Commissioner of Stamp Duties v Pendal Nominees Pty Limited

[1988] HCATrans 98

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl2 of 1988

B e t w e e n -

COMMISSIONER OF STAMP DUTIES

Applicant

and

PENDAL NOMINEES PTY LIMITED &

ANOTHER

Respondent

Application for special leave

to appeal

MASON CJ

BRENNAN J

DEANE J

Pendal

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MAY 1988, AT 2.01 PM

Copyright in the High Court of Australia

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MR C.S.C. SHELLER, ~C: If the Court pleases, I appear

with my earned	friend, MR H.R. SORENSEN, for
the applicant.	(instructed by the -
Crown Solicitor	for New South Wales)

MR D.J. HILL, QC; If the Court pleases, I appear with my

learned friend, MR M. WALTON, for the respondents

(instructed by Dawson Waldron)

MASON CJ:	Mr Sheller.
MR SHELLER:	Your Honours, this is an application for special

leave to appeal from a decision of the Court of

Appeal that was given on 23 December 1987, the

Mr Justice Mahoney.	judgment being principally that of His Honour
It involves, Your Honours, a question as to the amount of stamp duty payable on a deed describe
as a "share sale deed" which was executed on 28 June
1983. That deed is set out commencing at page 66
of the papers. The deed evidenced, as appears at
page 68, an agreement - that is in clause 1.1 - an
agreement for the sale of shares in a company by
RDC Holdings Limited to BT Australia Limited,
which is the second respondent. And BTA Australia Limited
is described at the commencement of the deed on page 66
as being a party:

in its capacity as trustee of the BTA

Property Trust -

that appears at line 5 on page 66.

Your Honours, a party to that deed was the first

respondent, Pendal Nominees Pty Limited, which was a

wholly owned subsidiary of BTA and it features in the

deed in three places, the first of which is in
clause 1.4 which is at page 71 of the papers at line 10.

That clause states:

RDC shall on completion deliver to BTA

transfers of the Seven Hills Shares in

favour of PN and PN shall hold such

shares as nominee for BTA.

Your Honours, it was on the basis of that clause

that the Commissioner treated this deed (1), as

being an agreement for the sale of shares and (2),

as being a declaration of trust under that head of

charge in the Act.

Your Honours, if I might then invite Your Honours

to go to the stated case which commences at page 38,
and Your Honours will see that there is reference
there to a deed of trust, part of which is set out

in clause 2 of the stated case and included a provision

that:

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"(j) the Trustee -

that is to say, BTA -

may:

(aa) cause all or any of the assets
constituting the Fund to be vested in

a nominee of the Trustee to be held

by such nominee upon the trusts of

this deed;

and for all purposes of this deed

by the Trustee".

investments vested in a nominee ... of the or property held

And, Your Honours, over the page on page 39 there is a further provision from that deed:

"(d) The Trustee hereby convenants that

any nominee of the Trustee will duly

observe and perform the covenants and

obligations of this deed in the same

manner as is required of the Trustee".

Your Honours, as appears at page 40 - if I may

reference to the execution of the share sale deed.	just say that on page 39 in clause 4 there is a
That is referred to at line 15. And then on page 40
in clause 7 of the stated case, it is said:

7. Exchange of the parts of the Share

Sale Deed and completion thereof took

place simultaneously on 28 June, 1983.

And then annexed was a -

transfer of the Seven Hills Shares handed

over on completion.

The sale price is set out in clause 8 and then

further down in clause 10 it is said:

10. Apart from ad valorem stamp duty

on the sales of shares therein provided
for, the Commissioner of Stamp Duties

has.assessed the said Share Sale Deed to

ad. valorem stamp duty in the sum of

$47,620.80 under paragraph 2(a) of the

head of charge "Declaration of Trust" in

to Share Sale Deed makes it a

the Second Schedule the Stamp Duties of the

declaration of trust in respect of the

Seven Hills Shares the value of which

was $7,936,791.

