Commissioner of State Revenue v Victoria Gardens Developments Pty Ltd
[2000] VSCA 233
•12 December 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 7514 of 1998
| THE COMMISSIONER OF STATE REVENUE | Appellant |
| v. | |
| VICTORIA GARDENS DEVELOPMENTS PTY. LTD. (ACN 074 177 405) | Respondent |
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JUDGES: | ORMISTON, BATT and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 18 and 19 July 2000 | |
DATE OF JUDGMENT: | 12 December 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 233 | |
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STAMP DUTY – Transfers of land – By three owners to one trustee for development by two owners in joint venture and sale or lease – Whether each exempt as transfer to trustee to be held solely as trustee for transferor or as instrument made solely in consequence of appointment of a trustee – Value for duty – Whether conveyance on sale – Stamps Act 1958, Third Schedule, Heading VI and sub-heading (B), exemptions (18) and (23).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R. Boaden | Solicitor for the Commissioner of State Revenue |
| For the Respondent | Mr J. de Wijn Q.C. Mr M. Pearce | Freehills |
ORMISTON, J.A.:
Having had the benefit of reading the judgment of Batt, J.A. in draft form, I agree, for the reasons he has stated, that the appeal should be allowed in part, that the cross-appeal be dismissed and that orders be made as he proposes.
BATT, J.A.:
Introduction
This is an appeal by the Commissioner of State Revenue (in his capacity as Comptroller of Stamps) ("the appellant" or "the Commissioner") against an order made by a judge of the Trial Division on 10 February 1999. By that order his Honour, first, allowed appeals against two assessments of stamp duty by the Commissioner, numbered A70416 and A70417 in the sums of $632,500 and $1,567,500 respectively, and ordered that they be set aside, and, secondly, allowed an appeal against the Commissioner's assessment of stamp duty numbered A70419 in respect of the amount assessed ($1,375,000) and ordered that the latter be reduced to $973,500. These three assessments related to three instruments of transfer of land to the respondent Victoria Gardens Developments Pty. Ltd. ("Victoria Gardens" or "the respondent") by three companies, namely, Staged Developments Australia Pty. Ltd. ("Staged Developments") (assessment No. A70416), Taras Nominees Pty. Ltd. (“Taras”) (assessment No. A70417) and S.D.A.R.J.V. Pty. Ltd. (assessment No. A70419). The Commissioner now seeks in substance the confirmation of each of his three assessments.
There is also before the Court a cross-appeal by Victoria Gardens in the case of assessment A70419, seeking an order that the assessment be set aside in its entirety.
Besides the appeal constituted by Victoria Gardens’ request for the reference to the Supreme Court of its objection to the assessments, the judge had before him a proceeding commenced by originating summons in which the four companies mentioned above sought a declaration that no duty was payable on the three
instruments of transfer or, in the alternative, an order that a Joint Venture Agreement executed by three of them and dated 20 August 1998 (“the JVA”)[1] be rectified and an order that none of the transfers was dutiable upon the agreement being so rectified. His Honour on 4 December 1998 ordered that the originating motion be dismissed, and there is no appeal against that order.
[1]I shall ordinarily follow the JVA’s convention of using capital letters for terms defined in it.
Relevant Statutory Provisions
Section 17(1) of the Stamps Act 1958 imposes, subject to the exemptions in the Third Schedule, the several duties specified in that schedule upon the several instruments specified in it. Heading VI in the Third Schedule relates to "Conveyance of Real Property and Land Transfer". Sub-heading (B) of Heading VI, relating to “Land Transfer” under the Transfer of Land Act 1958, imposes duty on, amongst other things, "every transfer of land" at the relevant rate, according to value, specified in the table to it. But there follow exemptions from the imposition of duty in respect to conveyances of real property and land transfers. The respondent relies on exemptions (18) and (23). They provide exemption for the following:
"(18)Any instrument for the conveyance of real property which is made by the transferor to a trustee or nominee to be held solely as trustee or nominee of the transferor without any change in beneficial ownership or made by way of re-transfer to such transferor."
"(23)Any instrument for the conveyance of real property where the Comptroller of Stamps is satisfied that the instrument is made solely in consequence of the appointment or retirement of any trustee or other change in trustees and in order to vest the real property in the trustees for the time being entitled to hold the real property."
By s.63(1) "conveyance" includes transfer.
As to value, the Third Schedule[2] commences:
[2]Compare s.63(3)(b).
"Except as otherwise provided in this Act, a reference in the provisions under this Heading to the value of real property or property is a reference –
(a)in relation to a conveyance on sale of the real property or property –
(i) to the consideration for the sale; or
(ii)to the amount for which the real property or property might reasonably have been sold if it had been sold, free from encumbrances, in the open market on the date of sale –
whichever is the greater; and
(b)in any other case, to the amount for which the real property or property might reasonably have been sold if it had been sold, free from encumbrances, in the open market on the date of the conveyance, direction, consent or application."
The Decision Below
In reasons published on 2 December 1998 the primary judge held that exemption (23) did not apply to any of the instruments of transfer, but that the first two instruments of transfer abovementioned (called in these proceedings the "first transfer" and the "second transfer") were exempt by virtue of exemption (18). He held that the third instrument of transfer mentioned above (called in these proceedings the "fifth transfer") was dutiable. But in reasons published on 10 February 1999 he held that it was not a "conveyance on sale" within paragraph (a) of the introductory portion to Heading VI and that accordingly the value of the real property by reference to which duty was chargeable on the instrument was the amount specified in paragraph (b), that is, open market value. That his Honour found to be $17.7m. at the relevant date. For completeness his Honour held that, if, contrary to his view, the transfer was a conveyance on sale, the consideration was the relevant price in Annexure B to the JVA.
Facts and Documents
To understand and decide the issues in this appeal it is necessary to refer to certain facts and to the terms of two documents. These matters are set out in considerable detail in his Honour's reasons, particularly the first set of reasons. For present purposes the following suffices. The appeal relates to a substantial area in Richmond of approximately 34 acres, bounded on the west by Burnley Street, on the north by Victoria Street, on the east by the Yarra River and on the south in part by Doonside Street. At the beginning of August 1998 the area consisted of six lots. Lot 1, which extended across the northern third (approximately) of the area, was beneficially owned by the trustee of the Marpine Investments (Victoria St.) Trust (the "Marpine Trust"). The trustee had been a company called Prambal Pty. Ltd., but on its going into liquidation it had been replaced by Victoria Gardens, which in turn was replaced on 20 August 1998 by S.D.A.R.J.V. Pty. Ltd.[3]. It was common ground that Staged Developments was at all material times the beneficial owner of all the units in the Marpine Trust. Lot 6, which constituted the south-eastern section of the area, was owned by Staged Developments as trustee of the Staged Developments Australia Unit Trust. Lots 2, 3, 4 and 5, constituting the balance of the area, were beneficially owned by the trustee of the Burnley Street Trust, which was Taras.
