Sternberg and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 787
•4 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 787
ADMINISTRATIVE APPEALS TRIBUNAL )
)No N2006/0199
GENERAL ADMINISTRATIVE DIVISION ) & 2007/1802 Re MILOR STERNBERG Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member P W Taylor SC Date4 September 2008
PlaceSydney
Decision In the DSP application proceedings – No 2007/1802 – the decision under review is affirmed.
In the cancellation proceedings – No N2006/0199 – the decision under review is affirmed.
................[sgd]..............................
Mr P W Taylor SC
Senior Member
CATCHWORDS
SOCIAL SECURITY – cancellation of disability support pension – overpayment debt – application for disability support pension – assets test – whether properties and money kept in bank account held on trust for children – whether overpayment debt can be waived for administrative error – whether special circumstances make it desirable to waive overpayment debt – whether circumstances warrant write off of overpayment debt – the decisions under review are affirmed
Social Security Act 1991 – ss 117, 1064, 1126AA, 1231, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 – ss 67-74, 244
Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145
Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567
Re Goldcorp Exchange Ltd [1995] 1 AC 74
Hourigan v The Trustees Executors and Agency Co Ltd (1934) 51 CLR 619
Re Lester [1942] Ch 324
Cohen v Cohen (1929) 42 CLR 91
Dean v Cole (1921) 30 CLR 1
Re Williams [1897] 2 Ch 12
Re Follone and Secretary, Department of Social Security (1987) 11 ALD 477
Dineen v Secretary, Department of Social Security (1988) 17 ALD 91
Olsson v Dyson (1968) 120 CLR 365
Secretary, Department of Social Security v James (1990) 95 ALR 615
Baumgartner v Baumgartner (1987) 164 CLR 137
Re Holden and Secretary, Department of Social Security (1995) 37 ALD 783
Re French Caledonia Travel Services Pty Limited (in liquidation) (2003) 59 NSWLR 361
Kauter v Hilton (1953) 90 CLR 86
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Secretary, Department of Family and Community Services v Lind (2004) 136 FCR 23
Re Secretary, Department of Family and Community Services and Gillard [2002] AATA 156
Re Secretary, Department of Family and Community Services v Purcell [2003] AATA 643
Jess v Scott (1986) 12 FCR 187
Dranichnikov v Centrelink (2003) 75 ALD 134
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95
Director-General of Social Services v Hales (1983) 47 ALR 281
Re Green and Department of Social Security (1990) 21 ALD 772
Re McDowall and Secretary, Department of Social Security (1994) 37 ALD 117
REASONS FOR DECISION
4 September 2008 Senior Member P W Taylor SC 1.On 1 March 2005 the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the Secretary”) cancelled Mr Milor Sternberg's Disability Support Pension. On the same date the Secretary claimed $25,212.09 as an overpayment debt for the period from 25 April 2001 to 22 February 2005. On 7 June 2005 the overpayment debt for the period was revised to $28,662.94. The Social Security Appeals Tribunal (“SSAT”), in its decision dated 19 January 2006, affirmed the cancellation decision, but waived the overpayment claim for payments from 24 June 2004 to 22 February 2005. The SSAT decided that those payments had been made solely as a result of the Commonwealth’s administrative error and had been received in good faith so that the debt arising from those payments should be waived by applying s 1237A of the Social Security Act 1991. In February 2006 Mr Sternberg applied to the Tribunal for review of the SSAT's 19 January 2006 decision - in so far as it affirmed the Secretary’s cancellation and debt recovery decision (AAT application No. N2006/0199).
2.The rate at which Disability Support Pension is payable depends on the person’s asset value. If it exceeds their relevant asset value limit the rate is reduced proportionately. If the amount of the excess is sufficiently large, no Disability Support Pension is payable: see Social Security Act 1991 ss 117(a) and 1064. The existence of such a large asset value excess was the reason for the Secretary’s 1 March 2005 cancellation decision.
3.The Secretary included in Mr Sternberg’s assets a house he had purchased in late 1999 or early 2000, and a unit he purchased in May 2001. Mr Sternberg disputes that the value of these properties should be included in his assets. He says he owned them only as a trustee. He claims he bought the house for his son, and the unit for his daughter, using money given to him for that purpose, by his sister and nephew.
4.On 9 May 2005, after the Secretary’s cancellation decision, Mr Sternberg transferred the house, a property in Birch Street, Kingston, Queensland, to his son, Meier. On 12 April 2006, after the SSAT’s decision, he transferred the unit, a property in Diamond Street in the same suburb, to his daughter, Victoria. At the time of these transfers each child was approaching their 19th birthday. Neither provided any consideration for the transfers.
5.On 17 August 2006 Mr Sternberg lodged a new application for Disability Support Pension. The standard application form asked questions about whether he had (i) transferred any assets for less than market value in the last 5 years and (ii) been involved in a private trust. Mr Sternberg’s application answered the first of these questions by listing the transfers of the Birch Street and Diamond Street properties. It described them as gifts. Mr Sternberg’s application answered the private trust question “No”. On 28 September 2006 Mr Sternberg provided a further statement to Centrelink relating to the two properties. In this statement he said that he had “given” the respective properties to his son and daughter.
6.Gifts of the kind described in Mr Sternberg’s 17 August 2006 application were asset disposals to which s 1126AA of the Social Security Act 1991 applied. Accordingly, the asset values were still required to be taken into account in calculating Mr Sternberg’s Disability Support Pension rate. On 31 October 2006 the Secretary determined (on reconsideration of an earlier decision) that Mr Sternberg's asset value was $329,826 – including $175,000 for the Birch Street property and $145,000 for the Diamond Street unit. Taking those asset values into account, his Disability Support Pension rate was a fortnightly amount of $13.15.
7.Mr Sternberg requested a review of the 31 October 2006 decision. The Authorised Review Officer (“ARO”) spoke to him by telephone on 30 November 2006. He confirmed that he had given the two properties to his children, as he had indicated in his Disability Support Pension application. He did not provide any information to the ARO suggesting that he had held the properties on trust for the children. Accordingly, the ARO affirmed the Secretary’s decision. The SSAT, in its 24 April 2007 decision, affirmed the ARO’s decision. On 9 May 2007 Mr Sternberg lodged an application to review the SSAT's 24 April 2007 decision (AAT application No. 2007/1802).
the 1999 gift - Mrs rozio’s evidence
8.Mr Sternberg said that his sister, Mrs Ruth Rozio, and her son Yossi, had given him the money he used to purchase the Birch Street house. Mrs Rozio lives in Israel. She gave her account of the circumstances of the gift in written statements dated 8 February 2007 and 1 March 2008, and in telephone evidence to the Tribunal.
