Sharpe v Chief Commissioner of State Revenue

[2002] NSWADT 6

CITATION:	Sharpe -v- Chief Commissoner of State Revenue [2002] NSWADT 6 revised - 05/02/2002
DIVISION:	Revenue Division
PARTIES:	Chief Commissioner of State Revenue
FILE NUMBER:	016003
HEARING DATES:	29/11/2001
SUBMISSIONS CLOSED:	11/29/2001
DATE OF DECISION:	01/23/2002
BEFORE:	Seve J - Judicial Member
APPLICATION:	Duties Act - no ad valorem duty
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Duties Act 1997 Interpretation Act 1987 Stamp Duties Act 1920 State Revenue Legislation Further Amendment Act 2000 Taxation Administration Act 1996
CASES CITED:	Lake Victoria Ltd and Others v Commissioner of Stamp Duties (1949) 49 SR (NSW) 262 Vickery v Woods (1952) 85 CLR 336 Truskett v Commissioner of Stamp Duties (1976) 6 ATR 1 Hollingsworth v Lee [1949]VLR140 Baker v Lewis [1947] 1 KB 186 Powell v Cleland [1947] 2 ALL ER 672, (1947) 1 WN 304 Commissioner of Stamp Duties v Pendal Nominees Pty Limited and Another (1989) 167 CLR 1
REPRESENTATION:	APPLICANT G Moore, barrister RESPONDENT I Mescher, barrister
ORDERS:	1. The decision of the Chief Commissioner of State Revenue disallowing the Applicant’s objection to payment of ad valorem duty on the subject transfer is set aside.; 2. The matter is remitted for reconsideration by the Chief Commissioner of State Revenue in accordance with the following directions:; a) The Chief Commissioner should allow the Applicant’s objection to payment of ad valorem duty on the subject transfer;; b) The Chief Commissioner should amend the assessment of the subject transfer to duty of $2 under s 18(3) of the Duties Act 1997;; c) The Chief Commissioner should refund the amount of $30,363 being the excess paid over the amount of $2 required to be paid on the subject transfer under the Duties Act 1997; and; d) In addition to the amount of the refund, the Chief Commissioner should pay interest on the amount of $30,363 calculated on a daily basis from the date of its payment on 23 April 2001 until the date of the refund at the market rate component under s22 of the Taxation Administration Act 1996.

Revised 5 February 2002-at paragraph 42
Facts
1 The material facts presented in evidence are not in dispute and are described below.

2 By a written agreement (“Agreement”) dated 30 November 1998, Stockland (Constructors) Pty Limited (“Stockland”) agreed to sell to Venacom Pty Ltd (“Venacom”) and Alsof Pty Ltd (“Alsof”), as tenants in common in equal shares, Torrens Title property in NSW being Lot 55 in a Strata Plan to be registered (“NSW Property”) for a purchase price of $1,300,000.

3 The Agreement was stamped with ad valorem transfer duty under the Duties Act 1997 (“Duties Act”) in the sum of $56,990.

4 At the time the Agreement was entered into, Venacom was not a related person to the Applicant within the meaning of the Duties Act.

5 Although this fact was not disclosed on the face of the Agreement, Alsof acted in its capacity as trustee of an existing family discretionary trust (“JL Sharpe Family Trust”) and paid its 50 per cent share of the deposit payable under the Agreement as such trustee out of funds of the JL Sharpe Family Trust. This fact was accepted by the Chief Commissioner of State Revenue (“Chief Commissioner”) at the hearing in this case.

6 At the time the Agreement was entered into, the Applicant was:

(a) included in the list of persons defined as “beneficiaries” for the purposes of the JL Sharpe Family Trust, being a list of persons in whose favour, by the terms of the discretionary trust, capital and income the subject of the trust may be applied;

(b) a related person (within the meaning of the Duties Act) of each of the other persons included in the list of persons defined as “beneficiaries” for the purposes of the JL Sharpe Family Trust; and

(c) a director of Alsof.

7 The Agreement which was included as Exhibit “E” at the hearing in this case, included the following features:
(a) The first page of the Agreement was in the form of the first page of the standard form contract for the sale of land – 1996 edition and the vendor was identified as Stockland, the purchaser was identified as Venacom and Alsof as tenants in common in equal shares and the property agreed to be sold was identified as the NSW Property.

(b) The top of page 4 of the Agreement included the following provision: “The vendor sells and the purchaser buys the property for the price under these provisions instead of Schedule 3 Conveyancing Act 1919, subject to any legislation that cannot be excluded”.

(c) Clause 16.3 of the Agreement provided as follows:

“Normally, on completion the vendor must cause the legal title to the property to pass to the purchaser free of any mortgage or other interest, subject to any necessary registration”.
(d) Clause 20.4 of the Agreement provided as follows:
“If a party consists of 2 or more persons, this contract benefits and binds them separately and together”.
(e) Clause 1.1 of the Special Conditions to the Agreement included the following provisions:
“(vii) an agreement representation or warranty (which includes an obligation under a guarantee) in favour of two(2) or more persons is for the benefit of them jointly and severally; and

(viii) an agreement representation or warranty (which includes an obligation under a guarantee) in on the part of two(2) or more persons binds them jointly and severally; and

(x) a reference to anything (including, without limitation, any amount) is a reference to the whole or each part of it and a reference to a group of persons is a reference to all of them collectively, to any two or more of them collectively and to each of them individually”.

8 At completion of the Agreement, by a Real Property Act Transfer dated 27 April 2001, Stockland transferred to Venacom, a one half share in the NSW Property for a consideration expressed to be $650,000 (“Venacom Transfer”). The Venacom Transfer was assessed and stamped with duty of $2 pursuant to s18(2) of the Duties Act as a transfer made in conformity with the Agreement. However, during the course of this case, the Chief Commissioner advised that he had decided to issue a reassessment in respect to the Venacom Transfer and impose ad valorem duty on that transfer. The Venacom Transfer is not the subject of these proceedings.

9 By a Real Property Act Transfer also dated 27 April 2001, Venacom transferred to the Applicant, a one half share in the NSW Property for a consideration expressed to be $800,000 (“JL Sharpe Transfer”). The JL Sharpe Transfer was stamped with ad valorem duty which is not in dispute.

