case_text: Paul Vawdrey made handwritten notes on his copy of the Second Vawdrey Quote of what transpired at the meeting. Those notes record, in part, " 11 POSTS AS COVERAGE ON ". Paul Vawdrey's evidence was that the note recorded that a load restraint proposal was discussed by Vawdrey and Cameron that he (Paul Vawdrey) proposed. He said that he proposed to use a post per pallet space and that Mr Cameron and Mr Tindal liked the idea. Significantly, the notes do not describe anything "hanging off" or "extending from" each post, nor do they otherwise suggest that at this meeting there was any discussion of such a load restraint system. 20 Paul Vawdrey's evidence at trial was substantially different from and inconsistent with the account he had previously provided to the Patents Office of the same events on 15 March 2005 in the context of a patent application by Krueger for what became known as the "Slide-A-Gate" system. In his statutory declaration to the Patents Office, Paul Vawdrey described the meeting in the following terms: On the morning of 2 December 2002 I visited a customer of my company, being Glen Cameron Nominees Pty Ltd (hereinafter GCN), and met with Mr Glen Cameron and Mr Martyn Tindal. GCN were seeking to purchase 22 curtain sided semi-trailers for transporting double loaded pallets. I recall a discussion in the meeting about restraining the load and I recall the suggestion ( I do not recall by whom ) of using existing ("knee joint") sliding side posts at each pallet space to restrain the load. In other words the posts would be spaced along the sides of the trailer mid-way between the ends of each pair of double loaded pallets to prevent the pallets, and hence the goods on the pallets, from moving off the sides of the trailer. I further recall some concern being expressed at the meeting, as to whether a single post at each pallet space would be sufficient to restrain the load, or whether some additional restraint should be provided on each post . (Emphasis added.) This account of events does not support his evidence in this case that he was the author of the proposal to use sliding side posts to restrain the load. Further, there was no reference in the statutory declaration to anything "hanging off" or "extending" from each post. Taken at its highest, the account of events given in the statutory declaration spoke only of a concern being expressed that "some additional restraint should be provided on each post". Whether there would need to be additional restraint and, if so, what it might be, was not said to have been discussed. 21 What is not now in dispute is that during the Cameron / Vawdrey meeting Paul Vawdrey drew hand sketches of the load restraint proposals discussed during the meeting. The hand sketches are entitled, respectively, " CARGO NET INNER CURTAIN TRACK ", which has been crossed through (consistent with the rejection of that proposal by Mr Cameron during the meeting, see [24] below) and " 1 POST PER PALLET SPACING ". A copy of each of the sketches is in Annexure 2. The latter sketch was not crossed through. Mr Cameron recalls Paul Vawdrey drawing sketches during the meeting but does not recall what they looked like. Tindal recalls Paul Vawdrey drawing "1 Post Per Pallet Spacing". He also recalls that Paul Vawdrey "drew some other sketches" but does not recall what they looked like. Tindal was also in the habit of making handwritten notes about the proposals. Tindal's handwritten notes on Camerons' copy of the Second Vawdrey Quote include: 11 Two(2) sliding posts per side. 22 These contemporaneous documents thus record that during the course of the Cameron / Vawdrey meeting the idea of a "post per pallet" was discussed. The contemporaneous documents do not suggest, however, that there was any discussion of anything "hanging off" or "extending from" each post. 24 Mr Cameron reiterated the substance of that evidence before me. What then did Tindal's affidavit say? So far as is relevant, his evidence was that it was he (Martyn Tindal), not Paul Vawdrey, who raised the issue of a load restraint system that would "restrain double stacked pallets and prevent them from falling out when the curtains on the side of the trailer were opened." Tindal recalled that Paul Vawdrey suggested using cargo nets but that was immediately dismissed because the nets would have caught on the pallets. That is consistent with Paul Vawdrey having drawn the sketch labelled "CARGO NET INNER CURTAIN TRACK" and then crossing it through (see [21] above). 25 According to Tindal, it was after the rejection of the cargo net idea that Mr Cameron asked Paul Vawdrey if they could use conventional sliding posts located at each pallet space along the side of the trailer with "something hanging off or extending from each post to act as a load restraint, which was smaller and lighter than most traditional gates... [but] big enough to restrain double stacked pallets and not allow them to slip through". 26 What then is said to have occurred, at least according to Tindal (and by him adopting it, Mr Cameron) is that Mr Cameron also said "it would not be practical to have one post per pallet space because it would be laborious to remove all the posts" (emphasis added). One post per pallet space would have required 12 posts on each side of a 48ft trailer. Paul Vawdrey is also said to have indicated that he would submit a drawing and a cost estimate. 33 Secondly, Grant Krueger met with Gerges and drew another hand sketch of the Krueger Concept. A copy of that sketch is at Annexure 3. In his presence, Gerges drew a further hand sketch of the Krueger Concept. A copy of that sketch is at Annexure 4. These events demonstrate that as early as the afternoon of 2 December 2002, Grant Krueger (who had no relevant engineering experience) was aware of and understood the Krueger Concept so that he was able to sketch the Krueger Concept and explain it to Gerges (the Krueger engineer). Armed with these two explanations, Gerges was able to prepare his own sketch and then direct the preparation of appropriate engineering layouts depicting the Krueger Concept. This series of events is significant as will become obvious later in these reasons for decision. 34 The next day, 3 December 2002, Gerges asked another Krueger employee, Stephen Hunt, to prepare engineering layouts depicting the Krueger Concept. On 4 December 2002, Gerges approved the engineering layouts prepared by Hunt and asked Hunt to convert them into sales drawings. 35 On 4 December 2002, Hunt prepared the sales drawings, depicting respectively, a 48ft dropdeck curtain-sided trailer with eight sliding side gates and a 53ft dropdeck curtain-sided trailer with nine sliding side gates, but without Krueger's standard copyright and confidentiality notice ("the Initial Krueger Drawings"). The drawings did, however, contain a prominent copyright symbol with the word "Copyright" immediately beneath it. Hunt provided them to Grant Krueger. The Initial Krueger Drawings are part of Annexure 1. The Initial Krueger Drawings bear the date 4 December 2002. Those drawings show at least eight posts along each side of the truck. Each post has attached to or "hanging off" from it a gate which, because of the gate's size and shape, acted as a load restraint for two pallets. 44 Mr Michael Vawdrey gave evidence that his son Paul told him about the Cameron quote in the afternoon of 2 December 2002. Michael Vawdrey's evidence was that Paul told him that he , Paul, had suggested to Camerons that they use a post per pallet but that Camerons were concerned that this might not be sufficient and upon hearing this, he (Michael) suggested the hoops idea. There is no independent objective evidence that the conversation took place on that date. It is more probable than not that the conversation actually took place in the afternoon of 4 December, given the lack of any corroborating oral or documentary evidence to suggest that Vawdrey started working on a hoop design on that date and the affirmative evidence that Vawdrey was still proposing a non-hoop design as late as the afternoon of 4 December: see [51]. However, even taking Vawdrey's evidence at face value (ie that it was Michael Vawdrey who first suggested using hoops and that the suggestion originated on 2 December), it still undermines the Camerons and Vawdrey evidence that Paul Vawdrey, Cameron or Tindal had already suggested the Krueger Concept or even that there should be anything "attached to or "hanging off" each post at the Cameron / Vawdrey meeting earlier that day. 45 On 3 December 2002 at 2.55pm, Mr Tindal sent to Mr Cameron a spreadsheet entitled "FLEETSPEC.xls". That document included a reference to Vawdrey's load restraint proposal of eleven posts comprising "Sliding Side Posts: 9 of $4500" in addition to the "Side Posts: 2 Per Side Sliding". (The spreadsheet did not include any details of the Second Krueger Quote because that second quote was not sent by Krueger to Camerons until it was included with the facsimile of 1.38pm on 4 December 2002.) Again, contrary to the evidence of Mr Cameron and Mr Tindal that they had already discussed with Vawdrey that the side posts would have something hanging off them, the spreadsheet did not describe anything hanging off the side posts. 46 The events of 4 December 2002 are important. At about 11.55am, after speaking with his engineering group about the feasibility of the Krueger Concept, John Krueger telephoned Tindal on his mobile phone. The call lasted for approximately five minutes. Neither Tindal nor John Krueger was cross examined about the content of this conversation. According to John Krueger, he told Tindal that Krueger was confident that the concept would work and that a quotation and sales drawing would be sent to Camerons later that day. John Krueger's evidence was that he then asked Tindal whether any other manufacturer had provided Camerons with a concept that Camerons believed would work and Tindal told him that none had done so. Tindal did "not recall what was discussed during [this] telephone conversation with John Krueger". He did not deny the contents of the conversation as deposed to by John Krueger. 124 An "artistic work" includes a "drawing ... whether [the drawing] is of artistic quality or not": s 10(1) of the Act . Each of the Krueger Sketch and the Krueger Drawings falls within the inclusive definition of a drawing, as each "is a two-dimensional work in which shapes and images are depicted by lines, often without colouring" ( Woodtree Pty Ltd v Zheng (2008) 74 IPR 484 , at [25]), performing a visual rather than "semiotic" function: Anacon Corporation Ltd v Environmental Research Technology Ltd [1994] FSR 659 at 662. The Krueger Sketch and the Krueger Drawings are, therefore, artistic works.