9.Mrs Rozio’s written statement of 8 February 2007 was a short document she and her son Yossi both signed. It had apparently been prepared for the purpose of proceedings before the SSAT. In that document she said she had come to Australia on 27 August 1999. She had stayed with Mr Sternberg at his unit in Carnegie, Victoria. She confirmed that she and her son had made a gift of US$40,000 to her brother. She explained that she wanted to assist him with the purchase of a property for Meier, and was happy to be “able to help and support [Mr Sternberg] in any way”.
10.In her written statement of 1 March 2008, Mrs Rozio explained that Mr Sternberg had from time to time expressed to her his concern that he did not have enough resources of his own to help provide for his children’s future. Mrs Rozio said she would do whatever she could to help him. She said she had asked her son Yossi to help by “giving money to help with Milor’s children”. When she came to Australia in August 1999 she and Yossi each gave Mr Sternberg US$20,000. This occurred at Mrs Sternberg’s unit in Double Bay, Sydney. She told Mr Sternberg that the money was “for your children”. She did not refer to any discussion about buying property.
11.Mrs Rozio gave evidence to the Tribunal, by telephone and with the assistance of an interpreter. She confirmed her written statement of 1 March 2008. She said that she had given the money to Mr Sternberg for the sake of the children and for their future. She said her $20,000 was for Meier and Yossi’s $20,000 was for Victoria. She claimed there was a discussion that the first $20,000 would go to Meier and later a property would be purchased for Victoria.
12.There was a degree of confusion about Mrs Rozio’s evidence. That confusion includes inconsistent statements abut where the gift was made, uncertainty as to whether the 1999 gift was for the benefit of one or both of the children, and uncertainty about whether Mr Sternberg was intended to benefit personally. In her 8 February 2007 statement Mrs Rozio said the money was a gift to assist Mr Sternberg in purchasing a property for Meier. There was no mention of the gift being for Victoria’s benefit. On the other hand, in her 1 March 2008 statement she said that when they gave Mr Sternberg the money they each told Mr Sternberg the money was a gift for both of the children. Indeed, Mrs Rozio said that later on during her 1999 visit she told Victoria she had given money to Mr Sternberg to secure her, in the sense of both children’s, future.
13.Mrs Rozio was asked whether she was surprised to learn, after 1999, that Mr Sternberg had purchased the Birch Street property for Meier alone. She denied this. She said that she did know that her first gift was for Meier. She said she discussed that with Mr Sternberg at the time. But that is not consistent with her evidence that only US$20,000 was for Meier. Neither is it consistent with the statement Mrs Rozio claims she made to Victoria at the time.
14.Mrs Rozio was pressed on this inconsistency. She was not really able to explain it. She gave a series of answers in which she said that the money was given “in advance”, “for the future”, “only for the children” and “to buy a property for the future of the children”. Then she repeated that her US$20,000 was for Meier.
15.In both of her statements, and in her oral evidence, Mrs Rozio referred to her 3 September 1999 Statutory Declaration. This was sworn at a solicitor’s office she went to with Yossi and Mr Sternberg. Mr Sternberg arranged the appointment, but it was their joint idea so that everything would be in order. She said she spoke to the solicitor and told him the gift was a present to Mr Sternberg. Yossi was present during the whole of the meeting. He translated the Statutory Declaration to her and she signed it.
16.In her 3 September 1999 Statutory Declaration Mrs Rozio said she had given Mr Sternberg US$20,000 in cash as a gift. She did not mention the children. Neither did she refer to buying property. When these apparent omissions were pointed out to Mrs Rozio she said that even though they weren’t mentioned, she trusted her brother that the money was to go “towards the children’s future”. The money was intended only for the children “even if the money helped Milor or did not help Milor”.
Mr Yossi Rozio’s evidence about the 1999 gift
17.Mr Yossi Rozio is Mrs Rozio’s son and Mr Sternberg’s nephew. He came to Australia with his mother in August 1999. His evidence to the Tribunal included oral evidence, a statement dated 28 February 2008 and two statements dated 8 February 2007.
18.One of Mr Yossi Rozio’s 8 February 2007 statements was the short document he and his mother signed. I referred to it earlier, and sufficiently described its contents. The second 8 February 2007 statement deals with a later gift, and will be referred to in that context.
19.In his 28 February 2008 statement Mr Rozio said that before they came to Australia in 1999 his mother told him that she had saved some money to give to Mr Sternberg for his children so he could “buy an investment for them”. She asked him to give some money as well. Mr Rozio says that he spoke on the telephone to Mr Sternberg and told him that he would “like to give you some money to help you buy something” for his children - Meier and Victoria. When he came to Australia in 1999 they met Mr Sternberg in Sydney and gave him the money. He and his mother told Mr Sternberg something to the effect that “this money is for you to buy a house for each of Meier and Victoria”. Later, during the 1999 visit, Mr Yossi Rozio said he also spoke to Victoria. He told her that he and his mother had “each given your father money to help secure your future and that of your brother”.
20.In his oral evidence to the Tribunal Mr Rozio claimed to have a good recollection of the circumstances involved in the 1999 gift. But he did not recall where it had occurred – he thought it was at Bondi Junction, it could have been at Mrs Sternberg’s unit at Double Bay. He said he could not remember his exact conversation with Mr Sternberg, in his telephone conversation before they came to Australia in 1999. He had said something about helping him to buy property. He said when the money was handed over they discussed buying a house for each of Meier and Victoria.
