Chief Commissioner of State Revenue v Kennards Hire Pty Ltd (Rd)

[2006] NSWADTAP 62

Appeal Panel - Internal

CITATION:	Chief Commissioner of State Revenue v Kennards Hire Pty Ltd (RD) [2006] NSWADTAP 62
PARTIES:	APPELLANT Chief Commissioner of State Revenue RESPONDENT Kennards Hire Pty Ltd
FILE NUMBER:	069033
HEARING DATES:	05/10/06
SUBMISSIONS CLOSED:	10/18/2006
DATE OF DECISION:	11/30/2006
BEFORE:	Needham J SC - Judicial Member; Molloy GB - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	046030, 056046
DATE OF DECISION UNDER APPEAL:	05/10/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Duties Act 1997
CASES CITED:	Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case) (1920) 28 CLR 129 ANI Corporation Ltd v. Commissioner of State Taxation (WA) (90 ATC 4714 Cooper Brookes (Wollongong) Pty Ltd v Cmr of Taxation (Cth) (1981) 147 CLR 297 Cyclone Scaffolding Pty Ltd v. Commissioner of Stamp Duties [1985] 2 Qd R 435 Masterwood Pty Ltd v. Far North Queensland Electricity Board [1989] 1 Qd 345 Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 185 CLR 259 Roadshow Distributors Pty Ltd v. Commissioner of State Revenue (Vic) 97 ATC 4271 Collector of Customs v. Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 State Government Insurance (Queensland) v. Crittenden (1966) 117 CLR 412 Trustees Executors & Agency Co Ltd v. Reilly ([1941] VLR 110 Unsworth v. Commissioner for Railways (1958) 101 CLR 73
REPRESENTATION:	APPELLANT IS Young, Barrister RESPONDENT M Richmond, Barrister
ORDERS:	1. The appeal is dismissed; 2. The orders of the Tribunal are affirmed.

REASONS FOR DECISION

1 The Chief Commissioner of State Revenue (“the Commissioner” or “the appellant”) appeals against two decisions of Ms Hole, Judicial Member, at first instance by which the Commissioner was ordered to refund any overpayment of hire of goods duty to be ascertained by applying a particular approach to the assessment process, and, further, to reassess the hire of goods duty payable by the respondent for the period 1 July 2000 to 28 February 2003 on the same basis. The decision also ordered the respondent, the applicant in the Tribunal below (“Kennards” or “the respondent”), to pay any additional hire of goods duty which may arise after the application of the approach referred to above.

2 Ms Hole’s decisions were reviews of decisions made on 30 March 2005 when the Chief Commissioner decided to:

a. refuse a refund of an alleged overpayment of hire of goods duty amounting to $229,214,000;

b. require payment of additional hire of goods duty amounting to $25,123.00; and

c. assess hire of goods duty for the period from 1 July 2000 to 28 February 2003 in the amount of $1,228,743.00.

3 The approach determined by Ms Hole to be applied to the assessment of hire of goods duty was that the tax base was to be taken to be the amount charged on each hire tax invoice less: -
a. a 20% “maintenance factor” in accordance with s 190(1(a) of the Duties Act (“the Act”);

b. stamp duty, if any, payable on tax invoices in accordance with s 190(d) of the Act; and

c. GST payable on the invoice in accordance with s 190(1)(e1).

4 The Commissioner seeks to appeal against the Tribunal decision on questions of law (s 114, Administrative Decisions Tribunal Act 1997 (“ADT Act”). He does not seek leave to extend the appeal to the merits (s 115 ADT Act).

5 Up until the day of the hearing of the appeal, the question of whether a reassessment should take place in relation hire of goods duty on the GST question was a live issue. During the hearing, it was conceded that the Commissioner did not seek to raise this issue further.

Facts

6 The facts in this matter are generally not in dispute.

7 Kennards is a company that operates a significant hire of goods business. There are branches throughout mainland Australia. Kennards’ terms of trade are set out on their tax invoice which is set out in full in paragraph [2] of the decision below. For the purposes of this appeal, the relevant portions are: -

(on the front of the tax invoice, at the bottom of the page in the right hand column)

“HIRE CHARGE INCLUDES STAMP DUTY APPLICABLE UNDER CORRESPONDING STATE ACT

HIRE CHARGE INCLUDES A MAINTENANCE FACTOR OF 20%”

(on the back of the tax invoice, under the heading “Hire Agreement Conditions, first column)

“1. …

NOTE TO CUSTOMER: You are responsible for the Equipment until it is back in the possession of Kennards, even after obtaining a Customer Pick Up Number.