case_outcome: referred to

case_text: 23 March 2006 the applicant filed a notice of appeal from the decision in this Court. Rule 44.12(2) of the Federal Magistrates Court Rules 2001 makes it clear that an order for dismissal under paragraph (1)(a) is an interlocutory order. The Minister for Immigration and Multicultural Affairs filed a notice of objection to competency of the appeal and submits that the appeal is not competent in the absence of a grant of leave to appeal. In my opinion, that submission is correct. The order made by the Magistrate is interlocutory, and under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), leave to appeal is required. The Minister does not object to me treating the purported notice of appeal as an application for leave to appeal, and I think that that is the appropriate course. The test for granting leave to appeal is well known and I will not repeat it: Decor Corporation v Dart Industries Inc (1991) 33 FCR 397 at 399-400. The applicant is a citizen of the People's Republic of China, and she arrived in Australia on 15 March 2005. On 26 April 2005, she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act. On 5 August 2005, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa. On 6 September 2005, the applicant applied to the Refugee Review Tribunal for a review of that decision. The applicant was born on 6 March 1957 and she claims that she is one of the leaders of Falon Gong in Shanghai, China. She claims that the Chinese authorities regard Falon Gong as an illegal organisation. She claims that she helped to organise a number of activities related to Falon Gong. She claims that she was warned about her involvement in Falon Gong by the local police and local government. She claims that in April 2001, she was put into detention for one month. She claims that in October 2002, she was ordered to attend a 're-education' centre for two months. She claims that in May 2003, she was imprisoned for one week because an unidentified person told the police that she practised Falon Gong every day. On 28 September 2005, the Tribunal wrote to the applicant and advised her that it had considered the material before it in relation to the application, but was unable to make a decision in her favour on that information alone. The applicant was invited to attend a hearing of the Tribunal to give oral evidence and present arguments in support of her claims. She was told that if she did not attend the hearing and if the Tribunal did not postpone the hearing, then the Tribunal could make a decision on her case without further notice. She was advised that the proposed hearing would take place on 28 October 2005. The applicant did not attend the proposed hearing of the Tribunal. On 31 October 2005, she was advised that the Tribunal had made a decision, and that it would hand down its decision on 22 November 2005. The Tribunal decided to affirm the decision of the delegate of the Minister.


case_text: to the second ground, the Magistrate rejected the challenge of the Tribunal's approach for a number of reasons. First, he concluded that all the Tribunal member was saying was that that was an issue that he would like to have explored with the applicant and that that was not an error. Secondly, the comment was based on information provided by the applicant, and, accordingly, did not need to be disclosed by reason of the provisions of s 424A(3)(b) of the Act. Thirdly, the Magistrate said that the information did not need to be disclosed because it was the insufficiency of the information that was determinative and not any particular information contained in the visa application. The Magistrate referred to the decision in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457. I agree with each of the reasons identified by the Magistrate. His conclusions are supported by authority, including VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 per Finn and Stone JJ at 476-477, at [24] and SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238.


case_title: SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238


case_title: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471


case_text: 13 July 2009 judgment was given for the applicant against the first respondent in the sum of $36,341,461.73, for the applicant against the second respondent in the sum of $3,552,577.81 and for the applicant against the third respondent in the sum of $3,664,366.20. The judgment against the third respondent was made by consent but without admissions and without prejudice to the rights of the third respondent under Part IVC of the Taxation Administration Act 1953 (Cth) ('the Administration Act'). The judgments against the first and second respondents were made following a finding by the Court that neither the first respondent nor the second respondent had any reasonable prospect of successfully defending those parts of the proceeding which recorded the claims of the applicant upon them as found in paragraphs 3 and 4 of the Notice of Motion filed 24 June 2009 or the updated claims which took into account interest up to 8 July 2009 (see Commissioner of Taxation v Grimaldi (No. 5) [2009] FCA 765 ('Grimaldi (No. 5)'). At [26] in Grimaldi No 5 Graham J said: '26 By a Notice of Motion filed 24 June 2009 the applicant has sought summary judgment against the first, second, third and fourth respondents. Upon the motion coming on for hearing on 13 July 2009, senior counsel for the applicant informed the Court that summary judgment was not presently sought against the fourth respondent. He further indicated that consent orders were in contemplation as between the applicant and the third respondent. In the circumstances the hearing of the Notice of Motion proceeded on the basis that relief was sought against the first respondent generally in accordance with paragraph 3 of the Notice of Motion, against the second respondent generally in accordance with paragraph 4 and against the third respondent generally in accordance with paragraph 5. ... Following the conclusion of the hearing of the motion, but before the delivery of these reasons, that part of the proceeding as between the applicant and the third respondent was settled with appropriate orders being made in accordance with Short Minutes of Order signed by the solicitors for the respective parties. ...' The claim against the fourth respondent Pursuant to an order made on 21 September 2009, an Amended Notice of Motion was filed by the applicant on 6 October 2009 which sought summary judgment for the applicant against the fourth respondent in the amount of $25,561,078.93 together with further general interest charged pursuant to s 204 of the Income Tax Assessment Act 1936 (Cth) ('the 1936 Act'), s 298-25 and Part IIA of the Administration Act from 6 October 2009 to payment or judgment. That prayer for relief in the Amended Notice of Motion came before the Court on 25 November 2009. An Acting Director in the Australian Public Service employed in the Debt section of the Australian Taxation Office at Melbourne in the State of Victoria, Mr Aris Zafiriou swore an affidavit on 24 November 2009 in which he deposed to the fourth respondent's outstanding liabilities totalling $25,909,612.54 at close of business on 22 November 2009. It is in respect of the applicant's claim against the fourth respondent for that amount that summary judgment is presently sought. The right of the applicant to judgments founded upon concurrent or alternative assessments


case_text: the very right or cause of action claimed or put in suit in the claim against the first respondent may have passed into judgment, so that it is merged and no longer has an independent existence, the right or cause of action claimed or put in suit in the applicant's claim against the fourth respondent is a different right or cause of action. Its independent existence has not been destroyed (cf Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21 ; (1988) 164 CLR 502 at 510-511). The applicant's right or cause of action against the fourth respondent has not passed into judgment. It retains its independent existence.


case_outcome: cited

case_text: there will inevitably be cases in which it would be oppressive for the Commissioner to seek to enforce payment of the full amount due under a number of notices of assessment issued by the Commissioner on an alternative basis to different taxpayers in respect of the same income, such a possibility does not preclude the Commissioner from securing judgments against different taxpayers in respect of the same income. What would be oppressive would be for the Commissioner to seek to execute such judgments so as to enforce payment of the full amount due under the several judgment debts. Double recovery by the Commissioner would be oppressive (see The Deputy Commissioner of Taxation of the Commonwealth of Australia v Moorebank Proprietary Limited [1988] HCA 29 ; (1988) 165 CLR 55 ('Moorebank') at 67). The raising of concurrent assessments of two or more taxpayers to tax in respect of the same item of income has not hitherto been regarded as beyond the powers of the Commissioner. The appropriateness of alternative assessment to tax of two taxpayers in respect of the same item of income was recognised in a dictum of the High Court in Moorebank at 67. The courts, if not the Commissioner, can diminish the difficulty of concurrent assessments by ensuring that there is no double recovery of tax (per Brennan J in Richard Walter at 201-202).


case_text: judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies (per Dixon J, as his Honour then was, in Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 531). Res judicata estoppels operate for, or against, not only the parties, but those who are privy to them in blood, title or interest. 'Privy' includes any person who succeeds to the rights or liabilities of the party upon death or insolvency, or who is otherwise identified in estate or interest (see Handley, Honourable Mr Justice KR, Spencer Bower, Turner and Handley: The Doctrine of Res Judicata (3rd Ed, Butterworths, 1996) ('Spencer Bower, Turner and Handley') at para 231). In Anglo-Australian law, res judicata estoppels must be mutual, and are not available for or against strangers (see Handley, Honourable Mr Justice KR, "Res Judicata: General Principles and Recent Developments" (1999) 18 Australian Bar Review 214 at 216-217). In Anshun Brennan J, as his Honour then was, said at 610-612: 'Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule, whether it be termed res judicata, or cause of action estoppel or judgment recovered, is the merging of the cause of action in the judgment. In reference to res judicata, Dixon J said in Blair v Curran : "the very right or cause of action claimed or put in suit has ... passed into judgment, so that it is merged and has no longer an independent existence ..." If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right. The rule does not preclude litigation seeking a remedy to which a party is entitled in virtue of a different right from that which was first put in suit provided that the facts which support the right sued upon in the second action are not the same facts as those supporting the right which passed into the first judgment ... If cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars an action for relief founded upon the same facts as those upon which an earlier judgment was recovered, though the right sued upon in the second action is different from the right which passed into or was negated by the earlier judgment. .... When the same facts support rights to different remedies against the same defendant, the plaintiff cannot recover a judgment giving a remedy in respect of more than one right ... He may pursue his remedies concurrently in the same action, but he is put to his election before judgment as to which remedy he shall have. And when judgment is entered, all of the rights which he might have claimed in that litigation are merged in the judgment. ... The party entitled to relief cannot improve his position by bringing separate actions. Though he may elect between inconsistent remedies pursued in the one action, or between the actions to be pursued in order to recover a judgment giving the remedy he chooses, the merger in the judgment first recovered of a right to another remedy takes effect by operation of law. When those rights (or causes of action) are extinguished, no further litigation may be pursued to recover a second judgment upon them.' (footnotes omitted)


