Stamp duty - Appeal against disallowance of objection to reassessment - Reassessment resulting in claw-back of exemption from duty - Reassessment by virtue of legislation with retroactive effect

Stamp duty - Exemption from stamp duty for transfers between associated bodies corporate - Application of claw-back where parties do not remain associated for five years - Qualification on application of claw-back

Stamp duty - Refusal of exemption where instrument relates or likely to relate to "duty avoidance arrangement" - Two forms of "duty avoidance arrangement" - Whether "duty avoidance arrangement" represented by circumstances of case involving transfer of assets with a view to ultimate resale and carrying on business in the interim in the context of resolution of family dispute and distribution of assets of group to individuals ultimate beneficial owners of shares in group companies

Stamp duty - Meaning of "duty avoidance arrangement" in each of its two forms - Whether meaning for one form to be derived from considerations of business purpose of arrangement - Whether meaning for other form to be derived from the doctrine of "fiscal nullity" - Whether meaning to be derived from uses of exemption otherwise than as the legislature intended - Whether "reconstruction" described the uses so intended - Whether "reconstruction" not apt to cover circumstances of this case - Whether "reconstruction" not apt to cover "asset stripping or asset packaging" - Meaning of "asset stripping or asset packaging"

Stamp duty - Exemption from stamp duty for transfers between associated bodies corporate - Requirement for consideration for transfer not to be received directly or indirectly by person not one of the parties or an associated body corporate - Whether requirement not met in the circumstances of this case

Stamp duty appeals - Whether question of application of requirement as to receipt of consideration for transfer for exemption from stamp duty for transfers between associated bodies corporate properly part of the appeal

Interpretation of statutes - The mischief rule - "The modern approach to statutory interpretation" - The approach by reference to purpose - Use of extrinsic materials in interpretation - Limitations on the use of such materials

Legislation:

Acts Interpretation Act 1901 (Cth), s 51AA, s 51AB
Income Tax Assessment Act 1936 (Cth), s 260
Interpretation Act 1984 (WA), s 18, s 19, s 32, s 55
Revenue Laws Amendment (Assessment) Act 2000 (WA), s 2, s 8, s 12, s 13, s 14
Rules of the Supreme Court 1977 (WA), O 77 r 6(1)
Stamp Act 1921 (WA), s 16, s 31, s 31AA, s 32, s 33, s 70, s 73AA, s 74A, s 75J, s 75JAA, s 75JA, s 75JB, s 75JD, s 75JDA, s 75JE
Taxation Administration Act 2003 (WA), s 16
Trade Practices Act 1974 (Cth), s 4D, s 4F

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr G H Murphy SC & Mr A J Young
Respondent: Mr S J Wright

Solicitors:

Appellant: Allan Pocock & Associates
Respondent: State Solicitor for Western Australia

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

AGC (Investments) Ltd v Federal of Taxation (1991) 21 ATR 1379
Australia Meat Holdings Pty Ltd v Trade Practices Commission (1989) ATPR 40-932
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Collector of Stamp Revenue v Arrowtown Assets Ltd [2003] HKCFA 46
Commissioner of State Revenue v Politis [2004] VSC 126
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Dilatte v MacTiernan [2002] WASCA 100
Ex parte Taylor (2001) 207 CLR 391
Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 25 ALR 511
Federal Commissioner of Taxation v Gulland (1985) 160 CLR 55
Federal Commissioner of Taxation v Lutovi Investments Pty Ltd (1978) 22 ALR 519
Federal Commissioner of Taxation v Students World Travel (1978) 138 CLR 251
Furniss v Dawson [1984] AC 474
Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70
In re South African Supply and Cold Storage Company [1904] Ch 268
John v Federal Commissioner of Taxation (1989) 166 CLR 417
Kruger v the Commonwealth (1997) 190 CLR 1
Melville v Mutual Life and Citizens Assurance Co Ltd (1980) 31 ALR 649
Mills v Meeking (1990) 169 CLR 214
Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590
Mount Lawley v Western Australian Planning Commission (2004) 29 WAR 273
NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
News Ltd v South Sydney Football Club (2003) 215 CLR 563
Newton v Federal of Taxation (1958) 98 CLR 1
Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11
Peate v Federal Commissioner of Taxation (1964) 111 CLR 443
Peko-Wallsend Operations Ltd v Respondent of State Taxation (WA) (1989) 89 ATC 4569
Phil Winkless Pty Ltd v Commissioner of State Taxation (WA) (1986) 86 ATC 4556
R v Bolton; ex parte Beane (1987) 70 ALR 225
Snook v London & West Riding Investments Ltd [1967] 2 QB 786
TEC Desert Pty Ltd v Commissioner of State Revenue [2006] WASC 300
Venture Management Ltd v Commissioner of State Taxation (1991) 4 WAR 283
W T Ramsay Ltd v Inland Revenue Commissioners [1982] AC 300
Western Australian Trustee, Executor and Agency Co Ltd v Commissioner of State Taxation (WA) (1980) 147 CLR 119

TABLE OF CONTENTS

Introduction
Factual background: the appellant
Factual background: the Group
Factual background: the assets of the Group
Factual background: the transfer of certain assets of the Group to the appellant
Factual background: the family dispute
Factual background: the liquidation of companies in the Group and the ultimate holding of the shares of the appellant
Factual background: the transfer of the land held by the appellant
The assessment to stamp duty consequences other than those appealed from
These proceedings

The Stamp Act and the application for an exemption
Stamp Act, Pt IIIBAAA

The Stamp Act with respect to a "claw‑back"

The Stamp Act, the Revenue Act and the assessment objected to
The question as to Stamp Act, s 75JB(1)(f)(i)
The argument from Stamp Act, s 32
The argument from Revenue Act, s 8(3)
The meaning of s 75JDA(1)
The meaning of s 75JDA(1) in light of mischief and purpose
Reading s 75JDA(1) in terms of business purposes: s 75JDA(1)(b)
Reading s 75JDA(1) in terms of business purposes: s 75JDA(1)(a)
Reading s 75JDA(1) in terms of intended uses of Pt IIIBAAA
Reading s 75JDA(1) in terms of intended uses of Pt IIIBAAA: s 75JDA(1)(b)
Reading s 75JDA(1) in terms of intended uses of Pt IIIBAAA: s 75JDA(1)(a)
My views as to s 75JB(1)(f)(i)

Conclusions

SIMMONDS J:

Introduction

This is an appeal under Stamp Act 1921 (WA), s 33, as it stood at the time of the appeal.
The appeal is against a decision of the Commissioner ("the respondent") to reassess the relevant instruments to stamp duty. The respondent had previously exempted those instruments from stamp duty and assessed them to nil duty.
Absent the respondent's exemption, the instruments were chargeable with stamp duty on an ad valorem basis, as a conveyance or transfer on a sale of land or other property.
The respondent's exemption had followed from the respondent having been satisfied that the requirements for the application of the relevant provision of the Stamp Act in respect of the conveyance or transfer were met. Those requirements were for the conveyance or transfer to be one between associated bodies corporate to which the other relevant requirements of the Stamp Act applied.
The respondent's reassessment arose out of subsequent amendments to the Stamp Act allowing for retrospective annulment of the respondent's exemption.
The amending legislation came into force in the relevant respects after the grant of the exemption. It added to the Stamp Act a new provision providing that the respondent might refuse to grant an exemption for a conveyance or transfer if the respondent considered that the relevant instrument related or was likely to relate to a "duty avoidance arrangement" as defined by the amending legislation. The respondent could do this even if the requirements for the application of the provision of the Stamp Act for the exemption referred to were met.
That amending legislation also provided for a "transitional period" to run prior to the coming into operation of the new provision empowering the respondent to refuse the exemption. If the respondent had granted an exemption during that period, and considered it would not have been granted if he had had the new power of refusal, then the exemption was annulled.
The respondent's exemption in this case was granted during that transitional period.
This appeal raises the issues of:
•whether or not under the amending legislation the respondent had the power reasonably to consider that the exemption would not have been granted other than by reference to whether or not the relevant instrument related or was likely to relate to a "duty avoidance arrangement" as defined by the amending legislation;
•if the respondent could do so, whether or not it was open to the respondent to argue for the dismissal of this appeal on that ground;
•if the respondent could do so, whether or not in this case the respondent could reasonably consider that the exemption would not have been granted;
•whether or not in this case the respondent could reasonably consider that the exemption would not have been granted by reference to whether or not the relevant instrument related or was likely to relate to a "duty avoidance arrangement" as defined by the amending legislation.
I address these issues in the following way.
I begin by reviewing the facts, from the statement of agreed facts dated 18 July 2006 filed for the purposes of this appeal. I conclude that statement by reviewing the history of these proceedings.
I then consider the remainder of the complex statutory framework for this appeal, by way of elaboration of the matter with which I commenced this Introduction. In particular, I reproduce the text of the principally relevant statutory provisions.
I then turn to consider the issues in this appeal, in the order given, except that, for reasons which will become clear, I address the issue listed third at the end of my reasons.
The final section of my reasons is my conclusion.

Factual background: the appellant

Worsley Timber 2000 Pty Ltd ("the appellant") was incorporated as an Australian company on 6 September 1999. It was registered in Western Australia. At that time, the appellant was a member of a group of Australian companies having their registered offices in this State. The group has since been largely, if not entirely, dissolved, leaving the Appellant and a number of other companies. The vast majority (approximately 86 per cent) of the issued shares in the appellant are apparently now held by the beneficiaries of a trust ("the Trust") the settlor of which was Gustav Victor Johnson ("G V Johnson"), and the original beneficiaries of which were GV Johnson's wife, Lucy Hazel Johnson, their four children and the grandchildren of GV Johnson ("the Johnson Family") and any trust created by the trustee. It appears that there was no such trust at any time material to me, and therefore the beneficiaries of the Trust were the Johnson Family.

Factual background: the Group

The detail I now provide is of the state of affairs as at 6 September 1999, the date of incorporation of the appellant.
What might be described as the head company of the group of which the appellant was a member was Occidental Investments Pty Ltd ("Occidental Investments"), which held all of the issued shares of Johnson & Lynn Pty Limited ("Johnson & Lynn").
All of the voting shares of Occidental Investments ("the A class shares") were held by GVJ Pty Ltd. The A class shares carried no right to receive any dividends, or to participate in any way in any distribution of profits or assets of Occidental Investments, on a winding up or reduction of capital or otherwise. GVJ Pty Ltd thus was the holding company of the Group.
All of the shares of Occidental Investments ("the C – H class shares") that carried no voting rights, but did carry the right to receive dividends and the right in any distribution of the assets of the company to receive in full the capital paid up on such shares (but without any right to participate any further in any distribution), in a winding up or otherwise, were held by the Johnson Family.
All of the remaining issued shares of Occidental Investments ("the B, I and J class shares") carried no voting rights, but did carry all other rights, including the right to participate in full in any distribution of the profits and assets on a winding up or otherwise, and were held by Wincold Nominees Pty Ltd, the trustee of the Trust ("the Trustee").
Johnson & Lynn in turn held approximately approximately 86 per cent of the issued shares of Hotham Investments Pty Ltd ("Hotham Investments"). Johnson & Lynn also held 100 per cent of the issued shares of Amalgamated Collieries of WA Pty Ltd ("Amalgamated Collieries") and of Adelaide Timber Co Pty Ltd ("Adelaide Timber"). The remaining issued shares of Hotham Investments were held by heirs of the late Frederick Thomas ("the Thomas Family") who are not related to the Johnson Family.
Hotham Investments owned all of the shares of Qualeup Investments Pty Ltd ("Qualeup Investments"). Qualeup Investments owned all of the issues shares of Chadoora Investments Pty Ltd ("Chadoora Investments"). Chadoora Investments owned all of the issued shares of Pindalup Investments Pty Ltd ("Pindalup Investments"). Pindalup Investments owned all of the issued shares of Quindanning Investments Pty Ltd ("Quindanning Investments"). Quindanning Investments owned all of the issued shares of Worsley Investments Pty Ltd ("Worsley Investments"). Worsley Investments owned all of the issued shares of Worsley Timber Pty Ltd ("Worsley Timber"). Worsley Timber owned all of the issued shares of the appellant.
Thus, through six interposed bodies corporate, Hotham Investments owned all of the issued shares of the appellant.
The companies I have named comprised the group of companies of which the appellant was a member, the head company of which was Occidental Investments, and the holding company of which was GVJ Pty Ltd ("the Group").
At the end of these reasons in an appendix I set out a chart, showing the relationships between the companies in the Group and between them and the Trust, and the dates of incorporation of all of the companies, as well the positions of the Thomas Family and the Johnson Family, on the incorporation of the appellant.

