landholder be instantly distributed.
Section 85 of the Act relevantly sets out who is liable to pay the duty and states:
Who is liable to pay the duty?
(1)The following are jointly and severally liable to pay duty chargeable under this Part—
(a)the person who makes the relevant acquisition; and
(b)the landholder or, if the landholder is a unit trust scheme, the trustee of the landholder; and
(c)if the relevant acquisition results from an aggregation of the interests of the person referred to in paragraph (a) and other persons—each of those other persons.
(2)A person, other than a person referred to in subsection (1)(c), may recover as a debt from the person who made the relevant acquisition or a person referred to in subsection (1)(c) the amount of any duty chargeable under this Part and any penalty paid by the first person in respect of that duty.
Section 85(1) of the Act operates to determine liability for payment of duty and sets out that liability is joint and several amongst the person who makes the relevant acquisition, the landholder and any person whose interests were aggregated in arriving at the relevant acquisition.[127] Relevantly, s 85(2) operates to allow recovery of any duty and any penalty from the acquirer.[128] Section 85(2) is a one‑sided mechanism allowing only for recovery of the stamp duty that has been paid by the landholder and never from the landholder.
[127]Explanatory Memorandum, Duties Amendment (Landholder) Bill 2012, 17.
[128]Explanatory Memorandum, Duties Amendment (Landholder) Bill 2012, 17.
The broad purpose of Part 2 of Chapter 3 of the Act is to levy stamp duty with respect to certain transactions where a person acquires an interest in an entity that owns land (the landholder), which is considered an indirect way to ‘acquire’ land.[129]
[129]Explanatory Memorandum, Duties Bill 2000, 28–29.
The Explanatory Memorandum to the Duties Bill 2000 relevantly sets out that Chapter 3 includes provisions which intend to prevent the avoidance of duty charged, known as ‘anti‑avoidance’ provisions.[130] Part 2 achieves its purpose by enabling the Commissioner to seek payment of a duty liability by both the landholder and the acquirer(s), notwithstanding the acquirer (as opposed to the landholder) actually obtains the economic benefit of the acquisition.[131]
[130]Explanatory Memorandum, Duties Bill 2000, 28; Explanatory Memorandum, Duties Amendment (Landholder) Bill 2012, 15.
[131]Explanatory Memorandum, Duties Amendment (Landholder) Bill 2012, 15–16; Duties Act 2000, s 81.
The Victorian Court of Appeal, in Oliver Hume Property Funds (Broad Gully Rd) Diamond Creek Pty Ltd v Commissioner of State Revenue,[132] confirmed the effect of s 85 of the Act is:
Under s 85(1) the person who makes the relevant acquisition, the landholder, and each person whose interest is aggregated, are jointly and severally liable to pay the duty. The landholder is also entitled to recover the duty from the acquirors under s 85(2).

Anshun estoppel

[132][2024] VSCA 175, [26].

The Defendant asserts that the Plaintiff is estopped and precluded from making the claims in this proceeding in accordance with the Anshun estoppel principles.[133] The Defendant says the Plaintiff ought to have raised this claim in the 2020 Proceeding.[134] The Defendant says by not seeking to recover the duty liability in the 2020 Proceeding, the Plaintiff elected not to recover any amount in this respect from the Defendant.[135] It is for this reason the Defendant says the Plaintiff is estopped and precluded from making the claims in this proceeding.[136] The Defendant says this should be raised at the outset, as Anshun estoppel operates as a defence to the whole proceeding without the need to consider the merits of the claims or other defences.[137]
[133]Amended Defence, [22].
[134]Defendant’s Opening Submissions, [19].
[135]Amended Defence, [20A].
[136]Amended Defence, [20B].
[137]Defendant’s Opening Submissions, [16].

