Pre-Paid Professional Administration Limited v Deputy Commissioner of Taxation
[2012] FCA 24
•25 January 2012
FEDERAL COURT OF AUSTRALIA
Pre-Paid Professional Administration Limited v Deputy Commissioner of Taxation [2012] FCA 24
Citation: Pre-Paid Professional Administration Limited v Deputy Commissioner of Taxation [2012] FCA 24 Appeal from: Application for extension of time: Pre Paid Professional Administration Ltd v Deputy Commissioner of Taxation [2008] FCA 1580 Parties: PRE-PAID PROFESSIONAL ADMINISTRATION LIMITED v DEPUTY COMMISSIONER OF TAXATION File number: VID 263 of 2009 Judge: NICHOLAS J Date of judgment: 25 January 2012 Catchwords: PRACTICE AND PROCEDURE – application for extension of time to file and serve notice of appeal – where grounds contained in proposed notice of appeal raise points not argued below – consideration of proposed grounds of appeal – no prospects of success – application dismissed Cases cited: Pre Paid Professional Administration Ltd v Deputy Commissioner of Taxation (2008) 73 ATR 779; [2008] FCA 1580
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447Date of hearing: 16 May 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 50 Counsel for the Applicant: Mr ML Robertson Solicitor for the Applicant: Jackson Lalic Lawyers Counsel for the Respondent: Ms DM Harding Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 263 of 2009
BETWEEN: PRE-PAID PROFESSIONAL ADMINISTRATION LIMITED
ApplicantAND: DEPUTY COMMISSIONER OF TAXATION
Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
25 JANUARY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time to file and serve a notice of appeal is dismissed.
2.The applicant pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 263 of 2009
BETWEEN: PRE-PAID PROFESSIONAL ADMINISTRATION LIMITED
ApplicantAND: DEPUTY COMMISSIONER OF TAXATION
Respondent
JUDGE:
NICHOLAS J
DATE:
25 JANUARY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BACKGROUND
This is an application for an extension of time to file and serve a notice of appeal from a judgment given on 23 October 2008. The application has an unusual history which I shall briefly recount.
The applicant for an extension of time was the applicant in a proceeding which it took against the Deputy Commissioner of Taxation (the Commissioner) in which it challenged assessments it received for the 2005 and 2006 tax years. The Commissioner was the sole respondent to that proceeding and is also the sole respondent to the present application. The proceeding was heard by Heerey J in Melbourne who gave judgment on 23 October 2008. His Honour dismissed the proceeding with costs. The applicant was represented at the hearing before his Honour by solicitors and counsel. I shall say more about his Honour’s judgment shortly.
The applicant first applied for an extension of time to file and serve a notice of appeal on 22 April 2009. The relevant application was filed approximately five months after the time within which a notice of appeal should have been filed. The application was heard by Rares J on 16 February 2010. On that date his Honour refused the application.
On 26 October 2010 the applicant filed an application in the High Court for an order to show cause why a writ of certiorari should not issue to quash the decision of 16 February 2010. Orders by way of mandamas and prohibition were also sought. On 14 February 2011 Heydon J heard the applicant’s application and made an order of certiorari quashing the decision of 16 February 2010 and remitting to the Full Federal Court for a hearing of the applicant’s leave application. His Honour also made an order by way of mandamas for the Federal Court to rehear the applicant’s application. Although the first of Heydon J’s orders of 14 February 2011 referred to the Full Federal Court, both parties were content for me to hear the application as a single judge exercising appellate jurisdiction: see s 25(2)(b) of the Federal Court of Australia Act 1976 (Cth).
The primary judge’s decision is reported: Pre Paid Professional Administration Ltd v Deputy Commissioner of Taxation (2008) 73 ATR 779; [2008] FCA 1580. The report indicates that the proceeding was heard by his Honour in July and October 2008.
THE EVIDENCE
Before me the applicant relied upon an affidavit of Mr Petroulias sworn 15 November 2009. The applicant read paragraphs 23-122 of that affidavit only. To the extent that those paragraphs made reference to the contents of other affidavits filed in this or any other proceedings they were not pressed by the applicant. Further, the respondent took a general objection to those parts of Mr Petroulias’ affidavit which were pressed on the basis that they were argumentative and in the nature of legal submission. All such material was received by me subject to the respondent’s objection.