21.As in the case of Mrs Rozio, this evidence revealed a tension with the claim, in the 8 February 2007 statement, that the 1999 gift was to buy property for Meier. But Mr Rozio did not think there was any inconsistency involved in Mr Sternberg buying a property only for Meier. He said it did not matter to him. The only thing that was important was that Mr Sternberg spent the money on something “connected to buying a property for the kids”. The amount of money they gave at the time was not enough to buy a house for both of the children. Whether Mr Sternberg bought property for one or both of them, it did not really matter because they were siblings. There had been many conversations leading up to that point when the gift was made. Mr Rozio understood the intention was that Mr Sternberg would buy property for both of the children. The whole purpose was always to buy property. But it was not important whether he bought something “for Meier in the first time or the second time, or didn’t”. Mr Rozio said they did not go into the details. In his evidence Mr Rozio felt uncomfortable about differentiating between Meier and Victoria in relation to the details of the gift. To him it just did not matter and he felt he was repeating himself in saying that. He knew that Meier and Victoria were only 12 or 13 at the time. It did not matter to him whether any property was purchased in their names or in Mr Sternberg’s name, so long as there was something that would belong to them. The gift was all about property for the kids and the details did not really matter to him.
Mr Sternberg’s evidence about the 1999 gift
22.In his written statement to the Tribunal Mr Sternberg said that before she came to Australia in August 1999 his sister told him that she wanted to “financially help you to buy property in Australia for the future of your children”. When she came to Australia, and actually gave him the money, she said it was a “present to buy property for your children”. He said he appreciated the help and that it meant “they will have a decent home and a good future”. He said he “clearly intended that the money … would be used for the benefit of Meier and Victoria”.
23.Mr Sternberg went with Mrs Rozio and Mr Yossi Rozio to the solicitor’s office where they signed their 3 September 1999 Statutory Declarations. I have already referred to them and noted that they simply stated the money was a gift to Mr Sternberg. They did not describe the gift as money that Mr Sternberg was to hold on trust. They did not even refer to either of Mr Sternberg’s children.
24.The brevity of the Statutory Declarations is very significant having regard to Mr Sternberg’s evidence about why he arranged the appointment with, and the instructions he gave to, the solicitor. He said he arranged the appointment with the solicitor because he didn’t want to have any misunderstanding between himself, his sister, his nephew and his children, about the money. Mr Sternberg was asked what he told the solicitor. He said he told the solicitor he wanted to have a statement made about how much money he had been given, because he did not want to ever have any problem in the future with his sister, his nephew or with his son or daughter. Despite these instructions the unambiguous gift statement in the Statutory Declarations rather indicates that Mr Sternberg did not tell the solicitor that the gift was restricted to the particular purpose of buying property for the children. Indeed Mr Sternberg conceded that, despite his desire to avoid misunderstanding between himself and his family members, he did not tell the solicitor that the gift was on the condition that he buy property for the children. Challenged to explain why he did not, Mr Sternberg said, rather inexplicably given his claim that he was a trustee, he didn’t think it was related.
25.Mr Sternberg said that some time later in 1999 he told Meier that Ruth and Yossi had given him money to buy properties for both Meier and Victoria. He said he told Victoria that he was considering buying a property in Brisbane for Meier. It is necessary to understand these statements against the background not only of the prior events, including the September 1999 statutory declarations, but also Mr Sternberg’s evidence about what he did with the money between August 1999 and the subsequent purchase of the Birch Street property.
26.Mr Sternberg told the SSAT that he put half the money into a Commonwealth Bank of Australia cash management trust account and kept half of it in cash. This could not have occurred because, as the SSAT noted, the first of two cash management trust accounts opened by Mr Sternberg was not opened until 31 August 2001. Mr Sternberg said in his written statement to the Tribunal that he put the money into his own bank account, and used some of it for his own purposes. He did not keep any specific records or keep the money separate. He said he just knew how much was “owned by my children”. He did not identify, nor produce any records, of the particular bank account into which he claimed to have paid the money.
27.In his oral evidence Mr Sternberg initially said that the two Commonwealth Bank of Australia cash management trust accounts were the only bank accounts into which he had paid the money given to him by Mrs Rozio. Then he said he paid put some of the money into another account. Later he said he had paid some of the money into an account with the State Bank. There was no documentary evidence to substantiate any of these claims. Its absence, and Mr Sternberg’s demonstrably incorrect initial claims about what he did with the gift money, undermine his claim that he regarded himself as a trustee.
Purchase of the Birch Street property
28.Mr Sternberg said he purchased the Birch Street property in early 2000, but title particulars suggest that he may have become the registered proprietor on 22 October 1999. That is consistent with his evidence that in late 1999 he told his daughter Victoria that he was considering buying a property in Brisbane for his son Meier. Mr Sternberg said he paid $55,000 in cash using the money provided by Mrs Rozio and Mr Yossi Rozio. Mr Sternberg signed the contract in his own name. There was no discussion about using a declaration of trust in connection with the purchase. Despite that, Mr Sternberg says that after he bought the property he told Meier that it was for him. He showed Meier photographs of the property and in subsequent discussions with Meier he referred to it as Meier’s house. Meier was then 13 years old.
29.Mr Sternberg claims that he sent a letter to Centrelink after the purchase of the Birch Street property. He says he told Centrelink that the Birch Street property was for Meier. There is no record of any such communication with Centrelink. Indeed, although Centrelink wrote to Mr Sternberg on 6 March 2000 requesting information about properties he owned, that enquiry was prompted by information Centerlink had obtained from another source. The letter explained that he was being asked to provide information so that Centrelink could consider whether or not he was receiving a pension to which he wasn’t entitled.
30.Mr Sternberg responded to Centrelink’s letter on 1 May 2000. He reported that he owned both the Melbourne unit in which he lived, at Grange Road, Carnegie, and the house property at Birch Street, Kingston. He completed a “real estate details” form, in which he stated he was the sole owner of the Birch Street property. He also provided Centerlink with copies of the two September 1999 Statutory Declarations of Mrs Rozio and Mr Rozio. Mr Sternberg’s response, and his action in providing copies of the statutory declarations is, as a matter of objective fact, quite inconsistent with his claim that he told Centrelink that he had purchased the property for his son. In fact, the information he gave Centrelink was exactly to the contrary. Furthermore, given the circumstances in which the September 1999 Statutory Declarations had been prepared, his action in providing them to Centrelink appears to provide strong and unambiguous evidence of his then understanding that he was the sole owner of the money he had been given, and of the Birch Street property.
31.Further evidence of that understanding is provided by the purpose and extent of Mr Sternberg’s personal use of the Birch Street property. Despite claiming that he had bought the Birch Street house for Meier, Mr Sternberg never leased the property. And although Meier said he lived in the house for a little while after he left school, he has not otherwise visited, nor had any real involvement with, the property. Instead, Mr Sternberg uses it himself. He has medical advice that he should not live in Melbourne during winter. Consequently his practice, from 2000 onwards, had been to spend about seven months of the warmer part of each year living in the Birch Street property. Mr Sternberg meets all the rates and expenses associated with ownership and use of the property.