10 Also at completion of the Agreement, pursuant to a request by Alsof and the Applicant to Stockland, by a Real Property Act Transfer dated 27 April 2001, Stockland transferred to the Applicant, a one half share in the NSW Property for a consideration expressed to be $650,000 (“Subject Transfer”). The Subject Transfer was assessed and stamped with ad valorem duty of $30,365 paid on 23 April 2001 being duty calculated on a dutiable amount of $775,000. The amount of $775,000 was one half of a written market valuation of the NSW Property dated 9 April 2001 made by a registered valuer, a copy of which valuation was furnished by the solicitors for the Applicant to the Chief Commissioner.

11 The solicitors for the Applicant, on behalf of the Applicant, lodged an objection with the Chief Commissioner dated 4 May 2001 to the assessment of the Subject Transfer to ad valorem duty and claimed that the duty properly payable on the Subject Transfer was $2 pursuant to s18(3) of the Duties Act and claimed a refund of the duty.

12 By letter dated 2 July 2001 from the Commissioner of State Revenue to the Solicitors for the Applicant, the Commissioner of State Revenue advised as follows:

“Following a review of the submission, it is considered that the provisions of section 18(3) are not met. In particular:
• section 18(3)(b) – the transfer is not in conformity with the agreement, ie. the whole of the subject property was agreed to be purchased under the agreement, only a one-half interest is being transferred under the Real Property Act transfer; and
• section 18(3)(d) – the transferee, JL Sharpe, is not a related person (as defined) to the purchaser as described in the agreement, ie. Venacom Pty Limited and Alsof Pty Ltd.
In addition, it is considered section 8 of the Interpretation Act supports the interpretation of the Duties legislation.

Consequently, your objection has been disallowed”.

13 In an application to the Administrative Decisions Tribunal for a review of a decision made under the Taxation Administration Act 1996 dated 27 July 2001, the Applicant made application to the Revenue Division of the Administrative Decisions Tribunal to review the decision of the Chief Commissioner to disallow the Applicant’s objection to payment of ad valorem duty on the Subject Transfer on the basis that the Subject Transfer should have been stamped at $2 in accordance with s18(3) of the Duties Act .

Legislation

14 Section 18(3) of the Duties Act provides as follows:

“18(3) The duty chargeable in respect of a transfer of dutiable property that is not made in conformity with an agreement for the sale or transfer of the dutiable property is $2 if:
(a) the duty chargeable in respect of the agreement has been paid, and

(b) the transfer would be in conformity with the agreement if the transferee was the purchaser under the agreement, and

(c) the transfer occurs at the same time as, or proximately with, the completion or settlement of the agreement, and

(d) at the time the agreement was entered into:-


(i) the purchaser under the agreement and the transferee under the transfer were related persons, except as provided by subparagraph (ii), or

(ii) if the purchaser purchased as a trustee, the transferee and the beneficiary were related persons”.

15 Section 18(3) was amended between the date of the Agreement and the date of the Subject Transfer by the State Revenue Legislation Further Amendment Act 2000 (“ SRLFA Act ”). The SRLFA Act amended s18(3) of the Duties Act with effect from 13 December 2000 to omit the originally enacted s18(3)(c) and to insert in its place, the current s18(3)(c) and s18(3)(d). Prior to its amendment, s18(3)(c) of the Duties Act provided as follows:
“(c) the purchaser under the agreement and the transferee under the transfer were related persons at the time the agreement was entered into”.
16 As at the respective dates of the Agreement and the Subject Transfer, the Dictionary to the Duties Act relevantly defined “related person” as follows:
“ related person means a person who is related to another person in accordance with any of the following provisions:
(a)natural persons……

(b) private companies……

(c) a natural person and a private company are related persons if the natural person is a majority shareholder or director of the company or of another private company that is a related body corporate of the company within the meaning of the Corporations Law,

(d) a natural person and a trustee are related persons if the natural person is a beneficiary of the trust (not being a public unit trust scheme) of which the trustee is a trustee,

(e) a private company and a trustee…..”.

17 After the respective dates of the Agreement and the Subject Transfer, with effect from 15 July 2001, paragraph (c) of the definition of “related person” in the Duties Act was amended to refer to the Corporations Act 2001 of the Commonwealth in lieu of the Corporations Law. This amendment does not apply and is not relevant to this case.

18 The Dictionary to the Duties Act defines “dutiable property” as having the meaning given by s11. Section 11(1) of the Duties Act relevantly provides that “dutiable property” is any of the following:

“(a) land in New South Wales,

(b) ….., (c)….., (d)….., (e)….., (f)….., (g)….., (h)….., (i)….., (j)..…, (k)…..,

(l) an interest in any dutiable property referred to in the preceding paragraphs of this section except to the extent that:…..”.

19 Sections 8(b), 33 and 34 of the Interpretation Act 1987 (“ Interpretation Act ”) relevantly provide as follows:
“8(b) In any Act or instrument, a reference to a word or expression in the singular form includes a reference to the word or expression in the plural for.

33 In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

34(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:


(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

34(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:
(a)…..,(b)…..,(c)…..,(d)…..,

(e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

(g)….., and (h)…..”.

Issue
20 The issue in this case is whether s18(3) of the Duties Act applies to the Subject Transfer and in particular whether the Subject Transfer satisfies paragraphs (b) and (d) of s18(3) of the Duties Act .

21 To satisfy s18(3) of the Duties Act, each of paragraphs (a) to (d) (inclusive) of s18(3) must be satisfied.

22 At or before the hearing in this case, the Chief Commissioner accepted that paragraphs (a) and (c) of s18(3) were satisfied in respect to the Subject Transfer. The Chief Commissioner has however asserted that paragraphs (b) and (d) of s18(3) of the Duties Act are not satisfied in respect to the Subject Transfer.

Applicant’s Submissions
23 The Applicant has asserted that each of paragraphs (a) through to (d) (inclusive) of s18(3) are satisfied in respect to the Subject Transfer. As regards paragraphs (b) and (d) of s18(3), the submissions of the Applicant included the following. Having regard to the findings below on s18(3)(d) and its application to the Subject Transfer, not all of the Applicant’s submissions on that section are repeated below. Also having regard to the findings below on s18(3) and its application to the Subject Transfer, submissions of the Applicant on s18(1) made at the hearing in this case are not repeated below.