The applicant also tendered copies of three documents referred to in Heerey J’s reasons for judgment namely:
·Collection Agency Agreement dated 5 June 2005;
·Administration Agreement dated 2 June 2005;
·Pre-Paid Professionals Frequently Asked Questions.
The respondent relied upon an affidavit of Ms Lynch sworn 19 October 2009. Her affidavit included a company search of the applicant as at 19 October 2009. The search disclosed that the applicant was a company incorporated in New Zealand on 4 May 2005 and that it was registered from that date until 21 January 2009 when it was struck off. The search reveals that the company was re-registered on 13 March 2009. According to the search, Mr Petroulias was a director of the applicant between 24 July 2007 and 15 December 2007 and that Mr Christansen has been a director of the applicant since 20 June 2008. The search also discloses that, as at 19 October 2009, Mr Nick Petroulias was the sole shareholder of the applicant.
During the course of the hearing – after the applicant’s and the respondent’s evidence was read and tendered – it became apparent that a misunderstanding may have arisen between counsel as to what was in issue between them. In light of what I was told I granted the applicant leave to reopen to read certain paragraphs of various other affidavits.
The first of these was an affidavit of Mr Ian Daly which did little more than note that he was appointed a director of the applicant on 4 July 2008 (which date is inconsistent with the company search) and resigned the same day in favour of Mr Christansen. The second was an affidavit sworn 18 November 2009 by Mr Christiansen whose address was given as Fresno, California. Relevantly, Mr Christiansen said that he had been a director of the applicant since 4 July 2008 (which date is also inconsistent with the company search) and that Mr Petroulias had acquired the shares in the applicant. Mr Christansen also said in his affidavit:
9.I have not met or corresponded with or ever received communication from counsel or solicitors who conducted the original proceedings. No communication from them was received regarding any matter let alone a copy of the judgment in the original proceedings.
10.Further, I did not expect to receive correspondence from counsel or solicitors. I understood from discussions with Mr Daley that the arrangements and practices put in place would be that the lawyers and counsel would correspond directly with Mr Petroulias. Mr Petroulias had appointed them and provided instructions at all times regarding this matter.
It is accepted by the respondent that Mr Petroulias was, at the time of the trial, at the time of judgment, and for some months thereafter, in gaol and that he did not become aware of the primary judge’s decision until around March or April of 2009. It is also accepted by the respondent that, had Mr Petroulias known of Heerey J’s decision sooner, he would have caused the applicant to file a notice of appeal.
The application for an extension of time was dated 16 April 2009 though not filed until a week or thereabouts later. I accept that Mr Petroulias did not know of the judgment delivered the previous year by Heerey J until around that time. I also accept that he moved promptly to file and serve the application for an extension of time upon becoming aware of his Honour’s decision.
Nevertheless, there is an aspect to the explanation for the delay that is to my mind somewhat unsatisfactory. Mr Christiansen, who was at all relevant times the sole director of the applicant, and the person legally responsible for the management of the applicant’s affairs, appears to have entrusted all responsibility for the conduct of any appeal against an unfavourable outcome to a former director who was then serving a term of imprisonment. Whether this had anything to do with Mr Petroulias’ acquisition of PPP’s shares in the applicant was not explained in the evidence.
In any event, the focus of the parties’ submissions was on the strength of the applicant’s proposed appeal. The applicant recognised that the extension of time it sought would only be given if it could show that its proposed appeal had some prospects of success, and it made detailed submissions aimed at satisfying me that each of the grounds of appeal in its proposed notice of appeal (MFI-1) had reasonable prospects.
THE PRIMARY JUDGE’S REASONS
There are two principal agreements referred to in the primary judge’s reasons. The first is the Collection Agency Agreement dated 5 June 2005 between the applicant which is referred to in the document as “the Collection Agent” and Pre-Paid Professional LLC (PPP) which is referred to as “the Principal”. The second is the Administration Agreement dated 2 June 2005 between a party identified as “The Business Agent” and the applicant who is referred to as “the Administrator”. His Honour referred to numerous provisions of both the Collection Agency Agreement and the Administration Agreement. As I shall later explain, the applicant contends that his Honour misconstrued these agreements in several different ways, though it was not suggested that he overlooked any provision relevant to their proper construction.