case_text: In re Waring. Westminster Bank v Burton-Butler [1948] Ch 221 ('In re Waring') the Court had been called upon to decide the entitlement of one of two annuitants named in the will of the late John Arkle Waring. A summons had been issued to determine whether, in setting up the relevant annuity fund, provision should be made for the tax-free annuities for which the will provided at their face value or on an after tax basis. Only one of the two tax-free annuitants was a party to the application. A representative order was sought but refused in circumstances where the other tax-free annuitant was abroad in an enemy occupied country. The effect of the decision of the Court of Appeal was that the annuity fund should be established on the basis that the entitlements were to be determined subject to the imposition of taxation by virtue of s 25 of the Finance Act 1941 (UK). In a later case, Berkeley v Berkeley [1946] A.C. 555 ('Berkeley v Berkeley'), the House of Lords overruled the decision of the Court of Appeal in the proceedings to which Mr Burton-Butler had been a party. In In re Waring the trustees of the will of the late Mr Waring proceeded to ask whether the tax-free annuities for which the will provided ought to be paid in full or be subject to the deduction provided by s 20 of the Finance (No. 2) Act 1945 (UK), which had amended s 25 of the 1941 Act. Jenkins J held that he was constrained to hold so far as Mr Burton-Butler was concerned that the quantum of his annuity must be treated as irretrievably fixed by the decision of the Court of Appeal. However, his Honour found that Mrs Burton-Butler, who had not been a party to the earlier proceeding, was in a different position. His Honour held that the decision of the Court of Appeal could not affect her rights in any way and she was entitled to claim retrospectively the full amount of her annuity calculated in accordance with the law as decided by the House of Lords in Berkeley v Berkeley .


case_title: Berkeley v Berkeley [1946] A.C. 555

case_text: a later case, Berkeley v Berkeley [1946] A.C. 555 ('Berkeley v Berkeley'), the House of Lords overruled the decision of the Court of Appeal in the proceedings to which Mr Burton-Butler had been a party. In In re Waring the trustees of the will of the late Mr Waring proceeded to ask whether the tax-free annuities for which the will provided ought to be paid in full or be subject to the deduction provided by s 20 of the Finance (No. 2) Act 1945 (UK), which had amended s 25 of the 1941 Act. Jenkins J held that he was constrained to hold so far as Mr Burton-Butler was concerned that the quantum of his annuity must be treated as irretrievably fixed by the decision of the Court of Appeal. However, his Honour found that Mrs Burton-Butler, who had not been a party to the earlier proceeding, was in a different position. His Honour held that the decision of the Court of Appeal could not affect her rights in any way and she was entitled to claim retrospectively the full amount of her annuity calculated in accordance with the law as decided by the House of Lords in Berkeley v Berkeley .


case_outcome: considered

case_text: Ramsay v Pigram [1968] HCA 34 ; (1968) 118 CLR 271 the High Court held that the nominal defendant, representing the government of New South Wales when sued by Mr Pigram for damages for negligence alleged against a New South Wales police officer whose vehicle collided with that of Mr Pigram who suffered personal injury, could not rely upon estoppels said to arise from findings in proceedings brought by the police officer for negligence against Mr Pigram in which the issues had been negligence on the part of Mr Pigram and contributory negligence on the part of the police officer. The jury in that case had found a general verdict for the police officer. The High Court held that there was no privative interest between the nominal defendant and the police officer which entitled the nominal defendant to rely upon the findings in the police officer's action. In my opinion there was no privative interest between the first and fourth respondents in this case.


case_text: rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding (per Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45 ; (1981) 147 CLR 589 ('Anshun') at 597). In Anshun Brennan J, as his Honour then was, said at 610-612: 'Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule, whether it be termed res judicata, or cause of action estoppel or judgment recovered, is the merging of the cause of action in the judgment. In reference to res judicata, Dixon J said in Blair v Curran : "the very right or cause of action claimed or put in suit has ... passed into judgment, so that it is merged and has no longer an independent existence ..." If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right. The rule does not preclude litigation seeking a remedy to which a party is entitled in virtue of a different right from that which was first put in suit provided that the facts which support the right sued upon in the second action are not the same facts as those supporting the right which passed into the first judgment ... If cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars an action for relief founded upon the same facts as those upon which an earlier judgment was recovered, though the right sued upon in the second action is different from the right which passed into or was negated by the earlier judgment. .... When the same facts support rights to different remedies against the same defendant, the plaintiff cannot recover a judgment giving a remedy in respect of more than one right ... He may pursue his remedies concurrently in the same action, but he is put to his election before judgment as to which remedy he shall have. And when judgment is entered, all of the rights which he might have claimed in that litigation are merged in the judgment. ... The party entitled to relief cannot improve his position by bringing separate actions. Though he may elect between inconsistent remedies pursued in the one action, or between the actions to be pursued in order to recover a judgment giving the remedy he chooses, the merger in the judgment first recovered of a right to another remedy takes effect by operation of law. When those rights (or causes of action) are extinguished, no further litigation may be pursued to recover a second judgment upon them.' (footnotes omitted)


case_text: res judicata to operate the later proceeding must raise the same cause of action, except where the prior judgment was in rem, and the parties to the two proceedings must be the same or privies of the same parties (per Lindgren J in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at [43]). The judgment of Lindgren J dealt with three separate matters. His Honour's orders in two of those matters were the subject of an appeal to a Full Court. One such appeal was dismissed and the other was allowed. However, there was no suggestion that his Honour had erred in stating the relevant principles in relation to res judicata as noted above. The Full Court, comprising Emmett, Conti and Selway JJ, (see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10) said at [36]: '36 The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa ('a person ought not to be vexed twice for one and the same cause') and interest reipublicae ut sit finis litium ('it is in the interests of the State that there be an end to litigation'). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.'


case_title: Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10


case_text: Deputy Commissioner of Taxation (Vic) v Held (1988) 19 ATR 852 ('Held') at 855 A.C. King J said: '... I think that the Deputy Commissioner is not entitled to judgment on alternative assessments at the one time but that he is entitled to proceed to judgment on his assessment of the defendant without releasing the other person assessed; however he cannot proceed to judgment on the other assessment unless he repays any tax recovered under the judgment in this case. ...' The fourth respondent relies heavily upon this passage from his Honour's reasons for judgment. The matter before A.C. King J in the Victorian Supreme Court was an appeal from an order of a master giving leave to sign final judgment in an action asking for judgment for a debt due to the Commonwealth of Australia and payable to and recoverable by the Deputy Commissioner under the 1936 Act. His Honour dismissed the appeal and refused to order a stay of its execution. In Held it had been contended by senior counsel for the defendant that the Deputy Commissioner had issued inconsistent assessments in respect of the same tax in respect of the 1981 tax year and that he was not entitled to proceed to judgment on one assessment without withdrawing the other. The submission was entirely inconsistent with more recent High Court authority. An 'adjusted assessment' had been issued to Cornix Anna Nominees Pty Limited as trustee for the Held No. 2 Trust. A.C. King J rejected the taxpayer's submission, finding that the Deputy Commissioner could proceed to judgment on his assessment of the defendant, without releasing Cornix Anna Nominees Pty Limited as trustee of the Held No. 2 Trust. His Honour's observation that the Deputy Commissioner was 'not entitled to judgment on alternative assessments at the one time' was clearly obiter dicta as judgment had not been sought contemporaneously against both the defendant and also Cornix Anna Nominees Pty Limited as trustee for the Held No. 2 Trust. Had it been necessary for me to do so, I would, respectfully have held that A.C. King J's observation that the Deputy Commissioner was not entitled to judgment on alternative assessments at the one time was plainly wrong. For his Honour to reach such a conclusion it would have been necessary for him to have considered in detail the principles that have been referred to above in relation to res judicata, which he did not do. In an article written by G T Pagone and published in the June 1990 issue of the Australian Tax Review the author, now Justice Pagone of the Victorian Supreme Court, said at pp103-4: 'Whether the Commissioner can rely upon the evidentiary conclusiveness afforded by s.177(1) when there are two inconsistent assessments has been raised in several decisions with contrary results. ... Whether s 177(1) confers evidentiary conclusiveness ... must still be regarded as unresolved. ... The solution may be in preventing double recovery as an abuse of power.'


case_text: was an appeal in respect of the refusal by his Honour of a stay, which was dismissed (see Held v Deputy Commissioner of Taxation (Vic) (1988) 19 ATR 1213).