2. Kennards Obligations.

Kennards will: -

….

2.2 provide the Equipment to the Customer clean and in good working order:

2.4 subject to clause 3.2 be responsible for repairing any damage to the Equipment (that is not a Motor Vehicle) caused by the ordinary use of the Equipment by the Customer;

3. Payment by the customer to Kennards

…

3.2 Immediately on request by Kennards the Customer will pay:-

…

b. all costs incurred in cleaning the equipment;

c. all costs of repairing any damage caused by the ordinary use of the Equipment (that is not a Motor Vehicle) up to an amount equal to 10% of the new list price of the Equipment;

d. the cost of repairing any damage to the Equipment caused by the negligence of the Customer or the Customer’s agent;

e. the cost of repairing any damage to the to the Equipment caused by vandalism, or (in Kennards’ reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Customer

…
g. stamp duties, Goods and Services Tax, any other taxes of duties and all tolls, fines, penalties, levies or charges payable in respect of this Agreement and the hiring.
(on the back of the tax invoice, under the heading “Hire Agreement Conditions, second column)

4. Return of Equipment by the Customer to Kennards

The Customer will:

4.1 deliver the Equipment to Kennards when it is due back;

4.2 return the Equipment to Kennards clean and in good repair.

5. Other Obligations of the Customer

…

The Customer will NOT:

5.8 tamper with, damage or repair the Equipment.”
8 Kennards’ operating procedures, which were the subject of evidence before the Tribunal below, incorporate calculation of the “maintenance factor” referred to on the tax invoice as being included in the hire charge. It appears from the evidence that that maintenance factor was based upon advice from a consultant and comparison of figures from previous years (see par [12] of the decision of the Tribunal below). The 20% of hire charge factor was, on one view of it, less than the actual maintenance costs of maintenance of the equipment.

The Appeal

9 The Commissioner seeks to appeal from Ms Hole’s decision on the basis of whether, properly construed, her conclusion that “s 190(1)(a) of the Duties Act 1997 permitted [Kennards] to designate some part of the consideration received from its customers as “a maintenance factor of 20%” and “stamp duty applicable” so as to reduce the tax base upon which duty on the hire of goods is levied” (see Appellant’s outline of submissions, par [1]).

10 The Respondent filed a Notice of Reply to Appeal on 28 June 2006.

The Legislation

11 Chapter 6, Sections 180 to 193, of the Act creates and charges duty, under the heading of ‘Hire of Goods’.

12 The central charging provision is contained in section 180 of the Act, which provision states “This chapter charges duty on the hire of goods” and “the rate of duty is applied to the amount of the hiring charges.”

13 Hiring charges are defined by section 189(1) of the 1997 Act as follows:

“Hiring charges are payments made to the person who hires out the goods or on behalf of the hirer, for (or that arise as an incident of) the hire of the goods.”
14 Section 190(1) sets out specific exclusions or exemptions in respect of a number of expenses, from hiring charges. They are:
a. payments for delivery, repositioning, erection, installation, maintenance or cleaning of the goods,

b. refundable cash deposits or bonds (unless appropriated as hiring charges),

c. insurance premiums payable by the hirer,

d. duty paid or payable under this Act or a corresponding Act,

e. payments for the sale of goods (such as fuel, replacement parts or theft replacement),

(e1) any GST payable on the supply to which the hire of goods relates,

f. any payment of a type prescribed by the regulations”

The Appellant’s Submissions

15 The appellant’s first argument was that the Tribunal Member erred in treating the exemption for maintenance charges in s 190(1)(a) as a deduction, and allowed Kennards to carve out a factor, reached only by accounting analysis rather than a direct charge, for maintenance. Counsel for the Commissioner pointed to sub-sections (1)(d) and (e1), which are respectively for stamp duty and GST, and submitted that paragraphs [52] to [59] of the Reasons for Decision showed that maintenance was treated by the learned Tribunal member more as a deduction than as an exemption.