[3]His Honour in paras.12(ii), 16 and 20 inverted the order of succession to the office of trustee after Prambal Pty. Ltd. He was perhaps influenced by a seemingly erroneous statutory declaration relating to the fifth transfer and by the fact that Victoria Gardens executed the Joint Venture Agreement as trustee of the Marpine Trust (amongst others) on 20 August 1998, apparently before its replacement that day by S.D.A.R.J.V. Pty. Ltd. by virtue of a deed of the same date.
The three owners of the land agreed to make their respective portions of it available to a Joint Venture to develop the total site by building retail, commercial, industrial and residential premises in stages over a period. It was contemplated that as each stage was completed it would be sold. The Joint Venture was to be known as Victoria Gardens Property Trust. The joint venturers were Taras and the trustee for the time being of the Marpine Trust. The three land owners were thus to provide land to a two-party Joint Venture for development and exploitation.
Apparently on the basis that the JVA commences by describing itself as recording agreements reached on and with effect from the Commencement Date, which is defined as 1 August 1997, his Honour found that the Joint Venture commenced about that date. In order to facilitate the development the land was to be subdivided into 13 lots in accordance with a plan of subdivision annexed to the JVA. The plan was lodged with the council in April 1998 and “approved”[4], but apparently had not been registered in the Land Titles Office as at the date when his Honour delivered his first set of reasons. Work commenced on Lot 1 on that plan and the office building being erected on it was approximately three-quarters completed by late October 1998. Some lots on the plan of subdivision are made up of land owned by two different owners as at the beginning of August 1998. Most of the lots on the plan of subdivision, however, correspond with areas so owned by one owner only. Up to the date of delivery of the first set of reasons the development had been funded by the developers, who had by then negotiated finance for further construction which was to be finalised when mortgages were executed in relation to the various lots.
[4]It is not clear to me whether this means that the plan was “certified” by the council, as the Subdivision Act 1988 requires.
In order to develop the site the parties entered into a number of informal arrangements from about 1 August 1997. They then decided to formalise their arrangements. The JVA dated 20 August 1998 was executed by Staged Developments as trustee of the Staged Developments Australia Unit Trust, Taras as trustee of the Burnley Street Trust and the appellant in a number of capacities, namely, in its own right, as trustee of the Marpine Trust (“Marpine Trustee”), as trustee for the Land Holding Parties (being Staged Developments, Taras and the trustee for the time being of the Marpine Trust) (“Land Trustee”) and as nominee of the Joint Venture (“VGPT Trustee”). The JVA was executed for the purposes of undertaking the development of the whole of the land comprising the site. Under it, Victoria Gardens was appointed trustee. As already mentioned, each of the three Land Holding Parties had already agreed to make available their respective land to the Joint Venture. It was their intention and that of the Joint Venture Parties (being Taras and, in effect, the trustee of the Marpine Trust for the time being) that the Land Holding Parties should each be paid or credited with the market value of their land progressively as it was developed and sold. For ease of administration each of the Land Holding Parties agreed to transfer its land into the name of Victoria Gardens as trustee. Pursuant to the JVA the three instruments of transfer the subject of this appeal were executed, by Staged Developments on 14 August 1998, by S.D.A.R.J.V. Pty. Ltd. on 20 August 1998 and by Taras on 25 August 1998.[5] Each is expressed to be made in consideration of the transferee’s being entitled in equity. Each was accompanied by a statutory declaration asserting that the transfer did not result in any change in beneficial ownership.
[5]One of the intermediate transfers of Lot 1, that from Prambal Pty. Ltd. (in liquidation) to Victoria Gardens, was not executed until 7 September 1998; but neither party suggested that that fact was of any consequence. Nor did either party suggest that the fact that work had started on and in relation to the site well before the date the below-mentioned trust deed and JVA bore or the fact that one instrument of transfer pre-dated those two documents was of any significance: they were treated as though they had been respectively done and executed pursuant to the JVA.
Staged Developments, Taras and Victoria Gardens executed a deed of trust for the Victoria Gardens Land Trust (sometimes “the Trust Deed”) also dated 20 August 1998 and also expressed to be with effect from the above-mentioned Commencing Date. Victoria Gardens did not execute the document in its own right but in its capacity as Marpine Trustee, Land Trustee and VGPT Trustee.
Since the outcome of this appeal turns very largely upon the meaning and effect of the two documents dated 20 August 1998, it is, unfortunately, necessary to quote from or summarise them extensively. The JVA, which is governed by the law of Victoria (Clause 18[6]) and takes precedence over all earlier agreements so far as inconsistent (Clause 20), recites that the Land Holding Parties have agreed to make their parcels of land available to the Joint Venture on the terms of the agreement; that the Joint Venture Parties have agreed to undertake the Joint Venture to develop the land progressively; that Marpine Trustee has agreed to resign as trustee of the Marpine Trust; that the Land Trustee (scil., Victoria Gardens) will execute a deed of trust pursuant to which it declares that it holds the land as trustee for the Land Holding Parties subject to the terms of the JVA; that Marpine Trustee is entitled to become a registered proprietor of the Marpine land and that Staged Developments and Taras are the registered proprietors of the Staged Development land and the Taras land respectively; that the Joint Venture Parties agree that the Joint Venture will be conducted as set out in the JVA; and that Marpine Trustee and Taras agree that the agreement sets down understandings and agreements made between them in respect of the Joint Venture and the basis upon which Marpine Trustee, Staged Developments and Taras have been acting since the Commencement Date (scil,. 1 August 1997).
[6]Whole clauses are also called Parts.
Clause 2 is concerned with dealings with the land. By clause 2.1(a) upon the execution of the JVA Taras is to execute a transfer of its land in favour of Land Trustee (scil., Victoria Gardens) “as trustee for” Taras; Staged Developments is to execute a transfer of its land in favour of Land Trustee “as trustee for” Staged Developments; Land Trustee is to hold the Marpine Land “as trustee for” the Marpine Trustee[7]; and Land Trustee is to execute a deed of trust pursuant to which it declares that it holds the Land so transferred “as trustee for the respective Land Holding Parties.” By clause 2.1(c), in so far as they can, the Land Holding Parties themselves may not, and must use their best endeavours to ensure that others do not, except in accordance with the JVA, “deal with their respective portions of the Land or alter or affect their rights and obligations in respect of their portions of the Land” in any manner prejudicial to the interests of the Joint Venture.
[7]The clause did not contemplate the course actually taken, namely, transfer by Victoria Gardens to S.D.A.R.J.V. Pty. Ltd. and a further transfer by the latter to the former. As senior counsel for the respondent said, clause 2.1(a)(3) omits a transfer.
Clause 2.2 deals with the use of the land by the Joint Venture and, with the aid of definitions, gives the only indication of the nature of the Joint Venture. It provides in particular as follows:
“(a)The Land Holding Parties irrevocably make their respective portions of the Land available to the JV[8] for the purposes envisaged by this Agreement and are not entitled to a transfer back of their respective portions of the Land, and the Land Trustee shall hold their respective portions of the Land for such purposes.
[8]Explained below.
(b)The Land Holding Parties are only entitled to payment for their respective portions of the Land in accordance with this Agreement.