Principles of Anshun estoppel

The principles of Anshun estoppel were enunciated by the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd.[138] The doctrine of Anshun estoppel is authority for the proposition that a party may be estopped from bringing a proceeding if it involves a cause of action that is so relevant to the issues raised in earlier litigation that it was unreasonable not to rely on that cause of action in the earlier proceeding.[139] The High Court, in Anshun,[140] observed that:
In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.
[138][1981] HCA 45; 147 CLR 589.
[139]Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589, 602.
[140][1981] HCA 45; 147 CLR 589, 602–603.
The policy rationale for Anshun estoppel is said to be derived from the principles expressed in Henderson v Henderson:[141]
[W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.
[141](1843) 67 ER 313, 319.
It is not enough to establish that the new matter could have been raised in the earlier proceeding, rather it must be established that it should have been raised,[142] in the sense that it was unreasonable, in all the circumstances, that the party now seeking to raise the matter did not do so.[143]
[142]Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245, 247 [4] (Allsop P).
[143]Clayton v Bant (2020) 95 ALJR 34, 42 [30]–[31] (Kiefel CJ, Bell and Gageler JJ).
In Gibbs v Kinna,[144] the Court of Appeal expressed caution for which the principle of Anshun estoppel should be applied and observed:
[T]he question is not whether it would have been reasonable to have taken a different course but whether it was unreasonable to pursue the course that the respondent in fact took, by not then relying on the causes of action now the subject of proceedings …
[144][1999] 2 VR 19, [2].
In Clayton v Bant,[145] the Court noted:
In the manner in which the application for the permanent stay appears to have been conducted, the husband did not deign to prove the unreasonableness of the choice made by the wife. His case for the existence of Anshun estoppel seems to have been put on the basis that the fact that the wife could have asserted a right in the Dubai proceedings meant that she should have asserted that right in the Dubai proceedings in the sense that it was unreasonable for her not to have done so. That approach to Anshun estoppel has rightly been said to involve “fundamental error”. As was pointed out in Port of Melbourne Authority v Anshun Pty Ltd, “there are a variety of circumstances … why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few”.
[145](2020) 272 CLR 1, [31].
In Solak v Registrar of Titles, Warren CJ said:[146]
[A] finding of Anshun estoppel should not be made lightly. “The invocation of the Anshun principle is a serious step and a power which should not be exercised without a scrupulous examination of all the circumstances. It is to be applied only in the clearest of cases as it ends a litigant’s right to have the merits of a claim adjudicated and may result in a serious injustice if applied too readily.”
[146](2011) 33 VR 40, [73].
Warren CJ also remarked that ‘risk of inconsistent judgments is the most important factor going to the existence of Anshun estoppel.’[147]
[147]Solak v Registrar of Titles (2011) 33 VR 40, [74].
In Stokes v Toyne,[148] Adamson JA states that ‘all relevant circumstances, whether objective or subjective, may be relevant to a plea of Anshun estoppel or a submission that proceedings constitute an abuse of process.’
[148][2023] NSWCA 59, [69].

Defendant’s submissions

The Defendant submits at the outset that the 2020 Proceeding ‘focused’ on the issue of the shares to the Defendant and Taing in 2016 and that it led to the duty liability.[149] The Defendant says the Plaintiff mischaracterises the 2020 Proceeding and says the various causes of action ranged from breaches of directors’ duties, breach of fiduciary duties, accessorial liability claims under Barnes v Addy, and claims for declarations of constructive trust.[150]
[149]Defendant’s Opening Submissions, [2].
[150]Defendant’s Opening Submissions, [3].