The 2001 gift from Mr Rozio
32.Mr Yossi Rozio says he came to Australia again on a number of occasions in 2001 and 2002. On one of these occasions he gave Mr Sternberg another US$30,000. His evidence about this gift was contained in a second statement dated 8 February 2007, his 28 February 2008 and his oral evidence.
33.In his short statement of 8 February 2007 Mr Yossi Sternberg said he gave the second gift of US$30,000 to Mr Sternberg on 13 March 2002. He said he was happy to assist his uncle with the purchase of a property for his younger daughter.
34.In his 28 February 2008 statement Mr Rozio said that he made at least six trips to Australia in 2001 and 2002. Before one of these trips he telephoned Mr Sternberg. He said that because the money he and his mother had previously given had been used “mostly in buying a house for Meier” they intended to give some more money so that Victoria and Meier were treated equally. Some time later he came to Sydney, met with Mr Sternberg and gave him US$30,000 “to buy something for Victoria”.
35.In his oral evidence Mr Rozio was actually rather unsure about the circumstances in which this gift was made. He could not actually recall whether he knew that the Birch street house had supposedly been bought for Meier. He could not recall exactly where the meeting occurred. But he did remember attending a solicitor’s office again and completing another statutory declaration. He thought that the solicitor was actually present when he handed over the money. He did not have a copy of this second statutory declaration, and none was put into evidence.
36.Despite the vagueness of Mr Rozio’s recollection of the date, and the fact that his 8 February 2007 statement referred to March 2002, Mr Sternberg said that Yossi gave him the US$30,000 in March 2001. Yossi said to him “here is the money for you to buy something for Victoria”. Again Mr Rozio and Mr Sternberg attended a solicitor’s office to make a statutory declaration relating to the gift. Mr Sternberg’s explanation for this was the same as the one he gave in relation to the 1999 gift. He asked the solicitor to prepare a document because he did not want to have any problem with his daughter, son, sister or nephew. His evidence was “I take the money and I want to be clear to show to them in black and white”. I assume, in the light of this evidence, that the declaration relating to the second gift was substantially the same, and equally unambiguous, as the Statutory Declaration Mr Rozio swore in relation to the 1999 gift.
37.Mr Sternberg said he spoke to Victoria later that year. He told her that he was looking to buy a property for her in Brisbane. He said it would probably be a townhouse, because prices had gone up and there was not enough money to buy the same quality house as he had bought for Meier.
Purchase of the Diamond Street unit
38.As I have already noted, Mr Sternberg claimed that Mr Yossi Rozio gave him the second gift of US$30,000 in March 2001. He also claimed that Mr Rozio gave it to him to buy a property for his daughter Victoria. On 1 May 2001 Mr Sternberg did purchase the Diamond Street unit for $60,000. He purchased it in his own name because, he said, he believed that the children could not have property in their own name until they turned 18. This purchase price was equivalent to the amount of Mr Rozio’s second gift, but Mr Sternberg paid the purchase price by taking a $50,000 mortgage out over the Birch Street property, and paying the $10,000 balance of the purchase price in cash.
39.Mr Sternberg claimed that the $10,000 payment came from Mr Rozio’s second gift and that he put the rest of the money into a deposit account with the Commonwealth Bank. He said he thought that if he had cash on deposit that might help with future borrowing. He also said he wanted to earn interest on the deposit. When cross examined on this point he agreed that he was paying a higher rate of interest on the mortgage than he was earning in interest. He sought to explain this as simply a mistake he made at the time.
40.Mr Sternberg’s explanation about preferring to mortgage the Birch Street property, rather than use the money he claims Mr Rozio had given him, is not credible. There is no objective evidence to substantiate the proposition that Mr Sternberg had received the second US$30,000 gift by May 2001, when the Diamond Street property was purchased. Nor is there any evidence of any deposit of $50,000 in any bank account – despite the explicit claim to that effect that Mr Sternberg made to the SSAT, and repeated at one stage of his evidence to the Tribunal. The absence of any such deposit quite undermines Mr Sternberg’s credibility in relation to his claim that he made a deliberate decision to borrow against the Birch Street property rather than use the money he had been given by Mr Rozio.
41.The two Commonwealth Bank accounts, which Mr Sternberg initially said were the only accounts into which he paid Mr Rozio’s gift money, were opened on 31 August 2001 and 31 January 2003, respectively. Both accounts were in Mr Sternberg’s own name, but the second account was styled “ITF Victoria & Meier Sternberg”. The “ITF” is obviously an abbreviation for “in trust for”. Most of the transactions on these two accounts were simply interest accruals. The few other deposits and withdrawals can be summarised in the following table.
A/C — 999 A/C — 947 M Sternberg “ITF” Victoria & Meier Sternberg Credit Debit Balance Credit Debit Balance 31-Aug-01 6,230 6,230 07-Sep-01 4,180 10,410 09-Oct-01 8,000 18,443 12-Nov-01 4,000 22,443 28-Nov-01 3,000 25,443 29-Jan-03 5,000 31,610 31-Jan-03 5,000 36,610 8,019 8,019 14-Feb-03 5,000 41,610 08-Aug-03 5,000 47,364 22-Sep-03 5,000 52,364 19-Dec-03 1,080 9,308 24-Dec-04 619 9,927 01-Jun-04 9,900 44,060 03-Jun-04 18,600 25,460 03-Jun-04 9,900 15,560 03-Jun-04 3,952 19,512 20-Jul-04 20,012 10,246 01-Apr-05 10,000 Not known 42.The apparently significant features of the two bank accounts are that:
(a)There is no evidence of any deposit that corresponds with a gift made by Mr Yossi Rozio in March 2001.
(b)There is no evidence of any $50,000 deposit by Mr Sternberg at any time, and certainly not at the time of the purchase of the Diamond Street unit.
(c)An apparently deliberate distinction was drawn between the two accounts when the second account was opened in January 2003, styled as a trustee account, and credited with the $8,019 deposit.