case_text: Deputy Federal Commissioner of Taxation v Mackey (1982) 82 ATC 4571 the Court of Appeal in New South Wales addressed a stay of proceedings that had been ordered. The appeal was allowed and the stay relevantly set aside. It had not been argued by the Deputy Commissioner that s 201 of the 1936 Act deprived the Court of an appropriate discretion to grant a stay of proceedings or of execution. At 4574 Moffitt P said: 'The policy of sec.201 is that when an assessment has been made, the Deputy Commissioner has a right to have the tax paid, despite the pendency of an appeal. While hardship to the taxpayer and the merits of the appeal are relevant matters, other considerations are involved, including the Commissioner's right to have the tax assessed paid.' At 4575 Hutley JA said: 'The Commissioner starts off with rights under sec.201 and the taxpayer is seeking on special bases to have a special discretion exercised in his favour. It is not possible to work out in advance all possible bases for the exercise of such a discretion and it would not be proper even to attempt to do so. It is an open-ended discretion. But there are only two cases where it is clear the court should exercise that discretion. First the comparatively rare case where the Commissioner abuses his position, for example by assessing and endeavouring to collect tax in defiance of a decision of the High Court or other Superior court precisely in point. Second, in cases of extreme personal hardship to a taxpayer called upon to pay. The obligation to pay which has been cast upon him by law is not a hardship of itself and the mitigation of the effect of inflation and the burden of interest is a matter for the legislature, not for the Court.' Also at 4575 Glass JA said: 'I consider that the effect of the legislative direction in sec.201 when modified by the Court's recognised power to stay proceedings in the exercise of its discretion have a combined effect of a different kind. If the metaphor is to be retained, the needle stands in the Commissioner's favour close to one hundred and it requires a weighty case to be presented by the taxpayer in order to depress it below the halfway mark. ...'


case_text: Trustee of the Balmain Trust v FC of T (1998) 99 ATC 5334 assessments had been issued by the Commissioner to Banalij Pty Ltd as trustee of 'the Balmain Trust' and also to a Mr Colin Ward who had until 1988 served as trustee of the trust. The Commissioner formed the view that assessments should issue for rental income from the property identified as 62 Darling Street, Balmain which had been purchased in the name of Mr Ward on 17 December 1982 and for additional tax for non-disclosure of income. The transfer to Mr Ward was dated 22 February 1983 but was not lodged for registration until early 1988. As Davies J said at 5336: 'Being undecided as to whether or not a trust existed during the relevant years, the Commissioner issued two sets of assessments. One set of assessments assessed Mr Ward to tax on the rental income on the footing that it was derived by him during the years of income. The other assessments assessed the Trustee for the Balmain Trust under s 99A of the [1936 Act] .' At 5341 Davies J observed that the assessments against the trustee of the Balmain Trust and against Mr Ward had been issued as alternative assessments. At 5342 Davies J said: '... Alternative assessments may be issued where the Commissioner is uncertain as to which taxpayer is liable. The obligation then is on each taxpayer who has been assessed to satisfy the onus of proof cast upon a taxpayer by s 14ZZK of the Administration Act [where in that case there had been an application for review of the Commissioner's decision by the Administrative Appeals Tribunal] to show that the assessment was excessive. It would be wrong, of course, for the Commissioner to recover two amounts of tax. The Commissioner should ensure that there is no double recovery of tax. As Brennan J said, that is an obligation which the courts would enforce, although I assume that they would never need to do so.' Plainly, alternative or concurrent assessments are permissible and judgments founded upon such assessments are also permissible. As Davies J observed one might expect the courts to intervene to ensure that alternative assessments and judgments based thereon would not lead to double recovery by the Commissioner. By s 5(1) of the Income Tax Act 1986 (Cth) income tax was imposed in accordance with the Income Tax Act 1986 and at the relevant rates declared by the Income Tax Rates Act 1986 (Cth) .


case_text: McAndrew v Federal Commissioner of Taxation [1956] HCA 62 ; (1956) 98 CLR 263 ('McAndrew') at 280-282 Taylor J said of s 177(1): 'The purpose of that sub-section [s 177(1)] , is, subject to an important qualification, to make the production of a notice of assessment in judicial proceedings conclusive evidence of the due making of the assessment and that the amount and all the particulars of the assessment are correct. The qualification is that upon proceedings on appeal against the assessment, the production of the assessment does not constitute conclusive evidence that the amount and all the particulars of the assessment are correct. It will be seen that the sub-section contains two limbs and that the second limb applies only in proceedings which are not appeals of the character specified. In all other proceedings both limbs apply. But although doubts may exist as to what is comprised in each limb, the existence of these doubts in no way requires a modification of the view previously expressed. ... There seems no doubt that s.177 (1) was intended to make it impossible for a taxpayer, in proceedings other than appeal against it, to challenge an assessment on any ground and, accordingly, there is every reason for thinking that the second limb in s.177 (1) covers all grounds upon which an assessment may be challenged other than those covered by the first limb. ... In my view s.170 (1) (sic) should be understood as precluding a taxpayer in proceedings other than an appeal (or a reference [now a review] ) under the Act from challenging an assessment on any ground. ...' In F. J. Bloemen Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 27 ; (1981) 147 CLR 360 at 375, Mason and Wilson JJ cited with approval the observations of Taylor J in McAndrew .


case_text: F. J. Bloemen Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 27 ; (1981) 147 CLR 360 at 375, Mason and Wilson JJ cited with approval the observations of Taylor J in McAndrew .


case_text: Webb v Commissioner of Taxation (No 2 ) [1993] FCA 612 ; (1993) 47 FCR 394 at 400 Hill J said: '... the giving to the taxpayer of a notice which stipulates the taxable income and the tax payable referable to that taxable income in the year (a positive figure) will be a notice of assessment attracting the provisions of the objection and appeals procedure and s 177.' His Honour then continued at 400-401 by saying: 'My view is consistent with the decision of Hunt J in Deputy Commissioner of Taxation (Cth) v Clyne (1982) 60 FLR 45 and that of Enderby J in Commonwealth v Opiel (1986) 86 ATC 5 ,013. The former case is not greatly different from the present. In that case Mr Clyne, who had received a notice of assessment showing a credit for provisional tax, sought to argue that the giving of that credit constituted an admission by the Commissioner that payment had been made for that amount or that a claim was no longer made in respect of that amount, or alternatively that the provisions of s 177 rendered there conclusive evidence that the amount was no longer claimed by the Commissioner. This somewhat audacious argument was rejected by Hunt J who regarded the particulars of assessment referred to in s 177 of the Act as constituting merely the two ingredients taxable income and the tax assessed with respect to that taxable income. The other material on the notice, including the credit, were, his Honour thought, particulars of the notice but not particulars of the assessment. The decision of Hunt J was followed by Enderby J in Opiel in holding that details of a refund stated in the assessment to be due to a taxpayer did not attract the conclusive evidentiary protection of s 177.' See also Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited [1995] HCA 23 ; (1995) 183 CLR 168 ('Richard Walter').