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Your Honours, may I hand up to Your Honours

copies of the Act?

MASON CJ:	We have copies of the Act, Mr Sheller.
MR SHELLER:	Yes. Your Honours, it may be, just so that we are

precise about this, important to see the Act in the

form it was at the date the deed was executed. The

print I have is as at 29 September 1983.

MASON CJ: Very well, you had better hand it up to us because

I think we have a later reprint.

MR SHELLER:  Now, Your Honours, the particular head of charge

is found at page 292 of that print. In the stated

case there are set out, at page 41 and running on to

page 42, what may be described as "rival contentions"

put forward by the taxpayer and by the Cormnissioner.

Your Honours, the Cormnissioner was of the view

that the deed was an instrument that fell within (2)(a) under the heading "Declaration of Trust". The taxpayer argued that the deed did not fall within

that head. Alternatively, that if it did, it was taken

out under paragraph (1) in the sense that the duty

instead of being ad valorem duty was a fixed duty

of $6.

The trial judge, Mr Justice Hunt, was of the

view that it did not fall within paragraph (a). The

Court of Appeal, on appeal, was of the view that it

did fall within paragraph (a); that it did not escape
under clause 1 but that it did escape under

clause (3)(b) of the head of charge.

Now, Your Honours, if I could just make that

proposition plain briefly from the judgment of

Mr Justice Mahoney and invite Your Honours to go to

page 15 of the papers. His Honour, at the top of

the page, deals with a submission that the clause, 1.4,

had no operative effect and he concluded that it did.

He rejected that submission. Then he set out what

he described as the issues and put forward or set out

three submissions cormnencing at line 15 that

were put by the taxpayer; the first two being, in

effect, that the deed did not come within (2)(a);

the third being that it fell within paragraph (1). And on those three matters the court found against the taxpayer.

Having done that, His Honour, at page 32, turned

to paragraph (3)(b) and he set that out at line 15

and posed himself two questions and at page 34

at line 11 said that in his:

opinion, therefore, the duty chargeable in

respect of the declaration constituted by

clause 1.4 is not ad valorem duty but a

fixed duty provided by par 3(b).

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Now, Your Honours, in coming to that conclusion,

His Honour gave no apparent consideration to the

decision of this Court in DKLR HOLDING V COMMISSIONER

OF STAMP DUTIES, 149 CLR 431, and may I hand up to

Your Honours copies of that decision.

Your Honours, the context of that case, for present purposes, was that chronologically there

was a declaration of trust which preceded a transfer

of real estate. In the present case, His Honour

t1r Justice Mahoney proceeded on the same basis because

he treated the case under (2)(a) as being a case of

an instrument declaring that any property to be

vested shall be held in trust.

In the DK~R HOLDING case, in that context,

if I. might. __ invite Your Honours to go to the

headnote at page 432, the first holding set out there,

the majority of this Court held:

that the declaration of trust fell within

par. 2 -

Now in 1976 paragraph 2 was the same as the form of

paragraph (2)(a) in 1983. Of that majority,with

the exception of Your Honour Mr Justice Brennan, all

held that the declaration of trust did not fall

within (3)(b) of the description "declaration of

trust" and that is stated conveniently in the headnote

about half-way down or a bit beyond half-way down

page 432.

Now, Your Honours, in coming to that conclusion reasons were expressed only by His Honour the

Chief Justice. And if I could take Your Honours to

page 442 His Honour, at the bottom of the page in

the last new paragraph said:

The question then arises whether the

declaration of trust comes within par. 3(b)

of the description in the second schedule.

In my opinion it does not, for two reasons.

First, the words "was conveyed" in para. 3(b)

are in my opinion deliberately used in the

past tense, to refer to a conveyance made

before the declaration of. trust was executed.