Factual background: the assets of the Group

Apart from shares in its member companies, the Group's assets included assets related to timber businesses, including land and buildings in the south west of this State, as well as other lands and buildings in Mandurah and Strathearn in this State, cash, and shares in a publicly listed company, Futuris Corporation Limited ("Futuris"). As at the time of the dissolution of most of the companies in the Group which I will shortly reach, the total value of its assets excluding intra-group holdings was over $190 million.
Until November 1999 the Group's timber business ("the Group Timber Business") was carried on through Worsley Timber and Adelaide Timber.
On 1 November 1999, Worsley Timber's timber assets were certain afforested lands with stands of millable timber ("the Land"), and a timber milling business at Palgarup in the South-West of this State ("the Timber Mill"), which included a timber mill, a timber contract between the Department of Conservation and Land Management ("CALM") and Worsley Timber, a lease and mill plant and equipment.
The Land comprised all of the land in Lot 102 and Lot 103 in the Shire of Collie, being all of the lands the subjects, respectively, of Certificate of Title Vol 2153 Folio 260 and Certificate of Title Vol 2153 Folio 261.
On the same date, 1 November 1999, Adelaide Timber's timber assets comprised certain licences, timber contracts with CALM and two timber mills, at East Witchcliffe and Wilga, both in the South‑West of this State.

Factual background: the transfer of certain assets of the Group to the appellant

At its incorporation on 6 September 1999, the appellant's issued capital comprised one share, held by Worsley Timber. I note in passing there are references to that incorporation date as 3 September 1999 in some of the papers for this appeal. I take 6 September 1999 from the statement of agreed facts for the appeal.
By agreements dated 1 November 1999 the assets of the timber business carried on by Worsley Timber and the shares of Johnson & Lynn in Adelaide Timber were sold to the appellant.
The sale by Worsley Timber to the appellant was by two agreements.
By an Agreement for Sale of Land dated 1 November 1999 ("the Agreement for Sale of the Land"), Worsley Timber sold to the appellant, which agreed to buy, the Land. The total purchase price was $13.5 million. The consideration was paid by the issue and allotment at settlement to Worsley Timber of 2,700,000 ordinary shares of the appellant.
By an Agreement of Sale dated 1 November 1999 ("the Agreement for Sale of the Timber Mill"), Worsley Timber sold to the appellant, which purchased, the Timber Mill as a going concern. The net purchase price was $1.7 million. The consideration was paid by the issue and allotment at settlement to Worsley Timber of 340,000 shares of the appellant.
It is the stamp duty reassessed on the Agreement for Sale of the Land and Agreement of Sale of the Timber Mill (collectively "the Sale Agreements") just described which is the subject of the present appeal.
The only further issued shares of the appellant were 360,000 shares, issued on 3 November 1999 to Worsley Timber by subscription.
On 1 November 1999 Johnson & Lynn transferred all of the issued shares of Adelaide Timber to the appellant, for a purchase price of $1.3 million. It appears that the price was paid in cash.
It will be noted that the effect of the transactions I have just described was that by 3 November 1999 the appellant had acquired the timber business of Worsley Timber and the shares of Adelaide Timber, for a consideration of the issuance of additional shares of the appellant, and for other consideration. Throughout the appellant was a wholly owned subsidiary of Worsley Timber. The appellant itself had thereby acquired a wholly owned subsidiary, Adelaide Timber. The appellant became the company which itself or though a wholly owned subsidiary carried on the Group Timber Business.
Below I will indicate in more detail the context to these transactions involving the Sale Agreements.

Factual background: the family dispute

On 3 November 1976, G V Johnson, in his capacity as governing director of GVJ Pty Ltd, passed a resolution varying the rights and entitlements of certain of the classes of shares in Occidental Investments ("the November 1976 Resolutions").
A family dispute ensued concerning the validity of the November 1976 Resolutions and the rights of the Johnson Family to assets of the Group on their distribution.
The dispute was resolved by an arrangement for the ratification of the November 1976 Resolutions, the voluntary liquidation of Occidental Investments and its subsidiary companies (except for the appellant and Adelaide Timber), and the distribution to the beneficiaries of the Trust of assets (and income) of the Trust as derived through its shareholding in Occidental Investments. That distribution was to be pro rated on the holdings of the C ‑ H shares of Occidental Investments held by the beneficiaries of the Trust.

Below I will indicate in more detail the context to this arrangement for the resolution of the family dispute.

Factual background: the liquidation of companies in the Group and the ultimate holding of the shares of the appellant

On 7 January 2009 Occidental Investments was placed into voluntary liquidation.
On 1 February 1999 Hotham Investments was placed into voluntary liquidation.
On 24 September 1999 Johnson & Lynn was placed into voluntary liquidation.
On 10 November 1999 Worsley Timber was placed into voluntary liquidation.
By 17 November 1999 all of the companies interposed between Worsley Timber and Hotham Investments had been placed into liquidation. On that day the liquidator of each of the interposed companies in turn distributed the assets of the company up to its sole shareholder, with the result that on that day Hotham Investments became the sole shareholder of Worsley Timber.
On 8 December 1999 the sole assets in Worsley Timber were cash on deposit and 3,400,001 shares in the appellant. On that day, the liquidator of Worsley Timber resolved to distribute the cash and the shares in specie to Hotham Investments. The cash was to be paid and the shares transferred no later than 9 December 1999.
On 9 December 1999, in accordance with the resolution referred to, the cash – except for cash with which to pay debts – and the shares in the appellant were distributed to Hotham Investments.
As a result, on that day, 9 December 1999, Hotham Investments had assets in the form of cash on deposit, and the shares in the appellant formerly held by Worsley Timber.
On the previous day, 8 December 1999, the liquidator of Hotham Investments had resolved to distribute the company's assets to be paid and transferred no later than 9 December 1999. As I have indicated, approximately 14 per cent of the issued shares of Hotham Investments were held by the Thomas Family, and the remaining issued shares, about 86 per cent of the issued shares of that company, were held by Johnson & Lynn.
On 9 December 1999, the liquidator of Hotham Investments distributed the assets of the company to its shareholders. This included an in specie distribution of the 3,400,001 shares of the appellant, as to 478,672 shares (approximately 14 per cent of the total) to the Thomas Family, and as to 2,921,329 shares (approximately 86 per cent of the total) to Johnson & Lynn.
On 24 December 1999, the liquidator of Johnson & Lynn resolved to distribute the assets of the company to its sole shareholder, Occidental Investments.
On 25 December 1999, the liquidator of Johnson & Lynn made the distribution of the assets of the company to Occidental Investments. Those assets were cash, the Mandurah and Strathearn lands previously referred to, shares in Amalgamated Collieries, the 2,921,329 shares of the appellant received by Johnson & Lynn from Hotham Investments, and shares in Futuris.
I was told at the hearing that the shares in Futuris were held for the most part by Amalgamated Collieries, and for the rest by Johnson & Lynn. As part of the liquidation of the other companies in the Group, Amalgamated Collieries was liquidated, and its assets distributed to its shareholder. It was not in contest the effect of this was that all of the Group's shares in Futuris ultimately came to rest in the hands of the Johnson Family, as I will shortly indicate.
On 26 December 1999, the liquidator of Occidental Investments resolved to distribute the assets of the company to its shareholders.
On 27 December 1999, the liquidator of Occidental Investments distributed the assets of the company to its shareholders. He did this by paying the paid up capital of the C ‑ H class shares to their holders, and by distributing the balance of the cash and other assets of the company to the Trustee, as the holder of the B, I and J class shares. The distribution of that balance included the 2,921,329 shares in the appellant.
On 27 December 1999 the Trustee resolved to distribute, and distributed, the assets of the Trust to the beneficiaries of the Trust, the Johnson Family. This represented an in specie distribution of the 2,921,329 shares in the appellant to 18 beneficiaries, as well as the land and buildings at Mandurah and Strathearn (to two beneficiaries), and the shares in Futuris.
The result was that, on 27 December 1999, the shares in the appellant, representing all of its issued shares and formerly held by Worsley Timber as a member of the Group, had been distributed, as to 478,672 shares to the Thomas Family, and as to 2,921,329 shares to 18 beneficiaries of the Trust who were members of the Johnson Family.

Factual background: the transfer of the land held by the appellant

It will be recalled that by the Agreement for Sale of the Land Worsley Timber had sold the Land to the appellant.
On 1 November 2002, the appellant for its part sold the Land to Fieldon Pty Ltd for $17.5 million. Fieldon Pty Ltd was not at any material time a company related to the appellant.

The assessment to stamp duty consequences other than those appealed from

I put aside the stamp duty assessment and reassessment in respect of the Sale Agreements, to which I return below.
The remaining transactions are the distributions of assets up the chain of companies in the Group, the distribution of assets by the Trustee, and the sale of the Land by the appellant.
There was apparently no contest that the transactions of all of these types were correctly assessed to stamp duty, in the following ways.
In the cases of the distributions of assets by each of the companies in liquidation the respondent reduced the duty otherwise payable to zero. This was the result of the following provisions of the Stamp Act.
At all relevant times (which I return to below), Stamp Act, s 74A(1)(c), made a conveyance or transfer of any property by a liquidator of a company to any of its shareholders in the course of a distribution of its assets as a consequence of its winding up, other than a transfer or conveyance to which s 74A(1)(b) applied, chargeable with duty in accordance with Item 4 of the Second Schedule to the Act. I return to Item 4 of the Schedule below, which made the conveyance or transfer chargeable with ad valorem duty. Stamp Act, s 74A(1)(b) provided for distributions by a liquidator of a company to any of its shareholders pursuant to a right to a right attaching to any of its shares to receive any particular property of the company, and had no application here.
However, Stamp Act, s 74A(2), provided as follows (emphasis supplied):
"(2)If in a case to which subsection (1)(c) applies, the Commissioner is satisfied that the corporation is not being wound up as part of an arrangement or scheme designed with the collateral purpose of reducing the duty otherwise payable on the conveyance or transfer of the property, the Commissioner may deduct from the unencumbered value of the property an amount calculated under subsection (4) but in any event not greater than the unencumbered value of the property."
As will become apparent below, the words emphasised assumed some significance in the argument before me.
Stamp Act, s 74A(3), added:
"(3)In considering whether or not he or she is satisfied for the purpose of subsection (2), the Commissioner may have regard to
(a)the duration of the shareholder's shareholding in the corporation;
(b)whether or not the shareholder held shares in a related corporation of the corporation that owned the property before it was owned by the corporation;
(c)the period for which the property has been owned by the corporation or a related corporation of the corporation;
(d)any dealing in shares of the corporation or a related corporation of the corporation –
(i)by the shareholder or a related corporation of the shareholder;
(ii)by a previous owner of the property;
(e)whether there is any commercial efficacy to an arrangement or scheme of transactions involving any one or more of –
(i)the corporation;
(ii)the shareholder;
(iii)a related corporation of the corporation or the shareholder;
(iv)a substantial shareholder (as defined in Part 6.7 of the Corporations Law) of a person referred to in subparagraph (i), (ii) or (iii),
in relation to the winding up, other than to reduce the duty otherwise payable on the conveyance or transfer;
(f)any other matters he or she considers relevant."
Stamp Act, s 74A(4), provided for a calculation by reference to the shareholder's proportion of the unencumbered value of the property which was the subject of the conveyance or transfer chargeable to duty.
In the cases of the distributions between members of the Group up to the distribution to Occidental Investments, and the distribution by Occidental Investments to those of its shareholders which I previously described, the respondent was satisfied in the terms of Stamp Act, s 74A(2), and using the calculation from s 74A(4) he reduced the duty otherwise payable to zero.
I take the relevant times for the purposes of the inter‑corporate distributions referred to be the respective dates of those distributions, between 17 November 1999 and 24 December 1999. I take the relevant time for purposes of the distribution by Occidental Investments to its shareholders to be the date of that distribution, 26 December 1999.
In the case of the distribution of the assets of the Trust to its beneficiaries, the respondent determined the conveyances or transfers were chargeable with nominal duty under the following provisions of the Stamp Act.
At the relevant time (which I have taken as 27 December 1999, the date of the distribution) Stamp Act, s 73AA(1)(d), provided that a conveyance or transfer as described there was chargeable with duty in accordance with Item 6 of the Second Schedule. That Item provided for duty at the lesser of $20 or the duty under Item 4 of the Schedule, if the conveyance or transfer were chargeable with duty under that Item.
Stamp Act, s 73AA(1)(d), described the conveyance or transfer attracting that treatment as follows:
"(1)A conveyance or transfer –
…
(d)made by a discretionary trustee, in exercise of a power of appointment over the property conveyed or transferred, to a beneficiary who is a natural person for his own use and benefit, if –
(i)at the time when the discretionary trustee acquired the property conveyed or transferred the beneficiary was named or described in the instrument which created the power of appointment as a beneficiary or as a member of a class of beneficiaries in whose favour the discretionary trustee was empowered by that instrument to appoint the property; and
(ii)evidence of the acquisition by the discretionary trustee, as such trustee, of the property conveyed or transferred is produced to the respondent with that conveyance or transfer."
Finally, as to the sale of the land of the appellant to Fieldon Pty Ltd, stamp duty at the ad valorem rate provided for by Stamp Act, Second Schedule, Item 4, was assessed and duly paid on the conveyance, in the amount of $956,300.