case_text: Webb v Commissioner of Taxation (No 2 ) [1993] FCA 612 ; (1993) 47 FCR 394 at 400 Hill J said: '... the giving to the taxpayer of a notice which stipulates the taxable income and the tax payable referable to that taxable income in the year (a positive figure) will be a notice of assessment attracting the provisions of the objection and appeals procedure and s 177.' His Honour then continued at 400-401 by saying: 'My view is consistent with the decision of Hunt J in Deputy Commissioner of Taxation (Cth) v Clyne (1982) 60 FLR 45 and that of Enderby J in Commonwealth v Opiel (1986) 86 ATC 5 ,013. The former case is not greatly different from the present. In that case Mr Clyne, who had received a notice of assessment showing a credit for provisional tax, sought to argue that the giving of that credit constituted an admission by the Commissioner that payment had been made for that amount or that a claim was no longer made in respect of that amount, or alternatively that the provisions of s 177 rendered there conclusive evidence that the amount was no longer claimed by the Commissioner. This somewhat audacious argument was rejected by Hunt J who regarded the particulars of assessment referred to in s 177 of the Act as constituting merely the two ingredients taxable income and the tax assessed with respect to that taxable income. The other material on the notice, including the credit, were, his Honour thought, particulars of the notice but not particulars of the assessment. The decision of Hunt J was followed by Enderby J in Opiel in holding that details of a refund stated in the assessment to be due to a taxpayer did not attract the conclusive evidentiary protection of s 177.' See also Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited [1995] HCA 23 ; (1995) 183 CLR 168 ('Richard Walter'). In Richard Walter , Mason CJ took the view that the relevant provisions of the 1936 Act did no more than require the making of an assessment, due compliance with the statutory provisions not being essential to the validity of the assessment (at 187). His Honour said at 187 188: 'The central element of the legislative regime is the making of an assessment by the Commissioner which ascertains the taxpayer's liability to tax and the reference to the Tribunal or the appeal to the Federal Court, in which the taxpayer is entitled to dispute his or her substantive liability to tax.' Mason CJ said of s 175 of the 1936 Act at 187: 'That provision is of critical importance because it indicates that compliance with any of the provisions of the Act is not essential to validity.' Earlier at 186 his Honour said: 'The effect of s 177(1) ... is to condition the exercise of jurisdiction upon production of the notice of assessment or a copy of it so that it is treated as valid, otherwise than in Pt IVC proceedings.' (footnote omitted) At 187 His Honour said: 'Viewed in the light of s 175, s 177(1) is a provision which gives effect to the substantive expression of intention in the earlier section. The reference to "due making" of the assessment in s 177(1) reflects the content of s 175.' Mason CJ observed at 187 that the paramount purpose of the 1936 Act was to ascertain the liability of taxpayers to tax and that the Act, with that object in view, set up a legislative regime whereby the Commissioner assessed the taxpayer to tax, the taxpayer being liable to pay the amount stated in the notice of assessment, subject to a reference to the Administrative Appeals Tribunals or an appeal under Part IVC to the Federal Court. His Honour said at 187: 'In such an appeal, it is for the taxpayer to show that the assessment is excessive.' (See also per Gyles J in Syngenta Crop Protection Pty Ltd (ACN 002 933 717) v Commissioner of Taxation [2005] FCA 1646 ; (2005) 61 ATR 186 at [12] ). In Richard Walter , Mason CJ found that the first limb of s 177(1) of the 1936 Act was effective to preclude a challenge by a taxpayer, in proceedings in the Federal Court under s 39B of the Judiciary Act 1903 (Cth), to the validity of an assessment where the Commissioner had included the same amounts in the taxable income of more than one taxpayer. His Honour said at 188: 'Section 177 gives effect to the substantive provisions of the Act, in particular s 175, the effect of which is to ensure that the validity of an assessment does not depend upon compliance with any of the particular provisions of the [1936] Act or considerations of purpose. On this view, s 177(1) is consistent with the Hickman principle.' In Richard Walter Brennan J, as his Honour then was, observed at 199: 'The jurisdiction of the Federal Court on appeal from, or of the Administrative Appeals Tribunal on review of, a decision on an objection extends to every issue which affects the amounts ultimately included in the taxable income or tax liability of a taxpayer. If any of these issues be resolved in favour of the taxpayer, an amendment of the assessment so as to reduce the taxable income or the tax liability of the taxpayer must follow. The width of that jurisdiction and the evident purpose of the Act to channel all issues as to the true tax liability of the taxpayer into the objection, review and appeal procedures found the clearest implication that exceptions to the broadest literal application of s 175 must be narrowly confined and a corresponding operation must be attributed to s 177(1).' (Footnotes omitted) It is immaterial to the validity of the power to assess one taxpayer to tax that the Commissioner believes it possible that another taxpayer is liable to tax in respect of the same particular income. If uncertainty as to the taxpayer liable were to sterilise the Commissioner's power to make an assessment or if the power could be exercised only when the Commissioner is satisfied on the balance of probabilities that one taxpayer, rather than another, is liable, the uncertainties which are the inevitable companions of complex commercial transactions would substantially erode the Commissioner's ability to recover tax and would, contrary to the intent of s 177(1) of the 1936 Act, open the way to litigating liability to tax outside the objection, review and appeal procedures (per Brennan J in Richard Walter at 201) . The fact that a tax liability remains outstanding against two taxpayers pending the ascertainment of the taxpayer truly liable is no bar to the exercise of the power to assess both to tax in respect of the same income. As Dixon J, as his Honour then was, observed in Richardson v Federal Commissioner of Taxation [1932] HCA 67 ; (1932) 48 CLR 192 at 207 when upholding the validity of an assessment to tax against a second person while the first person's assessment remained on foot and unamended 'it was not unnatural that [the Commissioner] should delay relieving one of two persons whom he considered culpable until the liability of the other was established'. The co-existence of tax liabilities in two or more taxpayers in respect of the same income is, as Dixon J observed at 207, attended with difficulty. Sometimes the difficulty will be removed by the objection, review and appeal procedures where the taxpayer will establish the facts in order to establish that the assessment is excessive (per Brennan J in Richard Walter at 201). The raising of concurrent assessments of two or more taxpayers to tax in respect of the same item of income has not hitherto been regarded as beyond the powers of the Commissioner. The appropriateness of alternative assessment to tax of two taxpayers in respect of the same item of income was recognised in a dictum of the High Court in Moorebank at 67. The courts, if not the Commissioner, can diminish the difficulty of concurrent assessments by ensuring that there is no double recovery of tax (per Brennan J in Richard Walter at 201-202). The co-existence of tax liabilities arising from concurrent assessments is entirely consistent with the operation of s 177(1). If the Commissioner employs s 177(1) in a proceeding to recover tax from taxpayer A, the liability of that taxpayer cannot be avoided by pointing to an outstanding assessment against taxpayer B. Section 177(1) operates as between the Commissioner and the taxpayer served with the notice of assessment in a proceeding between them and the notice of assessment issued to another taxpayer does not qualify or affect the operation of s 177(1) (per Brennan J in Richard Walter at 202). Application of the principles to this case The applicant's claim against the fourth respondent in this case was founded upon eight separate notices, copies of which were annexures 'A'. 'B', 'C', 'D', 'E', 'F', 'G' and 'H' to the affidavit of Aris Zafiriou sworn 6 October 2009. They were: (a) Notice of Amended Assessment for the year ending 30 June 2006 issued 6 May 2009 and directed to Webtel Management Super Fund; (b) Notice of Amended Assessment for the year ending 30 June 2007 issued 6 May 2009 and directed to Webtel Management Super Fund; (c) Notice of Assessment for the year ending 30 June 2008 issued 6 May 2009 and directed to Webtel Management Super Fund; (d) Notice of Assessment and liability to pay penalty issued 19 May 2009 to Webtel Management Super Fund in respect of the 2006 and 2007 income years; (e) Notice of Assessment and liability to pay penalty issued 27 May 2009 to Webtel Management Super Fund in respect of the 2008 income year; (f) Notice of Amended Assessment for the year ending 30 June 2006 issued 20 August 2009 and directed to Webtel Management Super Fund; (g) Notice of Amended Assessment for the year ending 30 June 2007 issued 28 August 2009 and directed to Webtel Management Super Fund; and (h) Notice of Amended Assessment for the year ended 30 June 2008 issued 1 September 2009 and directed to the Webtel Management Super Fund. On 5 October 2009 a Deputy Commissioner of Taxation of the Commonwealth of Australia issued a certificate under s 255-45 of Schedule 1 to the Administration Act certifying that notice of the several assessments were or were taken to have been served on the fourth respondent as trustee for Webtel Management Super Fund under a taxation law and that as at 5 October 2009 the sum of $25,561,078.93 was a debt due and payable to the Commonwealth by the fourth respondent as trustee for Webtel Management Super Fund in relation to the tax related liability referred to in the certificate. A further certificate under s 255-45 of Schedule 1 to the Administration Act was issued by a Deputy Commissioner of Taxation of the Commonwealth of Australia on 24 November 2009 certifying that notice of the several assessments were or were taken to have been served on the fourth respondent as trustee for Webtel Management Super Fund under a taxation law and that as at 22 November 2009, the sum of $25,909,612.54 was a debt due and payable to the Commonwealth by the fourth respondent as trustee for Webtel Management Super Fund in relation to the tax related liability referred to in the certificate. Exhibits NM1 and NM2 on the hearing of the applicant's Amended Notice of Motion filed 6 October 2009 were a letter to the first respondent headed 'Audit of your tax affairs' dated 24 April 2009 and a letter to the fourth respondent dated 11 May 2009 headed 'Audit of MGG Capital Pty Ltd as trustee for Webtel Management Super Fund' respectively. When considered with 'APPENDIX C SUMMARY OF NET TRUST INCOME' to the letter to the first respondent and 'APPENDIX A SUMMARY OF TAXABLE INCOME OF THE WEBTEL MANAGEMENT SUPER FUND' to the letter to the fourth respondent, it became apparent that in each case the same figures appeared under the heading 'IRON INVESTMENTS LTD/IFTC BROKING SERVICE FOR PHILLIP GRIMALDI (Share Trader)' and 'IRON INVESTMENTS LTD/IFTC BROKING SERVICE FOR IRON INVESTMENTS (Share Trader)'. The final line in the Appendix C and the final comparable line in the Appendix A indicated that the Commissioner asserted that 'NET INCOME OF TRUST' was, in respect of the year ended 30 June 2006, $1,419,705.73, in respect of the year ended 30 June 2007, $8,565,126.08 and in respect of the year ended 30 June 2008, $32,001,831.97 (shown as $32,001,831.53 in the Appendix A).


case_text: CJ observed at 187 that the paramount purpose of the 1936 Act was to ascertain the liability of taxpayers to tax and that the Act, with that object in view, set up a legislative regime whereby the Commissioner assessed the taxpayer to tax, the taxpayer being liable to pay the amount stated in the notice of assessment, subject to a reference to the Administrative Appeals Tribunals or an appeal under Part IVC to the Federal Court. His Honour said at 187: 'In such an appeal, it is for the taxpayer to show that the assessment is excessive.' (See also per Gyles J in Syngenta Crop Protection Pty Ltd (ACN 002 933 717) v Commissioner of Taxation [2005] FCA 1646 ; (2005) 61 ATR 186 at [12] ).


case_text: Commission of Taxation of the Commonwealth of Australia v Futuris Corporation Limited [2008] HCA 32 ; (2008) 237 CLR 146 Gummow, Hayne, Heydon and Crennan JJ said with respect to the relationship between ss 175 and 177(1), at [64]-[65]: '64 The evident policy reflected in the terms of s 177(1) is the facilitation of proceedings for the recovery of tax which are instituted by the Commissioner under s 209 of the Act in a court of competent jurisdiction. Corresponding provision is made elsewhere in the Act for the recovery of other amounts. The action for recovery is facilitated by the "conclusive evidence" provision in s 177(1). That sub-section, as the Commissioner correctly submitted, is not a privative clause in the ordinary use of that term. It does not purport to oust the (necessarily federal) jurisdiction conferred upon any other court in matters arising under the Act. To the contrary, it recognises that there may be Pt IVC proceedings and in those proceedings the "conclusive evidence" provision does not apply. 65 In recovery proceedings s 177(1) operates to change what otherwise would be the operation of the relevant laws of evidence. But, given the presence of Pt IVC, s 177(1) does not operate to impose an incontestable tax or otherwise fall foul of the principles which were considered in Nicholas v The Queen and which respect usurpation of the federal judicial power by deeming to exist an ultimate fact.' (foonotes omitted)


case_text: fact that a tax liability remains outstanding against two taxpayers pending the ascertainment of the taxpayer truly liable is no bar to the exercise of the power to assess both to tax in respect of the same income. As Dixon J, as his Honour then was, observed in Richardson v Federal Commissioner of Taxation [1932] HCA 67 ; (1932) 48 CLR 192 at 207 when upholding the validity of an assessment to tax against a second person while the first person's assessment remained on foot and unamended 'it was not unnatural that [the Commissioner] should delay relieving one of two persons whom he considered culpable until the liability of the other was established'. The co-existence of tax liabilities in two or more taxpayers in respect of the same income is, as Dixon J observed at 207, attended with difficulty. Sometimes the difficulty will be removed by the objection, review and appeal procedures where the taxpayer will establish the facts in order to establish that the assessment is excessive (per Brennan J in Richard Walter at 201).