And then His Honour expressed a second reason for

reaching the conclusion that (3)(b) was not applicable:

that, for the reasons I am about to give,

the memorandum of transfer did not attract

ad valorem duty; in those circumstances
obviously the provision does not apply.

Now, as I said to Your Honours, Your Honour the

Chief Justice also came to the conclusion that

paragraph (3)(b)did not apply and this was a question

that was posed in the stated case in DKLR HOLDINGS and

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the question is set out in the judgment of the

Chief Justice at page 446; it is paragraph (c)

of the question. And Your Honour the Chief Justice

answered that question at page 461:

(c) No -

and His Honour Mr Justice Stephen agreed with

Your Honour's judgment. But Your Honour,

in the course of the judgment, gave no reason for

that and we, of course, accept that it may well have

been for either the first or the second or both reasons

that His Honour the Chief Justice expressed.

Your Honour Mr Justice Brennan took a different

view which is found at page 475 and Your Honour,

referring to (3Hb), Your Honour starts to deal with

that at the bottom of page 474 but half-way down

page 475 Your Honour said:

Two constructions are open: either

par. (3)(b) is read literally to apply only

to declarations confirming the trusts upon

which property has been conveyed antecedently

to the making of the declaration, or

par. (3)(b) applies to all declarations

falling within para.(2) and relieves them

of a charge to ad valorem duty contingently

upon the conveyance being stamped with

ad valorem duty.

And Your Honour stated that you preferred the latter

construction.

Now, His Honour Mr Justice Mahoney referred in his judgment to neither of those passages and

simply put for consideration the two questions

which are set out in his judgment at page 32.	He
sets out paragraph (3)(b) of the head of charge
at line 16:

(b) the trusts declared are the same

trusts as those upon or subject to which
the same property was conveyed to the
person declaring the trust by an
instrument duly stamped with ad valorem

duty under this Act -

and he said:

Two ~uestions arise: what are "the trusts

declared and what are the "trusts ... upon or subject to which the same property was

conveyed to" -

and then whether, in effect those were the same.	But
His Honour, with respect, 'seems totally to have ove~looked the question of the consequence of the

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language "property was conveyed" in the context

of a situation which he recognized in the rest of

his judgment that at the time of the declaration

of trust the property was still "to be vested"

within the language of (2)(a).

Now, Your Honours, it is, may we say, perhaps

not surprising that there was that oversight

because (3)(b) was not advanced as an alternative

in the stated case; it was not argued at first
instance; it was not included as the part of any
notice of contention in the Court of Appeal and

it seems to have been given only passing reference

in argument in a passage from the transcript which

has been set out in the book at page 145. But,

Your Honours, however that may be, what we submit

is the consequence of this is that there are expressed in this Court two views as to the

operation of paragraph (3)(b) and His Honour, in

proceeding to hold that (3)(b) here applies does

not appear to have dealt with that problem or with

what was said in this Court about it which we
would respectfully submit gives rise to uncertainty

as to the meaning of this part of the Act.

May we say this, Your Honours, that if one

goes back to page 292 where the head of charge

declaration of trust is set out, Your Honours will

observe that there appears on the face of it
asymmetry to this extent, that the head of charge

operates on the basis that, first of all, a declaration

of trust, as it were, comes in under paragraph (2).

If it comes in under paragraph (2), because the

instrument declares that property is to be vested,

it does not, as a matter of language, escape under

either (1) or under (3) because (1) talks of a

situation of a declaration where property "is vested"

and (3) talks of an instrument in a situation

where trusts under (a) have been declared; where

"property was conveyed" and in (c), again, where

trusts have been declared.

So that the position is, we would respectfully

submit, on a proper. construction of the head of

charge, that if an instrument is brought under it

because property is to be vested there is no escape

under either (1) or (3) but if it is brought in

because property is already vested or in a situation

where property is already vested then there may be

an escape under (1) or (3).