These proceedings

By a Stamp Duty Assessment issued 30 December 1999 ("the First Stamp Duty Assessment"), the Sale Agreements were each assessed to nil duty. There had been an earlier application for exemption under Stamp Act, s 75JD, to which I return below, and that exemption had been granted by the respondent, under Stamp Act, s 75JB(3), which it is common ground had resulted in that assessment.
By Stamp Duty Requisition issued 18 July 2000 and a further Stamp Duty Requisition issued 19 July 2000 the respondent notified the solicitors for the appellant as follows:
"As a result of recent amendments to the Stamp Act, your exemption to stamp duty in the above matter has now been retrospectively disallowed."
It was not in contest that the reference to the amendments in question was to those made by Revenue Laws Amendment (Assessment) Act 2000 (WA), No 29 of 2000 ("the Revenue Act"), to the material provisions of Pt 2 in which I will return, below.
It was common ground that, by Stamp Duty Assessment issued on 21 August 2000 ("the Second Stamp Duty Assessment"), the Sale Agreements were assessed to stamp duty of $726,883.55.
By notice of objection dated 29 September 2000, and sent under cover of a letter dated 29 September 2000 from the solicitors for the appellant to the respondent, the appellant objected to the Second Stamp Duty Assessment.
The procedure for making and responding to Objections at 29 September 2000 was provided for in Stamp Act, s 32, which in material part at that date read as follows:
"(1)A person who is dissatisfied with an assessment made by the Commissioner for the purposes of this Act, may, within a period of 42 days after the date of issue of that assessment, object to the assessment by forwarding to the Commissioner a statement in writing of the grounds of his objection to the assessment.
…
(3)The Commissioner shall consider any objection and may allow or disallow the objection wholly or in part and may modify or confirm the assessment to which the objection relates.
(4)The Commissioner shall inform the person by whom the objection was made, in writing, of his decision on the objection and the grounds for that decision.
(5)If an assessment of duty is modified under subsection (3), the amount of duty payable shall be such amount as is fixed by the Commissioner; and the Commissioner shall refund the amount of any excess of duty which may have been paid in accordance with the assessment and the amount of any excess of any fine charged under section 20 or 31AC.
(6)For the purposes of this section and sections 33 and 34A the term assessment shall include a reassessment issued under section 31AA or 76AW and any determination or decision made or purported to be made, or direction given or purported to be given, by the Commissioner under the provisions of this Act other than under this section, section 33, section 75JA(3) or section 75JB(7)."
As will become apparent below, the respondent's case that the assessment appealed against can be sustained rests in part on this provision. I will return to it in that context.
By letter dated 31 October 2001 from a representative of the respondent to the solicitors for the appellant, the appellant was informed that its objection to the Second Stamp Duty Assessment had been disallowed and reasons were provided.
By letter dated 7 November 2001 from the solicitors for the appellant to the respondent, those solicitors, "pursuant to the provisions of Section 33 of the Stamp Act and the Rules of the Supreme Court of Western Australia Order 77", gave the respondent notice of appeal and requested him to treat the objection to the Second Stamp Duty Assessment as an appeal to the Court against his decision to disallow the appellant's objection. It was not in contest that this is the date I should consider to be that of the commencement of the appeal.
As at 7 November 2001, the Stamp Act, s 33, read as follows:
"(1)A person who is dissatisfied with the decision of the Commissioner on an objection by the person may, within 42 days after service of notice of the decision of the Commissioner, appeal to the Supreme Court against that decision.
(2)A person entitled to appeal against a decision of the Commissioner on an objection by that person may, whether before or after the expiry of the time for appealing, apply for an extension of time, and the Commissioner may, for reasonable cause shown by that person, extend the time for appealing for such period as the Commissioner considers reasonable in the circumstances.
(3)The Supreme Court shall hear and determine an appeal under subsection (1).
(4)Where the Supreme Court determines that the assessment of duty to which the appeal relates is in error, it shall assess the duty chargeable under this Act, recalculate any fine charged under section 20 or 31AC, and order the Commissioner –
(a)if the Court determines that the instrument has been charged with excess duty, to refund the amount of any of that excess of duty which may have been paid and the amount of any excess of any fine charged under section 20 or 31AC; or
(b)if the Court determines that the instrument has been charged with insufficient duty, to reassess the instrument under section 31AA."
At the material time O 77 r 6(1)(c) and (d) read as follows:
"(1)With the notice of objection the Commissioner shall forward to the Registrar –
…
(c)copy of the notice of the disallowance of the objection;
(d)a statement by the Commissioner setting out
(i)the facts on which the assessment is based;
(ii)the reasons for the Commissioner's decision on the objection; and
(iii)the questions of law and fact which the Commissioner considers will require to be determined on the appeal
(e)the request to forward the objection to the Court; and
(f)any other documents in his possession or power that are necessary for the hearing of the appeal."
After 7 November 2001 Stamp Act, s 33, was amended in a number of ways, none material for my purposes. Ultimately, on 1 July 2003, the right of appeal in s 33 was subsumed in a broader right of appeal, in other legislation. Since 1 January 2005, that latter right of appeal has not been to this Court, but to the State Administrative Tribunal. Order 77 was repealed at that time.
I describe that history in slightly greater detail in TEC Desert Pty Ltd v Commissioner of State Revenue [2006] WASC 300 at [8] ‑ [15], where I also consider the implications of the conferral of jurisdiction on the SAT were an appeal like the present one to be affected by that change.
However, for the reasons given in TEC Desert at [10] ‑ [15], which in my view equally apply in this case, I consider that the present appeal is governed by Stamp Act, s 33, as it stood at the time of the commencement of the appeal.
The correctness of the views expressed in the previous paragraph was not contested by the parties for the purposes of the hearing before me.
It follows, both that Stamp Act, s 33, as it stood at 7 November 2001, and the former O 77, as it stood at that date, apply to this case. I return to the implications of the application of both for which the parties contended below.

The Stamp Act and the application for an exemption

In this section of my reasons I elaborate upon the provisions briefly referred to in my Introduction. I also set out some additional factual background, to indicate the parties’ views at the time of how these provisions were then seen to be relevant. Those views are relevant to me by way of further elaboration on the factual background I have already provided. The additional detail in that elaboration assumed some significance in the argument at the hearing.
When I consider the issues I described at the outset, I will return to the matter of the provisions' relevance as it was put to me at the hearing.
It is convenient to start with a letter dated 21 September 1999 from the then solicitors for the appellant to the respondent. In that letter the solicitors explain that, following the entry of Occidental Investments, as the "parent company" of the Group, into voluntary liquidation, by members' resolution of 7 January 1999, documents "are in the process of being prepared and executed to effect the winding up of the [Group], and the distribution of assets". The liquidator, it was indicated:
" … would like to make submissions to you in respect of the stamp duty implications of the winding up, so that as soon as instruments relating to the winding up are executed and forwarded to your office Stamp Duty Assessments may be issued with the least possible time lag."
After describing the Group, the solicitors, in describing the Timber Mill, said this:
"However, given the current state of the timber industry and recent changes in Government policy in relation to the industry it is difficult to assess the value of the timber mill accurately. We understand that the timber mill includes a timber licence which has approximately 3 years to run."

The solicitors also indicated that "[t]he Group is being wound up as a result of a family dispute between some members of the Johnson family", and further indicated:
"[i]t is desired by the family to sell the assets of the Group except for the [shares in the listed public company], which it is desired to distribute through to family members or their associated entities. Many of the Group assets have been sold recently. However, due to problems associated with the logging industry in WA, it appears unlikely that the timber assets held by [Worsley Timber] and Adelaide Timber can be sold for any reasonable price in the immediate future."
I return to the "problems" referred to, and their implications for the design of the arrangements ultimately settled upon, below, when I refer to certain affidavit evidence, from the governing director of GVJ Pty Ltd.
In describing the winding up of Johnson & Lynn, of Amalgamated Collieries, of the companies interposed between Worsley Timber and Hotham Investments, and of those two companies and Occidental Investments, the letter indicated the reasons why Stamp Act, s 74A(2), should be applied to the distributions of their assets to their shareholders. The letter did this by reference to the factors listed in s 74A(3), which I have previously set out. One such factor referred to was the "commercial efficacy to the arrangements involving [the companies], being that the winding up is to settle a family dispute and transfer ownership of the assets to separate family entities".
The letter also repeated the difficulty for Worsley Timber "to efficiently dispose of its timber milling property and interests on the open market in the near future, due to current problems in the logging industry" and went on:
"Because it is desired to distribute the substantial cash held by [Worsley Timber], the winding up of this company should not be delayed. However it is not considered desirable or feasible that the timber assets should be distributed in specie up the chain, as these assets are part of a cohesive operating enterprise, which should be run by one company, and could not be efficiently operated if subject to fragmentation in the hands of various Johnson family members and members of the Thomas family.
Accordingly, a new Group company, [the appellant] was incorporated … The purpose of [the appellant] is to hold some of the Group’s timber milling interests, these interests currently held by [Worsley Timber]."
I return to the "fragmentation" and alternatives to it below, by reference to the affidavit evidence I referred to.
The letter enclosed for review drafts of the Sale Agreements. The letter concluded with an invitation to the respondent, if he required "any further information", to "not hesitate to contact us". There was no such contact to which I was referred.
The letter dated 21 September 1999 included a review of the exemptions from stamp duty otherwise chargeable on the Sale Agreements for "certain corporate reconstructions". Those exemptions were in Stamp Act, Pt IIIBAAA, as it stood at the relevant time, to which I will return.
It is first necessary to note the stamp duty to which the Sale Agreements would otherwise have been subject. The letter does not indicate the relevant provisions. However, it was common ground before me that, absent Stamp Act, Pt IIIBAAA, the Sale Agreements would have been chargeable to ad valorem duty as a conveyance or transfer of property, as provided for by s 16, read with s 70, under Item 4 of the Second Schedule.
It was also common ground before me that the relevant exemption in Stamp Act, Pt IIIBAAA, was that provided for in s 75JB(3) read with the relevant provisions in s 75JB(1), and with s 75J(2). However, account also needed to be taken of the possibility for s 75JE’s "claw‑back" (as it is called in the heading to the section) of the exemption. That possibility required account to be taken of s 75JB(5). Most of these provisions are referred to in the letter of 21 September 1999. I will now go over them in detail, as, with provisions added to Pt IIIBAAA after the date of the Sale Agreements, and a provision in the legislation that made the additions, they are at the heart of this appeal.