The primary judge found that in the 2005 and 2006 tax years the applicant received $4,728,917 and $634,500 respectively which were paid into an account in its name. His Honour also found that the applicant maintained a “Collection Account” (as defined in the Collection Agency Agreement) with a Brisbane branch of the HSBC Bank. As I understand his Honour’s findings, the applicant was the source of approximately $3,584,000 transferred to an account in the name of PPP with an Auckland branch of the HSBC Bank.
The assessments for the relevant tax years did not, as his Honour noted, reconcile with the bank statements in evidence because the statements did not cover the whole of the relevant period. In any event, as his Honour also noted, the applicant did not raise any issue as to its receipt of the amounts the subject of the relevant assessments. The only issue was whether the amounts assessed for each of the relevant tax years were income according to ordinary concepts.
The applicant’s case before the primary judge was that the amounts received by it and assessed as income according to ordinary concepts were received by the applicant on trust for PPP, that the applicant held such amounts on terms provided for by the Collection Agency Agreement and that the money remitted to PPP was money that the applicant was not entitled to retain.
The applicant argued that such money could not, in those circumstances, constitute income according to ordinary concepts. It says that even if it was entitled to retain such moneys under the terms of the Collection Agency Agreement, it did not do so and that the moneys received by it – at least to the extent they were transferred to PPP – could not constitute income according to ordinary concepts.
The recitals to the Administration Agreement explained the role of the Business Agent and the Administrator in these terms:
A.The Business Agent is in the business of providing professional services for cash and interests in causes of action and seeks to use the Pre-Paid Professionals Business Plan and business model to access service providers and service packages as a means of providing those services and seeks to develop and expand the business concepts by entering into its own specialised markets for professional services and litigation funding.
B.For the purpose of administering the Business, the Business Agent wishes to engage the Administration Services of the Administrator and to appoint the Administrator as it Agent and attorney to undertake all administrative issues necessary and convenient to conducting its business in accordance with the Business Agent’s instructions SUBJECT ALWAYS that nothing said in this agreement removes or mitigates the overriding day to day control exercised by the Business Agent over the Administrator by the provision of instructions sought by the Business Agent.
Clauses 5 and 6 of the Administration Agreement provided as follows:
5. Minimum Deposit Amounts
5.1The Business Agent will, no later than on the execution of this agreement, pay or cause to be paid to the Administrator as the Agent and as Administrator of the Business, an amount of at least 15% of the value of all service warrants/rights committed to Pre-Paid Professionals for the following year (the minimum deposit commitment amount) by the end of the financial year, which will be allocated in accordance with clause 5.2.
5.2On receipt of the amount set out in clause 5.1, the Administrator as the Agent and as Administrator of the Business shall pay, direct or disburse the full 15% amount as a part payment for the entire amount of pre-paid services irrevocably committed to by the Business Agent to Pre-Paid Professionals.
5.3Where the Administrator has paid over the minimum deposit amount or any other amount in excess of the minimum deposit amount, the Administrator as the Agent and as Administrator of the Business shall pay that amount in reduction of the outstanding liability incurred by the Business Agent to pre-paid professionals for pre-paid services irrevocably committed to by the Business Agent to Pre-Paid Professionals.
6. Administrators Fees and Election
6.1Subject to the overlap election in sub-clause 6.3, the Administrator will be entitled by the end of the financial year to an administration fee to the amount of 15% of the value of all service warrants/rights committed to Pre-Paid Professionals for the following year. In addition, the Administrator will be entitled to the following percentages of the value of all service warrants/rights committed to Pre-Paid Professionals for the following year:
(1)10% representing both incurred and prepaid Production Fees;
(2)2.5% representing both incurred and prepaid Distribution and Selling Fees;
(3)1% representing both incurred and prepaid Business Management Fees; and
(4)1.5% both incurred and prepaid Technology Licence Fees.
6.2Subject to the exercise of the overlap election in clause 6.3, the fees incurred by the Business Agent remain outstanding to the Administrator by the Business Agent and can, at the election of the Administrator, be set off as against cash proceeds received by the Administrator for the Business Agent.