(a) Section 18(3) uses the phrase “transfer of dutiable property”. In turn the Dictionary provides that “dutiable property” includes an interest in any dutiable property. As land in NSW is dutiable property, any part of the land must be an interest in the dutiable property. The Subject Transfer of a one half interest is a transfer of an interest in land in NSW, an interest in dutiable property and a transfer of dutiable property.

(b) Section 18(3)(b) is satisfied because the Subject Transfer would be in conformity with the Agreement if the transferee was the purchaser of the dutiable property the subject of the Subject Transfer under the Agreement namely, the one half interest in the NSW Property agreed to be purchased by Alsof under the Agreement.

(c) The substitution of the plural for the singular pursuant to the Interpretation Act as contended by the Chief Commissioner is directed only where the context makes it appropriate. The context of the application of s18(3) to the Subject Transfer is one in which it is not appropriate to equate singular and plural. In respect to the one half interest in the NSW Property agreed to be purchased by Alsof under the Agreement, there was only one purchaser under the Agreement, namely Alsof. Venacom was not a purchaser of the half interest which was transferred by Stockland to the Applicant by the Subject Transfer. The relationship between Venacom and the Applicant is irrelevant to the application of s18(3).

(d) Subparagraphs (i) and (ii) of s18(3)(d) must be read disjunctively. The expression “except as provided by subparagraph (ii)” at the end of s18(3)(d)(i) means that except where the whole of subparagraph (ii) of s18(3)(d) is satisfied, subparagraph (i) applies. If the whole of subparagraph (ii) of s18(3)(d) is not satisfied, then, the exception to subparagraph (i) of s18(3)(d) does not apply and the relevant subparagraph to be satisfied is subparagraph (i) of s18(3)(d). Subparagraph (i) of s18(3)(d) is satisfied in this case because at the time the Agreement was entered into, the Applicant was a beneficiary of the JL Sharpe Family Trust of which Alsof was the trustee.

(e) If subparagraph (ii) of s18(3)(d) applies, then it is satisfied in this case because the purchaser (i.e. Alsof) purchased as a trustee and the transferee (i.e. the Applicant) and the beneficiary under the trust for which Alsof acted trustee were related persons at the time the Agreement was entered into. This is because in the case of a discretionary trust where the beneficiaries are a class of persons, inclusion of a person within that class does not preclude that person from being related to that class of persons.

Chief Commissioner’s Submissions
24 The Chief Commissioner has submitted that paragraphs (b) and (d) of s18(3) of the Duties Act are not satisfied in respect to the Subject Transfer on the following grounds. Having regard to the findings below on s18(3)(d) and the application of subparagraph (i) of that section to the Subject Transfer, not all of the Applicant’s submissions on subparagraph (ii) of s18(3)(d) are repeated below.
(a) The Subject Transfer would not be in conformity with the Agreement if the transferee was the purchaser under the Agreement because the Subject Transfer relates only to a one half interest in the NSW Property whereas the property agreed to be transferred under the Agreement was the whole of the NSW Property. The property transferred by the Subject Transfer is different to the property agreed to be transferred pursuant to the Agreement. One property was agreed to be sold (i.e. the whole of the NSW Property) pursuant to the one agreement and not two properties (i.e. two half interests in the NSW Property) pursuant to two agreements. For this reason, paragraph (b) of s18(3) has not been satisfied.

(b) The transferee under the Subject Transfer and the purchaser under the Agreement were not related persons at the time the Agreement was entered into within the meaning of subparagraph (i) of s18(3)(d) because the purchaser under the Agreement was both Alsof and Venacom (s8 of the Interpretation Act supports this interpretation) and the Applicant was only a related person of Alsof and not of Venacom at the time the Agreement was entered into. For this reason, subparagraph (i) of s18(3)(d) is not satisfied.

(c) If subparagraph (ii) of s18(3)(d) applies, the transferee (i.e. the Applicant) must be a related person to the beneficiary of the trust (i.e. all of the beneficiaries of the JL Sharpe Family Trust). Since the Applicant was one of the beneficiaries of the JL Sharpe Family Trust at the time the Agreement was entered into, the transferee and the beneficiary of the trust could not be related persons (as defined) at that time. This is because a person (i.e. the Applicant) can not be related to himself. The definition of “related person” in the Dictionary to the Duties Act is prefaced upon there being two distinct entities – i.e. there must be “…a person who is related to another person…”. For this reason, if subparagraph (ii) of s18(3)(d) applies, it has not been satisfied.

Decision and Reasoning

Paragraph (b) of Section 18(3) of the Duties Act
25 The first issue to be decided is whether paragraph (b) of s18(3) of the Duties Act was satisfied in respect to the Subject Transfer.

26 Section 18(3) is an extension to the circumstances in s18(2) of the Duties Act in which fixed duty of $2 is chargeable in respect of a transfer that is a transfer made “in conformity with” an agreement for sale or transfer in respect of which the duty chargeable has been paid. Section 18(2) had as its predecessor, s41(4)(a) of the Stamp Duties Act1920 (“Stamp Duties Act”). Section 18(3) did not have a predecessor under the Stamp Duties Act.