Stamp Act, Pt IIIBAAA

Stamp Act, Pt IIIBAAA, is headed "Exemptions for Corporate Reconstructions". The term "corporate reconstruction" is, however, nowhere defined in Pt IIIBAAA, or elsewhere in the Stamp Act. The term is only used in the texts of the provisions in Pt IIIBAAA in s 75JA, as I will indicate shortly. I will consider the term again below, as it assumed some significance in the argument for the respondent.
Stamp Act, s 75JA, headed "Corporate reconstructions: exemptions", provides, in the circumstances it describes in s 75JA(1) or (1a), as applicable, for an exemption in respect of the instrument of transfer, or, if the acquisition is a "relevant acquisition" under Pt IIIBA, in respect of the Pt IIIBA statement lodged in respect of the acquisition of shares. (As I will indicate below, Stamp Act, Pt IIIBA, is concerned with certain transfers of shares of what were called before me, and in some of the materials extrinsic to the Stamp Act to which I was referred, "land rich companies".)
The acquisition in s 75JA(1) and (1a) is referred to in each as one "in connection with a scheme for the reconstruction of a body corporate or the amalgamation of bodies corporate". However, it is common ground that s 75JA as it stood at any time material to this case had no application in this case. Rather, the relevant provision for an exemption in Pt IIIBAAA, as that provision stood at all times material to this case, was s 75JB.
Stamp Act, s 75JB, is headed "Corporate reorganizations: exemption from duty on conveyances between associated bodies corporate". However, unlike s 75JA, the text of the section makes no use of the term "corporate reorganizations", or "corporate reconstructions" for that matter.
Stamp Act, s 75JB(3)(a), read at all times material to this case as follows:
"(3)If on an application under section 75JD it is shown to the satisfaction of the Commissioner that this section applies, then –
(a)the Commissioner shall exempt an instrument executed on or after 1 October 1996 to which this section applies from duty under item 4, 4A, 13(3) or 19 of the Second Schedule."
There was also provision for an exemption in s 75JB(3)(b). It is common ground that had no application to this case. From now on, my references to the exemption under s 75JB(3) should be understood as to the exemption granted in this case under s 75JB(3)(a).
Stamp Act, s 75JD, provided for an application for an exemption under s 75JB to be in a form approved by the respondent lodged with him within 12 months after the execution of the instrument concerned.
By separate applications, both dated 1 November 1999, in respect of the Agreement for the Sale of the Land and the Agreement for Sale of the Timber Mill respectively, the appellant made application for an exemption on the form provided for. Those applications were provided to the respondent under cover of a letter from the solicitors for the appellant dated 24 November 1999. That letter referred to other matter relevant to the application.
There are questions listed in the application forms, and the forms lodged set out answers to those questions. Most of the answers are in "Yes" or "No" form. Some of the answers and their significance will be considered below when the relevant provisions of the Stamp Act are set out.
For now, I note that each application, for the item 2 "full facts and circumstances surrounding the transaction including reason therefore [sic]", in Annexure "A" responded as follows:
"The group of companies of which the transferor is a member is in the process of being wound up, due to a dispute between some members of the family who are some of the ultimate beneficiaries of the shareholding in the group of companies of which the transferor forms part. Although the family has attempted to resolve the dispute, it has become apparent that the only solution is to dissolve the whole group, which is in the process of voluntary liquidation.
As part of that process the transferor has been placed into voluntary liquidation. Its assets will be distributed to its shareholder. In particular the distribution of the substantial cash held by the transferor should not be delayed.
Due to current uncertainty and problems in the timber industry the transferor was not able to efficiently dispose of its timber milling property and interests on the open market.
It is not desirable or feasible that the timber assets should be distributed in specie up the chain of companies in the group, as these assets are part of a cohesive operating enterprise, which should be run by one company, and could not be efficiently operated if subject to fragmentation in the hands of various owners.
Accordingly, a new group company being the transferee, was incorporated to continue to hold and operate the timber milling interests previously held by the transferor."
It will be noted that this response in these respects provides substantially the same matter as in the letter of 21 September 1999, above.
It will be noted from s 75JB(3) that it must be shown "to the satisfaction of the [respondent] that this section applies". It was not in contest before me that this required the respondent to act reasonably in determining whether or not he was so satisfied: Kruger v the Commonwealth (1997) 190 CLR 1, per Brennan CJ, at 36; Ex parte Taylor (2001) 207 CLR 391, per Gummow and Hayne JJ, at [167]. It was further not in contest before me that reasonableness required the respondent to apply the relevant statutory provisions on their proper construction: see Phil Winkless Pty Ltd v Commissioner of State Taxation (WA) (1986) 86 ATC 4556, per Burt CJ, at 4557. Whether or not the construction as contended for by counsel for the respondent that would have enabled the respondent, on the factual background I have described, to act as he did in respect of the reassessment appealed against was the proper construction was the central question in this case.
The reference to the application of Stamp Act, s 75JB, was to s 75JB(1). It was common ground that the relevant provisions in s 75JB(1) were s 75JB(1)(a), (b), (c), (d)(ii)(B) and (f)(i). I set these out with brief introductory commentary on each.
Stamp Act, s 75JB(1)(a) provided:
"(1)This section applies if –
(a)an instrument conveys, transfers or assigns a beneficial interest in property from one body corporate ('A') to another body corporate ('B')."
It was not in contest before me that this requirement was met, nor that "A" was Worsley Timber and "B" the appellant.
Stamp Act, s 75JB(1)(b) provided:
"(1)This section applies if –
…
(b)the instrument does not convey, transfer or assign any other interest or property which if separately conveyed, transferred or assigned would not be exempt under this Act."
It was not in contest before me that this requirement was met.
Stamp Act, s 75JB(1)(c), provided:
"(1) This section applies if –
…
(c)A and B are associated bodies corporate."
It was not in contest that this requirement was met, through the following description of when, for the purposes of Stamp Act, Pt IIIBAAA, "2 bodies corporate are associated".
That description appeared in Stamp Act, s 75J(2)(a)(i), read with s 75J(2)(b), as follows:
"(2)In this Part, unless the contrary intention appears –
(a)2 bodies corporate are associated if –
(i)one of them beneficially owns (directly or indirectly) at least 90% of the issued share capital of, and has voting control over, the other;
…
(b)a body corporate ('A') has voting control over another body corporate ('B') if A is in a position to cast or control the casting of at least 90% of the maximum number of votes that might be cast at a general meeting of B (excluding any power to vote by any person by virtue of the provisions of any debentures or a trust deed securing the issue of such debentures)."
Stamp Act, s 75JB(1)(d)(ii) provided:
"(1)This section applies if –
…
(d)at the date of execution of the instrument, A and B have been associated bodies corporate for at least the qualifying period unless –
…
(ii)A and B have been associated since A acquired at least 90% of the issued share capital –
…
(B)of B as a body corporate incorporated in Australia that had been dormant since it was incorporated,
and B has been dormant from when A and B became associated until B resolved to acquire the beneficial interest."
The "qualifying period" referred to in Stamp Act, s 75JB(1)(d), is, broadly, a maximum of three years (s 75JB(2)). However, it appears to have been common ground before me that that period had no application in this case, because of s 75JB(1)(d)(ii)(B).
The meaning of "dormant" was to be gathered from Stamp Act, s 75JAA. It was not in contest before me that "B" (the appellant”) was "dormant" at all times material to the application of the term.
Stamp Act, s 75JB(1)(f)(i) provided:
"(1)This section applies if –
…
(f)the instrument was not made pursuant to or in connection with an arrangement under which –
(i)the consideration, or any part of it, for the conveyance, transfer or assignment was to be provided or received, directly or indirectly, by a person other than A or B or a body corporate that at the time the instrument was executed was associated with either A or B."
In relation to this requirement, there is a substantial contest before me, both as to whether or not the requirement was met in this case, and, if it was not, whether or not, by virtue of the Revenue Act provisions I will reach shortly, the respondent was in a position to invoke that shortfall in relation to the assessment appealed against in this case. Thus, I will need to return to this requirement.
For now, I note that in the appellant's applications under Stamp Act, s 75JD, there were two questions, 11 and 12, which appear to be drawn from the requirement in s 75JB(1)(f)(i).
Question 11 was (emphasis supplied):
"Was the consideration (or any part of it) for the transfer of the property provided directly or indirectly by a non group member?"
The answer to this question on each of the two applications was "NO". The contest between the parties does not appear to relate to this aspect of the application of Stamp Act, s 75JB(1)(f)(i).
Question 12 was (emphasis supplied):
"Was the consideration (or any part of it) for the transfer of the property received directly or indirectly by a non group member?"
The answer to this question on each of the two applications was "NO". The contest between the parties related to this aspect of the application of Stamp Act, s 75JB(1)(f)(i), as will become apparent below.

The Stamp Act with respect to a "claw‑back"

At the time of the application for and the grant of the exemption in this case, the Stamp Act, Pt IIIBAAA, provided for a "claw‑back" of an exemption granted under s 75JB(3). As I have indicated, that is the provision under which the exemption applied for this in this case was granted.
It was common ground that the relevant provision of the Stamp Act describing the effect of a claw-back was s 75JE, which applied "if the claw‑back applies" (s 75J(2)(c)(i)).
Stamp Act, s 75JE provided in material parts follows:
"(1)If this section applies to an instrument –
(a)the instrument shall be deemed not to have been exempted;
(b)the instrument shall be charged with a fine equal to 20% per annum of the duty chargeable on the instrument calculated from the date of the execution of the instrument to the date the Commissioner is notified under section 75JB(4), or if the Commissioner is not so notified, to the date an assessment for that duty and fine is issued by the Commissioner;
…
(2)The Commissioner may remit wholly or in part a fine chargeable under subsection (1)."
It was common ground the provisions of the Stamp Act relevant to when the "claw‑back applies" were s 75JB(4)(a) and (5), which were as follows:
"(4)If within 5 years after the execution of the instrument or the date of the relevant acquisition ‑
(a)A and B cease to be associated;
…
A and B, or B, or the person (as the case requires) shall notify the Commissioner in writing in a form approved by the Commissioner within one month after the relevant event.
(5)If within 5 years after the execution of the instrument or the date of the relevant acquisition A and B cease to be associated then the claw-back applies unless A and B cease to be associated in circumstances where A has no assets or no assets other than cash or money in an account at call or on deposit with any person or a negotiable instrument."
In the appellant's applications under Stamp Act, s 75JD, there was a question 13 which appears to have been drawn from s 75JB(5). That question read:
"13.Does the transferee intend to remain continuously associated with the transferor for a period of no less than 5 years after the property is transferred?"
There was a provision, in item 13.1 in the applications in case the answer to the question was "NO", in which to provide "full details and circumstances pertaining to your answer". After the appellant's answer to question 13, "NO" in each application, the following appeared, at 13.1:
"The transferor and the transferee will probably cease to be associated within 5 years after the transfer due to the winding up of the transferor. However the companies will cease to be associated in the circumstances where the transferor will have no assets other than cash."
It was common ground that, following the First Stamp Duty Assessment in relation to the Sale Agreements, the solicitors for the appellant, by letter dated 5 January 2000, provided the notification called for by s 75JB(4), as anticipated by that answer at item 13.1, in respect of Worsley Timber and the appellant, as follows:
"On 9 December 2000 [Worsley Timber] and [the appellant] ceased to be associated for the purposes of Part IIIBAAA of the Act, by the transfer of shares in [the appellant] from [Hotham Investments], being the sole shareholder of [Worsley Timber], to its shareholders."
It was common ground before me that the answer in the applications for exemption at item 13.1 foreshadowed the application of that qualification, and that qualification was met in this case.
That is, I take it for the purposes of this case that no question of the application the claw-back arose in this case until the coming into force of the legislation amending the Stamp Act I reach next.

The Stamp Act, the Revenue Act and the assessment objected to

I note that when the First Stamp Duty Assessment was provided to the appellant, the respondent foreshadowed the possible effect, on the exemption that lay at the heart of the assessment, of possible future amendments to the Stamp Act.
The respondent did this in the letter dated 30 December 2000 which attached the Stamp Duty Assessment issued 30 December 2000. That letter in material part said this:
"You may be aware that the Hon GM Evans, Minister for Finance issued a media statement on 25 October 1999, indicating that amendments to close an avoidance scheme involving the corporate reconstruction exemption would be introduced by the Government.
The Minister stated that the amendments would include an anti-avoidance provision and would be retrospective to 25 October 1999.
As these amendments have not yet become law, the exemption can only be administered on the basis of its current requirements. However, if enacted as intended, these amendments may affect your corporate reconstruction exemption in the following manner:
The corporate reconstruction exemption application for the transfer of assets from [Worsley Timber] to [the appellant] made on 24 November 1999 involves circumstances that are considered by [the respondent] to be outside the intent of the corporate reconstruction exemption, to the extent that it does or could permit asset packaging by the company.
Accordingly, once the amendment mentioned above commences, your exemption is likely to be retrospectively disallowed and reassessed, resulting in a requirement to repay the amount of duty exempted under this transaction."

In the event, the "amendments" referred to became those made by the Revenue Act. By s 2, provisions in the Revenue Act that included those in its relevant part, Pt 2, came into force on the date the Act received the Royal Assent. That date was 6 July 2000.
Revenue Act, Pt 2, Div 2, headed "Corporate Reconstructions", contained provisions amending provisions in Stamp Act, Pt IIIBAAA. Among those amendments were ones to s 75J, s 75JB and s 75JE. It appears to have been common ground before me that none of those amendments were directly relevant to this case.
Revenue Act, Pt 2, Div 2 also added a number of provisions to Stamp Act, Pt IIIBAAA. It was common ground that the only such addition applicable to this case, through Revenue Act, s 8(2) and (3), was that made by s 8(1), adding a new Stamp Act, s 75JDA. That provision, so added, is at the heart of this appeal, with Revenue Act, s 8(2) and (3).
Stamp Act, s 75JDA, was amended subsequently to its addition by the Revenue Act. However, it was common ground that the provision as so added is the version relevant to this appeal.
Stamp Act, s 75JDA, as added to the Stamp Act at 6 July 2000 by the Revenue Act, s 8(1), read in material parts as follows:
"(1)In this section –
'duty avoidance arrangement' means an arrangement
(a)avoiding or circumventing the operation of the provisions of this Part so far as they make the availability and continued effect of an exemption under section 75JB dependent on bodies corporate having been associated for a particular period or remaining associated for a particular period; or
(b)having as its purpose, or one of its purposes, the reduction of duty that might otherwise become payable.
…
(3)Even if on an application under section 75JD it is shown to the satisfaction of the Commissioner that section 75JB applies, the Commissioner may refuse to grant an exemption under section 75JB(3) in respect of an instrument or a Part IIIBA statement if the Commissioner considers that the instrument or statement relates or is likely to relate to a duty avoidance arrangement.
…"
The application of this provision in relation to an assessment made prior to the provision’s coming into force was the result of Revenue Act, s 8(2) and (3), which read as follows:
"(2)In subsections (3) and (4) –
'transitional period' means the period beginning on 25 October 1999 and ending when subsection (1) comes into operation.
(3)If an exemption under section 75JB of the Stamp Act 1921 has been granted during the transitional period and the Commissioner is of the opinion that it would not have been granted if subsection (1) had come into operation on 25 October 1999, the claw-back under Part IIIBAAA of that Act applies."
It was common ground before me that "the claw‑back under Part IIIBAAA" in the context of this case was a reference to Stamp Act, s 75JE, reproduced in material part above.
I have previously referred to the issue on 18 and 19 July 2000 of Stamp Duty Requisitions notifying the appellant's solicitors that "[a]s a result of recent amendments to the Stamp Act, your exemption to stamp duty … has been disallowed".
I have also previously referred to the Second Stamp Duty Assessment for duty in the amount of $726,878.55 on the Sale Agreements. It is common ground that that assessment contained no element of the fine allowed for by Stamp Act, s 75JE(1)(b), above. I presume the respondent exercised his power, in s 75JE(2), above to remit such a fine "wholly".
I conclude this section of my reasons by noting that by attachment to a letter from the solicitors for the appellant to the respondent dated 13 November 2007 a cheque in the amount of $726,883.55 "on account of the stamp duty assessed on 29 September 2000, the subject of the Objection" was sent to the respondent. It was indicated in the letter that the amount was "paid under protest and subject to the appeal".
I note that the reference in that letter to the "stamp duty assessed on 29 September 2000" appears to be an error. The notice of objection dated 29 September 2000 stated that the objection was to "the assessment of stamp duty in the amount of $726,878.55 made by the [respondent] and issued on 21 August 2000". That latter date was the date of the Second Stamp Duty Assessment.
I also note that the amount of the cheque is $5.00 greater than the assessment. I was not addressed on that amount. I will treat that sum as part of the amount at stake in this appeal, subject to anything the parties wish to put to me as to it.

