Commonwealth Managed Investments Limited and Commissioner Of State Revenue

[2006] WASAT 125

COMMONWEALTH MANAGED INVESTMENTS LIMITED and COMMISSIONER OF STATE REVENUE [2006] WASAT 125

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 125
Act:	TAXATION ADMINISTRATION ACT 2003 (WA)
Case No:	CC:2575/2005	Heard:	20 FEBRUARY 2006
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT)	Delivered:	18/05/06
No of pages:	50	Judgment Part:	1 of 1
Result:	Assessments set aside
Category:	B
PDF Version

Parties:	COMMONWEALTH MANAGED INVESTMENTS LIMITED COMMISSIONER OF STATE REVENUE
Catchwords:	Stamp duty ­ Unit trust ­ Disposition of units ­ No executed document evidencing or effecting disposition ­ Memoranda of transaction created by Commissioner ­ Whether Commissioner entitled to create Memoranda ­ Whether executed instrument necessary to fix liability for duty ­ Nature of interest of unit holders ­ Whether beneficial interest in land in Western Australia ­ Approach to be taken in assessing nature of interest ­ Necessary quality of definable extent of interest
Legislation:	Evidence Act 1906 (WA), s 73A Land Tax Act 1958 (Vic) Stamp Act 1921 (WA), s 4, s 4(1), s 16(1), s 16(3), s 20, s 20(1), s 27, s 31, s 31B, s 31B(1), s 31B(4), s 73, s 73D(10), s 73D, s 73DAA(1), s 73D(2), s 73D(3), s 73D(4), s 73D(4)(a), s 73D(5), s 73D(5a), s 75HA, s 76AG, s 76AN, s 112HA, s 112HB, Second Schedule Taxation Administration (Consequential Provisions) Act 2002 (WA), s 34 Taxation Administration Act 2003 (WA), s 20, s 20(2), s 20(3)
Case References:	Arjon Pty Ltd v Commissioner of State Revenue (2003) 8 VR 502 Charles v Federal Commissioner of Taxation (1954) 90 CLR 598 Commissioner of State Revenue v Karingal 2 Holdings Pty Ltd (2003) 8 VR 532 Commissioner of State Taxation (WA) v Merifield Cooksey Holdings Pty Ltd (1994) 94 ATC 4774, (1994) 30 ATR 21 Costa & Duppe Properties Pty Ltd v Duppe [1986] VR 90 CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431 Gartside v Inland Revenue Commissioner [1968] AC 553 Kent v Vessel 'Maria Luisa' (No 2) (2003) 130 FCR 12 Linton & Linton Nominees Pty Ltd v Commissioner of State Taxation (WA) (1977) 8 ATR 99 Markovina v The Queen (1996) 16 WAR 354 Ansett Transport Industries (Operations) Pty Ltd v Comptroller of Stamps (Vic) (1982) 82 ATC 4643 Broken Hill South Ltd v Deputy Commissioner of Taxation (NSW) (1937) 56 CLR 337 Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 Commissioners of Inland Revenue v Maple & Co (Paris) Limited [1908] AC 22 Johnson & Ors v Commissioner of Stamp Duties [1956] AC 331 Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 412 (HC) MSP Nominees Pty Ltd & Anor v Commissioner of Stamps (SA) (1999) 198 CLR 494 Ord Forrest Pty Limited v Federal Comissioner of Taxation (1974) 130 CLR 124 Pearce v Florenca (1976) 135 CLR 507 Read v The Commonwealth of Australia (1988) 167 CLR 57 Thompson v Commissioner of Stamp Duties [1969] 1 AC 320 Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1 Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (Vic) [2004] ATC 4154
Orders	Orders,Matter 2563 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072756 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The Respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072756.,Matter 2564 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072750 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The respondent is directed to do all things necessary to make a reassessment under section 161(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072750.,Matter 2565 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2200467 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2200467.,Matter 2566 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2057413 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2057413.,Matter 2567 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072761 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072761.,Matter 2568 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072752 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072752.,Matter 2569 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2200469 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2200469.,Matter 2570 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072748 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072748.,Matter 2571 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2200470 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2200470.,Matter 2572 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072749 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072749.,Matter 2573 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072751 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072751.,Matter 2574 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072760 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072760.,Matter 2575 of 2005,1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072763 (the Objection) is set aside.,2. The Objection is allowed.,3. The assessment the subject of the Objection is set aside.,4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072763.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : TAXATION ADMINISTRATION ACT 2003 (WA) CITATION : COMMONWEALTH MANAGED INVESTMENTS LIMITED and COMMISSIONER OF STATE REVENUE [2006] WASAT 125 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : 20 FEBRUARY 2006 DELIVERED : 18 MAY 2006 FILE NO/S : CC 2575 of 2005

CC 2574 of 2005
CC 2573 of 2005
CC 2572 of 2005
CC 2571 of 2005
CC 2570 of 2005
CC 2569 of 2005
CC 2568 of 2005
CC 2567 of 2005
CC 2566 of 2005
CC 2565 of 2005
CC 2564 of 2005
CC 2563 of 2005

BETWEEN : COMMONWEALTH MANAGED INVESTMENTS LIMITED

Applicant

AND

COMMISSIONER OF STATE REVENUE
Respondent

(Page 2)

<Party Name1="COMMONWEALTH MANAGED INVESTMENTS LIMITED", Type1="Applicant", Name2="COMMISSIONER OF STATE REVENUE", Type2="Respondent",>

Catchwords:
Stamp duty ­ Unit trust ­ Disposition of units ­ No executed document evidencing or effecting disposition ­ Memoranda of transaction created by Commissioner ­ Whether Commissioner entitled to create Memoranda ­ Whether executed instrument necessary to fix liability for duty ­ Nature of interest of unit holders ­ Whether beneficial interest in land in Western Australia ­ Approach to be taken in assessing nature of interest ­ Necessary quality of definable extent of interest

Legislation:

Evidence Act 1906 (WA), s 73A

Land Tax Act 1958 (Vic)
Stamp Act 1921 (WA), s 4, s 4(1), s 16(1), s 16(3), s 20, s 20(1), s 27, s 31, s 31B, s 31B(1), s 31B(4), s 73, s 73D(10), s 73D, s 73DAA(1), s 73D(2), s 73D(3), s 73D(4), s 73D(4)(a), s 73D(5), s 73D(5a), s 75HA, s 76AG, s 76AN, s 112HA, s 112HB, Second Schedule
Taxation Administration (Consequential Provisions) Act 2002 (WA), s 34
Taxation Administration Act 2003 (WA), s 20, s 20(2), s 20(3)

Result:

Assessments set aside

Category: B

Representation:

Counsel:

Applicant : Mr CL Zelestis QC and Mr D Barnett
Respondent : Mr GTW Tannin SC and Mr TC Russell

Solicitors:

Applicant : Freehills
Respondent : State Solicitor's Office

(Page 3)

Case(s) referred to in decision(s):

Arjon Pty Ltd v Commissioner of State Revenue (2003) 8 VR 502
Charles v Federal Commissioner of Taxation (1954) 90 CLR 598
Commissioner of State Revenue v Karingal 2 Holdings Pty Ltd (2003) 8 VR 532
Commissioner of State Taxation (WA) v Merifield Cooksey Holdings Pty Ltd (1994) 94 ATC 4774, (1994) 30 ATR 21
Costa & Duppe Properties Pty Ltd v Duppe [1986] VR 90
CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431
Gartside v Inland Revenue Commissioner [1968] AC 553
Kent v Vessel 'Maria Luisa' (No 2) (2003) 130 FCR 12
Linton & Linton Nominees Pty Ltd v Commissioner of State Taxation (WA) (1977) 8 ATR 99
Markovina v The Queen (1996) 16 WAR 354

Case(s) also cited:

Ansett Transport Industries (Operations) Pty Ltd v Comptroller of Stamps (Vic) (1982) 82 ATC 4643
Broken Hill South Ltd v Deputy Commissioner of Taxation (NSW) (1937) 56 CLR 337
Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12
Commissioners of Inland Revenue v Maple & Co (Paris) Limited [1908] AC 22
Johnson & Ors v Commissioner of Stamp Duties [1956] AC 331
Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 412 (HC)
MSP Nominees Pty Ltd & Anor v Commissioner of Stamps (SA) (1999) 198 CLR 494
Ord Forrest Pty Limited v Federal Comissioner of Taxation (1974) 130 CLR 124
Pearce v Florenca (1976) 135 CLR 507
Read v The Commonwealth of Australia (1988) 167 CLR 57
Thompson v Commissioner of Stamp Duties [1969] 1 AC 320
Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1
Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (Vic) [2004] ATC 4154

(Page 4)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

1 Between 1998 and 2002 a number of dispositions, by way of issue and distribution, of units in a unit trust, known as the Commonwealth Property Investment Fund, were made to various entities. The dispositions were recorded in the register of CPIF. No documents effecting or evidencing the transactions were executed. CPIF was established in New South Wales and its register was located in New South Wales. The trust fund consisted of substantial property interests, the majority of which was located elsewhere than Western Australia. However, part of the trust property consisted of units in several unit trusts which themselves held certain real property in Western Australia.

2 The Commissioner of State Revenue considered that the dispositions of units in CPIF was caught for stamp duty purposes by s 73D of the Stamp Act 1921 (WA) as it stood at the date of the transactions in question. In the absence of executed documents upon which duty could be levied, the Commissioner used his powers under the Taxation Administration Act 2003 (WA) to create memoranda of the transactions, and assessed those memoranda for duty.