43.Confronted with the reality of the deposits recorded in the two Commonwealth Bank accounts Mr Sternberg agreed that he had not deposited the whole $50,000 at one time. By September 2003, the total deposits to the first account did slightly exceed $50,000. But even so, other evidence Mr Sternberg gave appears to preclude a conclusion that the deposits to the first account represented the balance of Mr Rozio’s second gift. That evidence is provided by the June 2004 transactions on the first account. The net effect of those transactions is a withdrawal of about $34,000. That amount was used to discharge the $50,000 mortgage over the Birch Street property. Mr Sternberg claimed that the balance of the money used to discharge the mortgage came from Mr Rozio’s gift and was cash he had kept for years.
44.The totality of this evidence clearly shows that Mr Sternberg did not use Mr Rozio’s second gift money to purchase the Diamond Street property. The fact is that he mortgaged the Birch Street property to fund the purchase of the Diamond Street unit. He did so at a time when – as he would have it – he held as unbanked cash at least a substantial part of Mr Rozio’s second gift. He did so without ever accounting to Meier – either in relation to the mortgage taken out, supposedly for Victoria’s benefit, or in relation to his own personal use of the Birch Street property.
45.The matters remarked on in the preceding paragraph prompt the conclusion that Mr Sternberg had not received Mr Rozio’s second gift in 2001 when he purchased the Diamond Street property. That conclusion is encouraged both by the fact that Mr Rozio said the gift occurred in March 2002, and by the pattern and timing of the deposits to the first of the Commonwealth Bank accounts.
46.After the purchase of the Diamond Street unit it was rented out, virtually continuously. Mr Sternberg kept the rent and never accounted to his daughter, either for the rent or for the interest on the balance of the amount of Mr Rozio’s second gift. He said the rent was matched by the expenses, but that was only after including the mortgage interest. The mortgage was discharged, and the loan interest ended, in June 2004. Even before that, Mr Sternberg did not account for any interest on the money he held that he said represented the balance of the money from Mr Rozio’s second gift.
47.This conduct of Mr Sternberg – using the Birch Street property as his own summer residence, mortgaging the Birch Street property, holding money in cash, failing to account for that money, failing to account for the Diamond Street unit rent – betray no acceptance of any trustee obligations. Yet they occurred at a time when Mr Sternberg well understood the trust concept. Indeed he conceded in his oral evidence to the Tribunal that he had been aware of this trust concept when he was given the first gift in 1999. He understood it meant that you were responsible for other people’s property. The property belonged to them, not to the trustee. Given that understanding, the opening of the second Commonwealth Bank account in January 2003 is particularly significant. That account, but not the first, is styled as a trustee account for Meier and Victoria. Mr Sternberg insisted that, despite the differences in the account names, both the Commonwealth Bank accounts were accounts he held in trust for the children. But if that was so, what was the reason for opening the second account, and its different style? When he was asked to explain, Mr Sternberg said he was told the second account gave him the chance of earning a higher interest rate. This explanation is rather contradicted by the interest rate reflected in the account statements themselves, and quite unpersuasive. The account statements show that each account attracted the same interest rate. Furthermore, even if there had been some prospect of a difference in the interest rate, it would still not have explained the fact that only one of the accounts was styled as a trust account for the children.
Mr Sternberg’s dealings with Centrelink
48.In the light of Mr Sternberg’s conceded awareness of the concept of a trust, and his claims about the purpose and significance of the gifts from his sister and nephew, the content of his dealings with Centrelink, is quite remarkable. This is the case not only in relation to his disclosure, in May 2000, of the purchase of the Birch Street property, but also his explanations during 2004 and 2005, about both the Birch Street and Diamond Street properties.
49.Earlier in these reasons I noted Mr Sternberg’s claim that he sent Centrelink a letter disclosing that he had purchased the Birch Street property as a trustee for Meier. I rejected the claim because there was no evidence of any such letter and because, in the information that Mr Sternberg did provide, he said he was the sole owner of the property.
50.During the course of his cross-examination Mr Sternberg was taken to a number of documents that were either letters he wrote to Centrelink or Centrelink’s internal records of telephone contact with him. One of these documents was a record of Mr Sternberg’s conversation with a Centrelink officer on 28 May 2004. This seems to have followed Centrelink’s request for updated information, including tax returns. According to Centrelink's record, this conversation involved a discussion about both the Birch Street and Diamond Street properties. In the discussion Mr Sternberg explained that the Diamond Street property was mortgaged and that, after accounting for the loan and other expenses he did not earn any net income. There is nothing in Centrelink’s record of the conversation to suggest Mr Sternberg made any claim that he held the properties on trust.
51.Mr Sternberg was asked why, in the course of the 28 May 2004 telephone conversation, he did not disclose that he held the Diamond Street property on trust for his daughter Victoria. His explanation was that he did not think that it was relevant. That explanation, at least in the light of his claim that he had sent Centrelink a letter informing that he had purchased the Birch Street property for Meier, is hardly credible. It is less credible in the light of his claim (made in his oral evidence to the Tribunal) that he had sent a letter informing Centrelink he had purchased the Diamond Street property for Victoria. It is completely incredible in the light of the contents of a letter Mr Sternberg wrote on 8 April 2004 and provided to Centrelink in June 2004.
52.By late May 2004 Mr Sternberg had provided Centrelink with copies of his last three years tax returns – which disclosed the Diamond Street unit rent and expenses. He had a further telephone conversation with Centrelink on 10 June 2004 in which he said he would submit additional information. On 24 June 2004 Centrelink received a number of documents from Mr Sternberg. These included a short letter, apparently dated 8 April 2004, and three completed forms, signed 8 June 2004, providing details of his properties. Mr Sternberg had asked someone to write the letter, but he had basically told them what to write and he had read and understood the letter. In the letter Mr Sternberg contended that “for hardship reasons I feel I should be exempted from assessing the … Birch St Kingston Queensland … property”. He went on to say that his medical condition required him to leave Melbourne during the winter months and live in Queensland, in the Birch Street property. The contents of the letter itself indicate Mr Sternberg understood that its purpose was to provide Centrelink with an explanation as to why the Birch Street property should not be taken into account in the assessment of his assets.
53.The completed property detail forms Mr Sternberg provided to Centrelink on 24 June 2004 related to Mr Sternberg’s unit at Grange Road, Carnegie, the Birch Street house and the Diamond Street unit. One question in each form asked for details of the owner of the property. It included a request for details of percentage ownership and asked for details of “each other person, company or trust” who owned the property. In each instance Mr Sternberg indicated that he owned the properties as to 100%.
