NORMAN MEL ASHTON in his capacity as Joint and Several Deed Administrator of OLD FERRY CO PTY LTD (subject to Deed of Company Arrangement) -v- ROTTNEST ISLAND AUTHORITY
[2007] WASCA 20
•1 FEBRUARY 2007
NORMAN MEL ASHTON in his capacity as Joint and Several Deed Administrator of OLD FERRY CO PTY LTD (subject to Deed of Company Arrangement) -v- ROTTNEST ISLAND AUTHORITY [2007] WASCA 20
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 20 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:148/2005 | 19 OCTOBER 2006 | |
| Coram: | MARTIN CJ McLURE JA BUSS JA | 31/01/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | NORMAN MEL ASHTON in his capacity as Joint and Several Deed Administrator of OLD FERRY CO PTY LTD (subject to Deed of Company Arrangement) ROTTNEST ISLAND AUTHORITY |
Catchwords: | Corporations Rejection of proof of debt in administration Interpretation of Rottnest Island Regulations 1988 (WA) Liability for payment of admission fee |
Legislation: | Corporations Act 2001 (Cth), s 1321 Rottnest Island Authority Act 1987 (WA), s 5 Rottnest Island Regulations 1988 (WA), reg 3, reg 5, reg 6 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NORMAN MEL ASHTON in his capacity as Joint and Several Deed Administrator of OLD FERRY CO PTY LTD (subject to Deed of Company Arrangement) -v- ROTTNEST ISLAND AUTHORITY [2007] WASCA 20 CORAM : MARTIN CJ
- McLURE JA
BUSS JA
- Appellant
AND
ROTTNEST ISLAND AUTHORITY
Respondent
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ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : ROTTNEST ISLAND AUTHORITY -v- NORMAN MEL ASHTON (In his capacity as joint and several deed administrator of Old Ferry Co Pty Ltd) [2005] WASC 238
File No : COR 322 of 2004
Catchwords:
Corporations - Rejection of proof of debt in administration - Interpretation of Rottnest Island Regulations 1988 (WA) - Liability for payment of admission fee
Legislation:
Corporations Act 2001 (Cth), s 1321
Rottnest Island Authority Act 1987 (WA), s 5
Rottnest Island Regulations 1988 (WA), reg 3, reg 5, reg 6
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr K J Martin QC
Respondent : Mr G T W Tannin SC & Ms F B Seaward
Solicitors:
Appellant : Lavan Legal
Respondent : State Solicitor
Case(s) referred to in judgment(s):
Nil
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1 MARTIN CJ: I agree with McLure JA that this appeal should be allowed for the reasons which she gives, but will add a few short observations of my own.
2 Regulation 3 of the Regulations defines the word "owner", when used in relation to a vessel, to include a charterer, lessee or bailee of the vessel. It follows that when a relevant vessel is subject to a charter or lease, there will necessarily be more than one "owner" within the meaning of that term when used in the Regulations. Thus, before the fee of a passenger is collected, each of the persons coming within the description of "owner" is under the obligation imposed by reg 6(1) to collect that fee. However, by the plain language of reg 6, the obligation to remit passenger fees arises in respect of "the fees so collected". Accordingly, where that obligation has been discharged by one of the owners, the obligation to remit falls upon that owner (under reg 6(1)). In default of fulfilment of the obligation to remit, the entitlement conferred upon the Authority by reg 6(3) is to "the amount that has not been remitted". This must, and consistent with reg 6(1), be construed as an entitlement to recovery from the person obliged to remit. That person must, of course, be the owner who has in fact fulfilled the obligation of collection. In this case that was Banwell.
3 This approach to the construction of the Regulations not only accords with their plain and ordinary language, but also with their evident objective. That objective is to exact a fee from persons resorting to Rottnest Island for the use of the facilities provided by the Authority, using the medium of the providers of transport to the Island as the agents of the Authority, for the collection and remission of the relevant fee. The fee is, in substance, a fee imposed upon passengers, not upon vessel owners or operators. Accordingly, where the passengers have in fact paid the fee, but there has been a failure to remit a fee to the Authority, it accords with the evident scheme of the Regulations to conclude that the entity relevantly responsible to the Authority is the entity which failed to remit the fee collected by it on behalf of the Authority.