6.3The Administrator may exercise an overlap election by electing to instead of receiving the fees it is entitled to in clause 6.1, to receive in substitution the administration fees in clause 6.4 and hence the fees in clause 6.1 have not arisen.
6.4Upon the exercise of an election pursuant to clause 6.3 by the Administrator, the Administrator may instead be entitled as administration fees, to 30% of the gross business income from the proceeds of the endorsement of the service warrants.
Clause 4.2 of the Collection Agency Agreement most relevantly provided:
4.2(b)Upon the direction by the Principal to make payment for the funds collected by the clients of the Principal and payment is attempted by the Collection Agent with its Bank, the Collection Agent holds such funds not physically received by the Principal on trust for the Principal, until their physical receipt by the Principal and shall at all times be responsible to the Principal for the transfer and payment arrangements.
4.2(c)Until a payment direction is made by the Principal the funds remain funds of the clients and repayable to the client subject only to the agreement by the parties that in the event of a dispute between the Principal and the client concerned, the Collection agent pays the disputed sums to the account of the Solicitor of the Principal pending resolution of the dispute unless contrary instructions are received by the Collection Agent from the client concerned in which later event they are repayable to the client.
4.2(g)The Principal hereby directs the Collection Agent that it is implicit in each and every direction to apply the moneys payable to the Principal from its Collection Account in this order:
(i)reimbursement of approved Collection Expenses;
(ii)payment of relevant fees and commissions to the Collection Agent;
(iii)payment of any charges whether to satisfy an obligation to pay an instalment, withholding, assessment or other demand or obligation in respect of a payment to the Principal or Collection Agent respectively to the appropriate Public Authority; and
(iv) payment of the balance to the Principal as directed.
His Honour referred to the expression “relevant fees” as used in cl 4.2(g) of the Collection Agency Agreement. In the course of interpreting that provision his Honour considered a submission made by counsel for the applicant to the effect that this clause did not authorise retention by the applicant of amounts received under either cl 5.1 or cl 6.1 of the Administration Agreement. However, his Honour went on to find that the expression “relevant fees” in cl 4.2(g)(ii) included the fees to which the applicant was entitled under cl 6.1 of the Administration Agreement.
His Honour said at [26] to [30] of his reasons:
26.Given therefore that the taxpayer received the funds in question, has the taxpayer made out its case that it held the funds purely as agent on behalf of the Business Agent and then PPP?
27.If the taxpayer held funds to which, or to any part of which, it was beneficially entitled by way of fees or commission, it would pro tanto have derived ordinary income. It is not necessary for the taxpayer to have made some appropriation or earmarking of the funds to which it was entitled. Nor does it matter if for some reason such as mistake, or surprising generosity, the taxpayer in fact passed on all funds it received to PPP.
28.The taxpayer not having raised any issue as to whether the end of the financial year had arrived, the conclusion to be drawn is that the taxpayer became entitled to the administration fee specified in cl 6.1 of the Administration Agreement. By that clause the taxpayer was entitled to such fee as against the Business Agent. As against PPP the taxpayer was entitled to deduct the fee by virtue of cl 4.2(g)(ii) of the Collection Agency Deed.
29.The taxpayer has not raised any issue of apportionment of the monies received so as to distinguish between fee entitlements and the remainder.
30.The term “relevant fees” in cl 4.2(g)(ii) the Collection Agency Deed plainly includes the fees to which the taxpayer was entitled under the Administration Agreement. The two documents must be read together. They relate to the same business operation. They form part of the same legal and commercial landscape. Indeed cl 2.2 of the Collection Agency Deed explicitly refers to and acknowledges the relationship that the parties (PPP and the taxpayer) contemplate that the taxpayer will have with Business Agents.
It was accepted by counsel for the applicant on this application that his Honour was correct in observing that the applicant had not raised any issue as to whether the end of the financial year had arrived. To understand the significance of his Honour’s observation it is necessary to say more about cl 6.1.
The first sentence of cl 6.1 uses the expression to “the end of the financial year”. The expression “Financial Year” is defined in cl 1.1 to mean “twelve (12) months from 1 July to 30 June the following year.” There are three things to note about this definition. First, the definition does not apply if there is something in the subject matter or context inconsistent with it. Second, the defined expression is “Financial Year”. The relevant words in cl 6.1 appear in lower case. Third, the respondent argued that when the definition refers to “30 June the following year” it is referring to 30 June in the following calendar year. This argument was not addressed by the primary judge, but that is understandable given that, as is implicit in his Honour’s observations on the topic of cl 6.1, the applicant did not argue before him that the clause was not engaged because the end of the financial year had not arrived.