Now, His Honour, we would respectfully submit,

really, without addressing that problem, has said

here that (3)(b) applies in a situation where he has
treated (2)(a) as operating because property is to

be vested. And if I could just point to a passage

which makes that plain at page 29, lines 19 and 20,

His. Honour said:

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So, on whatever view be taken, the

shares were property to be vested within

the paragraph.

And, of course, when His Honour was speaking of

whatever view be taken, he was there referring to

DKLR HOLDING. and what had been said in that case

about the meaning of that expression, as to whether

it merely meant futurity or whether it involved

some intention or whether it involved an obligation.

But His Honour took the view that whatever may be

the correct position in that regard, the shares

were property to be vested within the paragraph.

BRENNAN J:  Was that because His Honour took the declaration

to the effect of only upon what was described as

an exchange of the deed?

MR SHELLER:	Your Honour, he considered two views that had been put by the Commissioner and proceeded on the
basis that what Your Honour has just said was the
correct view. A view was advanced before the Court of Appeal that the deed was chargeable as
from the moment of signature by a party but His Honour proceeded on the basis that it was chargeable when it,
in effect, became a deed of sale, that is to say, at the point of exchange, and said that if that - - -

BRENNAN J: Exchange between the vendor and the purchaser?

MR SHELLER:  Between the vendor and the purchaser.

BRENNAN J: Was there any exchange? Perhaps this special

case does not say what the declarant did?

MR SHELLER:  It does not, Your Honour. But the whole of this

has proceeded on the basis that it is a "to be vested"

case, and we would respectfully submit that if that
is right then the court needed to give consideration

to what had been said in this Court about the language

of (3)(b) when it talks about "property was conveyed"	and, Your Honours, it is on that basis that we submit	that firstly, the decision runs contrary to the
expressed view of at least one member of this Court
and it may run contrary to the unexpressed view of
the majority in DKLR HOLDING that within this
Court itself there is that conflict of view that I have referred to between the Chief Justice and
Your Honour Mr Justice Brennan and that as appears
in the affidavit in support of this application, that this has a significant consequence in terms of revenue practice. And that is referred to,
Your Honours, at page 126 in the book, in a
supplementary or further affidavit that was filed.

BRENNAN J:  So far as authority goes, my view must be taken

to be a minority one in DKLR.

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MR SHELLER: Yes. Your Honour, of course, there - well, what

Your Honour says is correct, yes. Your Honour,

it is for those reasons that we would submit that

this is a proper case for the Court to grant

special leave to appeal, if the Court pleases.

MASON CJ: Yes, Mr Sheller. Yes, Mr Hill?

MR HILL: If Your Honours please. Firstly, we would submit

that even if it be conceded that the issue under

clause (3)(b) itself may involve a matter of some

importance in New South Wales, it is submitted that

when one really looks more closely at the present

circumstances of this case the issue is not one

which is a suitable vehicle for dealing with that

problem and, for these reasons: firstly, there

was a very peculiar set of circumstances which arose

and which, to understand, one has to look at the

provisions of the deed. But, before doing that,

one has to look at the way in which the case proceeded
below.

The very first issue which arose below, and by that I mean before His Honour the learned trial

judge, was an issue which concerned the application,
perhaps, of two principles, neither of which have

generally been attacked. The first principle was

that in looking at stamp duty matters one looks at

the leading and principal object of a deed and

that the stamp covers anything accessory to that

main object and the second principle which, perhaps,

coalesces with that first principle, was an issue as

to whether or not if a document does no more than the

law, in any event, imposes, it is liable to stamp

duty and I do not think I need take Your Honour to
the reasons of His Honour Mr Justice Hunt. But

His Honour found on both of those principles that

what was here was not a declaration of trust properly

falling within paragraph (2)(a) at all.

What my learned friend said about the decision

in the Court of Appeal is not totally accurate, with

respect. In the Court of Appeal - if I leave aside

for the moment the learned president - Mr Justice Mahoney

took the. view that the principle as to whether or rot

documents that did no; more than the law imposed

was a. valid principle~was not one that was subject to

attack. Now, all he did in respect of that issue was

to say he doubted whether it applied in the present

case. It was unnecessary for His Honour to decide it.