54.None of the documents Mr Sternberg provided to Centerlink on 24 June 2004, including the 8 April 2004 letter, referred to his claim that he held the properties on trust for his children. Given his conceded understanding of the trust concept, and the evident purpose of the 8 April 2004 letter, Mr Sternberg was asked why, in his 8 April 2004 letter, he did not provide any information to suggest that he held the Birch Street property on trust for his son Meier. Mr Sternberg said that he didn't think Meier’s interest in the property was “related” (that is, to say relevant to Centrelink’s enquiry).
55.It is difficult, indeed not really possible, to accept this explanation from Mr Sternberg. When he was asked more questions about the 8 April 2004 letter he suggested that maybe he had forgotten his son’s interest when he signed the letter. But that explanation can only be regarded as specious – in the light of Mr Sternberg’s agreement that, in his view, he did not really believe he owned the Birch Street property, it belonged to his son and was entirely for his benefit. He knew the purpose of the letter was to give Centrelink information to assess the value of assets he owned, for the purpose of determining his Disability Support Pension entitlement. When he was specifically asked why then, he did not think it was important to tell Centrelink that his son was really the owner of the Birch Street property, he could not give a sensible, direct answer. Again he suggested that maybe it was something he forgot to mention.
56.The reality is that, well before he wrote the 8 April 2004 letter Mr Sternberg fully understood that the value of his assets was a relevant consideration in determining the amount of his Disability Support Pension entitlement. An explanation that his children were the people really entitled to the Birch Street and Diamond Street properties would seem to be the best possible explanation he could have given in order to avoid their inclusion in the valuation of his assets. The fact that he did not advance that claim on this occasion, or indeed on the later occasions to which I refer below, is, in the absence of a sensible explanation from him, a strong contradiction of Mr Sternberg’s claim in these proceedings.
57.Throughout June and July 2004 Mr Sternberg continued to have dealings with Centrelink. On 24 June 2004 he was notified of the reduction in his Disability Support Pension rate – because of the asset valuation of $331,099. That was an amount which, having regard to the estimated asset values provided in the 10 June 2004 property detail forms, he must have understood included the value of the Birch Street and Diamond Street properties. On 23 July 2004 Mr Sternberg was informed that the Disability Support Pension payment amount was marginally further reduced. This was followed by a letter dated 28 July 2004 informing him the Disability Support Pension rate was to be marginally increased. All of the Disability Support Pension rates notified in these letters were very substantially less than the DSP rate that had previously been paid to Mr Sternberg.
58.Certainly by the end of July 2004, Mr Sternberg had provided Centrelink with an estimate of the amount of time he spent at each of the Grange Road and Birch Street properties. He understood that the purpose of the request was to assess which of the properties should be regarded as exempt for the purpose of his asset assessment. This appears to have followed the material submitted on 24 June 2004, which was apparently interpreted by Centrelink as a request for exemption for both properties. Then he was advised that only one property could be exempted, and which property would depend on where he spent most of his time.
59.Mr Sternberg appeared to suggest, in his oral evidence, that the mere fact that he was the registered owner of both properties concluded any further discussion about the issue of ownership relevant to the assessment of his assets. However, this explanation cannot be accepted in the light of his understanding and conduct. He was aware of the concept of a trust right from the time when the monies were first given to him in 1999. In January 2003 he had opened the second cash management trust account with Commonwealth Bank. This was the “ITF Victoria & Meier Sternberg” and was obviously a trust account. Its opening provides very clear evidence that many months before his 8 April 2004 letter, Mr Sternberg had understood, and indeed embraced, the concept of a trust relationship in which property nominally held in his name was intended to be for the exclusive benefit of his children, the trust beneficiaries.
60.This point is particularly significant in the light of the apparent suspension of Mr Sternberg’s Disability Support Pension in November 2004. The reason for this suspension is not entirely clear. It appears to have resulted from some delay by Mr Sternberg in providing updated information required by Centrelink. Whatever the reason, he contacted Centrelink on 8 December 2004 whilst the suspension was still in effect. He provided updated balances for the two Commonwealth Bank accounts. He complained that these accounts were taken into account by Centrelink in assessing his asset value. The basis of his complaint was that the accounts were held by him in trust for his children. This clearly indicates his awareness of the trust concept and his belief in its potential significance in assessing his asset value for the purpose of determining the Disability Support Pension rate. Nevertheless, he did not then claim that he held either the Birch or Diamond Street properties on trust.
61.On 11 March 2005, after the cancellation decision, Mr Sternberg contacted Centrelink disputing the decision. He referred to the fact that there was a mortgage over the property. He faxed a copy of some bank statements to Centrelink. He followed this up with a further telephone conversation on 18 March 2005. He was told that Centrelink would require further information from the National Australia Bank, because the bank statements he had provided did not indicate whether they in fact related to a mortgage, and if so over which property. Again Mr Sternberg made no reference to holding the properties on trust.
62.A particular point made in the course of cross examination concerned Mr Sternberg’s contact with Centrelink on 23 March 2005. In a telephone conversation that day Mr Sternberg asked whether he could still get Disability Support Pension if he had assets of $310,000. He was told that with an asset value of that amount he would only be paid Disability Support Pension at a rate of about a dollar. In order to get a full pension his assets would need to be less than $153,000. In response to a further inquiry he was told that his total asset value would have to be less than $312,000 before he would be entitled to any Disability Support Pension.
63.There was, of course, no mortgage over either of the Birch or Diamond Street properties as at March 2005. It follows that the mortgage issue was only relevant to the prior Birch Street mortgage and the overpayment debt claim that Centrelink had made. There was some delay in obtaining the mortgage information from the National Australia Bank. On 27, 30 and 31 May 2005 Mr Sternberg contacted Centrelink. He was apparently frustrated and angry. He did not agree that he had been overpaid and he wanted a note made of what he was saying. He said he didn't have any money to pay the overpayment debt and he suggested that the claim just be referred to a debt collector.