(c)VGPT Trustee and Land Trustee are irrevocably appointed by each of the Land Holding Parties as their respective attorneys, to do all things necessary to give effect to the terms of the Agreement in respect of or pertaining to their apportion of the Land, including without limitation, to execute transfers and mortgages ... of all or part of their respective portions of the Land in accordance with this Agreement.
(d)...
(e)The Joint Venture Parties have agreed to progressively develop the Land in stages and have prepared the Plan of Subdivision which will be the basis for the staged development unless otherwise agreed by the Joint Venture parties. The staging of the Development shall be as minuted by the Board[9] on the execution of this Agreement and thereafter as varied by resolution of the Board from time to time.”
[9]A quorum of directors of VGPT Trustee acting together.
“JV”, mentioned in this clause, is defined in clause 1.1 as the joint venture to be known as the “Victoria Gardens Property Trust” to “undertake the business of the:
(a)development of the Land on behalf of the Joint Venture Parties, which development may comprise the building of structures and improvements on the Land, the financing of the Development (including the granting of any security over the Land or the Development or any part thereof), the sale, leasing or other disposal of the Land and Development or any part thereof in accordance with this Agreement; and
(b)the acquisition and development of other land.”
By the same clause “Development” means –
“the construction on the Land for the purposes of retention, leasing or sale, or other disposal of a multi-purpose complex comprising offices, commercial premises, retail premises, residential premises together with all infrastructure and other requirements in relation thereto”.
By clause 2.5 the purpose or objects of the JV may not be altered without the prior written agreement of both Joint Venture Parties. Nor may the rights of a Joint Venture Party or of a Land Holding Party be varied without its prior written agreement.
Clause 2.3 is concerned with the price for the Land and parts of the Land. Paragraph (a) provides that the price for each Land Holding Party’s portion of the Land is the price set out in Annexure B. By that annexure the price for the Marpine Land is $25m, the Staged Developments Land $11.5m and for the Taras Land $28.5m, giving a total price for all portions of $65m. The annexure then sets out the area and dollar value of each Land Holding Party’s portion of the Land. Both the areas and the value per square metre differ for each land holder. By para.(b) of clause 2.3, upon the sale or other disposal of any part of the Land as part of the Development or otherwise pursuant to the Agreement, a Land Holding Party is entitled to be credited with an amount calculated in accordance with the formula:
E = A x DV,
where E is the entitlement, A is that part or those parts of the Land being sold or disposed of (calculated in square metres) “which is beneficially owned by each Land Holding Party”, and DV is the dollar value per square metre attributed to each part of the Land being sold or disposed of, as set out in Annexure B[10].
Paragraph (c) provides that the entitlement calculated under para.(b) ”is payable only in accordance with clause 6.”
[10]There referred to as “Schedule B”.
It is convenient to move immediately to clause 6, which relates to distribution of Cash and profit. (Clause 3 deals with working capital and is summarised later.) By clause 6.1 Cash means any moneys of the Joint Venture which the Board determines are available for distribution. Clause 6.2 lays down the manner in which Cash is to be distributed. Paragraph (a) provides that, “In consideration of their respective contributions of land for the purposes of the JV” the VGPT Trustee “must distribute the first cumulative $65,000,000 of Cash to the Land Holding Parties” as follows:
(1)the first cumulative $8m to Staged Developments, this sum to be paid as cash becomes available from the development and sale of parts of the Land, but in any event to be paid no later than 30 June 2001[11], failure to do so constituting an event of default enabling Staged Developments to terminate the Joint Venture and have clauses 11.4 to 11.6 (mentioned below) apply;
[11]Clause 6.4 makes provision for payment of interest on the sum.
(2)thereafter:
(A)to Taras, as to 50 per cent until Taras has received a sum equal to the price for the Taras Land in Annexure B (scil, $28.5m), to be applied:
(i)in payment for portions of Taras Land actually sold by VGPT (if any); or
(ii)on account of future sales of parts of Taras Land;
(B)as to the remaining 50 per cent to Staged Developments until (including the proportion of the sum received by Staged Developments under (1)) Staged Developments has received a sum equal to the price for the Staged Developments Land in Annexure B (scil, $11.5m), to be applied:
(i)in payment for portions of Staged Developments Land actually sold by VGPT Trustee (if any); or
(ii)on account of future sales of parts of Staged Developments Land;
(C)the balance of the 50 per cent after all payments under (2)(B), to Marpine Trustee until it has received a sum equal to the price for Marpine Land in Annexure B (scil, $25m), to be applied:
(i)in payment for portions of Marpine Land actually sold by VGPT Trustee (if any); or
(ii)on account of future sales of parts of Marpine Land.
By para.(b) any cash in excess of $65m must be distributed to the Joint Venture Parties equally. Clause 6.5 provides in substance that, where a Land Holding Party receives a cash distribution on account of future sales of land[12], the sum paid is not a loan, but the Land Holding Party shall set off that sum against the amount ultimately receivable by it for “its portion” of the Land set out in Annexure B. Importantly, clause 6.6 provides that a Land Holding Party is “only ever entitled to be paid for its portion of the Land from Cash distributed in accordance with clause 6.2.” Clause 6.7 provides that upon the completion, termination or winding up of the Joint Venture, if the Land Holding Parties have not received an amount in respect of the Land equal to their respective contributions as set out in Annexure B, a special liquidator shall be appointed to sell all the assets of the Joint Venture and the provisions of clauses 11.4 to 11.6, mentioned below, shall apply in respect of such sale. Finally, with regard to profit clause 6.3 provides for an annual accounting of profit and loss, for the Joint Venture Parties to be equally entitled to any profit or loss and for VGPT Trustee to distribute the whole of the net income for accounting purposes to the Joint Venture Parties.
[12]For example, Staged Developments might receive payment under (1) above, even though it was not entitled to a credit under clause 2.3 because the land which it contributed had not been sold.
With regard to capital requirements, clause 3.1(a) records that the Joint Venture Parties have contributed to the working capital of the Joint Venture the amounts set out in Annexure D, being $700,000 each at 1 August 1997 and $3.05m each at 30 June 1998, and states that, unless funding is in place at the relevant date (15 July 1998[13]), they shall contribute or procure the contribution of, in effect, a further $975,000 each, with monthly expenses approximating $30,000 to be shared equally. By clause 3.2, in substance, except where the parties agree to contribute further capital themselves, they are not required to make any further contributions, but further capital, where required, is to be by way of loans from banks, financial institutions and the like on the security (if required) of the assets of the Joint Venture and the Land.
[13]Which had already passed by the date of the JVA.
There are provisions for the governance of Victoria Gardens, including the representation of the Joint Venture Parties on its Board, and for its management.
Clause 9 places various restrictions on the parties. For present purposes, it is necessary to mention only that clause 9.1 provides in part that, subject to the provisions of the Agreement, no Land Holding Party or Joint Venture Party shall without the written consent of the others and of VGPT Trustee assign, mortgage, charge or otherwise encumber any right or interest it has in shares in Victoria Gardens, the Land, or the Joint Venture itself. Clause 10 places restrictions on the transfer by a Joint Venture Party of its shares in Victoria Gardens or its interest in the Joint Venture. Clause 10.4 ensures that, except where such a transfer is to a related party, the transferor instructs the Land Trustee “to transfer its portion of the Land to the Transferee and to enter into a declaration of trust confirming that it holds the land transferred on trust for the Transferee”, and where Marpine Trustee is the transferor, it must also procure Staged Developments to do likewise. By clause 10.5 a Joint Venture Party is not to be entitled to receive as distributions any assets or property other than money save with the written consent of the other or in accordance with the Agreement.