case_text: The provisions of s 601AH(2) have the effect, relevant to this case, that the Court must be satisfied that the ACCC is a person aggrieved by the deregistration and that it is just that the registration be reinstated. The application of those statutory requirements was considered by Austin J in similar circumstances in Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688. In that case the ACCC submitted that it had a public duty to improve competition and efficiency in markets and to foster a fair and competitive operating environment for businesses. One of the strategies used to achieve that objective is litigation in cases of serious breaches of the TP Act. The ACCC considered, in that case, that the conduct which it alleged was a serious example of price fixing and market sharing and that it had a duty in the public interest to reinstate and sue the perpetrator of some of that conduct. The former officers of the company then before the Court accepted that the ACCC had standing to apply as did his Honour. 10 In relation to standing, the present case is relevantly indistinguishable from that before Austin J. I find that the ACCC has the necessary interest in proceeding against the company in the discharge of its statutory functions such that it is "a person aggrieved by the deregistration" for the purposes of s 601AH(2). 11 In the case before Austin J the company whose reinstatement was sought had been placed in liquidation by a members' voluntary winding up. In the present case the company was voluntarily deregistered. A director of the company made a declaration of solvency on 7 December 2005 under s 601AA(2).


case_text: The ACCC accepts that where a reinstatement is sought in order to enable an applicant to pursue a claim against the company reinstated, it must appear that the claim has reasonable prospects of success or raises a serious question to be tried: Newham v Australian Securities and Investments Commission (2000) 35 ACSR 147; Gausten v Outokumpu Australia Pty Ltd (unreported, Supreme Court of Western Australia, Master Sanderson 20/11/1998). 13 In her affidavit in support of the application for reinstatement, Bianca Sumner, a Project Officer employed by the ACCC, exhibited the written agreement which is at the heart of the proceedings instituted by the ACCC. That agreement contained the following provisions: To all English Language Institutions in Perth The Perth International Student Agencies, which are KOKOS International Pty Ltd, IAE Edu Net WA, Study Overseas Now, Nanuri Education Centre and Jobbok International, have organized an agreement along with the Council of Korean Agency. The agreement is proposed to prevent excessively discounted fees offered by the agencies mentioned above. The agencies pledges (sic) to offer fair dealings accordingly to the agreed conditions which are listed below that all International students (including Working Holiday Makers & Tourists) will not be offered discounts beyond the noted amount on the school's invoice. Unfortunately the problem has arisen to enormous proportions in Sydney and it sets a fine example. The agents there are competing with each other by offering 15-20% off their own commission to students. In result of this, students are taking this matter to their advantage and requesting for more concessions. It is believed that all persons it concern (sic) do not want this predicament to occur in this market in Perth. Therefore, The Council of Korean Agency wishes to monitor and control unfair commissions apart from official privileges offered by Education Institutes. It is also aimed to all Institutions to cooperate within the agreement for fair dealings in the Korean Market. Listed below are the agreed conditions: 1. The five agencies in Perth will organize a Net Work System and cooperate by working together and monitoring any illegal activities. 2. All other agencies should follow the system, which has been organized by the five agencies mentioned above, and carry it into an effect. 3. If any of the five agencies as well as others has performed unfair illegal activities will face a penalty fee ordered by the Council of Korean Agency. 4. All Education Institutions in Perth to cooperate by reporting to the Council of Korean Agency if any illegal activities are performed by any agencies. . No enrolment for school for 3 months. On the face of it the evidence of the agreement indicates that the ACCC's claim has reasonable prospects of success. 14 There are obvious public interest considerations in favour of the litigation proceeding against all companies said to have been party to the arrangements of which the ACCC complains. Given that those proceedings are still pending it is neither necessary nor desirable to enter upon any further analysis of their merits. It is sufficient to say that on the materials before the Court it is just that the company be reinstated.


case_title: Hayden v Teplitzky (1997) 74 FCR 7

case_text: Although the matter may be arguable, and I would not wish to detract in any way from the duty of a party applying for an order ex parte to make full disclosure to the Court (see Hayden v Teplinsky (1997) 74 FCR 7 at 12), I do not think that it was incumbent on Mr Hamilton to disclose on the application he made on 26 February 2007, that the deponent on whom reliance was placed had engaged in that fraudulent conduct some 13 years earlier. It is easy with the benefit of hindsight, and, in particular, with the benefit of the evidence of the version of events that Mr Yii subsequently gave, to question whether Mr Parsons was telling the truth in his two affidavits. However, at the times when those affidavits were filed and read, there was no reason for the applicants to think that his account was not or might not be true. The factual circumstances of some 13 years earlier had, of course, no connection with the factual circumstances touching the dealings between Mr Parsons and Mr Yii in 2006: they go only to the credit of Mr Parsons. In any event, according to the evidence, all that Mr Hamilton knew was that Mr Parsons had been convicted of fraud of some kind in the early 1990s and had served some time in gaol. Mr Hamilton did not know the nature or degree of seriousness of the fraudulent conduct or the length of the period of imprisonment. 73 In relation to the second matter, likewise I do not think that the applicants for the freezing order were obliged to draw the Court's attention to cl 14(a). It was not relevant to the application for the freezing order that Newpage and Mr Yii had undertaken to a non-party, Lewis, not to dispose of assets. 74 Have the applicants shown that there is a serious question to be tried as to whether Mr Yii will be found on the final hearing to be liable to reimburse Newpage to the extent of $2,137,000? If so, have they shown that there is a risk of dissipation of Mr Yii's assets which would frustrate an order that he reimburse Newpage to that extent.


case_text: The obligation on an applicant for an order on a hearing ex parte is usually expressed as an obligation to bring to the Court's attention all 'material' facts, that is to say, all facts material to the decision whether to grant the relief: cf Thomas A Edison Ltd v Bullock [1912] HCA 72 ; (1912) 15 CLR 679 at 681-2 per Isaccs J; and see Biscoe P, Mareva and Anton Piller Orders: Freezing and Search Orders (LexisNexis Butterworths, 2005) at [6.44] [6.56], and cases there cited. 71 The conviction and sentence were in respect of transactions that occurred between May and August of 1994. They concerned frauds perpetrated by Mr Parsons on five Victorian newsagents. Mr Parsons obtained from these five people cheques totalling over $160,000 by various false pretences. In substance, he procured the newsagents to make out cheques in favour of his company on the promise that the funds would be used to procure paper from a supplier in South East Asia, for the sale of which his company already had contracts in place with large and reputable buyers in the districts in which the newsagents were carrying on their businesses. In fact, no orders for paper were placed, no supplies of paper in commercial quantities were ever imported, and the funds were squandered. Mr Parsons told a variety of lies to explain the whereabouts of the promised paper. In each case, the deceived person's cheque was paid into a bank account of a company called Canyon Bay Pty Ltd, and shortly afterwards, Mr Parsons procured a withdrawal of the amount.