His Honour deals with it after having dealt with

1. paragraph (3)(b). But it was an issue, of course,

   that was live in both the supreme court before

His Honour Mr Justice Hunt, live in the Court of
Appeal and, no doubt, would be live in any appeal

if special leave were granted in this case. That is
the first matter. That matter and other matters

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which concern the construction of the instrument

were also agitated. And might I, perhaps, take

Your Honours just fairly shortly to the context

in which the question arose and the particular

provisions of the deed because, in our submission,

it is a very peculiar set of circumstances and one

not likely to arise very often and the resolution

of which depends, in part, upon the construction
of the provisions?

As my learned friend has indicated BT was the

trustee of a property trust deed, a public-type of

deed. The deed is set out at page 44. Some of the

provisions were referred to in the stated case

which my learned friend read but not all of them

are. Just, perhaps, to give some indication of it,

clause 2.4 at page 44 of the application book

provides that the:

deed is made with the intention that the

benefits and obligations hereunder may

enure to the extent provided to every Unit

Holder.

It then went on to define "Authorised Investments"

which included· shares. On the next page it defined

"the Trust Fund" as including all of the investments

and in (i) in that definition of "the Fund" and "the

Trust Fund" refers specifically to what is to happen

in a certain case where there is a nominee who holds:

in accordance with the provisions of this

deed.

At page 47 there is the declaration in respect

of that deed that:

The Trustee hereby declares that it shall hold the Fund -

as defined -

upon trust for the Unit Holders subject

to and upon the terms of this deed.

At page 49, clause 10.4; provision is made for when:

Other Authorised Investments shall be deemed

vested in the Trustee -

and in one case there deals with what happens when

the title is taken in the name of a nominee. At

page 54, 26.2 - and one need not read it in any

detail - deals with.obligations imposed upon a

nominee.

MASON CJ: Where is this voyage going to end up, Mr Hill?

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MR HILL: Well, it ends up nextly in a question of construction

as to what is meant in the share sale deed and what

it, in fact, does.	Why it is there and whether it
really is a declaration of trust.	I am not trying to

argue the issue but, rather, to indicate the questions

of construction that have to arise before the point

that my learned friend makes arises.

BRENNAN J: It is challenged that it is a declaration?

MR HILL:  Yes, and would be, of course, in the event of any appeal.

Not only is it challenged as to whether it is a

declaration of trust, but whether it is appropriately

one that falls within paragraph (2)(a) and that

turns very much on a question of construction because
the provision in the trust deed, page 55, which is

set out also in the stated case, provided for the

trustee to cause assets:

to::.be--vested~in·a nominee -

having. the consequences that are referred to in some

of those other clauses -

to be held by such nominee upon the trusts

of this deed.

That is the obligation which is imposed in the event

that there is a nominee appointed.

and for all purposes of this deed investments

vested -

are, of course -

deemed to be investments or property

held by the Trustee.

And in certain circumstances, as appears at page 59,

for example, the nominee may have to deal directly

with the beneficial owners which, no doubt, is the reason why those provisions are in; in certain	circumstances assets may be transferred directly to
the ultimate unit holders.

Now, it is in that context that one sees·the

share sale deed which, of course, was an agreement

stamped in accordance with the provisions of the Act

as an agreement for the sale of the shares, an

anticipatory duty on the conveyance. And in that deed

in the provision that my learned friends have referred

to,at page 71 it was provided that:

-RDC shall on completion del-iver to BTA

transfers of the ..... Shares in favour of

PN AND PN shall hold such shares as

nominee for BTA.