64.There is a further note of the contact between Mr Sternberg and Centrelink on 7 June 2005. The note records that Mr Sternberg wanted a review of the decision to cancel his Disability Support Pension, and the decision to recover the arrears of pension overpayment. The note records Mr Sternberg’s claim that he had at all times disclosed his assets to Centrelink. The note refers to Mr Sternberg’s ownership of both the Birch Street and the Diamond Street, Kingston properties as well as his unit at Grange Road, Carnegie. It records Mr Sternberg asserting a belief that he had “done nothing wrong and should not have a debt or have his DSP cancelled”. It was in response to the contact that the Centrelink reviewed the payments had been made to Mr Sternberg. The letter of 7 June 2005 increased the debt claimed, from the amount of $25,212.09 notified in a letter of 1 March 2005, to about $28,662.94. However, there is nothing to indicate that, even in the conversation on 7 June 2005, Mr Sternberg asserted that he was not the real beneficial owner of the Birch Street and Diamond Street properties.
65.The absence of any such assertion was remarkable, as the Secretary submitted. In particular Mr Sternberg’s enquiry, in March 2005, about what asset value he needed to have in order to be entitled to any Disability Support Pension payment is rather incompatible with Mr Sternberg’s asserted belief that he then held his interest in the Birch Street and Diamond Street properties on trust for his children. That belief is certainly not compatible with the fact that he made no such claim at the time.
66.Finally, Mr Sternberg was cross-examined about the conversations he had with the ARO on 21, 22 and 28 June 2005. The substance of these discussions included Mr Sternberg’s claims that he had written letters to Centrelink disclosing the purchase of the Diamond Street property in May 2001 and the opening of the Commonwealth Bank cash management investment accounts in 2001 and 2003. There is no objective evidence that any such letters ever existed. But that claim appears to have been the only one that Mr Sternberg advanced to the ARO in June 2005 in his complaint about the cancellation decision. The ARO’s notes of the discussion with Mr Sternberg do not disclose any assertion that the Birch Street or Diamond Street properties were held on trust by Mr Sternberg for his children. Nevertheless, but in a claim quite lacking in credibility, Mr Sternberg insisted that he had told the ARO the properties belonged to his children.
The transfers of the properties
67.Certainly Mr Sternberg transferred the Birch Street house to Meier in May 2005. He transferred the Diamond Street property to Victoria in April 2006. The fact of the transfers is consistent with Mr Sternberg’s trust claim. But their potential significance is undermined by the fact that they occurred after the March 2005 cancellation decision and, more particularly, after Mr Sternberg’s conversation with Centrelink on 23 March 2005. Their significance is also undermined by Mr Sternberg’s past conduct, particularly his personal use of the Birch Street property, his failure to account to the children and his consistent past failure to articulate the trust claim to Centerlink, even though he says he always believed that the properties belonged to the children.
Ms Victoria Sternberg
68.Ms Sternberg gave evidence supporting her father’s trust claim. She was almost 12 years old at the time of the first gift in August 1999. She lived with her mother in Sydney. Back in 1999 she saw her father once every four to six months, when he occasionally came to Sydney and stayed with them.
69.She remembered the 1999 visit by Mrs Rozio and Mr Yossi Rozio. She had a vague recollection of conversations with them about a gift. But the only specific knowledge of their gift, that she recalled, was a statement Mr Sternberg made to her in late 1999. He told her that they had given him some money and that he was considering buying a house for Meier. He said he would do everything necessary to look after the property until Meier was old enough to do it for himself.
70.She said she recalled a similar conversation with her father “in about 2001”. He said he was looking to purchase a property for her with money Mrs Rozio and Mr Rozio had given him. He would take care of the property until she was old enough to look after it herself.
71.I do not accept Ms Sternberg’s evidence that she had any conversation with her father in those terms. The fact is that Mrs Rozio only gave money in 1999 and it appears to have all been used in the purchase of the Birch Street property. Mr Yossi Rozio said he made his second gift in March 2002. That was after the purchase of the Diamond Street property. There is no objective evidence to show that his gift was made before the purchase. Indeed, the objective evidence shows that the Birch Street property was mortgaged to fund the purchase.
72.Ms Sternberg said she had other conversations with her father. She said she was always told the Diamond Street property was “for” her. She claimed she always understood that she owned it and her father was looking after it. However, she conceded that she had never received any of the rent. Nor had her father ever given her any statement of account. That was true of the periods both before and after the property was transferred to her.
73.Ms Sternberg’s claim to belief in her ownership of the Diamond Street property is not really credible and when viewed against the background of the objective facts, not at all persuasive of the trust claim. Indeed, her recollection of the conversation with her father in 2001 is rather more suggestive of an intention to transfer ownership of the property at some later time, than to confer beneficial ownership on her at the age of 13. That impression is rather strongly corroborated by Ms Sternberg’s own conduct. In 2003 she made a claim for youth allowance. In her application she did not disclose her interest in the Diamond Street property. If she had then believed the Diamond Street unit was really hers, she would not be likely to have forgotten that fact. Nor is it likely, given the warnings in the application form about the consequences of providing false information, that she would have knowingly withheld information about her assets.
74.Given the imprecision of her recollection, and her own conduct, Ms Sternberg’s evidence does not materially advance the trust claim.
Mr Meier Sternberg
75.Mr Meier Sternberg is the Applicant’s son. He was born on 22 May 1986 and was just over 13 years of age in August 1999. He said that in early 1999 his father told him that Mrs Rozio and her son Yossi had given Mr Sternberg “money as a gift for the purpose of buying properties for you and your sister”. Later that year his father told him he had “bought a property in Brisbane for you”. He said that Mr Sternberg showed him a photograph of the Birch Street property. Thereafter he periodically referred to it as “your house”.
76.In 2001 Mr Meier Sternberg said his father told him he had bought the Diamond Street unit “for your sister, Victoria”. Mr Sternberg said his father frequently talked about the properties to the children. He referred to them as “your homes”. He said that he always believed that the Birch Street house and the Diamond Street unit would be transferred to them once they turned 18. He claimed he always believed that the properties were theirs.
77.In his oral evidence Mr Meier Sternberg agreed that when the Birch Street property was transferred to him in May 2005 his father had claimed for him a stamp duty exemption on the basis that he was a first home buyer. Although he did not pay anything for the property, his father did not say anything about transferring the property to him because he had been holding it on trust for Meier.