case_outcome: applied

case_text: [4] of his reasons for judgment, the federal magistrate referred to Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 (2001) 109 FCR 364. At [5] , his Honour concluded that the appellant was deemed to have received the letter of 25 September 2007, because of the cumulative effect of reg 4.10(1)(b) of the Migration Regulations and s 347 of the Migration Act 1958 (Cth) ("the Migration Act "). After reciting the facts, at [11], his Honour expressed the view that it was surprising that, of all the letters sent to the appellant at his nominated address, the only one he did not receive was that of 25 September 2007. At [12], his Honour pointed out that evidence that he had not received that letter was not before the Tribunal. His Honour said that it is not generally open to an applicant to seek to put new evidence before the Federal Magistrates Court, in order to challenge a finding of fact made by the Tribunal. After pointing out that the appellant had had every opportunity to put evidence before the Federal Magistrates Court, at [15], his Honour expressed the "opinion" that "it is more probable than otherwise that the [appellant] did receive the Tribunal's notification about paying his fee but simply failed, for whatever reason, to do so." His Honour went on to say that, even if the appellant did fail to receive the letter, "it is plain that the Tribunal's decision was correct." The reason his Honour gave for this was that, at the time of the Tribunal's decision, the appellant had not paid the required fee. At [16], his Honour expressed a concern that a person who did not actually receive notification from the Tribunal of the rejection of a fee waiver application may suffer hardship. Nonetheless, his Honour said, that was a matter for Parliament and his Honour was required to hold the application to be totally deficient in merit. Relevant legislation Section 347(1) of the Migration Act provides, so far as relevant to the present case: An application for review of an MRT-reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the prescribed period...and (c) be accompanied by the prescribed fee (if any). In the present case, it is not disputed that the appellant gave his application in the approved form to the Tribunal within the prescribed period. It is therefore unnecessary to look in detail at the provisions of s 347(1)(b) of the Migration Act , or at reg 4.10(1)(b) of the Migration Regulations , to determine what the period was. It is also not disputed that the appellant did not give to the Tribunal the prescribed fee within the prescribed period, because he applied for a waiver of that fee. The source of the power to waive the fee is reg 4.13(4), which provides: The Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, may determine that the fee on an application for review by the Tribunal of a decision should not be paid if he or she is satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant. If there is a decision that the prescribed fee on application should not be paid, there is not "any" such prescribed fee, for the purposes of s 347(1)(c) of the Migration Act . In the present case, there was no such decision. The provisions of the Migration Act relating to the giving and receiving of Tribunal documents are found in Div 8A of Pt 5. Section 379A provides relevantly as follows: (1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to a person (the recipient ); and (b) state that the Tribunal must do so by one of the methods specified in this section; the methods are as follows. ... (4) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Tribunal by the recipient in connection with the review; or (ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review. A letter from the Tribunal to an applicant, advising that a decision that the fee on an application for review by the Tribunal should not be paid has not been made is not a document that any provision of the Migration Act or the Migration Regulations requires or permits the Tribunal to give to a person, or states that the Tribunal must do so by one of the methods specified in s 379A. Section 379AA provides, however: If: (a) a provision of this Act or the regulations requires or permits the Tribunal to give a document to a person; and (b) the provision does not state that the document must be given: (i) by one of the methods specified in section 379A or 379B; or (ii) by a method prescribed for the purposes of giving documents to a person in immigration detention; the Tribunal may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section). Section 379C provides relevantly as follows: (1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA). ... (4) If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or (b) in any other case—21 days after the date of the document. The effect of Braganza The Full Court in Braganza attempted to resolve the difficulty created by the absence of any specific provisions to deal with the obvious gap created by s 347(1)(c) of the Migration Act . That gap occurs in a case in which a person gives to the Tribunal, within the prescribed time limit, an application in the approved form, but the application is not accompanied by the prescribed fee, because the applicant has applied for a decision under reg 4.13(4) of the Migration Regulations that the fee should not be paid, generally described as an application to waive the fee. If the application to waive the fee is unsuccessful, the applicant is required to pay the prescribed fee. The problem is that time has elapsed. Not only has the prescribed fee not accompanied the application, but it is very likely that the prescribed period has expired. If a literal view were to be taken of s 347(1), in every such case an applicant would be precluded from proceeding for review, because of non-compliance with s 347(1)(c). This would have the effect of depriving reg 4.13(4), and the words "(if any)" in s 347(1)(c), of any real meaning, except in a case in which the applicant paid the prescribed fee and also sought a decision that it should not be paid, leading to the remission of the fee if the application were successful. Such a construction would do injustice to an applicant who genuinely lacks the means to pay the fee and therefore seeks a decision under reg 4.13(4) to waive the fee. It is likely that there would be many such applicants. To make the provisions operate sensibly, the Full Court in Braganza held that, in such a case, the Tribunal was not deprived of jurisdiction to consider the application for review merely because the prescribed fee was not paid within the prescribed period, provided the fee was either eventually waived or paid within a reasonable time after the rejection of the request for a decision under reg 4.13(4). See especially [50]-[52] in the reasons for judgment of the Full Court. Consequent upon Braganza , the Tribunal appears to have adopted a practice of allowing 14 days from the deemed receipt by an applicant of a letter informing that applicant that a decision to waive the prescribed fee has not been made. This period is generally regarded as a reasonable time for the purposes of the application of the principle enunciated in Braganza . That practice appears to have been applied by the Tribunal in the present case, when it advised the appellant in the letter dated 25 September 2007 that he should pay the fee by 18 October 2007. This allowed for the seven working days after the posting of that letter, to give rise to the deemed receipt, with a further period of 14 days as a reasonable time in which to pay the fee. The Tribunal's obligation There can be no doubt that the Tribunal was entitled to act upon the view that the appellant must be taken to have received its letter dated 25 September 2007 once seven working days, determined at the place of posting, had expired. For the purposes of the application of the principle enunciated in Braganza , however, the Tribunal was required to consider whether a reasonable time after that date had been allowed for the payment of the prescribed fee. A reasonable time can never be a period determined arbitrarily. The reasonableness of the time allowed must be determined, in each case, according to the circumstances of that case. If, in a particular case, the person to whom the letter is addressed has not received it in fact, that is one of the circumstances that must be taken into account in determining whether a reasonable time has in fact elapsed.


case_text: the appellant contacted the Tribunal to advise that he had not received the letter informing him that a decision to waive the prescribed fee in his case had not been made, it was not open to the Tribunal to take the view that it had allowed a reasonable time and had completed the discharge of its function. The information provided by the appellant necessarily raised for the Tribunal the factual question whether the appellant had not received the letter of 25 September 2007. If this question had been determined in the appellant's favour, it would have raised for the Tribunal the question whether its decision that it had no jurisdiction to deal with the appellant's application for review was attended by jurisdictional error. If the Tribunal had proceeded to such a decision before the passage of a reasonable time, in the circumstances of the case, it would not have performed its statutory function of reviewing the decision of the Minister's delegate. It would have declined to exercise its jurisdiction in circumstances where the provisions of the Migration Act required it to exercise that jurisdiction. The making of a decision consequent upon jurisdictional error does not discharge the Tribunal's function. The Tribunal has the power, and the duty, to disregard its previous decision and to proceed to perform its statutory function. See Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597. In that case, a Tribunal exercising powers under the Migration Act had proceeded to make a decision on the footing that the applicant for review had not attended at the appointed time for a hearing, unaware of the fact that the applicant had communicated a request for an adjournment of that hearing. Upon discovering the error, that Tribunal had proceeded to make a second decision, after affording the applicant procedural fairness. The High Court held it had power to do so. In the present case, the Tribunal had power to consider whether a reasonable time had in fact elapsed after the deemed receipt of the letter of 25 September 2007 and therefore whether its decision declining jurisdiction had been made properly. It was wrong for the Tribunal, by means of its officer, to communicate to the appellant that the Tribunal had met its legal obligation, that the matter was now out of its hands, and that it could do nothing further to assist the appellant. Instead, the Tribunal should have offered to the appellant the opportunity to be heard on the factual question, whether he had received the letter of 25 September 2007. It is possible that the appellant may have been able to persuade the Tribunal to make a finding of fact in his favour on that question. The fact that the Tribunal did not have evidence of actual delivery of the registered mail article (such as a recipient's signature) is significant. The appellant informed me on the hearing of the appeal that the house in which he lived was a household of some 12 students. It is not difficult to see that, when the agent of Australia Post arrived to effect delivery, if the appellant had been not at home, a card recording the attempted delivery might have been left with another occupant of the house who had neglected to hand it on to the appellant. It is not for me (and it was not for the federal magistrate) to make this factual determination. It was a matter entirely for the Tribunal. If the appellant had succeeded in obtaining a finding of fact that he had not received the letter of 25 September 2007, the Tribunal would have been required to consider whether, in the light of that circumstance, the appellant had been afforded a reasonable time in which to pay the application fee. The appellant informed me in the course of the hearing of the appeal that he had been ready and able to pay the fee, if his application for a decision that the fee should not be paid were to be unsuccessful. It is likely that, in those circumstances, the Tribunal would have determined that a reasonable time had not elapsed, would have accepted the fee from the appellant, and would have proceeded to deal with his application for review of the decision of the Minister's delegate. Having regard to the subsequent history, in which the appellant has had to litigate this issue, it would still be open to the Tribunal to determine that a reasonable time has not elapsed, if it were to find in the appellant's favour on the question of fact about actual receipt of the letter. If the Tribunal found that a reasonable time had not elapsed, it might also have considered that its earlier decision that it had no jurisdiction because the application fee had not been paid within a reasonable time was subject to jurisdictional error. It amounted to wrongfully declining to perform the Tribunal's statutory function of reviewing the decision of the Minister's delegate, and therefore wrongfully declining to exercise jurisdiction. If the Tribunal reached such a decision, it would be open to it, and necessary, for it to ignore the previous decision and deal with the review of the decision of the Minister's delegate. For these reasons, the Tribunal wrongfully declined to investigate the appellant's assertion that he had not received the letter of 25 September 2007. The federal magistrate was in error in dismissing the appellant's application for judicial review. His Honour should have found that the Tribunal had not completed the discharge of its function and should have ordered the Tribunal, by means of a writ of mandamus, to proceed to do so. Conclusion The appeal must be allowed. The orders made by the federal magistrate on 7 August 2008 must be set aside. In place of those orders, an order should be made that a writ of mandamus issue, directed to the Tribunal, requiring it to hear and determine the appellant's application for review of the decision of the Minister's delegate according to law. It is unnecessary to order that a writ of certiorari issue, because it may be that the Tribunal, upon revisiting the matter, finds that its initial decision declining jurisdiction is the correct one, because it does not make the requisite finding of fact in favour of the appellant about the actual receipt of the letter dated 25 September 2007. In those circumstances, that decision will remain. If the Tribunal determines that a reasonable time has not passed, it will ignore the earlier decision and proceed to deal with the review, as long as the appellant pays the application fee. For the federal magistrate's order that the appellant pay the Minister's costs of the proceeding in the Federal Magistrates Court, there should be substituted an order that the Minister pay the appellant's costs of that proceeding. In addition, there should be an order that the Minister pay the appellant's costs of the appeal. I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 23 April 2009 The appellant appeared in person Counsel for the respondents: Mr M Felman Solicitor for the respondents: DLA Phillips Fox Date of Hearing: 28 November 2008 Date of Judgment: 23 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/392.html