The Plaintiff says the text of s 85 is unambiguous and there is little need to go beyond the text for interpretation.[225] The Plaintiff says s 85 promotes the purpose of Part 2 of Chapter 3 of the Act, which is to prevent the avoidance of duty charged and the relevant provisions are known as the ‘anti‑avoidance’ provisions.[226] The Plaintiff says this is done by enabling the Commissioner to seek payment of duty from both the landholder and the acquirer(s).[227] The Plaintiff says, and I accept, that this promotes the efficient collection of duty by the Commissioner, allowing the Commissioner to claim from a wider class of persons.[228]
[225]Plaintiff’s Opening Submissions, [31].
[226]Plaintiff’s Opening Submissions, [32]; T23.11–15; T184.8–12.
[227]Plaintiff’s Opening Submissions, [32]; T23.26–31.
[228]Plaintiff’s Opening Submissions, [32].
The Plaintiff submits that s 85(2) acts as a counterbalancing provision, by recognising that the acquirer—being the person who has actually received the economic benefit of the acquisition and the economic interest in the land—should bear the economic burden of the stamp duty liability.[229] In this regard, the Plaintiff submits that s 85(2) operates as a one‑sided mechanism to allow only for recovery of duty that has been paid by the landholder and never from the landholder.[230] I accept those submissions.
[229]Plaintiff’s Opening Submissions, [33].
[230]Plaintiff’s Opening Submissions, [33].
The Plaintiff submits that payment of the duty liability was in satisfaction of the Notice of Assessment/Notice of Re‑Assessment, and asserts it was not contractually bound to pay the duty as a result of the Taing Settlement.[231] The Plaintiff submits that the effect of clause 4 of the Settlement Deed was simply to create an obligation for the timeframe for payment of the duty liability.[232]
[231]Plaintiff’s Opening Submissions, [47].
[232]Plaintiff’s Opening Submissions, [49].
The plaintiff submits that as part of the Settlement Agreement, it preserved any claim the Plaintiff might have against the Defendant relating to the duty liability.[233] Put simply, the Plaintiff expressly agreed to only pursue the Defendant for recovery of part of the duty liability arising from and attributable to the shares which the Defendant received, and not the shares that Taing received.[234]
[233]Plaintiff’s Opening Submissions, [14].
[234]Plaintiff’s Opening Submissions, [14].
The Plaintiff further submits that this construction of s 85(2) is consistent with the legislation in New South Wales, the Duties Act 1997 (NSW).[235] Section 154 of that Act states:
[235]T24.7–11.
154Who is liable to pay the duty?
(1)The following persons are jointly and severally liable to pay duty chargeable under this Part—
(a)the person who makes the relevant acquisition,
(b)the landholder or, if the landholder is a unit trust scheme, the trustee of the landholder,
(c)if the relevant acquisition results from an aggregation of the interests of the person referred to in paragraph (a) and other persons—each of those other persons.
(2)A person who pays an amount of duty chargeable under this Part is entitled to recover as a debt the amount paid (together with any penalty or interest paid by the person in respect of that duty) from another person who is jointly and severally liable to pay the duty, as follows—
(a)the landholder or trustee of the landholder is entitled to recover from a person referred to in subsection (1)(a) or (c),
(b)the person who makes the relevant acquisition is entitled to recover from the other persons referred to in subsection (1)(c) (but not from the landholder or trustee of the landholder) with recovery from each of those other persons limited to an amount that is proportionate to the interest of the other person,
(c)a person referred to in subsection (1)(c) is not entitled to recover.