3 The various entities which had received the dispositions, and which was liable for the duty assessed, sought a review of the assessments by the State Administrative Tribunal. They argued that, in the absence of an executed instrument, there was no liability for duty, and the Commissioner was not entitled to impose duty as he had. They also argued that s 73D had no application because ownership of a unit in the CPIF trust did not amount to a beneficial interest in land in Western Australia.

4 The Tribunal agreed with both of those contentions and ordered that the assessments be set aside.

Introduction

5 In June 2004, the respondent issued stamp duty assessment notices to each of the applicants in these matters. The assessments related to certain dispositions of units in a unit trust scheme currently known as Direct Property Investment Fund A, but previously known as the Commonwealth Property Investment Fund (CPIF). CPIF was established pursuant to the execution of a trust deed (CPIF trust deed) in New South Wales on 31 July 1996. The duty was assessed under the provisions of s 73D of the

(Page 5)

Stamp Act 1921 (WA) (Stamp Act). The operative provisions of the Stamp Act for the purposes of these proceedings are the provisions as they stood between 24 July 1998 and 31 March 2002. References to sections of the Stamp Act in these reasons are reference to provisions as they read at that time, unless otherwise stated.

6 Section 73D of the Stamp Act imposed duty on an instrument effecting or evidencing a disposition of units in a unit trust scheme by treating that disposition as if it were a "conveyance or transfer free of encumbrances" of a share in, relevantly, "any interest, including any beneficial interest, in" Western Australian land and chattels "held by the unit trustee as trustee of the unit trust scheme". At the relevant time, the trustee/responsible entity of CPIF (the trustee) was Commonwealth Managed Investments Limited or Commonwealth Custodial Services Limited.

7 The trustee held units in three unit trusts (the subtrusts). They were the Midland Trust, the 210 Bannister Trust and the C1 Trust. It held all but one of the 65 453 742 units in the Midland Trust, all of the units in the 210 Bannister Trust, and all but 10 of the 20 479 740 units in the C1 Trust.

8 Investments held by CPIF are divided into three sectors, the retail sector, commercial sector and industrial sector. Units in the Midland Trust are part of the retail sector. Units in the 210 Bannister Trust are part of the industrial sector, and units in the C1 Trust are part of the commercial sector. Unit holders in CPIF purchase units in a particular sector.

9 On 7 December 1999, the Midland Trust acquired a 50% interest in the properties known as Midland Gate Shopping Centre in Western Australia for $64 709 000. At all relevant times, the Midland Trust continued to hold the Midland Gate property.

10 On 25 October 1999, the 210 Bannister Trust acquired the property located at 210 Bannister Road, Canning Vale in Western Australia for $7 324 000, and continued to hold that property at all relevant times.

11 The C1 Trust acquired a property located at 150 St Georges Terrace, Perth, Western Australia on 15 May 1998 for $19 625 000. The property was revalued at $20 500 000 on 31 December 1998. The C1 Trust held 150 St Georges Terrace at all material times.

(Page 6)

12 Between 1998 and 2002, a number of issues or distributions of units were made to the various applicants in these proceedings. Details of those issues and distributions are set out in the schedule to these reasons.

13 Section 73D(2) required that:

"A person shall not make, accept, give effect to, recognize [sic], or register, record, or enter in the books or records of a unit trust scheme a disposition in relation to a unit unless –

a) a transfer or an instrument effecting or evidencing the disposition is executed and delivered to him; and

b) the transfer or the instrument, as the case may be, is duly stamped under this Act."

14 In relation to the dispositions identified in the schedule, instruments were not lodged with the respondent by the applicants. On 16 March 2005, 26 April 2005 and 6 May 2005, the respondent created memoranda, pursuant to s 20 of the Taxation Administration Act 2003 (WA) (TA Act), in respect of the distributions in substitution for the instruments which he contended should have been lodged, and assessed duty in relation to the transactions reflected in the memoranda.

15 The units being held by the trustee of CPIF in the three unit trusts holding land in Western Australia were not the only assets of CPIF. The total assets of CPIF had, at the material time, something in excess of $1 billion in value. The approach by the respondent to the assessment of duty was explained by Mr Robert Hermans, a senior investigations officer from the Office of State Revenue, in an affidavit. He explained that, in applying s 73D(4) of the Stamp Act, in respect of dispositions to existing unit holders, the respondent determined the increased percentage of units held in the trust by the unit holder and multiplied that percentage by the value of land situated in the State. In respect to dispositions to new unit holders, the respondent determined the value of the undivided share, represented by a unit in each sector, of land situated in the State by dividing the value of the property held by the subtrust by the total number of units issued in the sector. In respect to dispositions that were distributions only, the respondent calculated the duty to be assessed on each distribution to be $20 in accordance with s 73D(5a) of the Stamp Act.

16 Having requested and obtained grounds for the assessment from the respondent, the applicants objected to the assessment on 26 October 2004,

(Page 7)

and on 18 March 2005, the respondent disallowed those objections. The applicants then brought these proceedings for review.

The grounds of review

17 The five grounds upon which the applicants contend that the assessments are not valid and correct were helpfully summarised by the applicants as follows:

"Submission 1 – executed instruments

(a) on its proper construction, and having regard to recent amendments made to the Act on 1 January 2004, section 73D only imposed duty in respect of a disposition of units in a unit trust scheme if an instrument effecting or evidencing that disposition was executed by or on behalf of one of the parties to the disposition;

(b) in the present circumstances, no instrument effecting or evidencing any Disposition was executed by or on behalf of the trustee/responsible entity of CPIF or any of the Applicants;

Submission 2 – nature of the trust property of CPIF

(c) the rights of the trustee/responsible entity of CPIF, as a unit holder in the Sub Trusts, did not answer the statutory description of an 'interest, including any beneficial interest, in' land or chattels in Western Australia within the meaning of s 73D of the Act;

Submission 3 – the rights pertaining to any unit in CPIF were not affected

(d) if, contrary to the Applicants' submissions, the Dispositions are chargeable with duty under s 73D of the Act, s 73D(5) applies such that nominal duty is chargeable in respect of each Disposition on the basis that no Disposition significantly affected any right or rights pertaining to any unit in CPIF;

Submission 4 – The right of indemnity of the trustee/responsible entity of CPIF

(Page 8)

(e) the trustee/responsible entity of CPIF had an unsatisfied right of indemnity and exoneration in respect of the assets of CPIF, such that until that right was satisfied it could not be said that the trustee/responsible entity of CPIF held the units in the Sub Trusts 'as trustee of the unit trust scheme', being CPIF, as required by s 73D(4);

(f) in the alternative, the unencumbered value of any interest in Western Australian land and chattels represented by the units in CPIF must be reduced to the extent of the right of indemnity and exoneration of the trustee/responsible entity of CPIF; and

Submission 5 – CPIF is not a trust to which s73D applies

(g) as a matter of statutory construction, having regard to the particular structure and nature of CPIF and the territorial limitations upon s 73D of the Act, CPIF is not a unit trust to which s 73D applies."

Section 73D

18 Section 73D relevantly provided:

"73D. Disposition of units in unit trust schemes

(1) In this section ¾


'chattels' has the same definition as in section 76;

'disposition', in relation to a unit, includes ¾

(a) a transfer or other disposition of the unit;

(b) the allotment or issue of the unit;

(c) the redemption, surrender or cancellation of the unit;

(d) the variation, abrogation or alteration of a right pertaining to the unit with respect to capital of the unit trust scheme; and

(e) any means by which a unit is disposed of or the rights of its holder are diminished;

(Page 9)

'land' has the same definition as in section 76;

'transfer' means a conveyance, transfer, or instrument chargeable as a conveyance; and

'unit' means any right or interest, whether described as a unit or subunit or otherwise, of a beneficiary under a unit trust scheme and includes an interest in a unit.

(2) A person shall not make, accept, give effect to, recognize [sic], or register, record, or enter in the books or records of a unit trust scheme a disposition in relation to a unit unless ¾

(a) a transfer or an instrument effecting or evidencing the disposition is executed and delivered to him; and

(b) the transfer or the instrument, as the case may be, is duly stamped under this Act.


(3) A person who contravenes or fails to comply with a provision of subsection (2) commits an offence and is liable to a penalty equal to double the amount of duty that would have been payable if an appropriate transfer or instrument had been executed and duly stamped under this Act.

(4) Subject to subsections (4a), (4b), (5), (5a), and (6), a transfer of a unit and an instrument effecting or evidencing a disposition in relation to a unit shall each be chargeable with duty as if it were separately ¾


(a) a conveyance or transfer free of encumbrances of an undivided share, equivalent to the proportion of the total issued units under the unit trust scheme represented by the unit, in land and chattels situated in the State or any interest, including any beneficial interest, in any such land and chattels held by the unit trustee as trustee of the unit trust scheme; and

(b) a conveyance of the unit.

(Page 10)

(4a) The value of the unit, for the purpose of assessing duty under subsection (4)(b), shall be the value of the unit reduced by the value of the land and chattels or interest in land and chattels (if any) determined for the purpose of assessing duty under paragraph (a) of that subsection.

(4b) Subject to subsections (5) and (5a), the duty chargeable on a transfer of a unit or an instrument effecting or evidencing a disposition in relation to a unit shall not in any event be less than the amount of duty determined under item 4(1) of the Second Schedule on the amount or value of the consideration for the transfer or the disposition.