Meaning of “in conformity with the agreement”
27 There have been no Court or Tribunal decisions on the interpretation of s18(3) or s18(2) of the Duties Act. Like each of sections 18(2) and 18(3)(b) of the Duties Act, the predecessor to s18(2) of the Duties Act (i.e. s41(4)(a) of the Stamp Duties Act), included the expression “in conformity with the agreement”. That expression as used in s41(4)(a) of the Stamp Duties Act was the subject of the decision of Jordan CJ in Lake Victoria Ltd and Others v Commissioner of Stamp Duties (1949) 49 SR (NSW) 262 which was summarised by Dixon J in Vickery v Woods (1952) 85 CLR 336 at 336 as follows:

“In Lake Victoria Ltd v Commissioner of Stamp Duties (1949) 49 SR (NSW) 262, at p 265: WN 119, at pp 121, 122, Jordan CJ distinguishes, for the purposes of the application of s.41(4)(a), the case where the conveyance to a third party is made at the purchaser’s direction from the case of a contract which provides for a conveyance to the purchaser or, not to the purchaser, but to some other person. In the latter case, I understand his Honour regarded the conveyance as made in conformity with the contract, within the meaning of s.41(4)(a), and therefore as not chargeable with ad valorem duty. ‘A conveyance is not made in conformity with the agreement, unless it is made to the purchaser or if the agreement provides that it is to be made not to the purchaser but to some other person, to that other person.’ Clearly enough, Jordan CJ was here speaking of a person identified in the contract as opposed to any nominee, but I am not inclined to think that it makes any difference if the identifiable person is a contemplated company yet to be clothed with legal personality”.
28 Vickery v Woods( supra) involved a transfer of property made to a company which was not yet incorporated at the time of entry by an individual as purchaser into a contract for sale of the property, executed by the individual with the additional words “for Gunbar Pastoral Co. Pty. Ltd.” (being the name of the company transferee not yet incorporated) after the individual’s signature. The issue before the High Court in Vickery v Woods (supra) was whether s41(7) of the Stamp Duties Act applied and not whether s41(4)(a) applied since the transferee company did not proceed with an earlier appeal for a stated case in respect to s41(4)(a). However, by way of obiter dictum, Dixon J in Vickery v Woods (supra) at 344 expressed the view on s41(4)(a) that the transfer to the company was made in conformity with the contract. Fullagar J in Vickery v Woods (supra) at 351 also expressed the same opinion as Dixon J whilst Williams J in Vickery v Woods (supra) at 347 did not express a view on the issue, stating that the appeal was not concerned with the question of whether or not Lake Victoria Ltd v Commissioner of Stamp Duties (supra) was rightly decided or whether it applied to the facts. Kitto J in Vickery v Woods (supra) at 351 agreed with the judgements of both of Dixon J and Williams J. Only Webb J in Vickery v Woods (supra) at 350 expressed the view that the transfer to the company in that case was not in conformity with the contract and in doing so, commented that the transfer “could not have been in conformity with a contract to which the Gunbar Pastoral Co. was not a party; under which alone it had no rights; which it could not ratify; and which contained no provision for a conveyance to it”. It would appear therefore that even in respect of the dissenting comments of Webb J in Vickery v Woods (supra) at 350 on this issue, a transfer of property to a person identified in a contract for sale or transfer as the transferee of that property would be a transfer made “in conformity with” the contract.

29 Each of Lake Victoria Ltd v Commissioner of Stamp Duties (supra) and Vickery v Woods (supra) are authority that for a transfer to be “in conformity” with an agreement, the transfer of the property must be made to the person identified in the agreement as the transferee of the subject property. Neither of Lake Victoria Ltd v Commissioner of Stamp Duties (supra) nor Vickery v Woods (supra) is authority that a transfer of a part of or an interest in the property the subject of an agreement for transfer to the person identified in the agreement as the transferee of the property, can not be in conformity with the agreement. There is in fact contrary suggestion in Lake Victoria Ltd v Commissioner of Stamp Duties (supra). In that case, by written agreement, a vendor agreed to sell to the named purchaser or his (unidentified) nominee or nominees, certain lands and other property for a lump sum purchase price. The named purchaser nominated three companies as purchasers of parts of the said lands and by three separate instruments, the vendor transferred the respective parts to the respective three companies as tenants in common. Nowhere in the judgement of Jordan CJ is any comment or suggestion made that the fact that each transfer was a transfer of only part (and not the whole) of the property agreed to be transferred under the agreement, precluded the transfers from being “in conformity with” the agreement. The only reason given by Jordan CJ that the transfers were not in conformity with the agreement was that the transfers were not made in favour of the purchaser identified in the agreement as the purchaser of the property the subject of each transfer. Jordan CJ did not indicate that a transfer of a part of or an interest in the property the subject of an agreement for transfer to the person identified in the agreement as the transferee of the property, could not be a transfer in conformity with the agreement.

Ordinary Interpretation of s18(3)(b)
30 An ordinary interpretation of s18(3)(b) also indicates that a transfer of a part of or an interest in the property the subject of an agreement for sale or transfer can be “in conformity” with the agreement within the meaning of that section.

31 Reading paragraph (b) in the context of the whole of s18(3), the section reads as follows:

“s18(3)(b) The duty chargeable in respect of a transfer of dutiable property that is not made in conformity with an agreement for the sale or transfer of the dutiable property is $2 if the transfer would be in conformity with the agreement if the transferee was the purchaser under the agreement”.
32 The opening words of Section 18(3) refer to a transfer of dutiable property. It is not in dispute that the Subject Transfer was a “transfer” of “dutiable property” within the meaning of Chapter 2 of the Duties Act . Under s11(1)(l) of the Duties Act “dutiable property” includes an interest in any dutiable property referred to in the proceeding paragraphs of s11(1), subject to certain exceptions (not relevant to this case). Paragraph (a) of s11(1) of the Duties Act includes land in NSW as dutiable property. Accordingly, the Subject Transfer was a transfer of dutiable property as it was a transfer of an interest in land in NSW.

33 The expression “the transfer” in paragraph (b) of s18(3) is and must be a reference to the transfer of “the” dutiable property earlier referred to in s18(3), namely, in this case, the one half share of the NSW Property.

34 The expression “the transferee” in paragraph (b) of s18(3) must be a reference to the transferee named in the Subject Transfer, namely, in this case, the Applicant. The expression “the agreement” in paragraph (b) of s18(3) must be a reference to the agreement earlier referred to in s18(3), that is, the agreement pursuant to which the transfer has not been made in conformity but in respect of which the duty chargeable has been paid, in this case, the Agreement. It follows from this ordinary interpretation that the expression “the purchaser under the agreement” in paragraph (b) of s18(3) must be a reference to the purchaser (under the agreement) of “the” dutiable property the subject of the transfer. In this case, the property the subject of the Subject Transfer is the relevant one half share in the NSW Property and the purchaser under the Agreement of that one half share was Alsof.