Defendant’s submissions

At the outset, the Defendant denies duty was chargeable upon the Share Transfer and denies it had any liability to pay the duty pursuant to s 85(1) of the Act.[236] The Defendant says it lodged an objection on 8 November 2019 in support of this proposition.[237] The Plaintiff says the existence of the objection did not, at law, alter the Defendant’s liability for the duty, nor did it affect its liability to the Plaintiff pursuant to s 85(2) of the Act.[238] The Plaintiff says that the proper course of action, which it took, was that once the objection was determined and a partial refund received, the Plaintiff amended its claim accordingly.[239] The Plaintiff further submits that, pursuant to ss 17, 104 and 127 of the Tax Administration Act, the making of the assessment is conclusive evidence that the transaction was an associated transaction and duty was chargeable.[240]
[236]Amended Defence, [14A]; Defendant’s Opening Submissions, [58]; Plaintiff’s Opening Submissions, [44]; T172.11–13.
[237]Defendant’s Opening Submissions, [58].
[238]Plaintiff’s Opening Submissions, [46].
[239]Plaintiff’s Opening Submissions, [46].
[240]T20.3–13; 21.11–24; T191.13–31; T192.1–11.
In circumstances where the Notice of Assessment was issued to both the Plaintiff and the Defendant, and where the Commissioner has determined the objection, I do not accept the Defendant’s submission that duty was not chargeable.
The Defendant makes the following submissions with respect to the construction of the relevant provisions and, specifically, s 85 of the Act. It says the cause of action pursuant to s 85(2) of the Act does not only arise once the duty is paid, but is available before the duty is paid.[241] The Defendant says there is a distinction between duty chargeable and duty paid.[242] The Defendant submits that s 85(1) explicitly refers to ‘duty chargeable’ and therefore not yet paid,[243] and it follows that that those words should be adopted in deciphering the amount recoverable pursuant to s 85(2).[244] The Defendant says the word ‘recover’ should be construed in a legal sense and, referring to Stroud’s Judicial Dictionary, ‘the word recover has a technical meaning in law whereby it signifies to recovery by action and by judgment of the court.’[245] The Defendant also submits that the correct definition according to the Macquarie Dictionary is the fourth definition under ‘law’ which states ‘to obtain by judgment in a court of law or by a legal proceeding to recover damages for a wrong.’[246] The Defendant says the provision operates to enable a landholder, who may be unable to raise funds to pay the duty, to recover funds to enable payment.[247]
[241]Defendant’s Opening Submissions, [23], [31]; T161.18–21.
[242]Defendant’s Opening Submissions, [24], [28].
[243]Defendant’s Opening Submissions, [25].
[244]Defendant’s Opening Submissions, [27]; T158.25–31; T159.24–26, 28–31.
[245]T155.21–28.
[246]T156.11–13.
[247]Defendant’s Opening Submissions, [31], [32]; T161.26–30.
The Defendant further submits that the similarities with the New South Wales legislation to which reference is made are only superficial. Moreover, it submits that the use of the word ‘pays’ in the first line of s 154(2) of the New South Wales legislation supports its proposition that s 85(2) of the Victorian legislation does not require payment of the duty as a precondition to recovery. These provisions are, however, different and these provisions must be construed according to their language and legislative context, as indicated.
The Plaintiff says the Defendant misconstrues the intention of s 85(2),[248] and submits that the meaning of ‘paid’ modifies both ‘the amount of any duty chargeable under this Part’ and ‘any penalty’.[249] The Plaintiff submits that this means what can be ‘recovered’ is any duty chargeable that is actually paid, and any penalty actually paid.[250] The Plaintiff contends that this is the ordinary and grammatical reading of the words of s 85 which should be applied.[251] The Plaintiff says the phrase ‘duty chargeable’ requires the landholder to only recover the actual liability for stamp duty and no more.[252] The Plaintiff submits there is a distinction between ‘duty chargeable paid’ and ‘duty paid’, and says the difference between the two exists in light of the statutory policy of s 85, as an anti‑avoidance provision, by making the right of recovery contingent on the landholder having fully discharged the liability to the Commissioner.[253] The Plaintiff also highlights that s 85(2) specifically refers to the words ‘recover’ and ‘as a debt’ and submits this infers that the duty must be paid, because without doing so, ‘recovery’ cannot occur.[254]
[248]Plaintiff’s Opening Submissions in Reply, [2]–[3].
[249]Plaintiff’s Opening Submissions in Reply, [2]–[3].
[250]Plaintiff’s Opening Submissions in Reply, [3].
[251]Plaintiff’s Opening Submissions in Reply, [3].
[252]Plaintiff’s Opening Submissions in Reply, [4].
[253]Plaintiff’s Opening Submissions in Reply, [5].
[254]Plaintiff’s Opening Submissions in Reply, [7].
I reject the Defendant’s construction of the relevant provisions and accept the Plaintiff’s construction that in order to recover the amount as a debt, the duty liability must be paid. Moreover, the requirement of payment of the duty before any right of recovery arises under s 85(2) is consistent with the placement of these provisions with the anti‑avoidance provisions in this legislation; promoting, as it does, prompt payment of duty and avoiding delay as a result of demands and proceedings against multiple parties before all duty is paid.
This leads me to address the Defendant’s contention that the Plaintiff’s claims are statute barred by the Limitation of Actions Act.