Clause 11 deals with default. Events of default are defined in fairly standard terms in clause 11.1. Clause 11.3 provides that, should any event of default occur, then at the election (by notice) of the non-defaulting Joint Venture Party it shall be deemed to have required the sale of the assets of the Joint Venture and the Land and the agreement shall thereupon be terminated. Clause 11.4 then provides that, upon the termination pursuant to Clause 11, a full accounting of all assets and liabilities of the Joint Venture is to be taken by a special liquidator appointed in accordance with clause 11.6 and immediately thereafter all the non-cash assets of the Joint Venture shall be realised and sold to their best advantage (which, by clause 11.5, sale by the special liquidator satisfies). The moneys arising from such sale and other moneys of the Joint Venture are to be applied, first, in payment of costs and expenses of taking the account and the realisation of assets; secondly, in payment of debts or liabilities (other than payments to be made under clause 6.2); thirdly, in payment of the non-defaulting Joint Venture Party’s costs, interest, losses and expenses resulting from the default; fourthly, “any surplus shall be paid in the manner set out in clause 6.2”.
Clause 12 contains “special default” provisions. Under clause 12.1 where there is a specified change in ownership of the Marpine Trust without the consent of Taras or a change in the effective control of the Taras Trust or beneficial ownership of it without the consent of Marpine Trustee, then Taras or the Marpine Trustee respectively may serve on the other a notice requiring the sale of assets of the Joint Venture and the Land. By clause 12.2 either Joint Venture Party may, at any time, serve such a notice on the other. This provision seems independent of clause 12.1. By clause 12.3, if a sale notice is served under clause 12, the Joint Venture is forthwith terminated and clause 12.4 applies, but a Joint Venture Party serving notice under clause 12.2 may not participate in the sale process as a purchaser or prospective purchaser. By clause 12.4 the assets of the Joint Venture and the Land are to be offered for sale in their entirety, and detailed provision is made for the carrying out of, and the terms of, such sale. Certain options are conferred on each of the Joint Venture Parties to buy the assets and the Land at a price no less favourable (scil., to the other Joint Venture Party) than that offered by a third party, but it is unnecessary to set out either the options or the provisions for effectuating a sale to a Joint Venture Party. What is important is clause 12.8. It provides that, if the assets of the Joint Venture and the Land are sold in accordance with clause 12, the parties agree to do all things necessary and desirable to facilitate the winding up of the Joint Venture with due expedition “and the distribution of proceeds in accordance with clause 6.2”.
Because of its disparate nature I have not earlier mentioned clause 2.10, which was the subject of submissions by the parties. It provides:
“(a)The Joint Venture Parties may agree to establish a new trust or joint venture for the development of any part of the Land, and such part of the Land is deemed to be disposed of for the purposes of clause 2.3(b), PROVIDED ALWAYS that the disposal of such part of the Land other than by way of sale for money or money’s worth shall be void and have no effect unless the Joint Venture Parties have procured that the entitlement of the relevant Land Holding Parties shall have been calculated and provided for in accordance with clause 2.3(b).
(b)Subject to clause 12.3, a Joint Venture Party or its nominee may purchase any part of the Land for its own purposes with the consent of the other, on such terms as are agreed between them, and in such event that provisions of clause 2.3(b) shall apply.”
The Trust Deed recites that the JVA requires Land Trustee to declare that it holds the Marpine Land, the Staged Developments Land and the Taras Land on trust for the respective beneficial owners thereof subject to the terms of the JVA; that each of the Land Holding Parties has executed transfers to Land Trustee of that portion of the land of which they are respectively registered as proprietor to be held on trust for each Land Holding Party on the terms of the Deed and the JVA; and that the parties agree that the Deed sets down understandings and agreements made between them in respect of the Joint Venture and the basis upon which they have been acting since the Commencement Date and that the deed will have effect from that date.
By clause 1 terms defined in the JVA have the same meanings when used in the Deed and to the extent of any inconsistency between the documents the terms of the JVA prevail. By clause 2.1 the Land Trustee declares that it holds the Land on trust for the respective Land Holding Parties subject to the terms of the JVA and the Deed. By clause 2.2(a) each of the Land Holding Parties irrevocably makes that portion of the Land of which it is the beneficial owner available to the joint venture for the purposes of the JVA, and the Land Trustee is to hold and deal with the Land for such purposes. Clause 2.3 provides:
“The Land Holding Parties:
(a) may only transfer or deal with; and
(b) hereby direct the Land Trustee to hold and deal with,
their respective portions of the Land pursuant to and in accordance with the JV Agreement.”
Clause 2.4 provides that upon the termination of the Joint Venture the Land Trustee and the VGPT Trustee must do all things required by the JVA. There are other provisions appropriate to a trustee and a special provision relating to change of trustee of the Marpine Trust, but it is unnecessary to summarise them.
Contentions on appeal
It was common ground that the three instruments of transfer in question were, unless exempt, dutiable as land transfers pursuant to sub-heading (B) of Heading VI in the Third Schedule. The Commissioner contended that none of them was exempt under either exemption (18) or exemption (23). He further contended that, if they were not exempt, the value for the purpose of the calculation of duty was, in each case, the price attributed to the respective parcel of land in Annexure B to the JVA rather than the market value of the parcel at the date of transfer, on the basis that its transfer was a conveyance on sale for the purposes of the introductory portion of Heading VI and the price was the consideration for the sale. He did not challenge his Honour’s finding of the amount of the open market value in relation to the fifth transfer, should open market value be held applicable. His counsel informed the Court that, if it became relevant, the open market value for the land the subject of the first transfer and the second transfer respectively could readily be agreed. The respondent contended that each instrument of transfer was exempt under one or other or both of exemptions (18) and (23)[14]. In the alternative the respondent contended that, if any transfer was dutiable, the amount of duty was to be calculated pursuant to para.(b) in the introductory portion of Heading VI, that is, by reference to the open market value, because the instrument was not a conveyance on sale of real property.
[14]No point was taken for the appellant that there was no notice of contention concerning exemption (23) in relation to the first and second transfers. That exemption was relied on in the notice of cross-appeal in relation to the fifth transfer.