(5) Where a disposition does not significantly affect any right or rights pertaining to any unit, having regard to the rights pertaining to the other issued units under the unit trust scheme, the instrument effecting or evidencing the disposition shall be chargeable with duty under item 6 of the Second Schedule.

(5a) Where a disposition, or a series of dispositions ¾


(a) has effect in relation to the number of units held by all holders of units in proportion to the number of units respectively held by them immediately prior to the disposition or dispositions taking effect; and

(b) does not have the effect of varying, abrogating or altering the rights of any holder of units as against the rights of any other holder of units with respect to the capital of the unit trust scheme,

the instrument effecting or evidencing the disposition, and each instrument effecting or evidencing a disposition in a series of dispositions, shall be chargeable with duty under item 6 of the Second Schedule.


(6) The Commissioner shall, where it is necessary to determine, for the purposes of subsection (4), the proportion of the total issued units under a unit trust scheme represented by a unit, take into account, in such manner as he considers appropriate, the respective rights

(Page 11)

and obligations pertaining to the unit and the other units under the unit trust scheme.

...

(7) Each of the holders of a unit under a unit trust scheme is liable to pay the duty with which a transfer of the unit or an instrument effecting or evidencing a disposition in relation to the unit is chargeable.

(8) A unit trustee shall, where a transfer of a unit or an instrument effecting or evidencing a disposition in relation to a unit has been delivered to him, retain the transfer or instrument, as the case may be, for not less than 2 years after the day on which it is delivered to him.

(9) A unit trustee who contravenes or fails to comply with subsection (8) commits an offence against this Act.

(10) A right or obligation arising out of a disposition in relation to a unit shall not be invalidated by reason only that the unit trustee made, accepted, gave effect to, or recognized [sic] the disposition or registered, recorded or entered the disposition in the books or records of the unit trust scheme in contravention of subsection (2).

Issue 1 - the need for an executed instrument

19 Pursuant to cl 15.1 of the CPIF trust deed, the manager of CPIF is required to maintain a register of unit holders in each sector for CPIF. The register must contain the name and address of each unit holder in that sector, the number of units held in that sector, the date and name of each unit holder is entered in the register, the date a person ceases to be a unit holder in that sector and any other details determined by the manager. That unit register was maintained electronically in accordance with the requirements of CPIF trust deed at all material times. The register was updated whenever there was a disposition of units in CPIF. Printouts of the register could be, and were, made. Amongst the papers produced at the hearing was a report detailing transactions in each sector of the fund involving applications for units or distributions of units.

20 The applicants contend that the scheme of s 73D was, like the scheme of the Stamp Act generally, directed to the imposition of duty on executed instruments. "Instrument" is defined in s 4(1) as including

(Page 12)

"every document in writing or duplicate or counterpart thereof and every matter or thing enumerated or set forth in the Second Schedule". The second schedule is entitled "duties payable on instruments". Section 16(1) provided that "the duties to be charged for the use of the Crown on or in respect of the instruments specified in the Second Schedule shall, subject to this Act, be the duties specified opposite to those instruments in that Schedule …". Section 16(3) provided:

"Where an instrument which relates to property situate in, or deemed to be situate in, Western Australia or to any matter or thing done or to be done in Western Australia –

(a) is executed in Western Australia and held in some place outside Western Australia; or

(b) is executed in some place outside Western Australia and held in that place or another place outside Western Australia,


the provisions of this Act shall extend and apply to the instrument, notwithstanding that the instrument is not in Western Australia, in all respects as if the instrument were executed and held in Western Australia."

21 Section 20 of the Stamp Act provided that an instrument may be stamped without fine "after the execution thereof if it is presented for stamping within a period of 3 months after the date of first execution thereof…". Section 20(1) also made reference to statements prepared under s 31B(1), s 76AG or s 76AN, s 75HA, s 112HA and s 112HB. Section 27, which made instruments not duly stamped inadmissible in evidence, made reference to the place of execution of instruments. Section 31 permitted the Commissioner to express an opinion with reference "to any executed instrument" as to whether an instrument is chargeable with duty in the amount of that duty. Section 31B provided that a person who becomes a party to a transaction identified in the subsection where the:

"transaction is not effected or evidenced by any instrument chargeable with ad valorem duty, shall, if he would have been liable to pay duty in respect of that transaction had such an instrument been executed, within a period of 3 months after entering into that transaction, prepare and lodge with the Commissioner a statement in a form approved by the Commissioner in respect of that transaction."

(Page 13)

22 Section 31B(4) provided that a statement prepared under subsection 1 shall be deemed to be an instrument effecting or evidencing the transaction to which it relates and is chargeable with duty accordingly.

23 I agree with the applicants' contention that those sections demonstrate that liability to duty generally arises only when an instrument effecting or evidencing the relevant transaction is executed by or on behalf of a party to that transaction. It is at the point of execution that the legal effect of the documents is assessed for the purpose of determining liability to stamp duty – Linton & Linton Nominees Pty Ltd v Commissioner of State Taxation(WA) (1977) 8 ATR 99 at 105; DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431 at 454, per Mason J and 470, per Brennan J.

24 Section 73D(2) required that, before altering a register or the records of a unit trust, a person must first have delivered to him an executed transfer or instrument effecting or evidencing the disposition. The respondent contends that there were instruments "effecting or evidencing" the dispositions as required by that subsection. It contends that the electronically maintained unit register is a "document in writing" and thus an "instrument". It relies on the decision of Markovina v The Queen (1996) 16 WAR 354 at 384 where it was held that a print out of computer output was a "reproduction" (for the purposes of s 73A of the Evidence Act 1906 (WA)). The respondent submits that a reproduction is analogous to a "duplicate" and therefore satisfies the definition of "instrument" in s 4 of the Stamp Act. Furthermore, the respondent contends that statements prepared by CPIF's unit registry and sent to unit holders were instruments evidencing the disposition as required by the Stamp Act.

25 The submissions by the respondent overlook the requirement specified in s 73D(2) that the instrument effecting or evidencing the disposition be "executed" and delivered to the person proposing to make entries in the register or records of the unit trust. Indeed, the documents identified by the respondent are themselves the "register, record, or [entries] in the books or records of" the unit trust. What is contemplated by s 73D(2) is clearly some other document which must be executed and delivered before the documents to which the respondent points can be created. None of the documents identified by the respondent is itself a dutiable instrument.

26 It was not those documents which the respondent identifies as being "instruments effecting or evidencing the disposition" which were assessed for duty. Rather, they were documents upon which the respondent relied

(Page 14)

in creating memoranda pursuant to s 20 of the TA Act. While it is true that liability to duty generally arises upon execution of an instrument, provisions have been inserted into the legislation to counter avoidance of duty by mechanisms which bypass the creation of a dutiable instrument. An example is s 31B of the Stamp Act. That section required the preparation and lodgement of a statement in an approved form where certain specified transactions occur which, were they effected or evidenced by an executed instrument would attract duty, but no such instrument has been executed. The statement is then deemed to be an instrument effecting or evidencing the transaction and is chargeable with duty accordingly. The respondent does not argue that s 31B is applicable in these cases.

27 The TA Act came into force on 1 July 2003. Section 34 of the Taxation Administration (Consequential Provisions) Act 2002 (WA) preserved duties, obligations and liabilities under the Stamp Act (as it applied immediately before the TA Act), and provided that those duties, obligations or liabilities could be enforced as if the substantive provisions of that Act were a taxation act for the purposes of the TA Act. The effect of that provision is to enable the respondent to utilise its power under s 20 of the TA Act in relation to duties, obligations or liabilities arising under the Act as it stood at the material time.

28 Section 20 of the TA Act relevantly provides:

"20. Assessments when instrument misleading or unavailable

(1) …

(2) If tax is or may be payable on an instrument required to be lodged under a taxation Act, but the instrument has not been lodged as required, then for the purposes of making an assessment, the Commissioner may —


(a) treat a copy of the instrument as if it were the instrument; or

(b) subject to subsection (4), if a copy of the instrument is not available — create a memorandum of the instrument, and treat the memorandum as if it were the instrument.

(Page 15)

(3) If tax is or may be payable in relation to an event or transaction, but an instrument required to be lodged under a taxation Act in relationto the event or transaction has not been lodged, then for the purposes of making an assessment the Commissioner may, subject to subsection (4), create a memorandum in substitution for the instrument and for the purposes of the taxation Act and this Act the memorandum is taken to be the instrument lodged by the person required to lodge it under the taxation Act."

29 The respondent relied upon s 20 in making the assessments subject of this review.

30 The applicants contend that it was not open to the respondent to utilise s 20(2) or s 20(3) of the TA Act to create memoranda because s 73D of the Stamp Act did not create a requirement to lodge an instrument. Rather the applicants contend, the scheme of the provision is to prevent entries in books of the unit trust in the absence of an instrument, and then to create an offence where entries are made without the appropriate stamped instrument having been delivered. They point to the fact that the section operates upon the person making entries into the books, not the person who executes and delivers the instrument. There is no express provision in s 73D requiring a person to execute and lodge with the Commissioner a document. The applicants contrast the position under the Stamp Act at the material time with the subsequent enactment of s 73DAA(1) of the Stamp Act, which was inserted in 2003, which provides:

"73DAA. Dutiable statement required if transfer or instrument not lodged

(1) Subject to subsection (3) if, for a disposition in relation to a unit —

(a) a transfer; or

(b) an instrument effecting or evidencing the disposition,

is not lodged with the Commissioner, each liable person must, within 2 months after the disposition

(Page 16)

is made, lodge a statement with the Commissioner in respect of the disposition.