Limitation period

Section 5(1)(d) of the Limitation of Actions Act

Section 5(1)(d) of the Limitation of Actions Act states:
(1)The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued—
…
(d)Actions to recover any sum recoverable by virtue of enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
The Defendant submits that s 5(1)(d) of the Limitation of Actions Act precludes the Plaintiff’s action.[255] This submission is made in conjunction with the Defendant’s contention that the Plaintiff ought to have sought to recover the debt at the time duty was chargeable.[256] For the reasons set out previously, this submission is rejected.
[255]Defendant’s Opening Submissions, [60].
[256]T153.14.16.
The Plaintiff says the cause of action is not statute barred pursuant to s 5(1)(d) of the Limitation of Actions Act because the limitation period runs from ‘the date on which the cause of action accrued’.[257] The Plaintiff submits the cause of action only accrues once ‘every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court’ has occurred.[258]
[257]Plaintiff’s Opening Submissions, [56].
[258]Plaintiff’s Opening Submissions, [56]; Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159, [70].
The Plaintiff says it is a material fact of the claim, made pursuant to s 85(2) of the Act, that the Plaintiff paid the Commissioner ‘any duty chargeable under this Part and any penalty’.[259] The Plaintiff says there are at least three reasons to support this position. First, s 85(2) only operates when the relevant duty has been paid and a penalty is apparent.[260] Therefore, there can be no recovery of an amount owing ‘as a debt’ before payment is made.[261] The Plaintiff says the word ‘paid’ attaches to the duty chargeable and the penalty.[262] The Plaintiff highlights that the Macquarie Dictionary (7th ed) meaning of ‘recover’ is ‘to get again, or regain (something lost or taken away).’[263] Thus, it is not possible for the Plaintiff to ‘get again’ an amount from the Defendant that the Plaintiff never lost.[264] The Plaintiff submits this definition ought be applied, as it has been adopted in this Court and by the Court of Appeal.[265] Accordingly, the Plaintiff submits the time at which the claim arises is the date of payment, as before then it could not seek to ‘recover’ the amount in the manner prescribed by s 85(2).[266] Second, the Plaintiff says this interpretation gives effect to matters of context and promotes the purpose of the relevant provision.[267] Third, the provision only operates when the relevant duty and penalty have been paid, which is necessary to avoid an ‘absurd result’.[268] The Plaintiff says this is a matter of statutory construction.[269] The Plaintiff says, for example, if a claim under s 85(2) could be made before payment of the relevant duty, an acquirer could seek ‘recovery’ from another acquirer without having paid the duty at all first.[270] Resultingly, both acquirers would then be incentivised to lodge a claim first and ‘race to the court’.[271] Even then, after one acquirer has paid the other pursuant to s 85(2), the joint and several liability would remain, including upon the person who had already paid the ‘debt’ to the other acquirer.[272] If this were so, the Plaintiff says there are two consequences that would follow. The amount to recover would be uncertain, as the amount of penalty interest could not have been determined.[273] In addition, if an acquirer collected the debt from another acquirer, and absconded or became impecunious before paying the Commissioner, the other acquirer would effectively need to pay the debt twice.[274] The Plaintiff says this demonstrates the ‘inapt’ nature of this construction.[275]
[259]Plaintiff’s Opening Submissions, [57]; T184.21–29.
[260]Plaintiff’s Opening Submissions, [58]; T15.3–8, 24–27.
[261]Plaintiff’s Opening Submissions, [58].
[262]T28.15–17, 21–30; T187.11–16.
[263]Plaintiff’s Opening Submissions, [58].
[264]Plaintiff’s Opening Submissions, [58]; T26.11–29; Ansett Australia Ltd v Travel Software Solutions Pty Ltd [2007] VSC 326 [89]–[90].
[265]T185.18–19; T186.8–14; Ansett v Travel Software Solutions [2007] 214 FLR 203, [89]–[90].
[266]Plaintiff’s Opening Submissions, [58]; T25.18–31.
[267]Plaintiff’s Opening Submissions, [59].
[268]Plaintiff’s Opening Submissions, [60]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, [45]; T27.1–17.
[269]Plaintiff’s Opening Submissions, [60].
[270]Plaintiff’s Opening Submissions, [60].
[271]Plaintiff’s Opening Submissions, [60].
[272]Plaintiff’s Opening Submissions, [60].
[273]Plaintiff’s Opening Submissions, [61].
[274]Plaintiff’s Opening Submissions, [61].
[275]Plaintiff’s Opening Submissions, [60]; T190.5–22.
I accept the Plaintiff’s submissions and for the reasons stated above, I find that the cause of action pursuant to s 85(2) of the Act accrued when the Plaintiff paid the duty liability, thus enabling it to recover as a debt the relevant portion of the duty liability. On the basis that the cause of action accrued on 21 October 2024 (the date of payment), the proceeding, which commenced on 20 July 2023, is brought in time pursuant to s 5(1)(d) of the Limitations of Actions Act.

Did the Plaintiff elect not to seek recovery of the duty liability?