16 In support of this argument, counsel isolated a number of references in the decision to the cost of maintenance, including:-

a. maintenance as “ a necessary cost ” (par [54]);

b. the “cost” of maintenance (pars [54], [55] and [56]);

c. estimations of “incurred cost” (par [56]);

d. the “cost overall” (pars [56] and [57]);

e. further costs of maintenance (par 54); and

f. a “total amount expended” on maintenance and cleaning (par [57]).

17 It was submitted that the use of this terminology was indicative of a treatment of s 190(1)(a) as a deduction provision, and symptomatic of an “egregious and fundamental error”.

18 It was submitted that the cost which was subject to the exemption was “a payment for maintenance and cleaning”, rather than an interpretation which was closer to “all costs and expenses of maintenance and cleaning incurred shall be a deduction from the hire charges” (see appellant’s submissions, par [25]).

19 By way of comparison, the Commissioner accepted during argument that any payment by a customer under cl 3.2 of the Agreement (see quote in par [7] above) would fairly be a payment which was exempt from hire of goods duty under s 190, as a payment made only on request by Kennards of the customer for a specific item. It was submitted that the “maintenance factor” of 20% of the hire charge was not such a cost, and could be an accounting exercise rather than an actual “payment”.

20 Secondly, the Commissioner submitted that the learned Tribunal member failed properly to construe the word “for” in s 190(1)(a) by failing to construe it as meaning “specifically for”. Pointing to s 189(1) of the Act as an example, which section reads:-

“ 89 What are “hiring charges”?

(1) Hiring charges are payments made to the person who hires out the goods by or on behalf of the hirer, for (or that arise as an incident of) the hire of the goods.

(2) The following charges are included as hiring charges:

(a) payments for damage waiver or for damage excess,

(b) late return fees.

(3) For a hire of goods to which Part 3 applies, any residual payment payable by the hirer as an indemnity for the agreed value of the goods at the end of the hire is taken to be included in the hiring charges.”
counsel for the Commissioner distinguished between payments which were payments “for” maintenance and cleaning, and payments that are “attributable to” or “arise from” maintenance and cleaning. To demonstrate the difference, he pointed to the learned Member’s conclusion that: -
“The money paid for the hiring was really paid in part, defined as 20% of the fee, for maintenance and cleaning” (emphasis by counsel for the Commissioner) - see par [59] of the decision, par [35] of the appellant’s submissions).
21 Counsel for the Commissioner made lengthy and precise submissions on the meaning of the word “for” as opposed to such “lesser connecting phrases” as “in respect of” or “in relation to”. It has been held that each of those phrases are wider in their meaning than “for” - see Unsworth v. Commissioner for Railways (1958) 101 CLR 73 at 87 per Fullagar J, endorsed by Taylor J in State Government Insurance (Queensland) v. Crittenden (1966) 117 CLR 412 at 416. Counsel for the Commissioner relied on the decision of Masterwood Pty Ltd v. Far North Queensland Electricity Board [1989] 1 Qd 345 at 358-9 per Fryberg J, who said: -
“The courts have often had to consider the meaning of connecting words and phrases such as “for”, “on account of”, “arising out of” and “in respect of”. It is well settled that the last of these has a very wide meaning. That is not true in the case of the first. “For” implies a direct and intimate connection between the two things or concepts connected.”
22 As an example of the “very wide meaning” given to the word “for”, his Honour pointed to the discussion in Cyclone Scaffolding Pty Ltd v. Commissioner of Stamp Duties [1985] 2 Qd R 435 at 438 (per Campbell CJ) and 445 (per McPherson J).

23 It was submitted that the use of the specific word “for”, rather than the more general “in relation to” or ‘in respect of”, imported a requirement that an exemption be granted only for payments which were directly “for” maintenance and cleaning, and not paid as the result of an accounting exercise which involved allocating costs to maintenance and cleaning.

24 Thirdly, the Commissioner submitted that the learned Tribunal member erred by creating a de facto diminution of the tax base, even while protesting that “[it] is certain that there was no intention to reduce the tax base” (see par [65] of the reasons for decision). Counsel for the Commissioner pointed to the unilateral nature of the assessment of the “maintenance factor” and referred to the designation of a legitimate business overhead as a “payment for maintenance” as an “artifice”.