Exemption (23)
It is convenient to take first the second exemption relied on. In my view, the primary judge was clearly correct in holding that, on two grounds, Exemption (23) did not apply to any of the transfers. First, the exemption, in using the words “the appointment ... of any trustee”, applies only to the appointment of a new trustee to perform a pre-existing trust and does not extend to the appointment of a trustee to perform a newly created trust. The Full Court so stated in the case of (for present purposes) an almost identically worded exemption under the then Heading IV(A) in Comptroller of Stamps v. Hutchins[15], and Hansen, J. so held in the case of the present exemption in Perpetual Trustee Co. Ltd. v. Commissioner of State Revenue[16]. It may well be correct, as the respondent submitted, that the Full Court’s statement on the point was obiter since it was the second reason for holding the exemption in question inapplicable and the first reason had been introduced by the words, “it would be enough to say that ...”. On the other hand, their Honours did introduce the second and presently relevant reason by the words, “But it should we think be said in addition that ...” and did conclude their consideration of the second reason with the words, “This is enough to dispose of the exemption”. Even if they were obiter, I would be strongly inclined to follow the Full Court’s considered remarks unless I considered them clearly wrong. On the contrary, however, having considered the matter for myself, I am, if I may respectfully say so, in agreement with their Honours. Clearly, the expressions “the ... retirement of any trustee” and “other change in trustees” can only apply where there is a pre-existing trust. It is true that in an appropriate context the expression “the appointment ... of any trustee” may include the appointment of a first trustee of a new trust and in particular a declaration by a person that the person will hold property as such trustee: D.K.L.R. Holding Co. (No.2) Pty. Ltd. v. Commissioner of Stamp Duties (N.S.W.)[17]. But the legislative context there was quite different. Not only did the provision under consideration by the High Court not include a phrase such as “or other change in trustees”, but the sub-section in question followed a sub-section which dealt with the appointment of an additional trustee as well as of a new trustee. Moreover, the word “other” in the expression “or other change in trustees” shows that the earlier word “appointment”, linked as it is with the word “retirement” by a single definite article and a disjunctive conjunction, is limited to an appointment constituting a
change in trustees. The word “appointment” in effect noscitur a sociis[18]. The words “the trustees for the time being” in the second or purpose limb of the exemption point with clarity in the same direction as the words “other change in trustees” in the first or result limb. The respondent submitted that, since the relevant part of the judgment in Hutchins was obiter, it was open to this Court to consider another construction not advanced in Hutchins. This was that the exemption, or more accurately what I have called the first limb, should be treated as itself divided into two limbs, the first dealing with appointments to new trusts and the second dealing with retirements and other changes (including appointments of new trustees) to existing trusts. This was said to be supported in part by the consideration that otherwise the expression “other change in trustees” would have no meaning. Having considered the construction put forward, I am of the view, even without reference to the inclination I have mentioned earlier, that it should not be accepted. The expression “other change” does have meaning: at the least it covers the removal of a trustee. Moreover, the suggested construction severs the tightly bound expression “the appointment or retirement of any trustee” and gives the expression “any trustee” a sliding or varying denotation depending on the noun with which it is taken.
[15][1985] V.R. 599 at 611.
[16](2000) 44 A.T.R. 273 at para.53.
[17](1982) 149 C.L.R. 431 at 445, 446, 452-3 and 470.
[18]The Full Court said that the earlier expression was to be read ejusdem generis with the later one. The genus or restriction was thus, unusually, provided by the later expression: cf. Ambatielos v. Anton Jurgens Margarine Works [1922] 2 K.B. 185 at 194. The Court of Appeal there decided against the construction now under consideration. That decision was affirmed in [1923] A.C. 175 esp. at 183. Compare Bennion, Statutory Interpretation, 3rd edn., 962-3.
Turning to the second ground for denying exemption, in my opinion the better view of the facts and documents is that the instruments of transfer were not made “solely in consequence of” the appointment of the trustee (assuming, contrary to the first ground, that that includes appointment of a trustee to a new trust) or “solely” (as I would read the exemption as requiring) “... in order to vest” the real property in the trustee for the time being entitled to hold it. I respectfully agree with what Hansen, J. said in Perpetual Trustee Co.[19] as to the meaning and significance of the word “solely” in the exemption. When regard is had to clauses 2.1(a) and 2.2(a) of the JVA in particular it cannot, in my opinion, be said that the instruments of transfer were made solely as a consequence of the appointment or solely for the requisite purpose, those requirements being cumulative. Rather, as his Honour held, they were made to give effect to the provisions of the JVA.
[19]At para.54. See also Hutchins at 611.
That is sufficient to deal with this exemption. But I would record that I have considered it on a basis that is, strictly, too favourable to the respondent. For, as Hansen, J. indicated in Perpetual Trustee Co.[20],the exemption is so expressed as to require the satisfaction of the Comptroller as to the sole consequence and the sole purpose if it is to be applicable. Thus, the Comptroller having in para.14 of his reasons for decision expressed the view that the three transfers were not executed “solely in consequence of” (as he expressed it) a change of trustee but to give effect, in substance, to the JVA, in strictness it was for the respondent to show, at any rate before the primary judge, that the Comptroller erred, in one of the ways identified by Dixon, J. in the oft-cited passage in Avon Downs Pty. Ltd. v. FC of T[21], in failing to be satisfied as to the consequence limb (and as to the purpose limb). But, since neither party directed argument to this point, I say no more about it.
[20]At paras.28 and 62.
[21](1949) 78 C.L.R. 353 at 360. Amongst subsequent cases may be cited Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 185 C.L.R. 259 at 275-276 and Corporation of the City of Enfield v. Development Assessment Commission (2000) 199 C.L.R. 135 at 150 and 158. Amongst the cases which have worked out the consequences of the successful invocation of the Avon Downs principle is Kolotex Hosiery (Australia) Pty. Ltd. v. FC of T (1975) 132 C.L.R. 535.
Exemption (18)
Here the position is less clear, not because of uncertainty of law, but rather because of difficulty in ascertaining the operation and effect of the JVA. Different provisions point in different ways.
The meaning of the exemption was considered by the Full Court (Appeal Division) in Comptroller of Stamps v. Yellowco Five Pty. Ltd.[22]. Each member of the court was of the opinion that the exemption did not apply to a transfer, by the sole unit holder in a unit trust in favour of the trustee, of land which he had sold to the trustee, because under the trust deed the trustee had power to issue additional units with the prior written consent of all unit holders, so that, if that occurred and if the issuee were not the transferor, the trustee would not hold the land solely as trustee of the transferor without any change in beneficial ownership. Fullagar, J.[23] held that the first limb of the exemption made three severable requirements of the conveyance effected by the instrument. First, the conveyance must be a conveyance of the property to a trustee or nominee. Secondly, the property conveyed was to be held solely as trustee or nominee of the transferor. Thirdly, the property conveyed was to be held without any change in beneficial ownership. As to the second requirement the words “of the transferor” qualified not only “nominee” but also “trustee”. The words “to be held” introduced an element of futurity necessitating an inquiry whether, immediately upon the conveyance, the trustee-transferee was seen to hold the land for the future in the capacity only of trustee for the transferor. His Honour was aware that this construction gave very little scope indeed to the exemption, but considered that to be simply the consequence of the words used by the legislature. Tadgell, J.[24] held that the exemption was not satisfied merely by showing that the beneficial ownership of the property immediately after the instrument of transfer takes effect was the same as that immediately before. The formula selected required the constancy in beneficial ownership to be referable to the particular circumstance that the property was “to be held solely as trustee or nominee of the transferor”. That requirement involved an examination of the terms on which the transferee took the transfer as trustee, as disclosed by the trust deed. Phillips, J.[25] discountenanced a reading of the first limb of the exemption that divided it into three requirements (being in fact those identified by Fullagar, J.). He said that it was better understood “as a composite expression”[26] requiring (so far as relevant) that the transfer of real property be made to a trustee to be held solely as trustee for the transferor without any change in beneficial ownership. His Honour held that for exemption (18) to operate it must be established that the property was “to be held” by the trustee for the transferor without any change in beneficial ownership. The expression “to be held” meant “to be held thereafter”. While it was true that the relevant circumstances were those attendant upon the transfer, that principle was satisfied when regard was had to the terms of the trust deed as at the date of the transfer. By operation of the trust deed itself, the present interest of the transferor in the real property might be reduced or diminished in favour of others, so that it could not be concluded that the property was to be held for the transferor without any change in beneficial ownership.