Penalty: $20 000."

31 The respondent contends that there is an obligation implied in s 73D that an instrument is required to be lodged. Counsel for the respondent pointed to s 73D(10), suggesting that the "obligation arising out of a disposition" contemplated by that subsection is the obligation to lodge the instrument contemplated by s 73D(2). I do not accept that submission. Section 73D(10) is directed to the efficacy of the disposition. It is designed to avoid a situation where the register or books of a unit trust does not reflect the valid entitlements of the holder of the units. It is a provision which reinforces the proposition that the only consequence of a failure to comply with s 73D(2) is liability to a penalty under s 73D(3) of double the amount of duty that would otherwise be payable.

32 Section 73D(2) clearly contemplates the preparation, execution and stamping of an instrument. It does not, however, impose a requirement for an instrument to be prepared and lodged for stamping. The remedy chosen for the protection of the revenue is prosecution of the person who, contrary to s 73D(2), registers or records a disposition of units without receiving an executed and stamped instrument. In this case, there may be difficulties in prosecution of the trustee where the actions which would be alleged to constitute an offence have taken place entirely in New South Wales. That is not, however, a matter which affects the proper construction of s 20 of the TA Act and s 73D of the Stamp Act.

33 It follows that it was not open to the Commissioner to create memoranda under s 20, and in the absence of any executed instrument effecting or evidencing the disposition, there was nothing upon which a liability to duty could attach. The consequence of that conclusion is that the assessments should, in each case, be set aside.

34 My conclusion in relation to the first issue is determinative of the review. There was, however, a significant focus on the first two issues in both written and oral submissions. I have also reached the view that resolution of the second issue would also result in the assessments being set aside. It is appropriate that I explain my reasons for reaching that conclusion. It is not necessary for me to deal with the remaining three issues, and I do not think it would be helpful to the parties to do so. At least to some degree, any conclusion I might reach on those issues would necessarily be coloured by my conclusions on the second issue.

(Page 17)

Issue 2 – the nature of the trust property of CPIF

35 Section 73D(4)(a) treats an instrument effecting a disposition of a unit as a conveyance of a beneficial interest in any land situated in Western Australia held by the unit trustee. In this case, CPIF does not directly hold land in Western Australia. Rather it holds units in unit trusts, the trustee of which owns land in Western Australia. The applicants contend that, having regard to the terms of the relevant trust deeds, CPIF cannot be said to hold a beneficial interest in land in Western Australia.

36 It is necessary to consider the terms of the relevant trust deeds to deal with this issue.

CPIF trust deed

37 The CPIF trust deed contains the following relevant clauses:

"1.1 Definitions

'Assets' in relation to the trust means all the cash, investments and other property of the trust and in relation to a sector means all the assets (or parts of assets) allocated to that sector;

'Unit' means an undivided interest in the Trust as provided for in this deed;


2.4 One Trust

The Trustee must hold the whole of the Assets of the Trust on trust as one trust fund on the terms of this deed.

3.1(a)

The beneficial interest in the Assets is divided into Units.

3.4

(a) Each Unit issued in respect of a Sector confers rights and obligations:

(1) equal to those conferred on Unit Holders by each other Unit issued in respect of that Sector; and

(Page 18)

(2) proportionate to its Current Unit Value.

(b) No Unit confers an interest in a particular part of the Asset of the Trust, or in any investment.

(c) A Unit holder may not require that any Asset be transferred to a Unit Holder.

6.1 Manager to manage the Trust

(a) Subject to this deed, the Manager has full and complete powers of management and must manage the Trust (including all Assets, borrowings and liabilities of the Trust) for the benefit of the Unit Holders. Subject to this deed, the Manager has all the powers of a natural person acting in his or her personal capacity.

(b) The Manager must ensure that there is sufficient cash available to the Trustee from each Sector to meet the payment obligations of the Trustee as trustee of the Trust in relation to that Sector.


7.1 Manager's discretion on investment

(a) Subject to the powers of the Investment Committee, the Manager has absolute discretion as to the investment of any part of the Assets and as to the purchase, sale, transfer, exchange or alteration of any of those investments.

10.1 Manager's remuneration

The Manager is entitled to receive from the Trustee out of the Assets of the Trust a fee of 0.0625% of the Gross Value of the Trust per month calculated on the first day of each month (0.75% per annum notional).

10.2 Trustee's remuneration

The Trustee is entitled to receive and retain out of the Assets of the Trust a fee of 0.0083% of the Gross Value of the Trust per month calculated on the first day of each month (0.1% per annum notional).

(Page 19)

10.3 Priority of remuneration

In priority to any claim by Unit Holders, each of the Trustee and Manager is entitled to retain its remuneration out of money in its possession held as part of the Assets of the Trust.

13.1 General powers of Trustee

(a) Subject to this deed, the Trustee has all the powers of a nature person, acting in his or her personal capacity. These powers include, without limitation, the Trustee's powers to deal with and invest the Assets.

(b) In the exercise of its powers the Trustee may acquire or dispose of any real or personal property and borrow or incur any liability, but only as directed by the Manager. The Trustee may dispose of any Asset without a Manager's direction only in the exercise of any of its rights of reimbursement and indemnity.


15.3 Recognition of Unit Holders

The Manager and Trustee:

(a) must treat the person entered on the register as a Unit Holder as the absolute owner of all rights and interests of the Unit Holder; and

(b) except as required by law or this deed, need not recognise any claim or interest in any Unit by any other person."

Midland trust deed and 210 Bannister trust deed

38 The Midland trust deed and the 210 Bannister trust deed are relevantly identical. The relevant clauses are:

"1.1 Definitions

'Unit' means an undivided interest in the Trust as provided for in this deed.

(Page 20)

'Unit Holder' means a person registered as the holder of a Unit, including any persons jointly registered.

2.2 Vesting of Assets in Trustee

Each Asset of the Trust is vested in, and is held by or on behalf of the Trustee upon the trusts and with and subject to the powers and provisions concerning that Asset contained in this deed.

2.3

'Trustee must, … act on the direction of the trustee from time to time of Commonwealth Property Investment Fund (CPIF trustee) … whilst and so long as the CPIF trustee in that capacity holds all of the Units in the Trust to the intent that the day to day control over the operation of the Trust resides with the CPIF trustee in that capacity.'

3.1 Division into Units

(a) The entirety of the rights conferred by this deed on Unit Holders is divided into Units.

(b) Subject to this deed, but otherwise notwithstanding any rule or principle of law or equity:


(1) a Unit Holder has no equitable or propriety interest in the Assets and is not entitled to the transfer to it of any Asset or of any estate or interest in any Asset;

(2) the right of a Unit Holder in the Assets and under this deed is limited to the right to require the due administration of the Trust in accordance with this deed including, without limitation, by suit against the Trustee; and

(3) Without limiting the generality of the foregoing, each Unit Holder acknowledges and agrees that:

(Page 21)

(a) it will not commence or pursue any action against the Trustee seeking an order for specific performance or for injunctive relief in respect of any Asset and hereby waives any rights it may otherwise have to such relief;

(b) if the Trustee breaches or threatens to breach its duties or obligations to a Unit Holder under this deed, that Unit Holder's recourse against the Trustee is limited to a right to recover damages or compensation from the Trustee in a court of competent jurisdiction; and

(c) damages or compensation is an adequate remedy for such breach or threatened breach.

6.1 Trustee to manage Trust

Unless otherwise specified in this deed, a Unit Holder may not:

(a) interfere or seek to interfere with or question the rights, powers, authority or discretion of the Trustee;

(b) exercise any right in respect of any Asset or lodge any caveat or other notice affecting any Asset; or

(c) require that any Asset be transferred to a Unit Holder.


9.2 Distribution of Income

For each Distribution Period the Trustee must calculate and distribute each Unit Holder's Distribution Entitlement.

9.4 Distribution of Entitlement

(Page 22)

(a) The Trustee must pay to each Unit Holder its Distribution Entitlement on or before the Distribution Date.

10.1 Indemnity

In addition to any other right of indemnity which it may have under this deed or at law, the Trustee is indemnified and entitled to be reimbursed out of or have paid from the Assets for all Costs incurred in the performance of its duties or the exercise of its powers, the course of its office or in relation to the administration or management of the Trust.

10.4 Fees

The Trustee is entitled to receive and retain for its own use any fees that are agreed to be paid to it for acting as trustee of the Trust. The agreement need not be made with any Unit Holder.

17. Alterations to Trust

17.1 Variation of this deed


(a) The Trustee may by deed replace or amend this deed.

(b) Any amendment to or replacement of this deed must not adversely affect the rights of Unit Holders of the Trust unless the amendment or replacement is:


(1) approved in writing by Unit Holders holding not less than 75% of the issued Units; or

(2) required for this deed to comply with any relevant law.

18.1 Term of Trust

The Trust begins on the date of its establishment and ends on the earlier of:

(Page 23)

(a) the eightieth anniversary of the date of its establishment;

(b) the date notified by the Trustee as the date on which the Trust is to be terminated; and

(c) the date on which the Trust is terminated under this deed or by law.

18.2 Winding up in certain events

If during the term of the Trust the Trustee determines that the Trust should not continue it may give notice of its determination to the Unit Holders and on the date specified in the notice the Trust will end.