Settlement with Taing

The Defendant contends that the terms of settlement between the Plaintiff and Taing support the proposition that the Plaintiff ‘decided’ not to seek recovery of the duty liability as a debt from either Taing or the Defendant.[276] The Defendant says that clause 4 of the Settlement Deed indicates that the Plaintiff’s intention at the time of entering the Settlement Agreement was not to seek recovery of part of the duty liability which limits the amount that may be recovered from the Defendant.[277]
[276]Defendant’s Opening Submissions, [9].
[277]Defendant’s Opening Submissions, [9].
The Defendant submits that entering into the Settlement Agreement with Taing indicates an election not to recover an amount from either Taing or the Defendant.[278] The Defendant says this election arises in clause 4(e) of the Settlement Deed.[279] The Plaintiff says it is inferred that clause 4 of the Settlement Deed was included only to resolve issues relating to the duty liability with Taing and to holistically resolve the Plaintiff’s claims with Taing.[280]
[278]Defendant’s Opening Submissions, [9], [71].
[279]Defendant’s Opening Submissions, [71].
[280]Plaintiff’s Opening Submissions, [49].
The Defendant says by waiving its right to recover an amount of the duty liability from Taing, it has caused detriment to the Defendant, who would have received the benefit of one‑third of any amount paid by Taing in reduction of the duty liability.[281]
[281]Defendant’s Opening Submissions, [73].
The Defendant also contends that payment of the Notice of Assessment was in satisfaction of the terms of the Settlement Agreement and the Plaintiff was therefore contractually bound to make the payment.[282] As a result, the Defendant says joint and several liability ceased at this time.[283] The Plaintiff says payment did not cease the operation of the joint and several liability imposed under s 85(1) of the Act, or a coordinate liability.[284]
[282]Amended Defence, [12JB], [13(ba)], [14C].
[283]Amended Defence, [14C].
[284]Plaintiff’s Opening Submissions, [51].
The Plaintiff says there are three reasons why this defence should be rejected.[285] First, it says the settlement with Taing could not have affected the Plaintiff’s statutory cause of action under s 85(2), as s 85(2) is not dependant on joint and several liability.[286] Second, regarding the alternative contribution claim, the contractual liability arising from the settlement did not alter the operation of the statutory liability of each of the Defendant, Taing and the Plaintiff under s 85(1).[287] Third, the Plaintiff says the High Court, in Lavin v Toppi, expressly disapproved of the argument that coordinate liabilities are a separate and distinct element of the right to contribution.[288] The High Court stated contribution remains focused on ensuring ‘that the burden of a common liability is borne equally’.[289] The Plaintiff contends that even if the liability between the Plaintiff and the Defendant ceased to be a coordinate liability pursuant to s 85(1), it is clearly a ‘common burden’, to be shared between the three relevant parties, and the disproportionate discharge of which gives rise to the Plaintiff’s rights against the Defendant for contribution.[290]
[285]Plaintiff’s Opening Submissions, [51].
[286]Plaintiff’s Opening Submissions, [52].
[287]Plaintiff’s Opening Submissions, [53].
[288]Plaintiff’s Opening Submissions, [54]; (2015) 254 CLR 459, [41].
[289]Plaintiff’s Opening Submissions, [54]; Lavin v Toppi (2015) 254 CLR 459, [41].
[290]Plaintiff’s Opening Submissions, [54].
The Plaintiff submits its payment was not as a result of any contractual obligation pursuant to the settlement with Taing, but rather in accordance with the Plaintiff’s obligations under s 85(1) of the Act.[291] The Plaintiff says the Settlement Agreement merely created the obligation to make payment within a particular time (14 days after obtaining court approval of the settlement).[292]
[291]Plaintiff’s Opening Submissions, [48].
[292]Plaintiff’s Opening Submissions, [49].
I do not accept the Defendant’s submission that by entering into the Taing Settlement the Plaintiff elected not to recover a portion of the duty from the Defendant. I accept the Plaintiff’s submission that its right to recover part of the duty pursuant to s 85(2) remained available.