[22][1993] 2 V.R. 529.
[23]At 531.
[24]At 533-535.
[25]At 541 and 543.
[26]This approach accords with what the High Court said of a different expression in the later case of Collector of Customs v. Agfa-Gevaert Ltd (1996) 186 C.L.R. 389 at 399-400.
In the present case the parties were agreed that whether the transfers qualified for exemption under exemption (18) was to be determined by reference to the two documents which were treated as governing the transfers, namely, the Trust Deed, from which, after all, the transferee’s character as trustee appeared, and the JVA, to which the Trust Deed referred and was subject. That course is correct in law: Commissioner of Stamp Duties (Queensland) v. Hopkins[27]; Comptroller of Stamps v. Buckland[28]; Wm. Cory & Son Ltd. v. Inland Revenue Commissioners[29]; and Yellowco Five[30].
[27](1945) 71 C.L.R. 351 at 378.
[28][1959] V.R. 517 at 520-521.
[29][1965] A.C. 1088 at 1105.
[30]At 534, 538 and 542.
The basic structure set up by the companies, as revealed by the two documents, may, at the risk of some repetition, be summarised as follows. Staged Developments, Taras as trustee and the Marpine Trustee agreed to make their respective portions of land irrevocably available to the joint venture and to that end executed transfers in favour of Victoria Gardens as Land Trustee. It in turn declared that it held the land on trust for the respective transferors subject to the terms of the JVA and the Deed. The transferors were not permitted, except in accordance with JVA, to deal with their respective portions of land or to affect their rights and obligations in respect thereof. They were not entitled to a transfer back of their respective portions of land. They were only entitled to payment for the respective portions of land in accordance with the JVA. By it they became entitled to receive a defined "price" for their respective portions, being roughly one and a half times the then current market value. It was envisaged that Taras and the Marpine Trustee, as joint venturers, would develop the Land and that it would be sold (though it might be leased) by Victoria Gardens as a trustee. Upon the sale[31] or other disposal of any part of the land a transferor who had contributed the same or a part of it would be entitled to receive payment based on the relevant area in square metres and the dollar value per square metre of the overall land contributed by that transferor. The amount payable was to be credited to the transferor and, when cash became available, was to be paid to it, in accordance, however, with the priorities laid down by clause 6.2(a) of the JVA. Cash available in excess of $65 million was to be distributed equally to the two joint venturers. If the transferors should not receive between them $65 million for the aggregate of the land contributed or in the event of termination upon default or termination by election, the assets of the Joint Venture and the land contributed or the unsold balance thereof were to be sold and the surplus, after expenses, etc., of the moneys arising from the sale and of other moneys of the Joint Venture (under clause 11.4) or the proceeds of sale of the entirety (under clause 12.8) paid or distributed in accordance with clause 6.2.[32] Thus, in whatever way contemplated by it the JVA or the Joint Venture comes to an end and in whatever way contemplated by the JVA the Land or the balance thereof is sold[33], the proceeds or net proceeds of sale of the Land can come to the transferors only by a distribution of cash pursuant to clause 6.2.[34] Finally, subject to the provisions of the JVA, a transferor to the Land Trustee may not, without its consent and that of the other transferors, assign, mortgage or charge any interest of it in the Land. The only possible qualification in the JVA drawn to our attention is clause 10.4, whereby, when a joint venturer transfers its shares in Victoria Gardens or interest in the Joint Venture, it must instruct the Land Trustee to transfer its portion of Land to the transferee of the shares or interest in the Joint Venture (and, in the case of Marpine Trustee, procure Staged Developments to do likewise). Such a transfer seems not to be a registrable transfer or a transfer of the bare legal estate; for the Land Trustee is to be required to declare that it holds the portion on trust for the transferee. At best it is nominal or notional. Whether it is real and the effect of such a declaration may be considered later.
[31]Including sale to a joint venturer under clause 2.10(b).
[32]His Honour queried whether a sale in accordance with clause 11.4 was a sale of the Land as well as the assets of the Joint Venture. It is true that "Land" is not mentioned in clause 11.4, but, in my view, its omission is an obvious error of drafting, for a sale in accordance with clause 11.4 can only take place where a non-defaulting joint venturer is, by reason of having given notice, deemed under clause 11.3 to have given a notice requiring the sale of the assets of the Joint Venture "and the Land". Moreover, clause 6.2, to which clause 11.4 ultimately leads, is concerned with distribution of cash in consideration of the contributions of land for the purposes of the Joint Venture. Finally, clause 6.7, which applies, amongst other things, to a termination pursuant to clause 11.3, requires a sale of "all of the assets of the JV (including any part of the Land which has not been sold)" and makes clauses 11.4 to 11.6 apply to such a sale. On the appeal neither party took up his Honour's query. Indeed, it was either asserted or not disputed that in all cases the (net) proceeds of sale of any of the land flowed back to the transferors via clause 6.2.
[33]The width of clause 2.3(b) is to be noted.
[34]Either as a matter of interpretation or because the relevant determination would fall to be made by the special liquidator, not the Board, it is implicit in the case of sales under clauses 11 and 12 that, although clause 6.1 is not expressly incorporated, a distribution of cash could not be prevented by failure of the Board of Victoria Gardens to determine that the cash was available for distribution.
A number of matters can be put aside summarily. There was no suggestion that either document was a sham, even if counsel for the appellant did suggest that parts of the JVA had been "designedly" drawn to create a certain appearance. Counsel for the appellant did, at least in his written outlines, advance an argument that clause 2.10(a) prevented it from being said that the Land was, for the future, to be held without any change in beneficial ownership. But, in my view, that argument cannot be accepted; for, as the reasons of the primary judge on the point show, in the case of clause 2.10(a), in contradistinction to the clause considered in Yellowco Five, the terms of the trust documents themselves do not afford a potential for change in beneficial ownership, but rather ensure that clauses 2.3 and 6.2 are triggered and such a change does not occur. Nor in this Court did counsel argue that Victoria Gardens held the Land on trust for sale, again, I think, correctly, if only because, whatever may be the full ramifications of the definition of "trust for sale" in s.18(1) of the Property Law Act 1958, the definition of "Development" includes the purposes of retention, leasing or other disposal as well as the purpose of sale. It will, however, be necessary later to discuss considerations similar to those which would arise were there a trust for sale. The Commissioner placed no reliance upon possible borrowing by Victoria Gardens, under the authority of the JVA, on the security of the Land or upon the possibility that clauses 2.3 and 6.2 operated to create a charge, whether over Cash or the Land. Again, he was correct in this, for a charge does not alter the beneficial ownership of the property charged.[35] Despite an oblique invitation during the course of argument counsel for the appellant refrained from arguing that the second limb of the exemption bore on the interpretation of the first, in such a way that for a transfer to satisfy the first limb the real property the subject of it must at the date of it be able to be seen to be capable of re-transfer to the transferor. No such argument having been advanced, I say no more about the point.