Construction of the Agreement
35 To finally ascertain whether a transfer would be in conformity with an agreement if the transferee was the purchaser under the agreement for the purposes of paragraph (b) of s18(3), the terms of the agreement in question must be considered. In construing an agreement for the purposes of s 18(3)(b) of the Duties Act, it is not simply one or more provisions in isolation that must be considered but the terms of the agreement as a whole.

36 Under Clause 20.4 of the Agreement and Clause 1.1(vii) and (viii) of the Special Conditions to the Agreement, the obligations and the rights of Venacom and Alsof under the Agreement were joint and several. Under Clause 1.1(x) of the Special Conditions to the Agreement, a reference to anything was a reference to the whole and each part of it and as such, the reference to the NSW Property was a reference to the whole and each part of the NSW Property.

37 Given that the obligations and rights of Venacom and Alsof under the Agreement were joint and several and were not solely joint and given that references to the NSW Property in the Agreement were references to the whole and each part of it, I find that it would not be incorrect to describe each of Venacom and Alsof as “the purchaser” under the Agreement of a one half share each of the NSW Property. Furthermore, under Clause 16.3 of the Agreement, the vendor was obliged to cause legal title to the NSW Property to pass to the purchaser on completion. The exact means by which such legal title was to pass was not restricted by the Agreement as limited only to a single instrument of transfer by which the whole of the NSW Property was transferred to Venacom and Alsof jointly. Accordingly, two transfers by Stockland of a one half share of the NSW Property in favour of each of Venacom and Alsof respectively, would each have each been a transfer “in conformity with” the terms of the Agreement.

38 Based on the authority of Jordan CJ in Lake Victoria Ltd v Commissioner of Stamp Duties (supra), as supported by the obiter dicta comments of the High Court in Vickery v Woods (supra) and the foregoing analysis of these cases and the foregoing construction of the terms of the Agreement as a whole, I do not agree with the Chief Commissioner’s submissions that the Subject Transfer does not satisfy s18(3)(b). The whole of the property agreed to be transferred under an agreement is not required to be transferred for a transfer to be capable of being “in conformity” with the agreement. A transfer of a part of or an interest in property agreed to be transferred under an agreement must be made to the person identified in the agreement as the purchaser of the property the subject of the transfer to be capable of being “in conformity with” the agreement. Construing the Agreement in this case as a whole, if the transferee (i.e. the Applicant) was Alsof (i.e. the purchaser under the Agreement of the relevant one half share of the NSW Property the subject of the Subject Transfer), the Subject Transfer would be in conformity with the Agreement.

39 For the foregoing reasons, I find that s18(3)(b) of the Duties Act is satisfied with respect to the Subject Transfer.

Paragraph (d) of Section 18(3) of the Duties Act
40 The second issue to be decided is whether paragraph (d) of s18(3) of the Duties Act was satisfied with respect to the Subject Transfer.

41 Paragraph (d) of s18(3) of the Duties Act reads, in the context of the earlier part of s18(3) as follows:

“s18(3)(d) The duty chargeable in respect of a transfer of dutiable property that is not made in conformity with an Agreement for the sale or transfer of the dutiable property is $2 if at the time the Agreement was entered into:
(i) the purchaser under the Agreement and the transferee under the transfer were related persons, except as provided by subparagraph (ii), or

(ii) if the purchaser purchased as a trustee, the transferee and the beneficiary were related persons”.

42 To ascertain the criterion to be satisfied under paragraph (d) of s18(3), it is firstly necessary to ascertain the meaning of the expression “except as provided by subparagraph (ii)” at the end of subparagraph (i) of s18(3)(d). In context, where appearing at the end of subparagraph (i) of s18(3)(d), the ordinary meaning of the expression would appear to mean that where the purchaser purchased as a trustee within the meaning of the first part of subparagraph (ii) of s18(3)(d), subparagraph (i) of s18(3)(d) does not apply, irrespective of whether or not the second part of subparagraph (ii) is satisfied. This is because the legislature chose to use the expression “except as provided by subparagraph (ii)” and not the expression “except if the purchaser purchased as a trustee and the transferee and the beneficiary were related persons” at the end of subparagraph (i) of s18(3)(d).

43 Under s34(1)(a) and s34(1)(b)(i) of the Interpretation Act, consideration may be given to material not forming part of an Act, to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act and the purpose or object underlying the Act) or to determine the meaning of the provision if the provision is ambiguous or obscure. Under Section 34(2)(e) of the Interpretation Act, the explanatory note to the Bill for an Act is expressly included as material permitted for consideration in these contexts.

44 The explanatory note relating to the Bill for the SRLFA Act which amended s18(3) of the Duties Act included the following:

“A purchaser under an agreement for sale can elect to have the property transferred from the vendor to a person who is “related” (as defined in the Act) to the purchaser without paying ad valorem duty on the transfer. This concession is capable of being abused by a person who stamps the transfer after settlement of the contract but before registration of the transfer at the Land Titles Office. Schedule 1[1] limits the concession in two ways. First, it provides that the transfer must occur contemporaneously with the completion or settlement of the agreement. Secondly, if a purchaser buys on trust for the “real” purchaser who has provided the money for the purchase, the concession for a transfer to a related person can only apply to a transfer from the vendor to a person who is related to the “real” purchaser (and not a person who is related to the “apparent” purchaser)”.
45 This explanatory note confirms the ordinary meaning of the exception at the end of subparagraph (i) of s18(3)(d) aforementioned and further clarifies to some degree, the meaning of s18(3)(d). The explanatory memorandum makes it clear that in order to ascertain whether or not subparagraph (i) or (ii) of s18(3)(d) is relevant and available to be satisfied in any particular matter, it must first be ascertained whether, on the facts of the matter, the purchaser purchased as a trustee within the meaning of subparagraph (ii) of s18(3)(d). If the purchaser purchased as a trustee within the meaning of s18(3)(d)(ii), then, only if the transferee and the beneficiary of the subject trust were related persons (as defined) at the time the agreement was entered into, will the subject transfer satisfy s18(3)(d) of the Duties Act . If the purchaser did not purchase as a trustee within the meaning of s18(3)(d)(ii), then, only if the transferee and the purchaser were related persons (as defined) at the time the agreement was entered into (as referred to in s18(3)(d)(i)), will the subject transfer satisfy s18(3)(d) of the Duties Act .