Conduct of the liquidation

The Defendant says it is apparent from circulars to creditors and investors that the Liquidators elected to treat the amount for duty as an expense without recourse to the Defendant.[293] The Defendant says that in the 30 March 2021 Circular, a description of the claims made in the 2020 Proceeding before giving an estimate of the distributions to shareholders (in section 3), a table sets out a ‘low’ estimate of about $75 million and a ‘high’ estimate of about $80.5 million.[294] The Defendant asserts that the difference between the two estimates is the amount of duty claimed by the Commissioner.[295]
[293]Defendant’s Opening Submissions, [5].
[294]Defendant’s Opening Submissions, [6].
[295]Defendant’s Opening Submissions, [6].
The Plaintiff submits there is no basis for this assertion and says the difference is in the order of $5.3 million (as opposed to $4.5 million).[296] The Plaintiff also says there are three other creditor claims listed alongside the $4.5 million.[297]
[296]Plaintiff’s Opening Submissions in Reply, [23].
[297]Plaintiff’s Opening Submissions in Reply, [23].
Later updates, dated 24 August 2021, 23 May 2022 and 17 November 2023, noted the expected return would be in the order of $75 million without referring to the duty liability.[298] The Defendant notes that none of those further updates/circulars used a ‘high’ figure, and they did not reference that the Plaintiff had any right to recover any part of the duty.[299] This is with the exception of the final update, dated 27 October 2023, which included the possibility of recovery of part of the SRO debt.[300]
[298]Defendant’s Opening Submissions, [7].
[299]Defendant’s Opening Submissions, [7].
[300]Defendant’s Opening Submissions, [7].
The Defendant contends that at the conclusion of the trial in the 2020 Proceeding, worked examples of the anticipated return were requested by the trial judge.[301] The Defendant says the estimate provided by the Plaintiff was prepared on the basis that $75 million was the ‘assumed liquidation surplus’ and says that, if it were intended to recover part of the duty liability, the Plaintiff should have included those calculations.[302] The Defendant also sought to tender examples of calculations comparing the difference between making the claim for duty in the 2020 Proceeding against both Taing and the Defendant, and making the claim against the Defendant for one half in this proceeding.[303] In my view, this is speculative and irrelevant in light of my findings above that it was not unreasonable to claim the duty in the 2020 Proceeding.
[301]Defendant’s Opening Submissions, [8].
[302]Defendant’s Opening Submissions, [8].
[303]T178.16–21.
The Plaintiff further submits that for an election to occur a party must be confronted with two mutually exclusive causes of action between which they must make a choice.[304] The Plaintiff says this point for election was simply not reached.[305]
[304]T216.14–19.
[305]T216.20–21.
I do not accept that the conduct of the liquidation and the content of the updates/circulars to creditors and investors indicates an election not to recover part of the duty liability. Whilst I accept that there is no specific mention of recovery of the stamp duty liability in the earlier circulars to creditors, on the basis of the caveats contained within those updates—that they are estimates only and subject to change—I am of the view that no inference can be drawn from these documents with respect to an election. For the reasons set out above, I am satisfied that the Plaintiff’s primary claim succeeds.