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Now, the reason why that is there is quite clear

when one looks at other provisions of the share sale

deed. Before doing that, might I just say this: in

the stated case - in answer to something my learned

friend was asked by Your Honour Mr Justice Brennan -

it is, in fact, indicated that the exchange and

transfer all occurred simultaneously. That is dealt

with, in fact, in the stated case. It was exchanged

on the day it bears and it was completed simultaneously.

The reason, perhaps, it is there is best

understood by looking at clauses 7 and 9 of the share

sale deed. At page 80 is clause 7. One does not have

to do more than note that that set out certain warranties

that were to be given in respect of the shares, the

subject of the agreement. One does not need to go to

the detail of them. But at clause 9 it is acknowledged -

page 86 of the papers - that the deed is -

entered into with the intention that the

benefit of the covenants, agreements,

obligations and warranties on behalf of -

the parties thereafter named -

shall enure to and the provisions thereof

shall be enforceable by BTA -

inter alia, and Pendal Nominees in its trustee capacity -

as nominee for BTA in its capacity as trustee

of the BTA Property Trust -

so that it was in that context that one comes to approach

whether or not, having regard to the language that he

has used, there is, in fact, a declaration of trust

in force at all within clause (2).

The other matter to which regard must be had

in the facts and which is, no doubt, fairly unusual is

that the effectiveness of the deed coincided with the

parties becoming the beneficial owners of the shares
because the purchase price was agreed to be paid and
the shares agreed to be transferred by the very
document which brought about the result, of course,
that the beneficial owner of the property was to be

Pendal and BTA in their respective capacities as transferee and ultimate person who paid the purchase money.

Now, all one needs to say at this stage is that

that is the first matter or first series of matters

that have to be dealt with before one comes to see

whether or not there is any matter arising under (3)(b}.

After that, the argument before Mr Justice Hunt was

decided also in favour of the applicant on the basis that

-the matter fell within paragraph (1) of the charge and

that was put at page 254. I do not need to read it in

great·detail but the point of the argument that is

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at page 254 of the appeal book to which my friend

referred looks at the policy of these sections. The

first paragraph looks to -

an instrument declaring that a person in whom

property is vested as the apparent purchaser

holds the same in trust for the person or

persons who actually paid the purchase money.

Now, at the time the deed became effective and given

its operation, in fact, we submitted then and we continue

to submit that it was appropriate to regard property

as vested. But that is not the point for present

purposes. Paragraph (1) is obviously there to avoid

a situation of double duty; that situation being

that if the property is vested it has presumably

borne duty before it was vested so that a second lot

of duty is not then charged if a declaration says that it

is held in trust for the person who actually paid
the purchase money. Indeed, the whole language of

paragraph (1) is concerned with the law of resulting

trust. Still, in equity he does not use the word "apparent"

purchaser in that context but uses the word "nominal"

purchaser which is, one would have thought, a somewhat

identical expression.

When one comes to look at paragraph (3) of the

same head of charge there is taken out of the ad valorem

duty firstly cases where the same trusts are declared as have been declared in respect to the same property. That, again, alleviates double duty - obviously is

intended because there was originally some instrument

which was duly stamped which declared the trust and

then there was a redeclaration of the trust and that,

obviously, is a double duty preventative paragraph.

(b) is, in our submission, really the corollary of (1)

in a different context; namely, it looks at the case

where 'the trusts declared are the same trusts as those

upon or subject to which the same property was conveyed to

the person declaring the trust by an instrument duly

.	stamped." In other words, the property gets there by an agreement which is duly stamped and the property
is subject to those same trusts. It applies,as it says, to ':'any such instrument as aforesaid", that is to say,

an instrument of a kind referred to in clause (Z)(a)

and it was in that context that the argument in

respect of (3)(b) was made in the Court of Appeal.

There was no question to have a notice of contention.

It was not decided against the respondent in the previous proceeding.

So that those are all issues which, in our submission,

arise. The focus in the affidavit in the appeal papers

seems to be rather on the question that there is not a

conveyance because the agreement has been stamped but the conveyance itself is liable only to nominal duty.