[35]English Sewing Cotton Co. Ltd. v. Inland Revenue Commissioners [1947] 1 All E.R. 679 at 680 and Swiss Bank Corporation v. Lloyds BankLtd. [1982] A.C. 584 at 600, per Buckley, L.J. in the Court of Appeal, and 615, per Lord Wilberforce in the House of Lords.
What counsel for the appellant described as the "central point" of his argument, by which he said he “stood or fell”, was that by the transferors' transferring their parcels of land to the Land Trustee in the context of the two documents, there was an immediate change in beneficial ownership. The land was irretrievably in a new trust. It could never come back in specie to the respective transferors. Their only rights referable to land were to receive a cash distribution. In the circumstances the land transferred to the trustees was held on trust for all three beneficiaries (the transferors) collectively, that is, they were equitable tenants in common[36] of all the parcels, so that there was a change in the beneficial ownership of each parcel. Although the appellant did not challenge the primary judge's understanding of how clause 6.2 operated (which his Honour set out in some detail, for it formed the basis of his decision relating to the fifth transfer), it followed from the "central point" that the appellant parted company with his Honour on the first question which he posed for himself under exemption (18), namely, whether there was a change in beneficial ownership upon the transfer’s taking effect. Implicit, if not explicit, in this "central point" was, in the case of each parcel of land transferred, the consequence that, since it was now held on trust for all three companies and not discretely and exclusively for the transferor of it, the parcel was not held, or to be held, solely as trustee of the transferor, as required by exemption (18).
[36]With (in the event) no precise shares.
For the respondent it was argued that the JVA merely reflected the manner in which each beneficial owner sought to enjoy or exploit its beneficial ownership of the assets. Clearly each agreed to restraints (as had occurred in English Sewing Cotton Co. and Booth v. Ellard[37]), but that was only for enjoyment of the assets. It was submitted that the JVA did permit the joint venturers to deal with their interests in the Land, reference being made particularly to clause 9.1 and clause 10.4, which it was said meant that the beneficial interest in the parcel of land could be transferred to another person. Particular reliance was placed upon clause 2.1 of the JVA and clause 2.1 of the Trust Deed, the first of which required the Land Trustee to execute a deed of trust pursuant to which it declared that it held the Land "as trustee for the respective Land Holding Parties" and by the second of which the Land Trustee did declare that it held the land on trust "for the respective Land Holding Parties"[38]. Particular stress was also laid, as was appropriate, upon the very numerous words of severance, particularly "respective" and "portion" (with reference to land), appearing throughout the JVA and the Deed.[39] Like stress was placed upon the expression "which is beneficially owned by each Land Holding Party" in the definition of element A in the formula in clause 2.3(b) of the JVA and especially upon the word "beneficially" coupled with the present tense. Clause 6.2 was said to be a contractual provision relating only to the manner of payment or simply regulating the distribution of moneys available. It did not affect beneficial ownership, but dealt only with priorities. It was clause 2.3(b) which established the entitlement (and so reflected the beneficial ownership), and there was no crediting under it until the beneficiary’s portion had been sold. The mere fact that a party was not paid for its beneficial interest did not mean that it had disposed of the beneficial interest.
[37][1980] 3 All E.R. 569; affg [1978] 3 All E.R. 298.
[38]Emphasis added.
[39]These were listed in a useful schedule handed up by counsel for the respondent.
Having considered the matter closely in the light of the written and oral submissions on behalf of the parties, I have come to the conclusion that, for two basic reasons, none of the transfers falls within the exemption.
First, whilst the transfers, although not to a nominee, are to Victoria Gardens as a trustee, the real property transferred by them is not “to be held” as trustee of the respective transferors, but rather is to be developed and sold or otherwise disposed of, or at least possibly sold or otherwise disposed of (for it might be retained or leased). The exemption does not require the trustee to hold the real property perpetually, for it contemplates at least the possibility of re-transfer either when the trust has run its pre-ordained course or at the request of the transferor. But it does, as it seems to me, require that the trust be one to hold the real property[40] on trust for the transferor. As Yellowco Five shows, the exemption is very limited. To my mind, especially if the first limb of the exemption is read as a composite expression, these transfers for massive development and realisation purposes are simply not of the type which the exemption is designed to encompass. As I have said, the trust here is not a trust for sale[41], but it is immediate and binding, there being no outstanding legal interest or intervening equitable estate; and I should have thought that a trust for sale, as defined, is not within the exemption since it was a trust, not to hold, but to sell.
[40]Strictly, the first limb of the exemption is illogical, for the sense requires the “property” to be the implied subject of the infinitive “to be held”. But grammatically the subject is the relative pronoun “which”, the antecedent of which is “instrument” or, possibly, “conveyance”. “To make conveyance” means the same as “to convey” and the sense of the exemption requires the substitution of “conveyed” for “made”.
[41]As to the requirements for which see, e.g., Hanbury and Maudsley, Modern Equity 10th edn., 283-288; Robinson, The Property Law Act – Victoria, 25-26; and Megarry and Wade, The Law of Real Property, 5th edn., 385-389.