25 Fourthly, the Commissioner submitted that on a proper construction of the contract, the only payment which would be an exemption from the hire of goods duty under s 190(1)(a) would be any payment requested by Kennards pursuant to cl 3.2 of the tax invoice terms.

26 Finally, the Commissioner submitted that the stamp duty payable on the face of the contract must be specifically stated in order to attract the exemption in s 190(1)(d).

27 As noted above, the argument in relation to GST was abandoned during the hearing.

The respondent’s submissions

28 The respondent commenced its submissions with a reminder to the Appeal Panel of its appellate role, and in particular its duty to exercise “practical as well as principled restraint” (see Collector of Customs v. Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-7). In particular, and in reply to the extractions of the words used by the learned Tribunal member set out above at par [15], counsel for the respondent adopted the words of Kirby J in Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 185 CLR 259 at 291: -

“It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law”.
29 The respondent submitted that the maintenance factor cited on Kennards’ hire agreements and invoices was the result of bona fide calculations. This was a fact found by the learned Tribunal Member - see paragraphs [11] and [59] of the reasons for decision. Further, it was a necessary incident of Kennards’ business that significant costs would be incurred in maintaining and cleaning goods so that they continued to be available for hire. Those costs had a “direct and intimate connection with the goods hired for use” - see paragraphs [54]. [58], [59] and [68] of reasons for decision.

30 The submission that the maintenance factor was not merely an artifice is supported, it is submitted, by the fact that the front page of the hire agreement states clearly that the hire charge includes the maintenance factor of 20% - see paragraph [59] and [71(a)] of reasons for decision. Likewise, that the hire charge includes stamp duty - see paragraphs [69] and [71(c)] of the reasons for decision.

31 It was submitted that the finding of the learned Tribunal Member that 20% of the hire charge is a payment for maintenance for the purposes of s 190(1)(a) is a finding of fact, rather than an error of law, and that while Kennards and the customer have agreed that 20% is the proper percentage, the assessment of that percentage is sustainable given the factual matrix. The relevant passage of the reasons for decision is paragraph [59], which provides:-

“[59] Evidence was provided that the applicant attends to the maintenance and cleaning of the goods in order that the goods may be hired out, the costs of maintenance and cleaning is significant and that an across the board averaged percentage factor of 20% for maintenance and cleaning was a bona fide calculation which was reasonable. The money paid for the hiring was really paid in part, defined as 20% of the fee, for maintenance and/or cleaning. The consideration of the factual matrix in this manner is supported by the decision in Federal Commissioner of Taxation v Broken Hill and City Link Melbourne Ltd .”
32 The respondent dealt with the appellant’s submission that the learned Tribunal Member treated the exemption as a deduction by reference to the manner in which she treated the calculation of the maintenance factor, and by the finding of fact as to whether it was a reasonable charge to the customer for maintenance. In particular, the respondent points to paragraphs [52] and [59] of the reasons for judgment in submitting that the reasons, viewed as a whole, show that the learned Tribunal member was “conscious of the fact that this was not a deduction provision but rather an exemption for a payment or charge for maintenance” (see respondent’s submissions, par [25].

33 As to the submissions on the meaning of the word “for”, the respondent submitted that s 190(1)(a) does not say “specifically for”. Nor has the Tribunal construed “for” as if it meant “attributable to” or “arising from”. Relying on the decision in Roadshow Distributors Pty Ltd v. Commissioner of State Revenue (Vic) 97 ATC 4271 and in particular at 4275-6 per Tadgell J, the respondent submitted that a payment “for” a thing (in Roadshow, the statutory word were “for or in relation to”) may include recognition of a need for apportionment of a lump sum payment where only part of that lump sum is paid for the relevant thing.

34 The respondent sought to distinguish Masterwood by submitting that despite the need for a “direct and intimate connection” when construing the word “for”, Fryberg J did not go so far as to establish a test requiring specificity. In fact, the portion quoted by the appellant is followed by a passage where his Honour noted that the conduct in question needed to be “an essential or inherent part of carrying out the identified purpose of the Act or be necessarily incidental to that identified purpose” (Masterwood at 358). It was also submitted that Masterwood was distinguishable in relation to context; it was concerned with the purpose of an action, while s 190(1)(a) is concerned with the purpose for which a payment is made.