4 McLURE JA: This appeal concerns the proper construction of the Rottnest Island Regulations 1988 (WA) ("the Regulations"). The appellant (defendant) is a joint and several administrator of Old Ferry Co Pty Ltd (subject to a deed of company arrangement) ("Old Ferry Co"). The respondent (plaintiff) is a body corporate established pursuant to s 5 of the Rottnest Island Authority Act 1987 (WA) ("the Authority") and is responsible for the management and control of Rottnest Island.
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5 Old Ferry Co was the owner of two passenger ferries, the Superflyte and Starflyte, which vessels were at the material times leased to an associated company, Banwell Pty Ltd ("Banwell"). Banwell used the vessels to convey passengers to Rottnest Island. After Old Ferry Co was placed in administration, the appellant called for proofs of debt from the company's creditors. The Authority submitted a proof of debt in the sum of $763,184.95. The amount claimed was for admission fees which, according to the Authority, Old Ferry Co was required by the Regulations to collect and remit to it. The appellant rejected the Authority's proof of debt. His reasons for rejecting it were as follows:
"My grounds for disallowance of $763,184.95 are that this amount relates to admission fees, which Banwell Pty Ltd was required to deduct from passengers upon landing at Rottnest Island and remit to the [Authority]. Furthermore, under the Rottnest Island Regulations 1988, Banwell would be considered the owner of the ferries which carried the passengers to Rottnest Island."
6 The Authority appealed under s 1321 of the Corporations Act 2001 (Cth) against the appellant's rejection of its proof of debt. The matter came before Master Sanderson who found that Old Ferry Co was liable to the Authority for the amount claimed. Accordingly the Master, who allowed the appeal, set aside the appellant's decision and admitted the Authority's proof of debt. The Master found that Banwell had charged passengers who travelled on the vessels, and collected from them, the admission fee payable to the Authority under the Regulations. Banwell was also in administration. The Authority claimed the same amount in the administrations of both Old Ferry Co and Banwell. The administrators of Banwell admitted the proof of debt. The Master concluded that Old Ferry Co and Banwell were jointly and severally liable to the Authority for the admission fees.
7 The appellant appeals to this Court from the Master's decision. There are eight grounds of appeal many of which overlap. It is unnecessary to refer to them in detail because the determination of the appeal turns on a straightforward question of construction of regs 5 and 6 of the Regulations.
8 Regulation 5 of the Regulations concerns the payment of admission fees to Rottnest Island. It provides:
"5. Admission fees
- (1) Subject to subregulation (5), an admission fee set out in Schedule 7 is payable in respect of every person who enters within the limits of the Island.
…
(3) The admission fee is payable -
(a) in the case of a passenger on a vessel or aircraft in which persons are usually carried for reward, by the owner of the vessel or aircraft in accordance with regulation 6; and
(b) in the case of any other person, by that person as soon as is practicable after he enters within the limits of the Island.
(4) A person referred to in subregulation (3)(b) shall not fail or refuse to pay an admission fee payable by him under this regulation.
Penalty: $500.
(5) An admission fee is not payable in respect of a person -
(a) who is under 4 years of age;
(b) who is a member of the Authority;
(c) who is a permanent resident on the Island;
(d) who is a member of the crew of a vessel or aircraft in which persons are carried to the Island for reward;
(e) who has paid an admission fee and has not returned to the mainland since that payment was made; or
(f) while he is on a vessel or aircraft that enters within the limits of the Island and leaves without being anchored or moored,
- or in the case of an aircraft without landing.
- (6) The Authority may reduce, waive or refund, in whole or in part, an admission fee in circumstances it considers appropriate."
9 Under reg 5(3)(a), the admission fee is payable by the owner of the vessel on which the passenger travelled to the Island in accordance with reg 6 which provides:
"6. Collection of admission fees by transport operators
(1) Subject to regulations 7A, 7B and 7C, the owner of a vessel or aircraft in which persons are carried to the Island for reward shall -
(a) collect the admission fee provided for by regulation 5, or cause it to be collected, from each passenger who travels in the vessel or aircraft before he enters within the limits of the Island; and
(b) remit the fees so collected to the Authority, together with a return or returns duly completed in such form or forms as the Authority may provide for the purpose -
(i) in the case of a vessel having a passenger capacity of up to 50 persons under the Western Australian Marine Act 1982, not later than 31 August in each year in respect of fees collected during the year that ended on the preceding 30 June; and
(ii) in any other case, no later than 7 days after the last day of each collection period, in respect of fees collected during that collection period.
- Penalty: $1 000.