18.3 Procedure on winding up of Trust

(a) On winding up the Trust the Trustee must, subject to clause 18.3(b), sell and realise all realisable Assets and distribute to the Unit Holders all net cash proceeds derived from the realisation and available for distribution and any other cash of the Trust.

(b) The Trustee may distribute any Assets to any one or more Unit Holders in specie and may for that purpose determine the fair value of the Assets to be distributed.


19.5 Governing law and jurisdiction

The rights, liabilities and obligations of the Trustee and the Unit Holders are governed by the law of New South Wales."

C1 trust deed

39 The provisions of the C1 trust deed are similar to, but not identical with, the provisions of the Midland trust deed and the 210 Bannister trust deed. The relevant provisions are:

"1.1 Definitions

Unit means an undivided interest in the entirety of rights conferred by this deed on Unit Holders;

(Page 24)

Unit Holder means a person registered under this deed as the holder of a Unit and includes any persons jointly registered:

2.4 Vesting of Assets in Trustee

Each Asset is vested in, and is held by or on behalf of the Trustee upon the Trustee and with and subject to the powers and provisions concerning that Asset contained in this Deed.

3.1 Division into Units

(a) The entirety of the rights conferred by this deed on Unit Holders is divided into Units.

(b) Subject to this deed, but otherwise notwithstanding any rule or principle of law or equity:


(1) a Unit Holder has no equitable or proprietary interest in the Assets and is not entitled to the transfer to it of any Asset or of any estate or interest in any Asset;

(2) the right of a Unit Holder in the Assets and under this deed is limited to the right to require the due administration of the Trust in accordance with this deed including, without limitation, by suit against the Trustee or the Manager; and

(3) without limiting the generality of the foregoing, each Unit Holder acknowledges and agrees that:


(A) it will not commence or pursue any action against the Trustee or the Manager seeking an order for specific performance or for injunctive relief in respect of any Asset and hereby waives any rights it may otherwise have to such relief;

(Page 25)

(B) if the Trustee or the Manager breaches or threatens to breach its duties or obligations to a Unit Holder under this deed, that Unit Holder's recourse against the Trustee or the Manager is limited to a right to recover damages or compensation from the Trustee or the manager in a court of competent jurisdiction; and

(C) damages or compensation is an adequate remedy for such breach or threatened breach.

(c) A Unit Holder may not:

(1) interfere or seek to interfere with or question the rights, powers, authority or discretion of the Manager or the Trustee;

(2) exercise any right in respect of any Asset or lodge any caveat or other notice affecting any Asset;

(3) require that any Asset be transferred to a Unit Holder.

9.3 Distribution of income

For each Distribution Period the Manager must calculate and the Trustee must distribute, at the direction of the Manager, on or before each Distribution Date each Unit Holder's Income Entitlement.

10.1 Manager's remuneration

The Manager is entitled to receive from the Trustee out of the Assets the remuneration equal to the fee that is notified to the Trustee from time to time. The remuneration of the manager accrues daily.

10.2 Trustee's remuneration

The Trustee is entitled to receive and retrain out of the Assets the remuneration equal to:

(Page 26)

(a) an annual fee being the greater of:

(1) the aggregate of 0.05% of the value of the Assets up to and including $200,000,000 and 0.035% of the value of the Assets in excess of $200,000,000. This fee is calculated as at the end of each quarter, and is payable within 21 days of the end of each quarter; and

(2) $25,000, increased annually by the proportion that the Consumer Price Index All Groups Sydney last published before the date on which the relevant determination is to be made bears to the Consumer Price Index All Groups Sydney last published before the date of this deed. If the Consumer Price index All Groups Sydney ceases to be published or the method of its calculation substantially alters, then it is to be replaced with the nearest equivalent index (as determined by the Manager and approved by the Trustee); and


(b) a once only establishment fee of $3,000 payable on execution of this deed,

or such other amount as may be agreed between the Trustee and the Manager.

The remuneration of the Trustee accrues daily.

10.3 Waiver of remuneration

The Manager and the Trustee may waive the whole or any part of its entitlement to the remuneration to which they would otherwise be respectively entitled.

10.4 Priority of Manager's and Trustee's remuneration

The remuneration of the Trustee and Manager for the Trust has priority over the payment of all other amounts payable from the Assets of the Trust.

(Page 27)

11.1 Establishment and administration costs

In addition to any other right of indemnity which it may have under this deed or at law, the Manager and the Trustee are each indemnified and entitled to be reimbursed out of or have paid from the Assets of the Trust for all losses, damages and Costs properly incurred in the course of their office or in relation to the administration or management of the Trust, including the amounts specified in Schedule 1.

16.4 Recognition of Unit Holder

The Manager and Trustee:

(a) must treat the person entered on the register as a Unit Holder as the absolute owner of all rights and interests of the Unit Holder; and

(b) except as required by law or this deed, need not recognise any claim or interest in any Unit by any other person.


21.1 Term of Trust

The Trust begins on the date of its establishment and ends on the earlier of:

(a) The eightieth anniversary of the date of its establishment;

(b) The date notified by the Manager to the Trustee as the date on which the Trust is to be terminated; and

(c) The date on which the Trust is terminated under this deed or by law.


21.2 Termination

If:

(a) The Manager gives the Unit Holders in the Trust three months notice of its decision to terminate the Trust, then the Trust will be terminated; or

(Page 28)

(b) The office of manager becomes vacant and a new manager is not appointed within three months of the vacancy, then the Trustee may determine, effective immediately, to terminate the Trust.

21.3 Procedure on termination of the Trust

(a) Upon termination of the Trust for any reason, the Trustee must, subject to clause 21.3(b), sell and realise all realisable Assets and distribute to the Unit Holders all net cash proceeds derived from the realisation after payment of liabilities and Costs (whether incurred or accrued prior to or after termination of the Trust) and if available for distribution, any other cash of the Trust;

(b) The Trustee, if so directed by the Manager, must distribute any Asset to any one or more Unit Holders in specie and the Manager must for that purpose determine the fair value of the Asset to be distributed. Any Costs payable on an in specie distribution must be paid by the Unit Holder before the distribution is made.


23.5 Governing law and jurisdiction

(a) The rights, liabilities and obligations of the Trustee, the Manager and the Unit Holders are governed by the law of New South Wales.

(b) The Trustee, the Manager and each Unit Holder irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal therefrom."

The respondent's contention

40 The respondent contends that a unit holder in the CPIF trust has an equitable proprietary interest in all of the property the subject of the trust, and in each of the assets which comprise the entirety of the trust, and relies on the following line of authority: Charles v Federal Commissioner of Taxation (1954) 90 CLR 598 at 609; Costa & Duppe Properties Pty Ltd v Duppe [1986] VR 90 at 96; Commissioner of State Taxation (WA) v Merifield Cooksey Holdings Pty Ltd (1994) 94 ATC 4774,

(Page 29)

(1994) 30 ATR 21; Commissioner of State Revenue v Karingal 2 Holdings Pty Ltd (2003) 8 VR 532 and Kent v Vessel 'Maria Luisa' (No 2) (2003) 130 FCR 12. Each of these decisions subsequent to Charles relied upon the statement in the joint judgment of Dixon CJ, Kitto and Taylor JJ (at 609), that:

" a unit held under this trust deed is fundamentally different from a share in a company. A share confers upon the holder no legal or equitable interest in the assets of the company; it is a separate piece of property; … But a unit under the trust deed before us confers a proprietary interest in all the property which the time being is subject to the trust of the deed."

41 The Karingal 2 Holdings decision was one of the matters the subject of the appeal to the High Court in CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53. That decision related to a series of appeals from the Victorian Court of Appeal concerning assessments under the Land Tax Act 1958 (Vic). The primary question for determination in each case was whether, at the relevant date, applicants were "owners" of land in a sense that they were "entitled to any land or any estate of freehold in possession". The litigation concerned the application of the taxing provisions of the Land Tax Act 1958 to certain shopping centres on land the registered proprietors of which were the trustees of certain unit trusts. The respondent had relied upon the ownership of issued units in the unit trusts to establish the entitlement of the taxpayer to an estate of freehold in possession.

42 The High Court made it clear that, in assessing the nature of the interest comprised in a unit of a unit trust, the starting point is an examination of the relevant trust deeds and the rights, powers and restrictions for which they provided (at [10]). The court said at [14 – 15]:

"The first step was to ascertain the terms of the trusts upon which the relevant lands were held. The second was to construe the statutory definition to ascertain whether the rights of the taxpayers under those trusts fell within that definition.

In taking those steps, a priori assumptions as to the nature of unit trusts under the general law and principles of equity would not assist and would be apt to mislead."

43 The Court emphasised the words "under the trust deed before us" in the passage from Charles referred to above, and observed that the
(Page 30)

conclusion reached in that case was based upon the particular terms of the trust deed under consideration.

44 Referring to the House of Lords decision in Gartside v Inland Revenue Commissioner [1968] AC 553 at 617 – 618, the Court said:

"It is one thing to identify rights protected by a court of equity, and another to identify an interest which has 'the necessary quality of definable extent which must exist before it can be taxed'. In the present case, the 'definable extent' is that specified by the definition in the Act. No doubt, unit holders accurately may be said to have had rights protected by a court of equity, but that does not require the conclusion that in the statutory sense they were 'owners' of the land held on the trusts in question."