The question as to Stamp Act, s 75JB(1)(f)(i)

In argument before me there was some difference between the parties as to the questions properly before me for resolution in the appeal. The difference is over whether or not the question of the respondent's reasonable satisfaction as to the application of Stamp Act, s 75JB(1)(f)(i) was properly before me.
To consider this difference, I need to indicate the question both parties agree is properly before me, before turning to the difference.
For the purposes of that consideration, I must identify the "assessment", within Stamp Act, s 32, to which the objection was taken by the appellant. That "assessment" is in my view, as I will explain in somewhat more detail below when I consider an alternative view, the Second Stamp Duty Assessment.
For the purposes of the consideration of the question both parties agree is properly before me, I also must identify the "decision" of the respondent, within Stamp Act, s 33, against which the present appeal was brought. That "decision" is in my view the respondent's confirmation on 31 October 2001, of the Second Assessment. I did not take it there was any contest as to that matter.
The Second Stamp Duty Assessment contained no reference to the provisions of the Stamp Act or any other analysis on which that assessment was based. However, the cover letter to the assessment, of the same date, from the respondent to the appellant, read (in its entirety) as follows:
"Re: Sale of Certain Worsley Timber Assets
Please find attached an assessment of the abovementioned matter as the result of the retrospective disallowance of the corporate reconstruction exemption."
As required by Stamp Act, s 32(1), the appellant in its objection dated 29 September 2000 to the Second Stamp Duty Assessment set out grounds of objection. There were nine so set out, "on one or more or all of [which]" the assessment was "incorrect". The last two of these, numbers 8 and 9, were discontinued before me.
The remaining grounds were these:
"1.The Assessment was not authorised by any of the provisions of the Act or the provisions of any other enactment.
2.The Sale Agreements were correctly determined by the [respondent] to be exempt from duty under section 75JB(3) of the Act on 30 December 1999.
3.The provisions of Section 75JDA(3) of the Act do not apply to the Sale Agreements and would not have applied to the Sale Agreements if section 75JDA had been in force on 1 November 1999.
4.If the provisions of section 75JDA(3) of the Act had applied to the Sale Agreements had these provisions been in force on 1 November 1999 (which is not admitted) then in the circumstances of the Sale Agreements the [respondent] could not reasonably have exercised the discretion granted by those provisions to refuse to grant the exemption applicable under section 75JB(3).
5.Section 8(3) of the Revenue Laws (Amendment) Assessment Act No 29 of 2000 ('Act No 29 of 2000') does not apply to the Sale Agreements.
6.The Sale Agreements did not relate to and are not likely to relate to any duty avoidance arrangement of the type described in section 75JDA(1) of the Act.
7.If the [respondent] has formed an opinion as referred to in section 8(3) of Act No. 29 of 2000 (which is not admitted) that opinion was wrong, alternatively formed unreasonably, alternatively was so unreasonable that no reasonable person could have formed it, in that if section 8(1) of Act No. 29 of 2000 had come into operation on 25 October 1999 the exemption under section 75JB of the Act would still have been granted, alternatively the [respondent] could not properly have refused to grant the exemption under section 75JB, in that:
(a)the Sale Agreements did not relate to and were not likely to relate an arrangement:
(i)Avoiding or circumventing the operation of the provisions of Part IIIBAAA of the Act so far as they make the availability and continued effect of an exemption under section 75JB dependent upon bodies corporate having been associated for a particular period or remaining associated for a particular period; or
(ii)Having as its purpose, or one of its purposes, the reduction of duty that might otherwise become payable …"
I did not understand the appellant to treat grounds 3 and 5 as separate from grounds 4, 6 and 7. Further, I did not understand the appellant to treat grounds 4, 6 and 7 as other than expressing what is most fully expressed in ground 7. To the extent that the language in ground 7 (specifically the "which is not admitted" language) indicates it was denied the respondent had purported to have formed an opinion of the sort referred to in Revenue Act, s 8(3), the appellant did not, as I understood its argument, press any such claim.
It was common ground, as I have indicated, that the respondent's decision on that objection, for the purposes of the appellant's appeal to the Court under Stamp Act, s 33, set out in full above, was that in the letter dated 31 October 2001 from the respondent to the appellant's solicitors.
I take the letter dated 31 October 2001, which was included in the transmission of objection document before me, to be the statement of the respondent's "reasons for the Commissioner's decision on the objection" for the purposes of O 77 r 6(1)(d)(ii).
That letter sets out the basis for the respondent's conclusion that "the subject transaction [those of the Sale Agreements] relates to and forms part of a duty avoidance arrangement" for the purposes of Stamp Act, s 75JDA(1), to be considered pursuant to Revenue Act, s 8(2) as part of the Stamp Act during the transition period for the purposes of Revenue Act, s 8(3).
It is common ground that the question of whether or not the respondent's conclusion just described was correct is properly before me.
However, the letter dated 31 October 2001 went on as follows:
"In any event [the Sale Agreements] did not satisfy the requirements of section 75JB(1) in that they were made pursuant to or in connection with an arrangement of the kind referred to in section 75JB(1)(f)(i) [set out in full above]. The ultimate recipients of the consideration for the assets transferred by [Worsley Timber] to [the appellant] (new shares in [the appellant]) were the beneficiaries of the GV Johnson Trust No 2 [(the Trust)], as to 86%, and the Thomas family as to 14%, not [Worsley Timber] or [the appellant] or a body corporate associated with either of them at the time [the Sale Agreements] were executed."
The appellant put to me that the respondent had had no power under Revenue Act, s 8(3), or otherwise, to issue the Second Stamp Duty Assessment other than by reference to whether or not the respondent considered the Sale Agreements were or were likely to relate to a duty avoidance arrangement within the meaning of s 75JDA(1). In particular Revenue Act, s 8(3), gave the respondent no power to consider whether or not the s 75JB(3) exemption ought to have been refused because s 75JB did not apply, by reference to s 75JB(1)(f)(i) (or any other aspect of s 75JB(1)).
That is, the respondent could not rely on Revenue Act, s 8(3), to correct any error it had made in that respect in not refusing the s 75JB(3) exemption. Nor did any other provision of the Stamp Act or any other written law give the respondent any such power in the circumstances of this case.
Furthermore, the respondent had not claimed any such power of correction when it issued the Stamp Duty Assessment of 21 August 2000.
I put aside the appellant's last argument immediately. The terms of the Assessment did not contain any reference to any claimed basis for it. The letter accompanying the Assessment dated 21 August 2000, previously quoted from, simply referred to a "retrospective disallowance of the corporate reconstruction exemption . This letter should, however, be read in conjunction with the earlier letter from the respondent dated 19 July 2000, also previously quoted from, requesting the Sale Agreements be returned to the respondent for reassessment. That letter indicated the exemption had been "retroactively disallowed" and that this was "[a]s a result of recent amendments to the Stamp Act". This, on my reading, did not exclude the correction of an earlier error, by reliance on the amendments or another source of power. To the extent the letter made no reference to any such power of correction, such as Stamp Act, s 32, it seems to me that the respondent is not precluded from seeking to justify what it did in such terms, even if the respondent had not in fact at the time thought what he did could also be so justified. I note the body of authority that supports the proposition that "the doctrine of estoppel cannot be invoked, in relation to income tax assessments, by a taxpayer so as to prevent the Commissioner assessing pursuant to his duty to do so": AGC (Investments) Ltd v Federal of Taxation (1991) 21 ATR 1379, Fed Ct, Hill J, at 1396, referring to other authorities.
The submission of the appellant, even considered apart from the last aspect of it, if accepted, meant the respondent could not seek to uphold the Stamp Duty Assessment of 21 August 2000 other than by reference to the scope and application of s 75JDA(1).
The respondent put to me that, while there was no other law (with the exception of Stamp Act, s 32, which I reach next) that gave him the power to consider whether or not a s 75JB(3) exemption previously granted ought to have been refused, and reassess an instrument accordingly, Revenue Act, s 8(3), did give him such power. That power could be exercised with reference to any basis on which that exemption could have been refused at the time the exemption was granted, including, but not limited to, the considerations in s 75JDA(1). Thus, the power could be exercised to reassess an instrument to duty on the basis he ought not to have been satisfied that s 75JB applied,
In any event, the respondent said, in the case of an appeal against a decision to disallow an objection to an assessment, like the Stamp Duty Assessment of 21 August 2000, Stamp Act, s 32(3), gave him an equivalent power.
Stamp Act, s 32(3), set out in full above, provided that, after considering an objection, the respondent (emphasis added):
" …may allow or disallow the objection wholly or in part and may modify or confirm the assessment to which the objection relates."
This subsection should be read with s 32(5), also set out in full above, for the consequence of modification of an assessment, as follows:
"If an assessment of duty is modified under subsection (3), the amount of duty payable shall be such amount as is fixed by the Commissioner; and the Commissioner shall refund the amount of any excess of duty which may have been paid in accordance with the assessment and the amount of any excess of any fine charged under section 20 or 31AC."
The respondent put to me that the emphasised words in s 32(3) empowered the respondent to uphold an assessment the respondent would not otherwise have been able to issue. As I have indicated, it is against this decision, to confirm the earlier assessment, that the appeal under s 33 is brought.
The respondent was not able to identify any authority in relation to the latter argument other than those on Interpretation Act 1984 (WA), s 55, which I reach shortly. Indeed, the principal authority on that provision, Venture Management Ltd v Commissioner of State Taxation (1991) 4 WAR 283, Franklyn J, at 290, and 295 – although it does not appear to reach the possible application of Stamp Act, s 32 the respondent contended for – seems to me to be against the respondent. I go into this authority in that respect in more detail below.

The argument from Stamp Act, s 32

I consider that I should begin my consideration of the difference between the parties on the questions properly before me by considering the argument on Stamp Act, s 32. I return to the argument on Revenue Act, s 8(3), below.
I have concluded that I should not accept the argument of the respondent that rests on Stamp Act, s 32.
It seems to me that Stamp Act, s 32, is a provision in relation to the disposition of an objection to an "assessment". Stamp Act, s 32, is not itself a provision giving a power to assess an instrument to stamp duty by reference to any other matters than those involved in giving effect to that disposition. Any power to assess, or confirm an assessment, by reference to such other matters must be found outside s 32.
As I have indicated, it is my view that the "assessment" in this case for the purposes of Stamp Act, s 32, was the Second Stamp Duty Assessment. It also appears to have been common ground before me that (Stamp Act, s 32, and Revenue Act, s 8(3), aside) there was no power for the respondent to undertake the assessment of the Sale Agreements to stamp duty again, to amend the assessment or to reassess the instruments to duty.
However, in his written submissions counsel for the respondent put it that there was a power to correct an error, by reference to Stamp Act, s 31 read with Interpretation Act, s 55.
As at 21 August 2000, Stamp Act, s 31, read as follows:
"(1)Subject to subsection (6), the Commissioner shall, if required by any other person, or may, of his own volition, express his opinion with reference to any executed instrument –
(a)on whether or not that instrument is chargeable with any duty; and
(b)if he is of the opinion that that instrument is chargeable with any duty, on the amount of duty with which that instrument is chargeable.
(2)Having expressed his opinion under subsection (1), the Commissioner shall –
(a)if he is of the opinion that the instrument concerned is chargeable with duty, issue an assessment of duty in respect thereof; and
(b)endorse on the instrument concerned his opinion –
(i)on the amount of duty with which that instrument is chargeable; or
(ii)that that instrument is not chargeable with duty,
as the case requires.
…
(4)Subject to section 31AA, an instrument on which the duty has been assessed by the Commissioner shall not, if it is unstamped or insufficiently stamped, be stamped otherwise than in accordance with the assessment of duty issued under subsection (2) in respect of that instrument."
As I will indicate shortly, Stamp Act, s 31AA (now in a modified form Taxation Administration Act 2003 (WA), s 16), was introduced by the Revenue Act and provided the respondent with the power to reassess an instrument to duty. However, also as I will indicate, s 31AA had no application in this case.
I note that, in oral argument, counsel for the respondent appeared to put the argument drawing on s 55 by reference to s 32, without reference to s 31.
In any event, I consider that s 31 would not be of any assistance to the respondent. I particularly note s 31(4).
I also note Peko-Wallsend Operations Ltd v Respondent of State Taxation (WA) (1989) 89 ATC 4569 (Full Ct, WA), where the Court held that Stamp Act, s 33, as it then stood did not allow for the Court on an appeal to direct the respondent to declare that the respondent's assessment was too low. The wording of s 33 then differed from s 32 in expressly referring only to a "refund" of any "excess duty". However, I note the following, per Brinsden J, Kennedy J agreeing (at 4584), at 4583:
"There is no provision in the Act giving the Commissioner power to amend an assessment or to reassess, and the absence of those powers strongly supports the view that the Supreme Court is not called upon to determine an assessment and to make a declaration of its determination on occasions when the assessment of the Commissioner may, in fact, be too low."