Secondly, disregarding the first reason entirely but taking into account all the terms of the Trust Deed and the JVA I am of opinion that their overall effect, though by no means their universal effect, is that each piece of land is on transfer not held on trust for the transferor alone, that is, is not held or to be held “solely as trustee ... of the transferor”. The critical document is the JVA because the declaration of trust in the Deed is subject to the terms of the JVA. A critical provision in the latter is clause 2.2(a), whereby the transferors irrevocably make their respective portions available to the joint venture “for the purposes envisaged by” the JVA. The transferor is not entitled to a re-transfer of the land. It cannot assign, mortgage or charge it without consent. The transfer of the relevant portion of the Land that is provided for in clause 10.4 is nominal or notional, and whether the declaration of trust confirming that the Land Trustee holds the land transferred on trust for the Transferee is really about that portion of the Land or rather about the whole of the Land or in truth about a right to be paid depends upon a review and analysis of the whole document, which of course includes clause 10.4 itself. A transferor to the Land Trustee is not entitled to possession in virtue of beneficial ownership but only as a joint venturer (if it be such). Thus, even to this point of the analysis, the equitable interest (if any) of the transferor in land so transferred (whether the portion or the Land as a whole) is very limited. But there is more to consider. In return for the land transferred the transferor, by clause 6.6 together with clauses 2.2(b) and 2.3(c), is entitled only to receive a distribution of cash in accordance with clause 6.2. In whatever circumstances the land is sold and however the JVA comes to an end clause 6.2 ultimately operates. For a correct appreciation of the operation of the JVA, it is necessary to decide whether clause 6.2 is merely a contractual provision as to the manner in which a transferor’s money entitlement is to be paid or is a substantive provision bearing on the transferors’ entitlement in equity or in other words evidencing or constituting its proprietary rights. I have concluded that it is the latter. The universality of operation of clause 6.2 emphasises its significance in the determination of the entitlements of the parties. A transferor’s essential entitlement is to receive ultimately an amount of money calculated in accordance with clause 2.3, but this is subject to the operation of clause 6.2, pursuant to which that essential entitlement may be delayed, defeated in part or (except in the case of Staged Developments) defeated in whole. Similarly, each of the three transferors is entitled, in certain circumstances depending on the order of selling[42] and the price obtained, to receive money generated by the sale of land contributed by one or both of the others. In addition, in the event of a surplus of Cash over $65m the two joint venturers alone share. Although the circumstances of this case do not bring it, strictly, within any of the established categories where the doctrine of conversion in equity applies, it is hard to resist the conclusion that the JVA treats previous rights in land as converted into rights to money. Further, equitable ownership is always commensurate with the right to relief in a court of equity[43] and it is difficult here to think of a case where a transferor would obtain relief declaring its interest to be in the land originally transferred by it or giving effect to an interest so defined. In most cases the relief would be pecuniary or would define the interest in pecuniary terms. It is artificial to view the “payment” provisions as separate from those setting out how the Land Trustee holds the land. For these reasons, it is correct to look, as his Honour did, to clause 6.2 in ascertaining the interests of a transferor.
[42]Which may be varied in accordance with clause 2.2(e).
[43]See, for instance, Trustees Executors and Agency Co. Ltd. v. Acting FC of T (1917) 23 C.L.R. 576 at 583.
I conclude that, if the transferors’ rights in land are not to be treated as converted into money, at any rate all three transferors have an interest in all the land transferred as tenants in common in equity collectively, provisionally in the shares or proportions which the price to which they respectively are entitled as set out in Annexure B bears to the total price there set out.[44] On the true construction of the whole JVA and the Trust Deed the words of severance and of beneficial ownership, so far as they do not merely refer to the position at the moment of execution, that is, immediately before the coming into effect of the several transfers, are overridden by the contrary indicia and have no real force. Nor does clause 10.4. English Sewing Cotton Co. is clearly distinguishable on its facts. Similarly, in my opinion, Booth v. Ellard is distinguishable. It concerned a different question, that of disposal. It is true that several shareholdings were pooled collectively and yet the measure of the beneficial interest was held not to have been affected. But here the several portions of land contributed differed between themselves, unlike the shares, and there were numerous other relevant provisions in the present documents not found there. It follows that the words of the first limb of the exemption are not satisfied.
[44]Another possible view is that, if rights in the land are not to be treated as converted into money, it is the joint venturers who alone are interested in the land, as tenants in common in equal shares in equity.
It is necessary, however, finally to note an alternative argument of the respondent. It was submitted that, if it was held that the JVA did change the beneficial ownership of the land, then it had that effect once and for all immediately before the transfers and the Deed took effect rather than afterwards. Each of the transfers took effect subject to the terms of the JVA, so that the land transferred by the Land Holding Parties was already impressed with or subject to the contractual provisions of the JVA. But the difficulty - or a difficulty – with that submission is that, even if it be assumed to be chronologically correct, the land the subject of the transfer is not to be held solely as trustee of the transferor, for, by hypothesis, other persons also are already beneficial owners of that land.
Value for duty: whether conveyances on sale
Since, in my view, none of the three transfers is exempt, it is necessary to determine the value for duty of the real property transferred by each.
Not a great deal of oral argument was devoted to this part of the case and in particular counsel for the appellant did not, as it seemed to me, really persist in his submission that each transfer was a conveyance on sale, though he said that he did not abandon it. I agree with his Honour’s conclusions that the transfer was not a conveyance on sale and that, if that were incorrect, the consideration for the sale was the relevant price stated in Annexure B to the JVA. His Honour’s conclusions were expressed, of course, in respect of the fifth transfer only, but I would apply them to all three transfers. His Honour set out the arguments of the parties and his own reasons in some detail. Since this judgment is already lengthy, I would, subject to two qualifications[45] and with some additional comments, adopt his Honour’s reasons as my own. Although counsel for the appellant was able to point to words or features of the JVA which, on one reading, supplied all the elements required by judicial exposition for a “sale” and could say that, on a certain interpretation, the JVA satisfied other judicial descriptions of a sale, it is, in my opinion, unrealistic to describe the means or transactions by which Victoria Gardens acquired the several parcels of land as “sales”. Considered as a whole, the JVA did not constitute or effect a sale. Victoria Gardens did not take the Land beneficially. The concept of “distribution”, found in clause 6.2, is appropriate to a trust and foreign to a sale. The duties Victoria Gardens assumed as Land Trustee were those of trustee, not obligations of a purchaser. In another context it might be possible to tease out a price for a sale to an entity in the position of Victoria Gardens which was the amount of $65m and to say that that amount was not payable until it had been received by the entity from persons to whom it had in turn sold the land. But no “entitlement”, and therefore, it would seem, no debt in favour of a transferor, arises until Victoria Gardens sells to a third party, which is inconsistent with a sale to Victoria Gardens. In short, Victoria Gardens took as a trustee, not as a purchaser.
[45]The qualification of substance is that, contrary to para.74 and perhaps para.77 of his Honour’s second set of reasons, in my view the transfers were not merely transfers of the bare legal estate, but of the legal and equitable estate. That the equitable estate was transferred is shown by the fact that Victoria Gardens declared that it held the Land for the transferors (though, as I have held earlier, this meant for the transferors collectively as opposed to respectively). As his Honour made clear, Victoria Gardens did not of course acquire the beneficial interest in the Land for itself. Compare generally Corin v. Patton (1990) 169 C.L.R. 540 at 578. The second qualification is probably only one of expression. In para.78 his Honour said that Victoria Gardens could not deal with the property as an owner. Being registered or entitled to be registered as the proprietor of the legal estate, it could deal with the property as owner of it, but it was contractually bound by restrictions contained in the Deed and JVA and could not act as an unrestricted beneficial and legal owner.
Conclusions
I would propose that the appeal so far as it relates to assessments numbered A70416 and A70417 be allowed; that paragraph 1 of his Honour’s order of 10 February 1999 be set aside and that in lieu thereof it be ordered that those assessments be varied by reducing the amount of duty appropriately. I would
dismiss the cross-appeal. In view of the affidavit and oral evidence of Mr. Sweeney, the valuer, one would hope that the parties could agree now upon the market value at the relevant date of the land transferred by each of Staged Developments and Taras and could calculate the duty payable on the first and second transfers accordingly. If not, it will be necessary to remit the matter to his Honour for determination of the amounts to which the duty on those two transfers respectively is to be reduced. I would hear the parties on the question of costs, both here and below.
CHERNOV, J.A.:
I have had the benefit of reading the draft judgment of Batt J.A., and agree that, for the reasons given by his Honour, the appeal should be disposed of as he proposes.
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