46 The explanatory note makes it clear that where a purchaser purchased as an apparent purchaser, the transferee must be related to the beneficiary of the trust namely, the “real” purchaser, and not to the “apparent” purchaser in order to satisfy s18(3)(d). The explanatory note could be read as explaining that the circumstances in which subparagraph (ii) of s18(3)(d) are intended to apply are limited to the circumstances where an “apparent” purchaser has purchased on trust for the “real” purchaser who has provided the consideration for the purchase. In Truskett v Commissioner of Stamp Duties (1976) 6 ATR 1 at 5, Rath J held that the expression “apparent purchaser” where used in paragraph (1) under the Declaration of Trust head of charge in the Second Schedule of the Stamp Duties Act was confined to the resulting trust situation arising where property is purchased in the name of a stranger to the real party to the purchase. Relying on this authority, the explanatory note could be interpreted as explaining that the circumstances in which subparagraph (ii) of s18(3)(d) are intended to apply are limited to the circumstances of a resulting trust situation.

47 This view of the explanatory note would give a meaning to s18(3)(d) that only where a purchaser purchased as an apparent purchaser on resulting trust for a real purchaser would subparagraph (ii) (and not subparagraph (i)) of s18(3)(d) be required to be satisfied. In such circumstances, where a purchaser has purchased on resulting trust as an apparent purchaser for the real purchaser, the explanatory note makes it clear that:

(a) if the transferee was not a related person (as defined in the Dictionary to the Duties Act ) of the beneficiary of the resulting trust, namely, the “real” purchaser, at the time the agreement was entered into, then s18(3)(d) is not satisfied; and

(b) the fact that the transferee was a related person (as defined) of the apparent purchaser at the time the agreement was entered into is not sufficient to satisfy s18(3)(d) because of the exclusion at the end of subparagraph (i) of s18(3)(d).

48 There is an ordinary interpretation of subparagraph (ii) of s18(3)(d) that supports the view of the explanatory memorandum that subparagraph (ii) of s18(3)(d) is intended to apply only in the circumstances of a resulting trust situation where an apparent purchaser has purchased on trust for the real purchaser who has provided the consideration for the purchase.

Subparagraph (ii) of s18(3)(d)
49 The expression “the purchaser” in subparagraph (ii) of s18(3)(d) must mean the purchaser of the property the subject of the transfer identified in the Agreement for sale or transfer, that is, in this case, Alsof. The word “purchased” in subparagraph (ii) of s18(3)(d) is not a term defined in the Duties Act other than in s55(2) of the Duties Act where, for the purposes of s55, “purchased” is defined to include an allotment. The expression “purchased” is also not defined in the Interpretation Act. Accordingly, the ordinary general law meaning of the expression “purchased” should apply in the context of the word “purchased” where used in s18(3)(d)(ii) of the Duties Act.

50 In Hollingsworth v Lee [1949]VLR140 at 544, Barry J held as follows:

“I have no doubt that the phrase “by purchase” has its popular meaning and envisages a person acquiring the dwelling-house by way of bargain and sale for money or other valuable consideration, and I am fortified in this conclusion by the views of the Court of Appeal in Baker v Lewis [1947] 1 KB 186, and in Powell v Cleland [1947] 2 ALL ER 672, (1947) 1 WN 304”.
51 Although the decision of Barry J in Hollingsworth v Lee (supra) related to a dwelling house, it should be capable of being applied in the context of other property.

52 In applying the Hollingsworth v Lee (supra) meaning of “purchased” to subparagraph (ii) of s18(3)(d), a purchaser will have “purchased” if the purchaser has acquired an interest in property by way of bargain and sale for money or other valuable consideration. In the case of an agreement for purchase of an interest in real property, entry into an enforceable agreement for purchase and payment of the deposit can therefore mean that the purchaser has “purchased” for the purposes of s18(3)(d) of the Duties Act. A resulting trust may arise prior to a transfer of an interest in real property where a purchaser has entered into an agreement for purchase if the agreement is specifically enforceable. The case of Drew v Martin 71 ER 411 referred to in a foot note to paragraph 1212 of Meagher, RP and Gummow, WMC Jacobs’ Law of Trusts in Australia 6th ed Butterworths, 1997 is quoted in that text as authority for the proposition that the presumption of advancement, and, semble that of a resulting trust, can arise prior to actual conveyance if it is preceded by a specifically enforceable contract.

53 Subparagraph (ii) of s18(3)(d) uses the expression “the purchaser purchased as a trustee”. It does not use the expression “the purchaser entered into the agreement as a trustee” or “ the purchaser entered into the agreement and purchased as a trustee”. Given the use of the expression “at the time the agreement was entered into” at the beginning of s18(3)(d), had the legislature intended that a purchaser that has entered into an agreement as a trustee be within subparagraph (ii) of s18(3)(d), it would reasonably be expected that the legislature would have used the expression “purchaser entered into the agreement as a trustee”. The fact that the legislature chose to use the expression “purchased as a trustee” can therefore reasonably be interpreted as indicating that the expression is used in contradistinction to a purchaser having entered into the agreement as a trustee. Also, the fact that the legislature chose the expression “purchased as a trustee” and not “purchased as trustee” supports the interpretation of subparagraph (ii) of s18(3)(d) as only applying to the situation of a trust arising at the time of the purchase. On this interpretation, subparagraph (ii) of s18(3)(d) does not apply to the situation of a purchaser purchasing as a trustee of an existing trust.