45 In concluding that the taxpayers were not "owners" for the purposes of the applicable legislation, the court examined the terms of the trust deeds in question. Many of the provisions examined by the court are found in the CPIF trust deed. As in the CPIF trust deed, no unit conferred any interest in any particular part of the trust fund, and unit holders were not entitled to require the transfer of any property comprised in the fund. The provisions on termination were similar. Both the trustee and the manager were, as in the case of the CPIF fund, entitled to fees to be paid out of the fund. Unit holders were not entitled to lodge caveats, as they are not under the CPIF deeds.

46 In this case, the trust property the subject of units in the CPIF trust is not land, but is an interest in units in a subtrust which owns land. The units in the subtrusts represent a division of the "entirety of the rights conferred by this deed" – cl 3.1(a) (and in the case of the C1 trust deed – cl 1.1 definition of unit). That can be contrasted with clauses like those considered in Costa & Duppe and Kent (which are discussed below) and cl 3.1(a) of the CPIF trust deed. The subtrusts contain provisions which require that a unit holder not interfere or seek to interfere with the rights, powers, authorities or discretion of the manager, not exercise any right in respect of any asset or lodge any caveat or other notice effecting any asset, and not require any asset to be transferred to the unit holders. The subtrust specified that a unit holder has no equitable or proprietary interest in the assets and is not entitled to the transfer to it of any asset or interest in any asset.

(Page 31)

47 The trust deeds expressly disavow the enjoyment of any equitable or proprietary interest in the assets by a unit holder. It is contended by the respondent that those provisions should be construed as meaning no more than that the unit holder is not entitled to have the exclusive use or ownership of any particular asset. He relies on a number of authorities for that proposition. The first is Costa & Duppe. The provisions of the trust deed in that case were, however, quite different. Clause 7(a) of the Duppe trust provided that

"The beneficial interest in the Trust Fund as originally constituted and as existing from time to time shall be vested in the Unit Holders for the time being."

48 Clause 8(a), provided that:

"Each Unit shall entitle the registered holder thereof together with the registered holders of all other Units to the beneficial interest in the Trust Fund as an entirety but subject thereto shall not entitle a Unit Holder to any particular security or investment comprised in the Trust Fund or any part thereof and no Unit Holder shall be entitled to the transfer to him of any property comprised in the Trust Fund other [sic] that in accordance with the provisions hereinafter contained."

49 Brooking J held that, read together, clauses 7(a) and 8(a) could not mean that the unit holders, while having a proprietary interest in the whole, have no such interest in any of the constituent parts (at 96).

50 The second decision relied upon is Arjon Pty Ltd v Commissioner of State Revenue (2003) 8 VR 502 at 512. That decision involved a trust deed with clauses to the same effect as in Costa & Duppe. The Victorian Full Court's decision focussed upon the fact that the tax payer in that case was the holder of all the units in the unit trust, and on that basis was the only person beneficially interested in the assets. The decision in Arjon was delivered on the same day as the decision by the Victorian Full Court in the CPT Custodian matter, which subsequently went on an appeal to the High Court. The Victorian Court of Appeal decision in CPT Custodian drew upon the reasoning expounded in Arjon. The High Court reached a conclusion that the trust deeds under consideration did not support the conclusion that had been reached in Arjon, that ownership of all the units in the trust amounted to "an interest, vested in possession, in all of the trust assets".

(Page 32)

51 The third decision relied upon is Merifield Cooksey, where Kennedy J concluded that a prior claim to a trust fund by the trustee for indemnity which prevents a call for a distribution of trust assets by beneficiaries until the trustee's charge has been satisfied, does not "deny the existence of a unit holder's beneficial interest in each of the trust assets in the normal type of unit trust". The passage referred to does not deal with the precise proposition contained in the respondent's submissions, but in any event must be read in the context of the observations by the High Court in CPT Custodian as to the requirement to examine the terms of the trust deed first.

52 The final decision relied upon by the respondent was Kent, where, in construing trust deeds similar to that considered in Costa & Duppe, Tamberlin and Healy JJ concluded that those provisions should not be construed as denying that a unit holder has a beneficial interest in each asset of the trust, but rather that no unit holder can claim to have any particular asset appropriated to his share or transferred to him otherwise than in accordance with the deed (at [58]). Again, that decision must be read in light of the requirement, explained in CPT Custodian, to look first to the terms of the trust deed under considerations, and to be wary of making assumptions as to the nature of unit trusts.

53 There are material differences between the provisions of the trust deeds considered in Costa & Duppe and Kent. Inmy view, nothing in those decisions, or in Merifield Cooksey,requires that the express provision found in cl 3.4(b) of the CPIF fund or cl 3.1(b) of each of the three subtrust deeds, should be read down in the way contended for by the respondent.

54 Under each subtrust deed, the rights of a unit holder are to receive a proportion of the net income of the trust. The relationship of the amount received to the income from the individual assets of the trust is effected by the extent of reimbursement of the trustee for expenses and costs, and payment of the fees to the trustee and manager of the subtrust.

55 In my view, given the terms of the CPIF trust deed, the terms of the subtrust deeds, and in particular the express limitations on the rights conferred on unit holders under both the CPIF trust deed and the subtrust deeds, it is not possible to identify a beneficial interest to the "necessary quality of definable extent" referred to in Gartside (at 618) and CPT Custodian at ([17]) which would constitute a "beneficial interest in land" within Western Australia for the purposes of s 73D of the Stamp Act. That position is unaffected by the fact that, in the case of the

(Page 33)

210 Bannister trust, the trustee of CPIF held all of the units – see CPT Custodian at [41 – 52].

Conclusion

56 For the foregoing reasons, s 73D of the Stamp Act had no application to the dispositions the subject of these assessments, and the assessments should be set aside.

Schedule

DISPOSITIONS

The "Dispositions" are the issues, distributions and transfers of units in CPIF identified below.

The "Distributions" are the distributions of units in CPIF outlined below.

The "Issues" are issues of units in CPIF which result from an application for units in CPIF outlined below.

The Dispositions are grouped according to their Bundle ids.

Bundle id: 205 7413

Bundle id: 205 7413 relates to the acquisition of units in the Retail Sector of CPIF. (Document 76)

Following an application for units in CPIF, on 7 December 1999 CCSL as trustee of the Commonwealth Life Property Trust (Commonwealth Life), was issued 38,660.16 units in CPIF. (Documents 76, 11(k))

On 1 January 2000, CCSL as trustee of Commonwealth Life received a distribution of 797.38 units in CPIF. (Documents 76, 11(k))

On 1 April 2000, CCSL as trustee of Commonwealth Life received a distribution of 903.59 units in CPIF. (Documents 76, 11(k))

On 1 July 2000, CCSL as trustee of Commonwealth Life received a distribution of 776.30 units in CPIF. (Documents 76, 11(k))

On 7 July 2000, CCSL as trustee of Commonwealth Life following an application for units in CPIF was issued 3,905.14 units in CPIF. (Documents 76, 11(k))

(Page 34)

On 1 October 2000, CCSL as trustee of Commonwealth Life received a distribution of, 742.36 units in CPIF. (Document 76)

On 2 January 2001, CCSL as trustee of Commonwealth Life received a distribution of, 504.81 units in CPIF. (Documents 76, 13(d))

On 10 April 2001, CCSL as trustee of Commonwealth Life received a distribution of 1,245.40 units in CPIF. (Documents 76, 13(d))

On 10 July 2001, CCS as trustee of Commonwealth Life received a distribution of, 1,008.21 units in CPIF. (Documents 76, 13(d))

On 1 October 2001, CCSL as trustee of Commonwealth Life received a distribution of, 1,363.24 units in CPIF. (Documents 76, 13(d))

Bundle id: 220 0470

Bundle id 220 0470 relates to dispositions of units in the Retail Sector of CPIF. (Document 72)

On 1 January 2000, CCSL for Commonwealth Balanced Fund received a distribution of, 273.46 units in CPIF. (Documents 72,11(k))

On 1 April 2000, CCSL for Commonwealth Balanced Fund received a distribution of, 309.85 units in CPIF. (Documents 72,11(k))

On 1 July 2000, CCSL for Commonwealth Balanced Fund received a distribution of, 266.23 units in CPIF. (Documents 72,11(k))

On 1 October 2000, CCSL for Commonwealth Balanced Fund received a distribution of, 241.69 units in CPIF. (Documents 72, 13(d))

On 2 October 2001, CCSL for Commonwealth Balanced Fund received a distribution of, 164.49 units in CPIF. (Documents 72, 13(d))

On 10 April 2001, CCSL for Commonwealth Balanced Fund received a distribution of, 405.80 units in CPIF. (Documents 72, 13(d))

On 10 July 2001, CCSL for Commonwealth Balanced Fund received a distribution of, 328.52 units in CPIF. (Documents 72, 13(d))

On 1 October 2001, CCSL for Commonwealth Balanced Fund received a distribution of, 444.20 units in CPIF. (Documents 72, 13(d))

Bundle id: 207 2748

(Page 35)

Bundle id 207 2748 relates to acquisitions of units in the Retail Sector of CPIF. (Document 47)

Following an application for units in CPIF, on 23 August 2000 Stevedoring Employees Retirement Fund Pty Ltd (SERFPL) as trustee of the Stevedoring Employees Retirement Fund (Stevedoring Employees) was issued 14,555.78 units in CPIF. (Documents 47, 11(k))