35 As to the submissions that the calculation of the maintenance factor was an “artifice”, the respondent submitted that the findings in relation to the reasonableness of the maintenance charge was a finding a fact and not now able to be challenged in this appeal. There was no basis for characterising the charges, at appellate level, as “general overheads” when there was, it was submitted, a “direct and intimate” connection with the goods hired.

36 As to the appellant’s submissions as to the relevance of cl 3.2, the respondent argued that Kennards, and not the customer, was responsible for maintenance of the goods, and the evidence was, and the contract reflected, charges directly to the customer for maintenance in exceptional circumstances. The respondent pointed out that as s 190(1)(a) is an exempting provision, it should be construed beneficially to the taxpayer and not restrictively (see cases set out in FCT v. Murry (1998) 193 CLR 605 at [77] per Kirby J, in dissent but not on this point).

37 As to the stamp duty point, the respondent submitted that it is not necessary to specify a particular amount on the contract or otherwise in order to satisfy the requirements of the section.

38 Generally, it is submitted by the respondent that the reasons for decision show no error of law and should be dismissed.

Consideration

39 The first port of call is, of course, the statutory language. The fundamental rule of statutory interpretation is the literal approach; that is, approaching the meaning of the words to give effect to the intentions of Parliament - see Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case) (1920) 28 CLR 129 at 161-2. Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Cmr of Taxation (Cth) (1981) 147 CLR 297 at 304-5 observed that it is not unduly pedantic to begin with the assumption that words mean what they say.

40 Section 189 defines “hiring charges” as payments made … by or on behalf of the hirer, for (or that arise as an incident of) the hire of the goods”. The phrase “as an incident of the hire of the goods” is important in analysing the appellant’s submissions that there is a requirement of specificity in the use of the word “for” in s 190(1)(a). The question to be answered, essentially, is, “in the context of s189, can s 190(1)(a) cover the kind of payments referred to in the Kennards invoice notation of “Hire charge includes a maintenance factor of 20%”?”

41 The appellant, in seeking to go behind the clear findings of the learned Tribunal Member as to the calculation and reasonableness of those costs, could be seen as attempting to review the factual findings of the Tribunal in an appeal which is restricted to a “question of law”. However, the manner in which that factual finding is applied to the statutory language is a clear matter of construction and accordingly a question of law. In other words, the Commissioner is bound by the factual findings of the learned Tribunal Member but not by her treatment of those findings in slotting them into the statutory scheme. Accordingly, we are not persuaded by the respondent’s arguments that the appeal should fail on the ground that no question of law is demonstrated.

42 We have summarised above each party’s position as to the question of whether the learned Tribunal Member treated the exemption as a deduction, and thus fell into error.

43 As to the Commissioner’s first submission, it is clear that there is a difference between an exemption and a deduction - see ANI Corporation Ltd v. Commissioner of State Taxation (WA) (90 ATC 4714 at p 4716). We have set out the references to what is said to be the language of deductions used in the reasons for decision. It seems to us that the pivotal phrase used in the reasons appears in par [55] where the learned Tribunal member said: -

“In this situation, where it must be recognised that a maintenance cost is inevitably a cost of providing the goods for hire, the exemption referred to in [ sic - s 190(1)(a) that is] for “payment for … maintenance or cleaning of the goods” must be considered to be the cost of the applicant doing so.”
44 It is the view of the Appeal Panel that there is no error demonstrated by the appellant in relation to the treatment of the maintenance charges, which were found by the Tribunal to be reasonable and based on calculations of the overall costs of the Kennards business, as being “payment(s) for … maintenance or cleaning”. The mere use of the word “payments” in s 190(1)(a) does not necessarily exclude, as the appellant urged upon us, moneys expended, not to a third party but by way of internal accounting for the costs within a company attributable to maintenance and cleaning. The phrase “payments for” is broad enough to encompass “moneys spent on”. The Tribunal was aware of the difference between an exemption provision and a deduction provision and applied that reasoning, gained from evidence as to the reasonableness of the costs, to the section in a way which does not, in our view, demonstrate error.