With.respect, that is an argument which my learned friend did not put and it should not be put. Rather, there is

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no great difficulty, in our submissions, in reading

the words "was conveyed" as dealing with a case such

as the present where the operation of the agreement took

effect all simultaneously so that there was right from

the time the agreement became effective property which

was either vested or was transferred. And for those

reasons, we would say that the decision, if paragraph (1)

did not apply,which would be undoubtedly a real issue in

the case, is one that is not really subject to doubt.

Might I say about DKLR - and of course, there are

no reasons expressed by Your Honour the Chief Justice

or Justice Stephen - that it is clear - unless one

took the view that Your Honour Mr Justice Brennan took -
that the transfer was liable to duty, the issue just

could not arise and the view that the majority took
was all of the view that the transfer was not liable

to duty at all other than as a nominal matter.

BRENNAN J:  Mr Hill, is the decision of Mr Justice Mahoney

consistent with the first of the reasons assigned by

Chief Justice Gibbs for holding that (3)(b) -

MR HILL: Yes, Your Honour, on the facts of this case. One

has to remember the facts of the DKLR case.

Your Honour will remember there was a declaration of

trust that A would hold property	transferred to him
on trust for the transferor.	The next thing that

happened was that there was a voluntary transfer which

vested nothing. Indeed, Your Honour may remember that

it could not have, it was not even in registerable

form but nothing turned upon that. But it did not -

at the time it was executed it had no legal effect at

all. It could not have vested property at all. So that

in the particular facts of DKLR, what His Honour the

Chief Justice there said no doubt· :could be quite

correct but on the facts of this case it is different
because, as this Court said, of course, in the KLDE case
a purchaser of shares has the beneficial ownership
of those shares from the moment the contract is

entered into,here a fortiori when the transfer is

immediately with i~ and the transfer is for consideration

and not voluntary which is a quite different set of

facts to the facts in the DKLR HOLDING, COMPANY case.

One other point one should - - - L .

BRENNAN J:  I appreciate that but the proposition put forward by

Mr Justice Gibbs was that (3)(b) refers to a conveyance

made before the declaration of trust was executed. Now,

in this case did Mr Justice Mahoney not say that it comes

within (3)-(b), though the conveyance to PN was after.

MR HILL: Well, it was, if one looked at the facts,, simultaneous,

in fact.

BRENNAN J: Yes.

MR HILL:  Inde,ed, the declaration could not really become effective

until the property was vested if it is going to be a real

S1Tl3/6/PLC 14 13/5/88

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declaration. All of these things happened in this

case simultaneously which is the difference in the

facts between this case and DKLR.

BRENNAN J:  I appreciate that but I just wondered whether the

facts in this case are consistent with the words used

by Mr Justice Gibbs?

MR HILL: Well, Your Honour, when one reads those words in the

light of the facts His Honour had before him we would

say, yes. Here we have a case where, right from the

moment the instrument became operative, the property

was vested or, if one likes, was conveyed, so that the

matter really does not arise in the way His Honour

Mr Justice Gibbs saw it.

Your Honours, there is one remaining submission:

in the event that this Court saw fit to grant special

leave on the basis that there was some question of

difficulty of policy which the Commissioner needed to

have resolved then, in our submission, the leave

should be conditional upon the costs of the respondent

being met both in the court below and, of course, in

the High Court. If the Court pleases.

MASON CJ:  The Court need not trouble you, Mr Sheller. The Court

will grant special leave to appeal in this case. There

will be no condition imposed in terms of the grant of

leave.

MR SHELLER:  Would Your Honours· make costs the costs in the appeal

in this application?

MASON CJ:  It follows. We do not have to make an order in that

respect unless there is some particular provision in the

New South Wales legislation.

MR SHELLER: If Your Honours please.

AT 2.48 PM THE MATTER WAS ADJOURNED SINE DIE

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