It seems to me that again no great assistance can be drawn from these provisions for present purposes.
As I have already indicated, the provisions on association are subject to qualifications.
I return to the construction of s 75JB(1)(f)(i) below. I conclude there that it refers to consideration that is provided pursuant to an arrangement for it or any part of it to move up a chain of interposed companies to the ultimate individual shareholders of the group. I do not consider, however, that this indicates the uses of the exemption at which s 75JDA(1)(b) was directed should be understood as the respondent contends. Rather, s 75JB(1)(f)(i) indicates that qualifying for the exemption requires that there be no such arrangement. If that requirement is not met, there is no question of or need for the use of the exemption of the sort that led to the enactment of s 75JDA(1) to preclude such a use. To put the matter another way, the mischief against which s 75JDA was directed was not to be found here.
I was also referred to extrinsic material on the Revenue Laws Amendment (Assessment) Bill (No 2) which as enacted introduced Pt IIIBAAA to the Stamp Act. In the Second Reading speech for that bill ("the Second Reading speech for the 1996 Bill"), the following appears (Mr C J Barnett, Hansard 29 August 1996, at 4858, 4859):
"Part 5 of the Bill seeks to amend the Stamp Act. A number of amendments to this Act are proposed. The most important of these is the stamp duty relief for corporate reconstructions, which was announced as part of the 1996‑97 Budget. Corporate reconstructions generally involve the transfer of property between commonly owned companies. If one lifts the 'corporate veil', there is little or no change in the underlying ownership of the property in such circumstances. However, in many cases the stamp duty required to be paid on such transfers can be a major barrier to the reconstruction proceeding. The objective of the corporate reconstruction scheme contained in these amendments is to remove the stamp duty impediment to the achievement of a more efficient ongoing structure for a company group.
…
Companies must have a common shareholding and voting control of 90 per cent or more to be viewed as "associated" for the purposes of this exemption. To discourage the use of these provisions for the purpose of asset stripping, the companies must generally meet a three year pretransfer association test and remain associated for five years after the date of the instrument or transaction to which the exemption applies. Failure to meet the post-transfer association test will void the exemption and trigger clawback of the duty, plus a penalty interest."
…
This measure is an important initiative which will assist companies to improve the efficiency of their operations and with a consequent benefit to the state economy."
It will be seen that much of this language is very similar to that used in the Second Reading speech for the 2000 Bill. However, counsel for the respondent would appear to have had me take particular note of the words I have emphasised in the phrase "achievement of a more efficient ongoing structure for a company group".
However, again I am unable to draw any great assistance from this source. I accept that my resort to it, in light of the references in the Second Reading speech for the 2000 Bill to the uses to which the exemption in Pt IIIBAAA was originally intended by the legislature, is permissible within Interpretation Act, s 19(2)(h), if not within the general words of s 19(2). However, the language, to the extent it qualifies the understanding of "reconstruction" from South African Supply and Cold Storage Company (supra) by reference to the need for there to be an intention a "corporate group" continue for at least some time, would it seems to me be met here by the intention to have at least a group made up of two companies, in the appellant and its wholly owned subsidiary, Adelaide Timber, to continue for an indefinite time. It is true the applications for the s 75JB(3) exemption dated 1 November 1999, above, referred to the "solution to dissolve the whole group". However, I consider that was not directed to the question whether a group of companies might survive to carry on a discrete part of the Group's business.
Counsel for the respondent also drew to my attention the references in the Second Reading speech for the 2000 Bill which it appears to have been said was illustrative of the application of the further reading contended for. Those references were to "excluding relief where the purpose of the reconstruction is to strip the assets of previously unrelated companies or to package group assets for on-sale to unrelated parties".
It will have been seen there was also a reference to discouraging the use of Pt IIIBAAA "for the purpose of asset stripping" in the Second Reading speech for the 1996 Bill. Asset stripping or packaging, it appears to have been put to me, was an example of a case where there would be a question of the business or any significant part of it the subject of what would otherwise be a reconstruction being dealt with by reference to the benefit of unrelated third parties, in this case with a view to a sale to such parties. The reconstruction in this case was said to be one with just that purpose. On that view of asset stripping or packaging, I agree with that last submission.
However, while I accept that the references to asset stripping and packaging could be understood in the way described, and thus as an instance to which the further meaning contended for applied, neither than understanding nor that meaning is easily extracted from the extrinsic materials, which nowhere in them to which I was referred set either the understanding or the meaning out. I return to the matter of the understanding of asset stripping and packaging in connection with the reading of s 75JDA(1)(a) counsel for the respondent contended for.
Further, the extrinsic materials do not seek to relate the further meaning contended for to the words of s 75JDA(1)(b).
Finally, the meaning contended for is not in my view reconcilable with the wording of the paragraph.
It seems to me that it is one thing to suggest it is a possible meaning of the paragraph that it is concerned with excluding certain uses of the exemption otherwise possible. It is another to assert that the paragraph should be construed as counsel for the respondent contends.
This is to say the extrinsic materials, to which it is contended I should resort so as to arrive at the further meaning contended for, in my view are not, within s 19(1), "capable of assisting in the ascertainment of the meaning of [Stamp Act, s 75JDA(1)(b)]". I note that it is indeed the case that the further meaning contended for would, at least arguably, have the effect that the respondent could have formed the conclusion that s 75JDA(1)(b) applied in this case, causing the annulment of the exemption under Revenue Act s 8(3). However, the words of s 75JDA(1) in my view are not capable of bearing that meaning. It has been said that "the words of the statute, not non‑statutory words seeking to explain them, have paramount significance": Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11, per Gleeson CJ, Gummow, Hayne and Heydon JJ, at [22] where, however, the non‑statutory words were considered not to reach the issue in question. However, as I have indicated, the non‑statutory words in question, while at least arguably reaching the issues in question, here are not clearly expressed as seeking to explain the statutory ones, and in any event, taken as such an explanation, are in my view not capable of being squared with the statutory words.
Counsel for the respondent put to me that the approach to determining whether or not the statutory words could be read to have the meaning he contended that the extrinsic materials indicated they should bear, should be more accommodating where the context was an exemption from taxation than where the context was imposition of liability to taxation. However, he conceded there is no direct authority for that proposition. Nor does it immediately commend itself to me: the context represented by s 75JDA is that of constriction of an exemption otherwise available. Indeed, there is authority that the "same rules of construction" as to giving the words of the statute a "fair and reasonable construction, without leaning one way or the other" applies to both words imposing liability and words excepting or exempting from liability: Western Australian Trustee, Executor and Agency Co Ltd v Commissioner of State Taxation (WA) (1980) 147 CLR 119, per Gibbs J, at 126 – 127.
It is undoubtedly the case, as counsel for the respondent also put to me, that the approach that I should adopt to construing a provision directed at avoidance of taxation should not be that associated with what has been called the traditional approach to the construction of taxation legislation. The principal authority for the approach I should adopt appears to be Federal Commissioner of Taxation v Students World Travel (1978) 138 CLR 251, per Mason J, at 265, where the following appears:
"Although the traditional rule has been that clear words are required to impose a tax, so that the taxpayer has the benefit of any doubts or ambiguities, a provision introduced by way of an attack on tax avoidance should be given the wide meaning evidently intended; it should not be cut down in the interest of precision (Greenberg v Inland Revenue [[1972] AC 109, at 137]; Inland Revenue v Joiner [[1975] 1 WLR 1701, at 1706; [1975] 3 All ER 1050, at 1055])."
These dicta were quoted with apparent approval in Federal Commissioner of Taxation v Lutovi Investments Pty Ltd (1978) 22 ALR 519, High Court, per Gibbs and Mason JJ, Murphy J agreeing, at 527; and were also referred to as a statement of "general application" in Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 25 ALR 511, Federal Court, per Fisher J, Brennan and Deane JJ agreeing, at 529, the appeal from the decision in which was dismissed without discussion of this point in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297.
However, that approach does not, in my view, require me to depart from the range of meanings that the words of a provision like s 75JDA(1)(b) can reasonably bear.
In any event, I note again the difficulty in extracting the meaning contended for. I note the matters in s 19(3) to which I am to have regard in determining whether to give consideration to the extrinsic materials, and the weight of the consideration, being
" … the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law."
It seems to me that the first meaning proffered by counsel for the appellant to in relation to s 75JDA(1)(b), having to do with the use of the exemption to reduce stamp duty otherwise payable, is the "ordinary meaning" referred to. Indeed this appears to be the explanation of the words of s 75JDA(1)(b) the extrinsic materials speaking directly to the paragraph (the words in the passage from the EM for the 2000 Bill above, beginning "Moreover") gives, as I have earlier indicated.
The meaning just described does not, for the reasons I have previously given, extend to the circumstances of this case.

Reading s 75JDA(1) in terms of intended uses of Pt IIIBAAA: s 75JDA(1)(a)

For this purpose, I took counsel for the respondent to focus my attention on the passages from the extrinsic materials I quoted at the beginning of the previous section of these reasons.
In particular, counsel put to me, I should draw from those materials that s 75JDA(1)(a) was directed at having the respondent consider whether or not the instrument before him related or likely related to a "true corporate reconstruction" in the relevant respect. That respect was the association between Worsley Timber and the appellant.
I consider I have already dealt with counsel's argument from the concept of a reconstruction. As I have indicated, the arrangement in this case was capable of being described as a reconstruction, and consideration of the statutory context did not call for a revision of that conclusion, at least in view of the fact that the appellant and Adelaide Timber remained from the Group, carrying on the Group Timber Business.
However, counsel for the respondent laid heavy emphasis on the passages from the extrinsic materials above which refer to the purpose of s 75JDA(1) as denying the exemption where there were "attempts to asset strip or asset package" (Second Reading speech for the 2000 Bill, Hansard, Thursday, 25 May 2000, at 7274) or similar. I have already referred to the use of this language in the previous section of my judgment.
Counsel for the respondent put to me that asset stripping involved removing an asset from a previous holder with a view to its sale to an unrelated third party or return of the proceeds to others or both; I understood the references to asset packaging to be the assembly of assets in corporate hands, whether or not preceded by asset stripping, with the same view for that package of assets.
I accept that those references in the extrinsic materials to s 75JDA(1)'s striking at asset stripping and asset packaging appear (if not clearly) to be referred to s 75JDA(1)(a). I also accept that asset stripping and asset packaging might be understood as counsel for the respondent contended for, at least by considering those terms in connection the having been associated and remaining associated requirements in Pt IIIBAAA (again, not without some difficulty), which is of course the subject matter of s 75JDA(1)(a). (However, I note again that nowhere in the extrinsic materials to which my attention was drawn is this understanding spelt out.) In those respects, the reading of s 75JDA(1)(a) contended for by counsel for the respondent might be said to be open where his reading of s 75JDA(1)(b) for was not.
Further, as I previously indicated, if asset stripping or packaging is understood as counsel for the respondent contended, then the reconstruction in this case could reasonably be considered to engage that understanding.
However, I consider the reading of s 75JDA(1)(a) contended for is not arrived at without considerable difficulty. It was not contended that a transfer of assets is itself a form of asset splitting or asset packaging. As I understood the contention of counsel for the respondent, it was the intentions of the parties with respect a resale or subsequent dealing with proceeds or both that was of the essence of what was meant to be dealt with by s 75JDA(1)(a), if not the only matters it was meant to deal with. I consider there is very great difficulty reading s 75JDA(1)(a) in such a way as to strike at transfers with any of those intentions.
There is authority that the fact a meaning is a "strained" one will not prevent the Court giving effect to that meaning in certain circumstances. They are described in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, per McHugh J at 113:
"Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is 'reasonably open' [CIC Insurance Ltd (1997) 187 CLR 384 at 408]. Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. As Brennan CJ and I said in IW v City of Perth [(1997) 191 CLR 1 at 12], even when a court adopts a purposive construction to remedial legislation it 'is not at liberty to give it a construction that is unreasonable or unnatural'.
Nevertheless, when the purpose of a legislative provision is clear, a court may be justified in giving the provision 'a strained construction' [Kingston (1987) 11 NSWLR 404 at 422; Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 at 201] to achieve that purpose provided that the construction is neither unreasonable nor unnatural."
See also Pearce & Geddes (supra), at [2.12].
However, I do not consider the meaning of asset stripping and packaging contended for is "clear", and I consider the construction of s 75JDA(1)(a) contended for is "unnatural" if not "unreasonable". Further, I refer to the matters from Interpretation Act, s 19(3), I need to have regard to in such circumstances.
In view of the matters I have described in the previous paragraph, I consider that the language of s 75JDA(1)(a) should not be construed as counsel for the respondent contended, to address asset stripping and asset packaging as he described them.
If s 75JDA(1)(a) is not so construed, it was not put to me there was another construction than those already considered on which the respondent could have arrived at the conclusion he did for the purposes of Revenue Act, s 8(3).