- (1a) In subregulation (1)(b)(ii) -
'collection period' means a period of 7 days commencing on a Wednesday and ending on a Tuesday.
(2) A person shall not pass to another person his ticket for travel to the Island on a vessel or aircraft with the intention of providing false evidence that the other person has paid an admission fee.
Penalty: $300.
(3) If the owner of a vessel or aircraft fails to remit to the Authority the amount of any admission fees collected or required to be collected by him under subregulation (1), the Authority may recover from him the amount that has not been remitted in a court of competent jurisdiction."
10 Regulations 7A, 7B and 7C are not relevant in this case. The word "owner" in relation to a vessel referred to in regs 5(3) and 6 is defined in reg 3 to include a charterer, lessee or bailee of the vessel. The definition is inclusive. The ordinary meaning of the word encompasses the person (or persons) in whom title to the vessel is vested. The word "vessel" is defined in reg 3 to mean any floating object capable of carrying a person, subject to specified exceptions which do not apply in this case.
11 It is apparent from the definition of owner that more than one person can be the owner of a vessel for the purposes of regs 5 and 6 of the Regulations. The Master concluded, correctly in my respectful opinion, that for the purposes of regs 5 and 6, Old Ferry Co and Banwell were both owners of the vessels that transported the passengers to Rottnest Island for which the Authority claimed admission fees in its proof of debt. The issue in this case is whether Old Ferry Co is liable to the Authority in respect of admission fees which had been collected by Banwell from passengers who had travelled on the vessels to Rottnest Island but which had not been remitted to the Authority. On the proper construction of regs 5 and 6, the answer is no.
12 The Regulations provide for the payment of one admission fee for each passenger who enters within the limits of the Island. The fact that
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- there may be multiple owners of a vessel does not create an entitlement in the Authority to more than one admission fee per passenger. Indeed, the Authority accepted that if Banwell had remitted the admission fees it had collected from passengers to the Authority, there would be no obligation on other owners of the vessels under regs 5 and 6. That is correct as far as it goes. However, it does not go far enough. Regulation 6(1)(a) places an obligation on the owner of a vessel in which persons are carried to the Island for reward to collect the admission fee from each passenger who travels in the vessel before he enters within the limits of the Island. Thus, it authorises and requires the owner to collect one admission fee from each passenger. Once the obligation to collect the admission fee from each passenger has been performed by an owner (or someone on behalf of an owner), the collection obligation has been performed for all purposes. The obligation under reg 6(1)(b) is to remit "the fees so collected" under reg 6(1)(a) to the Authority. Thus, once the fees have been collected, the only outstanding obligation under reg 6 is for the owner that collected the admission fees to remit the fees to the Authority. In summary, once an owner of the vessel on which the passengers have travelled has collected the admission fee from each passenger there is no outstanding obligation on any owner save for the obligation on the owner who collected the admission fee to remit the amount collected to the Authority.
13 The collection obligation having been discharged by Banwell, the fees were not required to be collected or remitted to the Authority by Old Ferry Co under reg 6(1), in which event reg 6(3) has no application. Accordingly, the Master erred in concluding that Old Ferry Co was liable to the Authority for admission fees collected by Banwell but not remitted by Banwell to the Authority.
14 For these reasons, I would allow the appeal and set aside the orders made by the Master on 8 March 2006. I would hear from the parties on costs.
15 BUSS JA: I agree with the reasons of McLure JA and also the additional observations of the Chief Justice. Regulation 6(1) imposes on "the owner" (as defined in reg 3) of a vessel in which persons are carried to the Island for reward an obligation to "collect the admission fee … or cause it to be collected" from each passenger who travels in the vessel. Regulation 6(1) also imposes on "the owner" an obligation to "remit the fees so collected" to the Authority. The collection obligation therefore includes a requirement to cause the fee to be collected, but the remission obligation does not include a requirement to cause the collected fee to be remitted. This material difference in the expression of the collection and
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- remission obligations indicates that if an "owner" of a vessel has collected admission fees, that owner has the sole obligation to remit those fees to the Authority, and that owner is the only person or entity from whom the Authority may recover any of those fees which are not remitted. See reg 6(3). If an "owner" of a vessel has collected admission fees, any other "owner" of the vessel does not have an obligation to remit those fees, or cause them to be remitted, to the Authority. The appeal should be allowed, the orders made by the learned Master on 8 March 2006 should be set aside, and the parties should be heard in relation to costs.
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