THE PROPOSED GROUNDS OF APPEAL
Ground 1
The first of the proposed grounds of appeal asserts that, if the primary judge was correct in finding that the applicant was entitled to retain funds as fees or commission under cl 6 of the Administration Agreement, he should have held that the payments made to PPP were made by mistake. It is further asserted in the same ground of appeal that, leaving aside the fixed establishment fee of $500 per Business Agent, his Honour should have found that the applicant did not exercise its entitlement to charge any fees or commission and derived no income by way of fees or commission.
It was not argued below that any amount paid by the applicant to PPP was paid by mistake. Whether or not there was any mistake raises questions of fact that were not explored at the trial. For a party to be given leave to raise in an appeal a point not raised below, it must demonstrate that it could not possibly have been met by rebutting evidence: Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 at [51].
At the time of the trial the applicant was a wholly owned subsidiary of PPP. It was not suggested by the applicant that this was not the position at the time the relevant payments were made. It does not take much imagination to appreciate that there may be various explanations behind the payments made by the applicant to its overseas parent apart from a mistaken understanding as to the meaning of the relevant agreements or the scope of the applicant’s entitlements thereunder.
In the circumstances, I am satisfied that the applicant has no prospect of obtaining leave to raise the first of its proposed grounds of appeal.
Ground 2
The second of the grounds of appeal upon which the applicant proposes to rely identifies a number of alleged errors in the primary judge’s reasoning.
First, it is contended that his Honour should have found that cl 5.2 obliged the applicant to pay the funds received from the Business Agents to PPP to acquire warrants. However, cl 5.2 requires the applicant to “pay, direct or disburse the full 15% amount as a part payment for the entire amount of the pre-paid services irrevocably committed to by the Business Agent to [PPP].” This did not preclude the applicant from withholding the whole or part of the amount received from the Business Agent in satisfaction of its own entitlements if permitted to do so by a direction from PPP.
Secondly, the applicant contended that cl 6.1 only conferred an entitlement to charge an administration fee in the year “following” the relevant year of income. In this regard the applicant relied on the definition of “Financial Year” to which I previously referred. As I have also mentioned, however, the applicant accepted that it did not raise any such point before the primary judge. Moreover, the argument appears to be quite weak, which perhaps explains why it was never raised by counsel who appeared for the applicant at the trial. Where defined terms have been used in the Administration Agreement, they have been capitalized in the same manner as they have been when being defined. The question whether the absence of capitalization in cl. 6.1 reflects a deliberate decision not to utilize the defined term and to refer instead to the last financial year (“…will be entitled by the end of the financial year…”) or a drafting or typographical error raises factual issues never explored at the trial.
Even if the expression “financial year” as used in cl 6.1 is given the same meaning as that provided for in the definition of “Financial Year”, I do not think that it assists the applicant. I say this because I am satisfied that the definition refers to the financial year beginning on 1 July in one calendar year, and ending on 30 June in the next calendar year.
Thirdly, the applicant contended that the construction of the Administration Agreement and the Collection Agency Agreement adopted by the primary judge under which the applicant was entitled to take for itself the funds received from the Business Agent for the purpose set out in cl 5.2 of the Administration Agreement gave no business efficacy to the parties’ arrangements. However, as with the first of the arguments raised by the applicant concerning cl 5.2, this argument presupposes that the applicant was bound to remit all amounts received by it to PPP. There was no evidence before the primary judge (or at least none to which I was referred) from which it might be inferred that PPP would not be able to make prepayments to, or enter into commitments with, professional service providers until such time as it had received such amounts from the applicant.
I am not satisfied that any of the arguments raised in ground 2 of the proposed notice of appeal has any prospect of success.