My views as to s 75JB(1)(f)(i)

I have already described the way in which the respondent had invoked this provision as an alternative basis for his decision the subject of the present appeal. I have also described my conclusion that the respondent had no authority upon which he could draw for this purpose, and that any such question is not before me. Thus, as I have indicated, it is unnecessary for me to indicate my views as the correctness or otherwise of his decision on that basis.
However, I also indicated I would set out those views, in deference to the argument put to me, and in case I am in error on the conclusion described. My views follow.
I set out again the way in which the respondent invoked Stamp Act, s 75JB(1)(f)(i) as an alternative basis for his decision the subject of the present appeal, from the letter dated 31 October 2001 from the respondent to the appellant's solicitors:
"In any event [the Sale Agreements] did not satisfy the requirements of section 75JB(1) in that they were made pursuant to or in connection with an arrangement of the kind referred to in section 75JB(1)(f)(i) [set out in full above]. The ultimate recipients of the consideration for the assets transferred by [Worsley Timber] to [the appellant] (new shares in [the appellant]) were the beneficiaries of the GV Johnson Trust No 2 [(the Trust)], as to 86%, and the Thomas family as to 14%, not [Worsley Timber] or [the appellant] or a body corporate associated with either of them at the time [the Sale Agreements] were executed."
I set out again Stamp Act, s 75JB(1)(f)(i):
"(1)This section applies if –
…
(g)the instrument was not made pursuant to or in connection with an arrangement under which –
…
(ii)the consideration, or any part of it, for the conveyance, transfer or assignment was to be provided or received, directly or indirectly, by a person other than A [Worsley Timber] or B [the appellant] or a body corporate that at the time the instrument was executed was associated with either A or B."
No issue was taken with the respondent's identification of the "ultimate beneficiaries" of the "consideration" for the transfer between Worsley Timber and the appellant, nor that those beneficiaries were not each “a person other than” those listed in s 75JB(1)(f)(i).
Rather the issue was whether or not there was an "arrangement" of which the Sale Agreements were a part under which that consideration was to be "received, directly or indirectly" by the beneficiaries.
Counsel for the appellant put to me that the "arrangement" in this case, under which the beneficiaries took the shares in the appellant, was one for the distribution of the assets of Hotham Investments (to the Thomas Family), or the Trust (and then on to the Johnson Family), as the case may be, of which the shares in the appellant which were the consideration for the transfer under the Sale Agreements from Worsley Timber to the appellant were simply a part. Those shares had ceased to have the character of such consideration on their receipt by Worsley Timber, which in receiving the shares was not acting as a nominee, agent, trustee or similar of the beneficiaries.

For the purposes of this submission, I was referred to Melville v Mutual Life and Citizens Assurance Co Ltd (1980) 31 ALR 649, Federal Court, Lockhart J. That case concerned the prohibition in Life Insurance Act 1945 (Cth), s 39(2). That prohibition related to the "assets of a statutory fund", being all amounts received by a company in respect of any class of life insurance business after the company had established the fund: per Lockhart J, at 651. The prohibition was in the following terms:
"The assets of a statutory fund shall not, without the sanction of the court, be invested directly or indirectly in any share or interest in any company or undertaking carrying on life insurance business whether in Australia or elsewhere."
In Melville assets of a statutory fund of MLC Insurance had been invested in the purchase of shares of a holding company (APA Holdings Ltd) for a group of companies, substantially more than one-half of the assets, profits and shareholders' funds of which was accounted for by those of a member of the group which carried on life insurance business in Australia.
Lockhart J determined that the prohibition was not engaged. The investment of the assets of the statutory fund had been "directly" in the holding company, not the member of the group carrying on life insurance business, or an "undertaking" doing so: the purpose or object of the investment, if it was to derive a benefit from the principal asset of the holding company, was "not to the point" under the Life Insurance Act: Melville (supra) at 654.
Nor was the investment "indirectly" in the member of the group carrying on life insurance. Lockhart J explained that conclusion at 655, a passage heavily relied upon by counsel for the appellant, as follows:
"The phrase 'directly or indirectly' appears not infrequently in legislation: see for example s 67 of the Companies Act 1961 (NSW) in relation to financial assistance. In the context of s 39(2) it refers to, and is qualified by, the word "invested" that immediately precedes it and relates to the subject matter of the investment. It is intended to bring within the ambit of the prohibition investments, not only by the company itself directly in shares or interests in a company or undertaking carrying on life insurance business, but investments made by the company through the medium of a nominee, agent, trustee or the like. In no sense could it be said in the present case, and it was not contended, that APA Holdings was a nominee, agent or trustee of or for the respondent. There is nothing to suggest that the respondent and APA Holdings were otherwise than at arms length."
Here, counsel for the appellant put to me, the direct recipient of the consideration for the transfer to the appellant was Worsley Timber. Under the arrangement of which the transfer formed a part Worsley Timber was not, in receiving that consideration, acting as "nominee, agent or trustee of or for" the ultimate recipients of assets including the shares that had been that consideration. Nor was Worsley Timber acting in a "like" capacity. The fate of the shares subsequently was thus not within the scope of s 75JB(1)(f)(i). Indeed, it was submitted, the unless clause in s 75JB(5), already considered, should be seen as support for that reading. That subsection allowed for the assets making up the consideration to be passed on by the transferor.
I take the last point first. It seems to me that the unless clause in Stamp Act, s 75JB(5) offers no support for the reading contended for. It was concerned with the qualification of the requirement for the transferor and the transferee to remain associated provided for in the subsection. The character of the recipient of the assets passed on and the basis for the receipt are not addressed, and I do not consider an inference as to their irrelevance can be drawn from that.
I also note that the authority of Melville (supra) on the matter of what "indirectly" might address in the present context is not clear. It has been said, in the context of Trade Practices Act 1974 (Cth), s 50, where "indirectly" is used in the phrase "directly or indirectly acquire", that the meaning of "indirectly" from Melville could be seen to be encompassed by "acquire". To give it meaning, the word "indirectly" should be read to have been intended to extend the scope of "acquire". Such extension should be seen to encompass acquisitions by a wholly owned subsidiary of an acquirer, even although the acquirer had no legal or beneficial interest in such acquisitions: see Australia Meat Holdings Pty Ltd v Trade Practices Commission (1989) ATPR 40-932, Full Court Federal Court, per Davies J, at 50,094; and Commissioner of State Revenue v Politis [2004] VSC 126, Nettle J, referring to that view as "the better view" of s 50. I do not consider that a distinction can be drawn for my purposes between "acquire", or acquired, and "received".
I take from the authorities that the meaning of the phrase "directly or indirectly" should be taken from its context. No extrinsic material that might assist me with construing the phrase was brought to my attention: compare Politis (supra), per Nettle J, at [12], [14].
It seems to me that the context is not simply that of "provided or received", the words immediately preceding "directly or indirectly". The context is, more fully, "an arrangement under which the consideration … was to be provided or received". The arrangement in this case was one whereby the appellant would be incorporated, it would acquire the Timber Assets in return for the issue of its shares, and those shares would be passed up a chain of companies, with other assets, ultimately to reach the Thomas Family and the Johnson Family.
In that context, it seems to me that under that arrangement the shares would represent "consideration, or any part of it, … received indirectly [through the chain of distributions]" (my emphasis) by those persons, whom the respondent had called in his decision the "ultimate beneficiaries". I derive some support for this view from Politis (supra).
Politis concerned the application of Duties Act 2000 (Vic), s 31, which in material part read as follows:
"31. Sub sales of land
(1)If –
(a)a person ('the vendor') agrees to transfer any dutiable property referred to in section 10(1)(a) or (d) ("the agreement") to another person ('the first purchaser') (whether or not the agreement provides for that other person to nominate another person as purchaser); and
(b)the transfer executed by the vendor transfers the whole or any part of the property not to the first purchaser but to another person ("the transferee") who has acquired, whether directly or indirectly, the whole or any part of the rights and interest under the agreement of the first purchaser in the property –
the transfer is not chargeable with duty in respect of the transfer from the vendor to the transferee …"
In Politis Nettle J said this, at [14] (footnotes omitted):
"I take as the starting point that whatever may or may not be within the reach of s 31, it is apparent from the Second Reading Speech that the section was intended to apply to cases in which a purchaser having entered into an agreement for sale to the purchaser or nominee agrees to on‑sell the land to a transferee and then directs the vendor to transfer the land directly to the transferee as the purchaser's nominee. That was the paradigm at which the section was said to be directed; for as it was put by the Treasurer in the Second Reading Speech for the bill for the introduction of s 67 A of the Stamps Act 1958 [(Vic)]:
'The provisions which relate to sub‑purchases of real property and the use of nominee clauses upon the purchase of real estate will be clarified. The amendment will prevent the use of nominee clauses as a device to avoid stamp duty.'
However, the genuine use of a nominee clause to enable the purchase of real property on behalf of a family member, a family company or a company related to the purchaser will not be affected.
Plainly, however, under most nomination clauses the nominee would not acquire any rights as against the vendor, let alone the rights of the purchaser; for most nomination clauses constitute no more than a power in the purchaser to require the vendor to complete the contract by transfer of the land to the purchaser's nominee. In such cases the purchaser has rights as against the vendor to have the land transferred to the purchaser or to the purchaser's nominee, at least upon payment of the purchase price. And the purchaser has an interest in the land, in the nature of an equitable fee simple (assuming that the contract provides for purchase of the fee simple), although of course that really means no more than that the contract is susceptible to an order for specific performance at the suit of the purchaser. But the nominee does not acquire any rights as against the vendor, because the nominee is not privy to the contract. And for the same reason, the nominee has no standing in equity to obtain an order for specific performance of the contract. He must sue in the name of the purchaser or join the purchaser as a defendant. Therefore, such if any interest as the nominee may have in the land is one which derives from the purchaser, and relevantly the most that can be said is that the nominee may acquire an interest in the land equivalent to that which the purchaser had or would have had under the contract of sale.
Some nomination clauses do result in the substitution of the nominee for the purchaser. But even there the nominee would not acquire the purchaser's rights under the contract. The substitution of the nominee for the purchaser would work a novation of the agreement, and as I have observed already that means that the acts that were to be performed by the parties to the original contract in accordance with their rights and obligations under the original contract would be performed by the parties to the new contract in accordance with their rights and obligations under the new contract. Once again, within the meaning of the general law, the nominee would not acquire any right or interest of the purchaser under the contract.
How then does one construe the terms of s 31 in order to accommodate such a case and yet give to the section the effect which it was said it was intended to have? The answer appears to me to be to construe the words 'acquire … directly or indirectly, the whole or any part of the rights or interest of the first purchaser under the agreement' as embracing not only the acquisition directly or indirectly of the very rights or interest of the purchaser (as, for example, by direct assignment or indirectly by a chain of assignments) but also the acquisition directly or indirectly of equivalent rights or interest (as, for example, by nomination or novation or perhaps even by the acquisition of shares in a company which holds the rights or interest or by acquisition of an interest in a trust of which the trustee holds the rights or interest)."
In my context, there was no equivalent cited to me of the extrinsic materials cited to his Honour, as I have indicated. However, I take from his judgment that the phrase "directly or indirectly" is capable of application as I have indicated for Stamp Act, s 75JDA(1)(f)(i). Further, I consider the word "arrangement" used in that provision makes apparent that the provision should be read in Stamp Act, s 75JDA(1)(f)(i), as I have indicated. In arriving at that conclusion, I consider that the approach to construction referred to in Students World Travel (supra), per Mason J, at 265 is the one I should employ, as I consider s 75JB(1)(f)(i) on its face to be a provision concerned with a form of avoidance of the requirements for the exemption in s 75JB(3).
It follows I consider the respondent, had he had the authority to do so at the relevant time, being the time of the assessment the subject of the appellant's notice of objection, could have denied the exemption in s 75JB(3) on the basis that s 75JB(1)(f)(i) was engaged. However, as I have indicated, he did not have any such authority, nor is the matter of whether the original grant of the exemption in error one that is before me.

Conclusions

For the reasons I have set out, I have concluded that Revenue Act, s 8(3), read with Stamp Act, s 75JDA, did not provide the respondent with sufficient authority to reassess the Sale Agreements to duty. As he did not have that authority, the original assessment of the Sale Agreements, based as it was on an exemption under Stamp Act, s 75JB(3), was not disturbed.
It follows that I would allow the appeal. I will hear from the parties as to the orders that should be made following from these reasons.

Details

AGLC: Worsley Timber 2000 Pty Ltd (In Liq) v Commissioner of State Revenue [2007] WASC 155
Case: [2007] WASC 155
Decision Date: 24 JULY 2007

CaseChat Overview and Summary

The case of Worsley Timber 2000 Pty Ltd (In Liq) v Commissioner of State Revenue was heard by the Supreme Court of Western Australia and concerns the disallowance of an objection to reassessment of stamp duty. The liquidator of Worsley Timber 2000 Pty Ltd sought to challenge the reassessment by the Commissioner of State Revenue, which resulted in the claw-back of an exemption from stamp duty on the transfer of assets. The central issue in this case was whether the Commissioner had the authority to reassess the stamp duty under the relevant legislation, specifically the Revenue Administration Act 1998 (WA) and the Stamp Act 1921 (WA). The Court needed to determine whether the Commissioner's reassessment was permissible given the retroactive effect of the legislation and whether the reassessment complied with the legislative intent.

The Court examined the legislative provisions to ascertain the Commissioner's authority to reassess. It noted that the Revenue Act, s 8(3), read in conjunction with the Stamp Act, s 75JDA, did not explicitly grant the Commissioner the power to reassess in this context. The Court held that the Commissioner's reassessment was not supported by the statutory provisions, leading to the conclusion that the original assessment, which was based on an exemption under the Stamp Act, s 75JB(3), should stand. The Court further considered the meaning of "duty avoidance arrangement" under the Stamp Act and whether the transfer of assets in question constituted such an arrangement. Additionally, the Court evaluated whether the exemption requirement, that the consideration for the transfer not be received by a person not associated with the parties, was met in the circumstances of the case.