54 In Truskett v Commissioner of Stamp Duties (supra) at 5, Rath J held that that paragraph (1) under the Declaration of Trust head of charge in the Second Schedule of the Stamp Duties Act did not apply to the transaction the subject of that case because the real and apparent purchasers were the same persons. In that case, named individuals had entered into an agreement for purchase of property in which there was no reference to the individuals being or acting as trustees but the deposit and the balance of the purchase price for the property was paid by the individuals as trustees of an existing trust out of funds of that trust. In Truskett v Commissioner of Stamp Duties (supra) at 5, Rath J held as follows:

“I am of the opinion that counsel for the Commissioner is correct in his submission that para (1) of the Second Schedule is confined in its application to the resulting trust situation arising where property is purchased in the name of a stranger to the real party to the purchase. Once this view of the paragraph is taken it seems clear that the transaction of purchase in the present case does not fall within it. The real and the apparent purchasers are the same persons. Only their capacities are said to be different; but in fact there is no real distinction in the capacities, for if the trustees were using trust funds provided for the purchase then they were purchasing as trustees and no question of a resulting trust arises”.
55 Truskett v Commissioner of Stamp Duties (supra) was supportively cited by Mason CJ in Commissioner of StampDuties v Pendal Nominees Pty Limitedand Another (1989) 167 CLR 1 at 38 where Mason CJ held as follows:
“Moreover, par.(1) is concerned with the situation in which a document reveals a certain person as the purchaser of property and does not reveal that another person has actually paid the purchase money, but contains a declaration of trust by the ‘apparent purchaser’ in favour of that other person…..Furthermore, the situation envisaged by the paragraph is one in which the law would ordinarily impose a resulting trust in favour of the provider of the purchase money and par.(1) is therefore concerned with a declaration which does no more than record the existence of such a trust; see Truskett v Commissioner of Stamp Duties (NSW) (1976) 6 ATR 1”.
56 Truskett v Commissioner of Stamp Duties (supra), as endorsed by Mason CJ in Commissioner of Stamp Duties v Pendal Nominees Pty Limited and Another (supra) is authority that where a trustee of an existing trust purchases property in its capacity as trustee of the existing trust out of funds of the existing trust, the trustee is not and can not be an “apparent purchaser” because no question of a resulting trust arises.

57 Section 33 of the Interpretation Act requires that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object. Section 34(1)(a) and s34(2)(f) of the Interpretation Act expressly permit consideration to be given to the speech made to a House of Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill for an Act be read for a second time, to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act and the purpose or object underlying the Act).

58 In the speech made to the Legislative Council, House of Parliament by the Minister for Mineral Resources and Minister for Fisheries, the Honourable EM Obeid on the occasion of the moving by that Minister of a motion that the Bill for the SLRFA Act be read a second time in that House, the Minister stated the following:

“Duties Act
…The next proposal for change relates to the closing of a loophole. Under the current legislation, a purchaser under an agreement for sale can elect to have the property transferred from the vendor to a person who is “related” to the purchaser without paying ad valorem duty on the transfer. This concession is intended to apply to situations where either the purchaser is unable to identify who will ultimately be the owner such as another family member or a family trust, or there is a change of mind prior to settlement.

The current concession is capable of being abused by persons stamping additional transfers after settlement of the contract but prior to registration. These generally are separate transfers and are unrelated to the original contract to purchase. The bill includes amendments to close this loophole and limit the concession to the period between exchange and settlement of the contract, to reflect the original intention of the provision”.

59 This speech expressly states that s18(3) is intended to apply to situations where either the purchaser is unable to identify who will ultimately be the owner such as another family member or a family trust, or there is a change of mind. It also indicates that s18(3) is not intended to apply to transfers unrelated to the original contract for purchase. A construction of subparagraph (ii) of s18(3)(d) as limited to the circumstances of a resulting trust situation as described above would promote the purpose or object underlying s18(3) as described in this speech as required by s33 of the Interpretation Act . This is because such a construction excludes existing trusts from subparagraph (ii) so that a transfer of dutiable property to a person who was a beneficiary of an existing trust (other than a public unit trust scheme) at the time the trustee of the trust entered into an agreement to purchase the dutiable property can be eligible for fixed duty of $2 under s18(3) by satisfying subparagraph (i) of s18(3)(d). If subparagraph (ii) applied to existing trusts, such a transfer could not satisfy subparagraph (ii) because the transferee would have been a beneficiary of the trust at the time the agreement was entered into and would not be capable of being a related person of such beneficiary. This is because the definition of “related person” in the Dictionary to the Duties Act requires that a person be related to another person. Denial of eligibility for fixed duty of $2 under s18(3) to such a transfer would not appear to promote the purpose or object of s18(3) referred to in the above extract from the second reading speech. This is because the transferee, being a beneficiary of the existing trust at the time the agreement to purchase was entered into, would not be a person unrelated to the original agreement to purchase.

60 If an apparent purchaser has “purchased” on resulting trust for a real purchaser under an agreement for purchase entered into by the apparent purchaser, the above interpretation precludes a transfer from the vendor to the real purchaser from being eligible for fixed duty of $2 under s18(3) since paragraph (d) of s18(3) will not be capable of being satisfied. This is because subparagraph (ii) and not subparagraph (i) will apply and since the real purchaser and the beneficiary of the resulting trust will be the same person, subparagraph (ii) will not be satisfied as the transferee and the beneficiary will not be capable of being related persons. This is because as indicated earlier, the definition of “related person” in the Dictionary to the Duties Act requires that there be more than one person. Prior to the amendment of s18(3) by the SRLFA Act, such a transfer could have been eligible for fixed duty of $2 under s18(3) of the Duties Act if the real purchaser was a related person of the apparent purchaser at the time the agreement was entered into. Having regard to the extract from the second reading speech relating to the Bill for the SRLFA Act quoted above, it is not clear that this was an intended consequence of the SRLFA Act. The fact that this particular outcome may be viewed as unfair does not of itself prevent the interpretation of s18(3)(d) aforementioned. It is up to the legislature to change what might be unintended consequences of amending legislation. It is noted that if in these circumstances the agreement is completed in conformity with its terms with a transfer to the apparent purchaser on resulting trust for the real purchaser, such transfer should be eligible for fixed duty of $2 under s18(2) of the Duties Act and a subsequent transfer of the subject property from the apparent purchaser to the real purchaser should be eligible for fixed duty of $10 under s55(1)(b) of the Duties Act.