On 1 October 2000, SERFPL as trustee of Stevedoring Employees received a distribution of 138.02 units in CPIF. (Documents 47, 11(k))

On 2 January 2001, SERFPL as trustee of Stevedoring Employees received a distribution of 93.86 units in CPIF. (Documents 47, 13(d))

On 10 April 2001, SERFPL as trustee of Stevedoring Employees received a distribution of 231.55 units in CPIF. (Documents 47, 13(d))

On 10 July 2001, SERFPL as trustee of Stevedoring Employees received a distribution of 187.45 units in CPIF. (Documents 47, 13(d))

On 1 October 2001, SERFPL as trustee of Stevedoring Employees received a distribution of 253.46 units in CPIF. (Documents 47, 24(a))

Bundle id: 220 0467

Bundle id: 220 0467 relates to acquisitions of units in the Retail Sector of CPIF. (Document 89)

Following an application for units in CPIF, on 14 December 2000 Equipsuper Pty Ltd was issued 9,618.43 units in CPIF. (Documents 89, 13(d))

On 2 January 2001, Equipsuper Pty Ltd received a distribution of 61.44 units in CPIF. (Documents 89, 13(d))

On 10 April 2001, Equipsuper Pty Ltd received a distribution of 151.57 units in CPIF. (Documents 89, 13(d))

On 10 July 2001, Equipsuper Pty Ltd received a distribution of 122.71 units in CPIF. (Documents 89, 13(d))

On 1 October 2001, Equipsuper Pty Ltd received a distribution of 165.92 units in CPIF. (Document 89)

Bundle id: 207 2756

(Page 36)

Bundle id: 207 2756 relates to acquisitions of units in the Industrial Sector of CPIF. (Document 93)

Following an application for units in CPIF, on 25 October 1999 CCSL as trustee for Commonwealth Life 7,337.75 units in CPIF. (Documents 93, 11(k))

Following an application for units in CPI, on 1 December 1999 CCSL as trustee for Commonwealth Life was issued 1,130.43 units in CPIF. (Documents 93, 11(k))

On 1 January 2000, CCSL as trustee for Commonwealth Life, received a distribution of 29.54 units in CPIF. (Documents 93, 11(k))

On 1 April 2000, CCSL as trustee for Commonwealth Life, received a distribution of, 87.52 units in CPIF. (Documents 93, 11(k))

On 1 July 2000, CCSL as trustee for Commonwealth Life, received a distribution of 42.14 units in CPIF. (Documents 93, 11(k))

On 1 October 2000, CCSL as trustee for Commonwealth Life, received a distribution of 69.86 units in CPIF. (Documents 93, 11(k))

On 3 October 2000, CCSL as trustee for Commonwealth Life, following an application was issued 2,100.14 units in CPIF. (Documents 93, 11(k))

On 2 January 2001, CCSL as trustee for Commonwealth Life, received a distribution of 108.89 units in CPIF. (Documents 93, 13(d))

On 10 April 2001, CCSL as trustee for Commonwealth Life, received a distribution of 119.14 units in CPIF. (Documents 93, 13(d))

On 10 July 2001, CCSL as trustee for Commonwealth Life, received a distribution of 166.71 units in CPIF. (Documents 93, 13(d))

On 1 October 2001, CCSL as trustee for Commonwealth Life, received a distribution of 333.62 units in CPIF. (Documents 93, 24(a))

Bundle id: 207 2752

Bundle id: 207 2752 relates to dispositions of units in the Industrial Sector of CPIF. (Document 80)

On 18 November 1999, Westpac Custodian Nominee Ltd following an application was issued 2,117.21 units in CPIF. (Documents 80, 11(k), 13(d), 24(a))

(Page 37)

Bundle id: 207 2751

Bundle id: 207 2751 relates to the acquisition of units in the Industrial Sector of CPIF. (Document 85)

Following an application for units in CPIF, on 5 November 1999 Seafarers Retirement Fund Pty Limited as trustee for the Seafarers Retirement Fund was issued 2,117.21 units in CPIF. (Documents 85, 11(k))

On 1 January 2000, Seafarers Retirement Fund Pty Limited as trustee for the Seafarers Retirement Fund received a distribution of 3.24 units in CPIF. (Documents 85, 11(k))

On 1 April 2000, Seafarers Retirement Fund Pty Limited as trustee for the Seafarers Retirement Fund received a distribution of 9.60 units in CPIF. (Documents 85, 11(k))

On 1 July 2000, Seafarers Retirement Fund Pty Limited as trustee for the Seafarers Retirement Fund received a distribution of 4.62 units in CPIF. (Documents 85, 11(k))

On 1 October 2000, Seafarers Retirement Fund Pty Limited as trustee for the Seafarers Retirement Fund received a distribution of 7.66 units in CPIF. (Documents 85, 11(k))

On 2 January 2001, Seafarers Retirement Fund Pty Limited as trustee for the Seafarers Retirement Fund received a distribution of 10.78 units in CPIF. (Documents 85, 13(d))

On 10 April 2001, Seafarers Retirement Fund Pty Limited as trustee for the Seafarers Retirement Fund received a distribution of 11.80 units in CPIF. (Documents 85, 13(d))

On 10 July 2001, Seafarers Retirement Fund Pty Limited as trustee for the Seafarers Retirement Fund received a distribution of 16.51 units in CPIF. (Documents 85, 13(d))

On 1 October 2001, Seafarers Retirement Fund Pty Limited as trustee for the Seafarers Retirement Fund received a distribution of 33.04 units in CPIF. (Documents 85, 24(a))

On 31 December 2001, Seafarers Retirement Fund Pty Limited as trustee for the Seafarers Retirement Fund received a distribution of 38.14 units in CPIF. (Document 85)

(Page 38)

On 31 March 2002, Seafarers Retirement Fund Pty Limited as trustee for the Seafarers Retirement Fund received a distribution of 39.72 units in CPIF. (Document 85)

Bundle id: 207 2750

Bundle id: 207 2750 relates to dispositions of units in the Commercial Sector of CPIF. (Document 59)

Following an application for units in CPIF, on 5 August 1998 CCSL as trustee of the Commonwealth Life Ltd Property Trust was issued 4,830.55 units in CPIF. (Documents 59, 11(k))

On 25 January 1999, CCSL as Trustee of the Commonwealth Life Ltd Property Trust received a distribution of 1,185.35 units in CPIF. (Documents 59, 11(k))

Following an application for units in CPIF, on 28 January 1999 CCSL as Trustee of the Commonwealth Life Ltd Property Trust was issued 241.78 units in CPIF. (Documents 59, 11(k))

On 19 April 1999, CCSL as Trustee of the Commonwealth Life Ltd Property Trust received a distribution of 1,339.34 units in CPIF. (Documents 59, 11(k))

Following an application for units in CPIF, on 30 April 1999, CCSL as Trustee of the Commonwealth Life Ltd Property Trust was issued 236.39 units in CPIF. (Documents 59, 11(k))

On 16 July 1999, CCSL as Trustee of the Commonwealth Life Ltd Property Trust received a distribution of 1,229.96 units in CPIF. (Documents 59, 11(k))

Following an application for units in CPIF, on 8 September 1999, CCSL as Trustee of the Commonwealth Life Ltd Property Trust was issued 10,846.02 units in CPIF. (Documents 59, 11(k))

On 1 October 1999, CCSL as Trustee of the Commonwealth Life Ltd Property Trust received a distribution of 913.87 units in CPIF. (Documents 59, 11(k))

Following an application for units in CPIF, on 15 December 1999, CCSL as Trustee of the Commonwealth Life Ltd Property Trust was issued 8,964.48 units in CPIF. (Documents 59, 11(k))

(Page 39)

On 1 January 2000, CCSL as Trustee of the Commonwealth Life Ltd Property Trust received a distribution of 1,493.92 units in CPIF. (Documents 59, 11(k))

Following an application for units in CPIF, on 1 February 2000, CCSL as Trustee of the Commonwealth Life Ltd Property Trust was issued 8,984.99 units in CPIF. (Documents 59, 11(k))

Following an application for units in CPIF, on 1 March 2000, CCSL as Trustee of the Commonwealth Life Ltd Property Trust was issued 10,268.17 units in CPIF. (Documents 59, 11(k))

On 1 April 2000, CCSL as Trustee of the Commonwealth Life Ltd Property Trust received a distribution of 1,626.34 units in CPIF. (Documents 59, 11(k))

On 1 July 2000, CCSL as Trustee of the Commonwealth Life Ltd Property Trust received a distribution of 1,652.65 units in CPIF. (Documents 59, 11(k))

Following an application for units in CPIF, on 7 July 2000, CCSL as Trustee of the Commonwealth Life Ltd Property Trust was issued 3,446.26 units in CPIF. (Documents 59, 11(k))

On 1 October 2000, CCSL as Trustee of the Commonwealth Life Ltd Property Trust received a distribution of 1,706.31 units in CPIF. (Documents 59, 11(k))

Following an application for units in CPIF, on 1 December 2000, CCSL as Trustee of the Commonwealth Life Ltd Property Trust was issued 9,922.81 units in CPIF. (Documents 59, 11(k))

Following an application for units in CPIF, on 1 December 2000, CCSL as Trustee of the Commonwealth Life Ltd Property Trust was issued 6,615.21 units in CPIF. (Documents 59, 11(k))