Plaintiff’s secondary claim for contribution

Despite having met the burden of proof for its primary claim, if that claim were to fail, I will briefly discuss the Plaintiff’s secondary claim under common law/equitable contribution.
The Plaintiff submits that all the requirements for a contribution claim are ‘firmly satisfied’.[306] The Plaintiff claims, in the alternative, one third of the duty re‑assessment amount under the doctrine of contribution.[307]
[306]Plaintiff’s Opening Submissions, [3].
[307]Plaintiff’s Opening Submissions, [38].
The common law right to contribution was set out in Albion Insurance Co Ltd v Government Insurance Office (NSW) ‘as one of natural justice’ which ensures ‘that persons who are under co‑ordinate liabilities to make good the one loss (eg sureties liable to make good a failure to pay the one debt) must share the burden pro rata.’[308] In Mahoney v McManus,[309] Gibbs CJ said:
the doctrine of contribution is based on the principle of natural justice that if several persons have a common obligation they should as between themselves contribute proportionately in satisfaction of that obligation. The operation of such a principle should not be defeated by too technical an approach.
[308](1969) 121 CLR 342, 349‑350.
[309] (1981) 180 CLR 370, 378; [1981] HCA 54.
In Burke v LFOT Pty Ltd,[310] the High Court summarised the principles in common law and in equity:
Both common law and equity give a person the right to obtain contribution to a payment made by that person in discharging “a common obligation” that is owed by that person and others. In determining whether there is “a common obligation”, the traditional test is whether the liability of each party “is of the same nature and to the same extent”. Early cases suggested that the common law right arose as a result of an implied contract between the parties. But whether that be right or not – and if it is, in many cases, it must be the result of a contract imputed to the parties – the equitable principles now cover the field. Those principles are based on the equitable doctrine of equality. When a person pays more than his or her share of a common monetary obligation, the payment pro tanto discharges the obligation of all who owe the common obligation. In accordance with the maxim that equality is equity, equity requires the common burden to be shared equally so that none of those owing the common obligation will pay more than his or her share of the burden. An order of contribution prevents the injustice that would otherwise flow to the plaintiff by the defendant being enriched at the plaintiff’s expense in circumstances where they have a common obligation to meet the liability which the plaintiff has met or will have to meet.
[310][2002] HCA 17; 209 CLR 282, [38] (citations omitted).
The Plaintiff submits there is a proper basis for this claim by virtue of s 85(1) of the Act, the liability to satisfy the amount owing to the Commissioner (pursuant to the Notice of Re‑Assessment and/or the Proof of Debt) falls upon the Plaintiff, the Defendant and Taing as either ‘co‑ordinate liabilities’ or as a ‘common burden’.[311] The Plaintiff says payment made by it benefited the Defendant as it was no longer liable to pay the Commissioner.[312] The Plaintiff therefore submits it is entitled to recover from the Defendant its proportionate share of the duty re‑assessment.[313] The Plaintiff says if its primary claim fails, an order of contribution would prevent the injustice that would otherwise flow to the Plaintiff by the Defendant being enriched at the Plaintiff’s expense in circumstances where they have a common obligation to meet the liability which the Plaintiff has met.[314]
[311]Plaintiff’s Opening Submissions, [40(a)]; T30.29–30.
[312]Plaintiff’s Opening Submissions, [40(b)].
[313]Plaintiff’s Opening Submissions, [40(c)].
[314]Plaintiff’s Opening Submissions, [42]; Burke v LFOT Pty Ltd (2002) 209 CLR 282, [38].
The Defendant submits that the doctrine of contribution does not apply where the statute confers a right of recovery.[315] The Defendant says the statutory scheme replaces the common law and equitable doctrine of contribution.[316] The Defendant submits that even if there were scope for the principles of contribution, the right is analogous to the right of recovery created in s 85(2).[317] The Plaintiff says this should be rejected on the basis that the legislation should be construed consistently with equitable and common law doctrines in the absence of clear words or necessary implication otherwise.[318] The Plaintiff further submits that s 46 of the Tax Administration Act evidences an intention to preserve the existing rights of contribution.[319] The Plaintiff further submits that the claim in contribution differs in that the claim is for one‑third of as opposed to the full amount that the Plaintiff is entitled to recover under s 85(2) of the Act.[320]
[315]Defendant’s Opening Submissions, [67]; T172.22–26.
[316]Defendant’s Opening Submissions, [67]; T173.10–14.
[317]Defendant’s Opening Submissions, [70].
[318]Plaintiff’s Opening Submissions in Reply, [26]–[27]; T32.31; T35.11–15, 27–30; T37.26–31; T193.3–9.
[319]Plaintiff’s Opening Submissions in Reply, [28].
[320]Plaintiff’s Opening Submissions in Reply, [29]; T33.10–12; T193.2–3.
The Defendant further submits that the limitation in s 5(d) of the Limitation of Actions Act would apply and the doctrine of laches is enlivened.[321] For the reasons set out above, I do not accept this proposition.
[321]Defendant’s Opening Submissions, [70].
Whilst I acknowledge that s 85(2) of the Act provides a remedy akin to the doctrine of contribution, I accept the Plaintiff’s submissions that both remedies are available to it. I accept that the Defendant and Plaintiff had a common obligation to make payment. This is evidenced by the delivery of the Notice of Assessment to both the Plaintiff and the Defendant. Further, I accept the distinction drawn between the two remedies as put by the Plaintiff—that a claim in contribution is a claim for one third, whereas a claim pursuant to s 85(2) is for the full amount of duty paid.

Conclusion

For the preceding reasons, there will be an order that the Defendant pay the Plaintiff the sum of $1,727,058.30.
I reserve the question of interest and costs and will hear the parties further if necessary on these matters.

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Witness Statement of John Ross Lindholm (3 June 2024) (First Lindholm Statement) exhibit JRL‑1,

174–177.

Witness Statement of Elizabeth Mary Stanley (16 July 2024) (First Stanley Statement) exhibit EMS‑3,

8–9.

First Lindholm Statement exhibit JRL‑1 [29], 328–342, 432–435; Mileo Statement exhibit MM‑1,

1021–1023, 1046–1049, 1050–1081.

Aviation 3030 Pty Ltd (in liq) v Lao, in the matter of Aviation 3030 Pty Ltd (in liq) [2022] FCA 458,

[427]–[428], [450].

[2024] VSC 800

20 December 2024