Ground 3
The third of the applicant’s proposed grounds of appeal asserts that his Honour should have found that the funds received by the applicant from the Business Agents were not beneficially owned by the applicant but were impressed with a trust for the sole purpose of payment to PPP in accordance with cl 5.2 of the Administration Agreement and cl 4.2 of the Collection Agency Agreement. This ground of appeal also wrongly assumes that the Administration Agreement required the applicant to remit the whole of the amount received by it from the Business Agent without deduction. However, as discussed in more detail below, cl 4.2(g) provided that each and every direction given by PPP to the applicant carried with it an implicit direction to apply the money payable to PPP to (inter alia) the payment of any fees and commissions due to the applicant.
His Honour assumed, although he did not make an explicit finding to this effect, that the relevant payments by the applicant to PPP were made pursuant to one or more directions from PPP. The applicant did not suggest that his Honour was not entitled to make such an assumption.
I do not think that the third of the applicant’s proposed grounds of appeal has any prospect of success.
Ground 4
In ground 4 of its proposed notice of appeal the applicant asserts that cl 6.4 of the Administration Agreement applied because the applicant made an election pursuant to cl 6.3 whereby it waived its entitlement to any commission payable under cl 6.1.
The primary judge found that there was no evidence of any election pursuant to cl 6.3. It was not suggested by the applicant that, in doing so, his Honour overlooked the existence of the document entitled “Pre-Paid Professionals Frequently Asked Questions” or, in particular, question and answer 15. His Honour referred to this question and answer specifically. It was in the following terms:
15. What is the extent of liability for owners of the business (Is it limited to the contribution of the individuals or the entities)?
As with any new business, the owners face a real commercial risk. However, because of the strategic alliances that are set in place there already exists such a demand for services that will exceed the expectations of the business. Therefore, the owners can anticipate that they will sell all of their pre-paid contracts before the commencement of the next financial year.
The business is professionally managed by [the applicant] who sells these services on behalf of the dealership or partnerships. [The applicant] will charge commissions but has undertaken in order to get your business going (and in anticipation of greater fees once it is growing) only to charge reasonable administration fees from profits. That is, to help you get started, [the applicant] will waive its administration fees if you do not make a profit.
His Honour found that since an election would have to be communicated to the Business Agents, cl 20.1 required that notice of an election pursuant to cl 6.3 be given in writing. The correctness of that finding was not disputed by the applicant. However, it argued that his Honour should have accepted that an election by the applicant under cl 6.3 was communicated in writing to the Business Agents by means of the “Frequently Asked Questions” document.
There are considerable difficulties in finding that the Frequently Asked Questions document evidenced the communication of an election by the applicant under cl 6.3 of the Administration Agreement. The document asserted that the applicant “has undertaken … only to charge reasonable administration fees from profits”. Whatever the intention behind that statement, it is not evidence of an election under cl 6.3. Undertaking to charge “reasonable administration fees from profits” is not the same as making an election under cl 6.3 as a result of which the applicant, instead of being entitled to the fees payable under cl 6.1, would have become entitled to “…30% of gross business income…” in accordance with cl 6.4.
His Honour referred to the absence of evidence from any witness called by the applicant to establish that there had been an election pursuant to cl 6.3. Besides the Frequently Asked Questions document, I was not referred to any other evidence capable of establishing how or when any such election had been made or communicated.
I am not satisfied that this proposed ground of appeal has any prospects of success.
Ground 5
I have previously referred to the primary judge’s construction of cl 4.2(g) of the Collection Agency Agreement. The applicant contended that his Honour was in error in finding that this clause entitled the applicant to withhold fees and commissions payable to it by the Business Agents as opposed to fees and commissions payable to the applicant by PPP.
I think his Honour was plainly correct on this point. The expression “relevant fees and commissions” is not defined in the Collection Agency Agreement. Had it been the intention of the parties to limit the applicant to “Commission” – which was defined to mean the fee payable by PPP to the applicant – then the defined term would have been used. Although there are defined terms (including “Collection Expenses”) used throughout cl 4.2(g), “Commission” is not one of them. The language used in cl 4.2(g)(ii) is broad and apt to cover fees payable to the Administrator under cl 6.1 of the Administration Agreement.
I do not think that ground 5 of the proposed appeal has any prospects of success.
DISPOSITION
For the above reasons, I am not satisfied that the applicant’s proposed appeal has any prospects of success. The application for an extension of time should be dismissed with costs.
Orders accordingly.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 25 January 2012
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