On 2 January 2001, CCSL as Trustee of the Commonwealth Life Ltd Property Trust received a distribution of 1,672.11 units in CPIF. (Documents 59, 13(d))

On 10 April 2001, CCSL as Trustee of the Commonwealth Life Ltd Property Trust received a distribution of 2,108.14 units in CPIF. (Documents 59, 13(d))

(Page 40)

Following an application for units in CPIF, on 1 May 2001, CCSL as Trustee of the Commonwealth Life Ltd Property Trust was issued 6,449.39 units in CPIF. (Documents 59, 13(d))

On 10 July 2001, CCSL as Trustee of the Commonwealth Life Ltd Property Trust received a distribution of 2,220.77 units in CPIF. (Document 56)

Bundle id: 207 2749

Bundle id: 207 2749 relates to dispositions of units in the Commercial Sector of CPIF. (Document 55)

On 24 July 1998, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 103.04 units in CPIF. (Documents 55, 11(k))

Following an application for units in CPIF, on 6 August 1998, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund was issued 14,004.65 units in CPIF. (Documents 55, 11(k))

Following an application for units in CPIF, on 1 September 1998, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund was issued 1,346.37 units in CPIF. (Documents 55, 11(k))

On 27 October 1998, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 188.73 units in CPIF. (Documents 55, 11(k))

On 25 January 1999, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 243.92 units in CPIF. (Documents 55, 11(k))

On 19 April 1999, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 274.99 units in CPIF. (Documents 55, 11(k))

On 16 July 1999, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 252.00 units in CPIF. (Documents 55, 11(k))

(Page 41)

Following an application for units in CPIF, on 31 August 1999, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund was issued 5,429.54 units in CPIF. (Documents 55, 11(k))

On 1 October 1999, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 211.05 units in CPIF. (Documents 55, 11(k))

Following an application for units in CPIF, on 26 November 1999, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund was issued 3,599.41 units in CPIF. (Documents 55, 11(k))

On 1 January 2000, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 362.18 units in CPIF. (Documents 55, 11(k))

Following an application for units in CPIF, on 17 January 2000, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund was issued 4,325.09 units in CPIF. (Documents 55, 11(k))

Following an application for units in CPIF, on 9 March 2000, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund was issued 4,457.74 units in CPIF. (Documents 55, 11(k))

On 1 April 2000, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 437.82 units in CPIF. (Documents 55, 11(k))

On 1 July 2000, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 444.90 units in CPIF. (Documents 55, 11(k))

Following an application for units in CPIF, on 7 July 2000, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund was issued 9,132.59 units in CPIF. (Documents 55, 11(k))

On 1 October 2000, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 546.59 units in CPIF. (Documents 55, 11(k), 13(d))

(Page 42)

On 2 January 2001, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 486.07 units in CPIF. (Documents 55, 13(d))

Following an application for units in CPIF, on 3 January 2001, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund was issued 6,644.71 units in CPIF. (Documents 55, 13(d))

On 10 April 2001, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 690.48 units in CPIF. (Documents 55, 13(d))

Following an application for units in CPIF, on 1 May 2001, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund was issued 4,030.87 units in CPIF. (Documents 55, 13(d))

On 10 July 2001, Commonwealth Managed Investments Limited as responsible entity of Commonwealth Balanced Fund received a distribution of 749.92 units in CPIF. (Documents 55, 13(d))

Bundle id: 207 2761

Bundle id: 207 2761 relates to dispositions of units in the Commercial Sector of CPIF. (Document 61)

On 24 July 1998, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 19.02 units in CPIF. (Documents 61, 11(k))

Following an application for units in CPIF, on 6 August 1998, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund was issued 1,448.76 units in CPIF. (Documents 61, 11(k))

Following an application for units in CPIF, on 1 September 1998, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund was issued 192.34 units in CPIF. (Documents 61, 11(k))

On 27 October 1998, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 24.84 units in CPIF. (Documents 61, 11(k))

(Page 43)

On 25 January 1999, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 31.83 units in CPIF. (Documents 61, 11(k))

On 19 April 1999, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 35.89 units in CPIF. (Documents 61, 11(k))

On 26 July 1999, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 32.89 units in CPIF. (Documents 61, 11(k))

Following an application for units in CPIF, on 31 August 1999, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund was issued 904.92 units in CPIF. (Documents 61, 11(k))

On 1 October 1999, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 29.00 units in CPIF. (Documents 61, 11(k))

Following an application for units in CPIF, on 26 November 1999, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund was issued 1,259.79 units in CPIF. (Documents 61, 11(k))

On 1 January 2000, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 58.36 units in CPIF. (Documents 61, 11(k))

Following an application for units in CPIF, on 17 January 2000, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund was issued 1,081.27 units in CPIF. (Documents 61, 11(k))

Following an application for units in CPIF, on 9 March 2000, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund was issued 1,337.32 units in CPIF. (Documents 61, 11(k))

On 1 April 2000, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 81.16 units in CPIF. (Documents 61, 11(k))

(Page 44)

On 1 July 2000, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 82.48 units in CPIF. (Documents 61, 11(k))

Following an application for units in CPIF, on 7 July 2000, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund was issued 2,067.76 units in CPIF. (Documents 61, 11(k))

On 1 October 2000, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 105.31 units in CPIF. (Documents 61, 11(k))

On 2 January 2001, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 93.65 units in CPIF. (Documents 61, 13(d))

Following an application for units in CPIF, on 3 January 2001, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund was issued 1,661.18 units in CPIF. (Documents 61, 11(k))

On 10 April 2001, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 137.49 units in CPIF. (Documents 61, 11(k))

On 10 July 2001, Commonwealth Managed Investments Limited as responsible entity of the Commonwealth Growth Fund received a distribution of 139.89 units in CPIF. (Document 61)

Bundle id: 207 2760

Bundle id: 207 2760 relates to the disposition of units in the Commercial Sector of CPIF. (Document 97)

Following an application for units in CPIF, on 29 September 1998, Health Super Pty Ltd was issued 23,921.16 units in CPIF. (Documents 97, 11(k))

On 27 October 1998, Health Super Pty Ltd received a distribution of 171.19 units in CPIF. (Documents 97, 11(k))

Following an application for units in CPIF, on 3 January 2001, Health Super Pty Ltd was issued 4,152.94 units in CPIF. (Documents 97, 13(d))

Bundle id: 220 0469

(Page 45)

Bundle id: 220 0469 relates to dispositions of units in the Commercial Sector of CPIF. (Document 51)

Following an application for units in CPIF, on 23 August 2000, SERFPL as trustee for Stevedoring Employees was issued 12,835.92 units in CPIF. (Documents 51, 11(k))

On 1 October 2000, SERFPL as trustee for Stevedoring Employees received a distribution of 136.50 units in CPIF. (Documents 51, 11(k), 13(d))

On 2 January 2001, SERFPL as trustee for Stevedoring Employees received a distribution of 121.38 units in CPIF. (Documents 51, 11(k), 13(d))

On 11 January 2001, SERFPL as trustee for Stevedoring Employees following an application for units in CPIF was issued 8,292.05 units in CPIF. (Documents 51, 11(k), 13(d))

On 10 April 2001, SERFPL as trustee for Stevedoring Employees received a distribution of 249.95 units in CPIF. (Documents 51, 13(d))

On 10 July 2001, SERFPL as trustee for Stevedoring Employees received a distribution of 254.31 units in CPIF. (Documents 51, 13(d))

On 5 June 2002, SERFPL as trustee for Stevedoring Employees capital received a distribution of Sector 2 units. (Document 51)

Bundle id: 207 2763

Bundle id 207 2763 relates to the disposition of units in the Commercial Sector of CPIF. (Document 66)

Following an application for units in CPIF, on 1 May 2001, Perpetual Nominees Ltd as trustee for IVSTPR was issued 7,098.54 units in CPIF. (Documents 66, 13(d))

On 10 July 2001 Perpetual Nominee Ltd as trustee for IVSTPR received a distribution of 83.44 units in CPIF. (Documents 66, 13(d))

On 27 August 2001, Perpetual Nominees Ltd as trustee for IVSNPR received a transfer of 2, 147.29 units in CPIF. (documents 66, 13(d), 24(a))

(Page 46)

Orders

Matter 2563 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072756 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The Respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072756.

Matter 2564 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072750 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The respondent is directed to do all things necessary to make a reassessment under section 161(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072750.

Matter 2565 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2200467 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2200467.

(Page 47)

Matter 2566 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2057413 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2057413.

Matter 2567 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072761 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072761.

Matter 2568 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072752 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072752.

(Page 48)

Matter 2569 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2200469 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2200469.

Matter 2570 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072748 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072748.

Matter 2571 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2200470 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2200470.

Matter 2572 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072749 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation

(Page 49)

Administration Act 2003 to nil duty payable in respect of Bundle ID 2072749.

Matter 2573 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072751 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072751.

Matter 2574 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072760 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072760.

Matter 2575 of 2005

1. The decision of the Assistant Commissioner (Legislation, Training and Review) dated 18 March 2005 disallowing the objection dated 26 October 2004 in respect of Bundle ID 2072763 (the Objection) is set aside.

2. The Objection is allowed.

3. The assessment the subject of the Objection is set aside.

4. The respondent is directed to do all things necessary to make a reassessment under section 16(1) of the Taxation Administration Act 2003 to nil duty payable in respect of Bundle ID 2072763.

I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

(Page 50)

JUDGE J CHANEY, DEPUTY PRESIDENT