61 Based on the reasoning above, I find that subparagraph (ii) of s18(3)(d) only applies and is required to be satisfied where the purchaser has purchased as an apparent purchaser on resulting trust for the real purchaser. In this case, since Alsof acted in its capacity as trustee of the existing JL Sharpe Family Trust and paid its share of the deposit under the Agreement as such trustee out of funds of the JL Sharpe Family Trust, Alsof did not purchase the property as an “apparent” purchaser on resulting trust. As such, I find that in this case, it is subparagraph (i) and not subparagraph (ii) of s18(3)(d) that is required to be satisfied for the Subject Transfer to satisfy s18(3)(d) of the Duties Act.

Subparagraph (i) of s18(3)(d)
62 Subparagraph (i) of s18(3)(d) requires that the purchaser under the agreement and the transferee under the transfer be related persons at the time the agreement was entered into.

63 On an ordinary interpretation of s18(3), the “the purchaser under the agreement” referred to in s18(3)(d)(i) must have the same meaning as “the purchaser under the agreement” referred to in s18(3)(b). Accordingly, in line with the ordinary interpretation of s18(3)(b) above described, “the purchaser under the agreement” in s18(3)(d)(i) must mean the purchaser (under the agreement) of “the” dutiable property the subject of the transfer referred to in s18(3). Section 8(b) of the Interpretation Act does not affect this interpretation. In this case, the property the subject of the Subject Transfer is the relevant one half share in the NSW Property and the purchaser under the Agreement of that one half share was Alsof.

64 The definition of “related person” in the Dictionary to the Duties Act contemplates three categories of persons, namely, natural persons, private companies and trustees. A natural person or a private company can act either in his or her or its own personal capacity or in the capacity as a trustee. As such, where subparagraph (i) of s18(3)(d) refers to “the purchaser under the agreement” and requires the purchaser and the transferee to be related persons, it might be argued that:

(a) if the purchaser entered into the agreement in the capacity as a trustee, whether or not such capacity is disclosed on the face of the agreement, it is the trustee capacity category (and not the personal capacity category) of the purchaser under the “related person” definition which must be satisfied for the purposes of satisfying s18(3)(d)(i) of the Duties Act ;

(b) if the purchaser entered into the agreement in the capacity as a trustee but such capacity is not expressly disclosed on the face of the agreement, or, if the purchaser entered into the agreement in a personal capacity and not in the capacity as a trustee, it is the personal capacity category (and not the trustee capacity category) of the purchaser under the “related person” definition which must be satisfied for the purposes of satisfying s18(3)(d)(i) of the Duties Act; or

(c) whether or not the purchaser entered into the agreement in a personal or a trustee capacity, either of the trustee capacity category or the personal capacity category of the purchaser under the “related person” definition can be satisfied for the purposes of satisfying s18(3)(d)(i) of the Duties Act.

65 On the facts of this case, at the time the Agreement was entered into, the Applicant was a director of Alsof. As such, the Applicant and Alsof (in its personal capacity as a private company) were related persons within paragraph (c) of the definition of “related person” in the Dictionary to the Duties Act .

66 On the facts of this case, at the time the Agreement was entered into, the Applicant was also included in the list of persons defined as “beneficiaries” of the JL Sharpe Family Trust. The word “beneficiary” in paragraph (d) of the definition of “related person” in the Dictionary to the Duties Act is not defined in the Duties Act other than in s110(1) of the Duties Act for the purposes of s110. The word is also not defined in the Interpretation Act. Section 110(1) of the Duties Act provides that a person who is a member of a class of persons in whose favour, by the terms of a discretionary trust, capital the subject of the trust may be applied is, for the purposes of s110, a “beneficiary” of the trust. Having regard to the context of s110(1) in Chapter 3 of the Duties Act, I do not find that the fact that the Duties Act includes this provision derogates from the interpretation of “beneficiary” in paragraph (d) of the definition of “related person” in the Dictionary to the Duties Act as having its general law meaning. The general law meaning of “beneficiary” would include persons of the kind referred to in s110(1) of the Duties Act (see paragraphs 107 and 109 of Meagher, RP and Gummow, WMC Jacobs’ Law of Trusts in Australia 6th ed Butterworths, 1997). The Applicant was therefore a beneficiary within the meaning of paragraph (d) of the definition of “related person” in the Dictionary to the Duties Act of the JL Sharpe Family Trust at the time the Agreement was entered into.

67 Accordingly, in this case, on any of the arguments regarding the category of person in the definition of “related person” to be satisfied for the purposes of satisfying s18(3)(d)(i) of the Duties Act, Alsof (being the relevant purchaser under the Agreement) and the Applicant were related persons at the time the Agreement was entered into in satisfaction of s18(3)(d)(i) of the Duties Act. It is therefore not necessary in this case to decide more specifically on the category of person in the definition of “related person” to be satisfied for the purposes of satisfying s18(3)(d)(i) of the Duties Act.

68 For the foregoing reasons, I find that s18(3)(d) of the Duties Act is satisfied with respect to the Subject Transfer.

Section 18(3) of the Duties Act
69 Since on the agreed facts, paragraphs (a) and (c) of s18(3) of the Duties Act are satisfied in respect to the Subject Transfer and there is no dispute between the Applicant and the Chief Commissioner on this, and since on the reasoning above, paragraphs (b) and (d) of s18(3) of the Duties Act are satisfied in respect to the Subject Transfer, I find that s18(3) of the Duties Act applies to the Subject Transfer.

Orders

1. The decision of the Chief Commissioner of State Revenue disallowing the Applicant’s objection to payment of ad valorem duty on the Subject Transfer is set aside.

2. The matter is remitted for reconsideration by the Chief Commissioner of State Revenue in accordance with the following directions:

(a) The Chief Commissioner should allow the Applicant’s objection to payment of ad valorem duty on the Subject Transfer;

(b) The Chief Commissioner should amend the assessment of the Subject Transfer to duty of $2 under s18(3) of the Duties Act 1997;

(c) The Chief Commissioner should refund the amount of $30,363 being the excess paid over the amount of $2 required to be paid on the Subject Transfer under the Duties Act 1997; and

(d) In addition to the amount of the refund, the Chief Commissioner should pay interest on the amount of $30,363 calculated on a daily basis from the date of its payment on 23 April 2001 until the date of the refund at the market rate component under s22 of the Taxation Administration Act 1996.