78.Mr Meier Sternberg gave his evidence in a particularly halting and nervous manner. That is probably quite understandable for a person unfamiliar with giving evidence. But he conveyed the impression that he was more anxious to assist his father’s case than to be reliably objective in his recall of events. In particular, he rather emphasised his belief that the properties were “meant to be ours” and seemed to be under the impression that his father had no idea about trust concepts. As I have indicated earlier in these reasons, that impression is quite contrary to Mr Sternberg’s own evidence.
79.Mr Meier Sternberg’s recollections and impressions about the purchase of the Birch Street property, and his subsequent conversations with his father, do not provide an adequate basis for a conclusion that Mr Sternberg held the Birch and Diamond Street properties on trust for the children. His evidence does not really bear on the circumstances of the gifts by Mrs Rozio and Mr Yossi Rozio. So far as his later understanding of his father’s conduct is concerned, it is of much less significance, given Mr Sternberg’s conceded awareness of the trust concept, than the inferences justified by that conduct.
Mr Sternberg’s contentions in relation to the trust claim
80.The thrust of the submissions advanced on Mr Sternberg’s behalf were that:
(a)No formality was required to establish a trust, the critical element, in the circumstances of the present case, was the intention of the people involved.
(b)The evidence of Mr Sternberg, Mrs Rozio and Mr Rozio established that the gift was relevantly conditional in two respects that were sufficient to indicate the relevant trust intention:
(i)Mr Sternberg had no entitlement to apply the money for his own benefit; and
(ii)he was obliged to apply the money in the purchase of property.
(c)The statutory declarations relating to the gifts do not relevantly detract from the trust intention. The evidence about the circumstances of their preparation and execution was confusing and unclear. The probability is that the purpose of the declaration was simply to record the fact of the gift, rather than the ultimate intention underlying it.
(d)The evidence of intention to establish a trust is not significantly undermined by the facts that Mr Sternberg:
(i)did not keep the money separate and, at least for a time, intermingled it with his own funds, and
(ii)has never accounted to the children so as to demonstrate the proper discharge of his obligations as a trustee.
(e)Irrespective of the characterisation of the original gift, Mr Sternberg became, as a result of his own decision, a trustee of the funds used to purchase the properties.
Intention to create a trust – the original gifts
81.It is true that no particular formality is required to constitute a trust, at least in relation to personal property. The trust intention may arise from implication or inference from the parties’ conduct. Where a person transfers property, other than to a bailee or agent, and imposes on the transferee conditions limiting their entitlement to use the property self interestedly and requiring its application exclusively for the benefit of other specified beneficiaries, that will ordinarily suffice to evidence a trust obligation: Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145 at 165-166. Even if the transferee has some entitlement to apply the property for their own purposes, conditions limiting the nature and extent of that entitlement may characterise the relationship as a trust: see Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567; Re Goldcorp Exchange Ltd [1995] 1 AC 74 at 100. Sometimes the limitation, even though it gives rise to a trust obligation, may only require the honest exercise of a discretion in relation to the potential beneficiaries and not exclude the self interested application of the funds: Hourigan v The Trustees Executors and Agency Co Ltd (1934) 51 CLR 619. But the evidence must evidence that the actual intention of the parties is to impose such an obligation in relation to the property: Jacobs Law of Trusts in Australia 7th ed at [110]. There is no trust if the restrictions imposed on the transferee are merely personal obligations, even though they are enforceable by the transferor: Re Lester [1942] Ch 324 at 325-6; Cohen v Cohen (1929) 42 CLR 91 at 101.
82.The importance of evidence of obligation, and particularly obligation attaching to the property itself, is exemplified by decisions involving “precatory” trusts. These arise where the property transfer is accompanied by expressions of confidence, belief, expectation or discretion, in relation to benefits being conferred on third parties. The critical matter to decide is whether those expressions or expectations indicate the imposition of an enforceable obligation, or whether they are confined to mere expectation or moral obligation: see Jacobs Law of Trusts in Australia 7th ed at [503]. For example, in Dean v Cole (1921) 30 CLR 1 the High Court held that no trust was created by a testamentary gift to a wife “trusting to her that she will at some time during her lifetime or at her death” divide the property equally between her children. Similarly a gift made “in the fullest trust and confidence” that the donee would confer a benefit on her daughter was held not to constitute a trust: Re Williams [1897] 2 Ch 12 at 27. Where the circumstances of the gift occur in the context of family relationship and appear to rely on mere expectations of moral or familial obligation and generosity, particular care is exercised before accepting that those expectations give rise to enforceable obligations in relation to the property: Re Follone and Secretary, Department of Social Security (1987) 11 ALD 477 at 481. No trust will arise from equivocal expressions of intended familial generosity in the absence of explicit conduct indicative of actual obligation. Even an avowed intention to confer a benefit on another person in relation to the property is not sufficient to give rise to a present trust: Dineen v Secretary, Department of Social Security (1988) 17 ALD 91. This is so unless the stated intention either evidences the creation of an subsisting actual obligation: Olsson v Dyson (1968) 120 CLR 365 at 375; Secretary, Department of Social Security v James (1990) 95 ALR 615; or it induces reliance that requires the intention to be fulfilled: Baumgartner v Baumgartner (1987) 164 CLR 137; Re Holden and Secretary, Department of Social Security (1995) 37 ALD 783.
128.In any event, the power conferred by s 1236 of the Social Security Act 1991 is discretionary. In the present case, based on the findings I have made, any difficulties with Mr Sternberg’s capacity to repay the debt are substantially and directly related to the voluntary transfers of the Birch and Diamond Street properties. Those transfers were deliberate and, at least, imprudent. They occurred in circumstances where Mr Sternberg has deprived himself of the legal capacity to control the assets. However he continues to enjoy, as a result of the indulgence of his supportive children, the essential practical benefits of ownership – by residing rent free as he chooses in the Birch Street house, and by retaining all of the income from the Diamond Street unit. In these circumstances I am not satisfied that it is appropriate to write off the debt.
DECISION
129.In the DSP application proceedings – No 2007/1802 – the decision under review is affirmed.
130.In the cancellation proceedings – No N2006/0199 – the decision under review is affirmed.
I certify that the 130 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member
Signed: ..............[sgd]..................................................................
AssociateDates of Hearing 5 and 19 March 2008
Date of Decision 4 September 2008
Counsel for the Applicant Mr D McCallum
Solicitor for the Applicant Mr D Sweeney, Sweeney Tiggemann
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Ms A Nanson, Australian Government Solicitor
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