45 The appellant’s second submission again revolves around an issue of construction of the section, this time by effectively importing a requirement for specificity into the use of the word “for” which would exclude the accounting exercise undertaken by the respondent from the exemption provisions of the Act. It is our view that the decision in Roadshow does not assist the appellant in the way contended for by him. In particular, the addition of the words “or in relation to” make the section under consideration in Roadshow rather different from the section currently under consideration. Whilst it is true that the words “in respect of” have “the widest possible meaning” (see Trustees Executors & Agency Co Ltd v. Reilly ([1941] VLR 110 at 110 per Mann CJ), we do not consider that the use of the words “in respect of” or “in relation to” maintenance and cleaning in the reasons for decision are indicative of an error on the part of the learned Tribunal Member. Nor is it the case that she erred in finding that “The section does not require that the payment be shown in any particular manner, rather the reference is to “the following charges” and “payments for”.

46 It was argued that because the word “for” was narrower and more direct than the words “in respect of”, they are two different concepts, and that “the legislative requirement that a payment be “for” a specified item” means that there must be some specificity and a direct connection between the payment and the item, and not just an indirect connection. In our view the appellant has not shown that there is any sufficient reason to read “for” as “specifically for”, either by reference to the rules of statutory construction or by necessary implication.

47 The appellant’s argument relating to specificity may be tested by asking the hypothetical question of whether there is a practical difference between a maintenance figure of 20% and an actual figure. The invoice before the Tribanal as an example was for $59.00. Twenty per cent of that figure is $11.80. If the Respondent had written out the latter figure on the invoice, would the appellant have an argument on specificity? The Tribunal views the maintenance factor as certain as it is calculable by reference to a percentage rather than as a specific figure, and does not accept the argument that the lack of a specified amount means that the percentage factor cited fails any “specificity” test, if such there be.

48 While “for” has a fairly direct meaning, possibly more direct than “in relation to” or “in respect of”, that meaning does not operate to exclude from the exemption in s 190(1)(a) the payments made by Kennards which go to make up the “maintenance factor” of 20%, of which there was evidence before the Tribunal to enable it to reach that decision.

49 The third submission of the appellant may be dealt with briefly. The learned Tribunal Member found that the charges for the 20% “maintenance factor” were reasonable, and that it was, therefore, not an artifice. The Tribunal found that there was no intention to reduce the tax base (see par [45] of reasons) and the argument seems designed to raise the spectre of “floodgates”. The decision below was based on the facts of the case, not by accepting a unilateral 20% figure which had no basis in reality, and given the findings above that the maintenance factor falls within the s 190(1)(a) exemption as payments “for” maintenance and cleaning, this argument cannot be sustained.

50 The fourth submission for the appellant relates to the construction of the contract, and the contention that the inclusion in the terms printed on the tax invoice of both the 20% maintenance factor and the cl 3.2 “payment on request” for cleaning and repair costs resulted in an anomaly, in that the customer was ultimately responsible for maintenance and cleaning while Kennards was responsible for repair.

51 The learned Tribunal Member dealt with this submission in paragraph 69 of the reasons for decision. She said:

“The apparent conflict between the statement on page 1 in respect of the maintenance factor and the requirement shown on page 2 at paragraph 3.2(b) is explained by the requirement that the 20% is included in the initial charge and then if, on return, further costs are payable for cleaning the equipment then that amount will be payable immediately on request by the applicant thus amount to, as a combined payment, all costs incurred in cleaning the equipment”.
52 It seems to the Appeal Panel that this finding is one which was available to the Tribunal below on the factual material considered by it, and there is no basis for the appellant’s argument that the inclusion of cl 3.2 renders the customer - ie, the hirer - responsible for maintenance and cleaning. Accordingly, the appellant’s argument on this point fails.

53 As for the stamp duty issue (s 190(1)(d)), the appellant’s argument is that the amount of stamp duty needs to be specified in order for the exemption under the sub-section to apply. A literal application of this argument results in the illogical result that, if duty is not specified on the face of the instrument, then duty would be payable on the portion of the hiring charge attributable to duty. It seems to the Appeal Panel that the position as to duty is the same as the argument abandoned by the appellant in relation to GST (s 190(1)(e1)), and that this argument must necessarily fail as being contrary to the intentions of Parliament in enacting the Duties Act and in accordance with the apportionment treatment set out in the decision of Roadshow (supra).

Orders

1. The appeal is dismissed.

2. The orders of the Tribunal are affirmed.