Based on the findings, the Court allowed the appeal and determined that the reassessment by the Commissioner was not justified. Consequently, the original assessment of the stamp duty, which relied on the exemption, was upheld. The Court will now hear from the parties to determine the appropriate orders to be made following the decision.

Orders

Orders of the court

For the reasons I have set out, I have concluded that Revenue Act, s 8(3), read with Stamp Act, s 75JDA, did not provide the respondent with sufficient authority to reassess the Sale Agreements to duty. As he did not have that authority, the original assessment of the Sale Agreements, based as it was on an exemption under Stamp Act, s 75JB(3), was not disturbed.

420 It follows that I would allow the appeal. I will hear from the parties as to the orders that should be made following from these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I also note Peko-Wallsend Operations Ltd v Respondent of State Taxation (WA) (1989) 89 ATC 4569 (Full Ct, WA), where the Court held that Stamp Act, s 33, as it then stood did not allow for the Court on an appeal to direct the respondent to declare that the respondent's assessment was too low. The wording of s 33 then differed from s 32 in expressly referring only to a "refund" of any "excess duty". However, I note the following, per Brinsden J, Kennedy J agreeing (at 4584), at 4583:"There is no provision in the Act giving the Commissioner power to amend an assessment or to reassess, and the absence of those powers strongly supports the view that the Supreme Court is not called upon to determine an assessment and to make a declaration of its determination on occasions when the assessment of the Commissioner may, in fact, be too low." It seems to me that again no great assistance can be drawn from these provisions for present purposes. As I have already indicated, the provisions on association are subject to qualifications. I return to the construction of s 75JB(1)(f)(i) below. I conclude there that it refers to consideration that is provided pursuant to an arrangement for it or any part of it to move up a chain of interposed companies to the ultimate individual shareholders of the group. I do not consider, however, that this indicates the uses of the exemption at which s 75JDA(1)(b) was directed should be understood as the respondent contends. Rather, s 75JB(1)(f)(i) indicates that qualifying for the exemption requires that there be no such arrangement. If that requirement is not met, there is no question of or need for the use of the exemption of the sort that led to the enactment of s 75JDA(1) to preclude such a use. To put the matter another way, the mischief against which s 75JDA was directed was not to be found here. I was also referred to extrinsic material on the Revenue Laws Amendment (Assessment) Bill (No 2) which as enacted introduced Pt IIIBAAA to the Stamp Act. In the Second Reading speech for that bill ("the Second Reading speech for the 1996 Bill"), the following appears (Mr C J Barnett, Hansard 29 August 1996, at 4858, 4859):"Part 5 of the Bill seeks to amend the Stamp Act. A number of amendments to this Act are proposed. The most important of these is the stamp duty relief for corporate reconstructions, which was announced as part of the 1996‑97 Budget. Corporate reconstructions generally involve the transfer of property between commonly owned companies. If one lifts the 'corporate veil', there is little or no change in the underlying ownership of the property in such circumstances. However, in many cases the stamp duty required to be paid on such transfers can be a major barrier to the reconstruction proceeding. The objective of the corporate reconstruction scheme contained in these amendments is to remove the stamp duty impediment to the achievement of a more efficient ongoing structure for a company group.…Companies must have a common shareholding and voting control of 90 per cent or more to be viewed as "associated" for the purposes of this exemption. To discourage the use of these provisions for the purpose of asset stripping, the companies must generally meet a three year pretransfer association test and remain associated for five years after the date of the instrument or transaction to which the exemption applies. Failure to meet the post-transfer association test will void the exemption and trigger clawback of the duty, plus a penalty interest."…This measure is an important initiative which will assist companies to improve the efficiency of their operations and with a consequent benefit to the state economy."

Actions

Citations

Worsley Timber 2000 Pty Ltd (In Liq) v Commissioner of State Revenue [2007] WASC 155

Most Recent Citation

EDI Rail (Maryborough) Pty Ltd and Commissioner Of State Revenue [2009] WASAT 49

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Citation 1

…ement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346 Worsley Timber 2000 Pty Ltd (In Liq) v Commissioner of State Revenue [2007] WASC 155; 69 ATR 771 Summary: The Shire of Serpentine-Jarrahdale was the proponent of the Byford Town Centre Local Structure Plan. Under the Shire of SerpentineJar…
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Citation 2 (Para 6)

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EDI Rail (Maryborough) Pty Ltd and Commissioner Of State Revenue [2009] WASAT 49
Citation 3 (Para 7)

…the purposes of s 260 of the Income Tax Assessment Act 1936 (Cth) (ITA Act). In Worsley Timber 2000 Pty Ltd (in liq) v Commissioner of State Revenue [2007] WASC 155 ( Worsley Timber ), Simmons J accepted that the interpretation of the expression 'arrangement' for the purposes of s 260 of the ITA Act provided guid…

Cases Cited

Statutory Material Cited

Australian Competition and Consumer Commission v BlueScope Steel Limited (No 5) [2022] FCA 1475
Citation 1 (Para 17)

…d, in relation to income tax assessments, by a taxpayer so as to prevent the Commissioner assessing pursuant to his duty to do so": AGC (Investments) Ltd v Federal of Taxation (1991) 21 ATR 1379, Fed Ct, Hill J, at 1396, referring to other authorities.…
TEC Desert Pty Ltd v Commissioner of State Revenue [2006] WASC 300
Citation 2 (Para 13)

…I describe that history in slightly greater detail in TEC Desert Pty Ltd v Commissioner of State Revenue [2006] WASC 300 at [8] ‑ [15], where I also consider the implications of the conferral of jurisdiction on the SAT were an appeal like the present one to be affected by that change.…
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11
Citation 3 (Para 13)

…words of the statute, not non‑statutory words seeking to explain them, have paramount significance": Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11, per Gleeson CJ, Gummow, Hayne and Heydon JJ, at [22] where, however, the non‑statutory words were considered not to reach the issue in question. Howev…
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590
Citation 4

…ns Assurance Co Ltd (1980) 31 ALR 649 Mills v Meeking (1990) 169 CLR 214 Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 Mount Lawley v Western Australian Planning Commission (2004) 29 WAR 273 NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (200…
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Citation 5

…14 Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 Mount Lawley v Western Australian Planning Commission (2004) 29 WAR 273 NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 Newcastle City Council v GIO General Ltd (1997) 191 CLR 8…
News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45
Citation 6

…ticultural and Indigenous Affairs (2003) 130 FCR 456 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 News Ltd v South Sydney Football Club (2003) 215 CLR 563 Newton v Federal of Taxation (1958) 98 CLR 1 Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11 Peate v Federal Commissioner of Taxation (19…
Dilatte v MacTiernan [2002] WASCA 100
Citation 7

…State Revenue v Politis [2004] VSC 126 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Dilatte v MacTiernan [2002] WASCA 100 Ex parte Taylor (2001) 207 CLR 391 Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 25 ALR 511 Federal Commissioner of T…
Re Patterson; ex parte Taylor [2001] HCA 51
Citation 8 (Para 12)

…act reasonably in determining whether or not he was so satisfied: Kruger v the Commonwealth (1997) 190 CLR 1, per Brennan CJ, at 36; Ex parte Taylor (2001) 207 CLR 391, per Gummow and Hayne JJ, at [167]. It was further not in contest before me that reasonableness required the respondent to apply the relevant statuto…
Newcastle City Council v GIO General Ltd [1997] HCA 53
Citation 9 (Para 9)

…one will not prevent the Court giving effect to that meaning in certain circumstances. They are described in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, per McHugh J at 113: "Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by th…
IW v City of Perth [1997] HCA 30
Citation 10 (Para 9)

…the words of the section in a tortured and unrealistic manner to cover another set of circumstances. As Brennan CJ and I said in IW v City of Perth [(1997) 191 CLR 1 at 12], even when a court adopts a purposive construction to remedial legislation it 'is not at liberty to give it a construction that is unreasonabl…
Kruger v the Commonwealth [1997] HCA 27
Citation 11 (Para 12)

…in contest before me that this required the respondent to act reasonably in determining whether or not he was so satisfied: Kruger v the Commonwealth (1997) 190 CLR 1, per Brennan CJ, at 36; Ex parte Taylor (2001) 207 CLR 391, per Gummow and Hayne JJ, at [167]. It was further not in contest before me that reasonabl…
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
Citation 12

…AGC (Investments) Ltd v Federal of Taxation (1991) 21 ATR 1379 Australia Meat Holdings Pty Ltd v Trade Practices Commission (1989) ATPR 40-932 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Collector of Stamp Revenue v Arrowtown Assets Ltd [2003] HKCFA 46 Commissioner of State Revenue v Politis [2004] VSC 126 Cooper Brookes (Wollong…
Mills v Meeking [1990] HCA 6
Citation 13

…(1989) 166 CLR 417 Kruger v the Commonwealth (1997) 190 CLR 1 Melville v Mutual Life and Citizens Assurance Co Ltd (1980) 31 ALR 649 Mills v Meeking (1990) 169 CLR 214 Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 Mount Lawley v Western Australian Planning Commission (2…
John v Federal Commissioner of Taxation [1989] HCA 5
Citation 14

…ard (Vic) v Dunmunkle Corp (1946) 73 CLR 70 In re South African Supply and Cold Storage Company [1904] Ch 268 John v Federal Commissioner of Taxation (1989) 166 CLR 417 Kruger v the Commonwealth (1997) 190 CLR 1 Melville v Mutual Life and Citizens Assurance Co Ltd (1980) 31 ALR 649 Mills v Meeking (1990) 169 CLR 214…
Federal Commissioner of Taxation v Gulland [1985] HCA 83
Citation 15

…2001) 207 CLR 391 Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 25 ALR 511 Federal Commissioner of Taxation v Gulland (1985) 160 CLR 55 Federal Commissioner of Taxation v Lutovi Investments Pty Ltd (1978) 22 ALR 519 Federal Commissioner of Taxation v Students World Travel (1978) 138 C…
Western Australian Trustee Executor and Agency Co Ltd v Commissioner of State Taxation (WA) [1980] HCA 50
Citation 16 (Para 14)

…ability and words excepting or exempting from liability: Western Australian Trustee, Executor and Agency Co Ltd v Commissioner of State Taxation (WA) (1980) 147 CLR 119, per Gibbs J, at 126 – 127.…
Federal Commissioner of Taxation v Students World (Australia) Pty Ltd [1978] HCA 1
Citation 17 (Para 15)

…taxation legislation. The principal authority for the approach I should adopt appears to be Federal Commissioner of Taxation v Students World Travel (1978) 138 CLR 251, per Mason J, at 265, where the following appears: "Although the traditional rule has been that clear words are required to impose a tax, so that the…
Peate v Federal Commissioner of Taxation [1964] HCA 84
Citation 18

…563 Newton v Federal of Taxation (1958) 98 CLR 1 Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11 Peate v Federal Commissioner of Taxation (1964) 111 CLR 443 Peko-Wallsend Operations Ltd v Respondent of State Taxation (WA) (1989) 89 ATC 4569 Phil Winkless Pty Ltd v Commissioner of State Taxation (WA) (1986…
Newton v Federal Commissioner of Taxation [1958] HCA 31
Citation 19

…456 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 News Ltd v South Sydney Football Club (2003) 215 CLR 563 Newton v Federal of Taxation (1958) 98 CLR 1 Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11 Peate v Federal Commissioner of Taxation (1964) 111 CLR 443 Peko-Wallsend Operations Ltd…
Grain Elevators Board (Vic) v Dunmunkle Corporation [1946] HCA 13
Citation 20

…deral Commissioner of Taxation v Students World Travel (1978) 138 CLR 251 Furniss v Dawson [1984] AC 474 Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70 In re South African Supply and Cold Storage Company [1904] Ch 268 John v Federal Commissioner of Taxation (1989) 166 CLR 417 Kruger v the Commonwealt…
Equity Access Ltd v Westpac Banking Corporation [1989] FCA 520
Citation 21 (Para 7)

…even although the acquirer had no legal or beneficial interest in such acquisitions: see Australia Meat Holdings Pty Ltd v Trade Practices Commission (1989) ATPR 40-932, Full Court Federal Court, per Davies J, at 50,094; and Commissioner of State Revenue v Politis [2004] VSC 126, Nettle J, referring to that view…
Australia Meat Holdings Pty Ltd v Trade Practices Commission [1989] FCA 25
Citation 22 (Para 7)

…ss acquisitions by a wholly owned subsidiary of an acquirer, even although the acquirer had no legal or beneficial interest in such acquisitions: see Australia Meat Holdings Pty Ltd v Trade Practices Commission (1989) ATPR 40-932, Full Court Federal Court, per Davies J, at 50,094; and Commissioner of State Revenue v Politis [2004] VSC 126, Nettle J, referring to th…
Commissioner of State Revenue v Politis [2004] VSC 126
Citation 23 (Para 7)

…y Ltd v Trade Practices Commission (1989) ATPR 40-932, Full Court Federal Court, per Davies J, at 50,094; and Commissioner of State Revenue v Politis [2004] VSC 126, Nettle J, referring to that view as "the better view" of s 50. I do not consider that a distinction can be drawn for my purposes between "acquire",…

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