case_text: The information obtained by the officer, on which he considered that there may be grounds for cancelling Ms Li's visa, was obtained from Ms Li in the absence of a proper translation of the communications between them. However, the officer had the benefit of an interpreter when he informed Ms Li that there may be grounds for cancelling her visa. He afforded her an opportunity, with the assistance of an appropriate interpreter, to inform him why her visa should not be cancelled. During that part of the interview, Ms Li told the officer that she intended to collect money from customers during her stay, for the clothes she had previously sold. In effect, Ms Li said that she intended to conduct some business by collecting money from customers and to also have a holiday. She thereby exhibited a mixed purpose. In the circumstances, no practical injustice arose (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 195 ALR 502 at [37] ). 19 Although the officer inappropriately obtained some information from Ms Li without proper interpreting facilities, he afforded her an opportunity to disabuse him from any prima facie views he had formed as a result of those discussions. The oral notice issued under s 119 of the Act was interpreted properly. The answers given to it were interpreted. In those answers, Ms Li stated that she came to Australia for a holiday and the purpose of collecting money from customers. No practical injustice arose as a consequence of the failure of the officer to afford adequate interpretation prior to the reading of the notification under s 119 of the Act. Ms Li stated, with the assistance of interpretation, that she came for a mixed purpose. On the basis of these statements, the officer was entitled to cancel her visa. 20 Ms Li sought to tender before the Federal Magistrate affidavit evidence about the conditions and conduct of the interview and about her lack of understanding of the officer's questions, absent an interpreter. Even if this evidence had have been admitted it would not have demonstrated any injustice which was not remedied by proper interpretation of the notification under s 119 of the Act and proper interpretation of the subsequent interview which commenced at 1.40 pm. Assuming, without deciding, that this evidence should have been admitted, its tender would not have affected the conclusion that, overall, there was no practical injustice visited upon Ms Li. In her affidavit, Ms Li seeks to contradict what her counsel agreed was an accurate interpretation of what she said in the interview when assisted by a Mandarin interpreter. This shows that little weight would have been given to the affidavit if it had been admitted.


case_text: In drawing attention to the implications of beneficial ownership of property of the foregoing kinds, Lend Lease drew attention to the reasons for judgment of the High Court in DKLR Holding Co (No 2) Pty Limited v The Commissioner of Stamp Duties (New South Wales) [1982] HCA 14 ; (1982) 149 CLR 431, where there fell for consideration in the context of the Stamp Duties Act 1920 (NSW) the statutory notion of Declaration of Trust defined in the Second Schedule thereto, being '... any instrument declaring that any property vested or to be vested in the person executing the same is or shall be held in trust for the person or persons mentioned therein...'. That stamp duties legislation defined ' property ' as comprising both realty and personalty, and here of course the property involved, being the substantial shareholding of Lend Lease in Westpac, was in the nature of personalty. What was emphasised in the course of the majority judgments in DKLR was the precept that where property is beneficially held by an owner of the legal estate, there are no separate rights of ownership existing and divisible into legal and beneficial ownership. As explained by Gibbs CJ at 442-443, Aickin J at 463 and Brennan J at 473-474, a person cannot be a trustee for himself, and where for instance a person holds the legal estate beneficially, there are no separate legal and equitable estates thereby constituted or otherwise subsisting. What is constituted therefore in that circumstance is simply ownership in the sense of the entirety of an estate or interest.


case_text: Moreover in relation to the vendor and purchaser relationship between Lend Lease and County Natwest the subject of the FPA, I was further referred by Lend Lease to Kern Corporation Ltd v Walter Reid Trading Pty Ltd [1987] HCA 20 ; (1987) 163 CLR 164, where Deane J observed at 192: '... it is both inaccurate and misleading to speak of the unpaid vendor under an uncompleted contract as a trustee for the purchaser... There is authority for the view that, after completion has actually taken place, some of the equitable rights of the purchaser, which (in their entirety) then constitute beneficial ownership, relate back to the date of the contract. But there is no relation back of beneficial ownership in the sense that the vendor is retrospectively deprived of his beneficial right, pending payment of the full purchase price, to the possession, use, rents and profits of the land. Regardless of whether his rights be viewed in the perspective of foresight (ie before completion) or hindsight (i.e. after completion), the ordinary unpaid vendor of land is not a trustee of the land for the purchaser'. Kern was an insurance case involving the operation of real property legislation and the entitlement of a ' person interested ' in realty improvements, in the capacity as purchaser under an uncompleted contract to purchase, in circumstances where those improvements were destroyed by an insured event prior to completion of that contract, to have the proceeds of insurance outlaid in rebuilding the same. The issue which arose in particular in Kern related primarily to the notion of insurable interest, and whether a purchaser could require the vendor's insurer to rebuild or reinstate; in the joint reasons of Wilson and Dawson JJ at 180, it was observed that ' ... a purchaser under an enforceable contract for the sale of land is bound to complete, irrespective of the destruction of the improvements on the land in the meantime and that from the time the contract is made the purchaser has an equitable estate in the land...'. That authority was said to serve as confirmation that proprietary rights crystallise normally in favour of a purchaser on entry into a contract to purchase personalty in the nature of proprietary interests, such as shares in corporations, as well as in the case of entry into a contract to purchase realty, but that the existence of an equitable interest in favour of a purchaser pursuant to an executory contract is not equivalent to beneficial ownership or ownership in equity. More recently in Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315 at 332-333, to which Lend Lease drew further attention for completeness, it was explained in the joint reasons for judgment of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ at [53] that the interest of a purchaser under a contract for the purchase of realty is commensurate with the availability of the remedy of specific performance in favour of that purchaser, and may become '... the very question in issue where there has been a termination by the vendor for failure to complete as required by the essential stipulation'.


case_title: Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315


case_text: Moving then to the Commissioner's postulation of the controversial notion of 'additional non-cash consideration' appearing in the table reproduced in [16] above, as reflective the right of Lend Lease, as against County Natwest, to remain in possession of the Westpac shares, and to enjoy the notion of 'beneficial interest in the Sale Shares' prior to completion of the FPA scheduled for 30 April 2000 (that is of course nearly four years after the FPA was entered into on 7 June 1996), Lend Lease submitted that such postulation of beneficial interest served inherently 'to reveal the fundamental fallacy in [the Commissioner's] argument'. Any such 'right as against County Natwest' did not exist, so the Lend Lease contentions continued, at any time from 18 June 1996, when the FPA was entered into and the sum of $352,297,356 was paid by County Natwest to Lend Lease by way of 'Initial Instalment', to January 2000, when the 'Final Instalment' of $1 million became payable and was paid, and thereafter until the 'Completion Date' of 30 April 2000, and was characterised by Lend Lease as an embellishment of the Commissioner's case attended with the misconceived adjectives of valuable and contractual. Lend Lease asserted moreover that the Commissioner's further notion of Lend Lease 'remaining in possession' of the subject Westpac shares was 'fundamentally mistaken' according to principles of the general law. I was referred in that latter context to Sydney Futures Exchange Limited v Australian Stock Exchange Limited and Another (1995) 56 FCR 236 at 256, where Lockhart J spoke of shares as constituting 'choses in action, not choses in possession' , in the context that '[t] he buyer of shares does not obtain legal title to the shares until the buyer's name is entered in the share register, but in the meantime the buyer may acquire equitable interests in shares, enforceable by specific performance...'.


case_title: Associated Alloys Pty Ltd v ACN 001 452 106 Pty Limited (in liquidation) and Another [2000] HCA 25 ; (2000) 202 CLR 588

case_text: Lend Lease therefore invoked the principle that since the FPA constituted a contract for the future sale of the Westpac shares, whereby until the effectuation of that sale, ownership would remain with Lend Lease and not pass to County Natwest, there was not acquired by Natwest any beneficial interest in the Westpac shares prior to completion of the FPA as scheduled to occur on the 'Completion Date' stipulated by the FPA for 30 April 2000, subject to the proviso of that contractual definition namely 'unless it is adjusted under clause 5.1 or 5.2' . I was referred by Lend Lease to Associated Alloys Pty Ltd v ACN 001 452 106 Pty Limited (in liquidation) [2000] HCA 25 ; (2000) 202 CLR 588 at [36] - [37] , where recognition was afforded by the majority judgment of the High Court (Gaudron, McHugh, Gummow and Hayne JJ) to the principle that effect should be given to any expression of intention of the parties to a contract for the sale of goods (being there fabricated steel) concerning the retention of ownership in favour of the seller until the goods were fully paid for by the buyer. Put therefore in summary as to the operation relevantly of the subject contractual documentation, Lend Lease asserted that beneficial ownership of the subject Westpac shares was not acquired by County Natwest until the time of completion of the FPA on 30 April 2000, or on any subsequently varied 'Completion Date' put in place, nor was there constituted a right of any other proprietary kind in relation to its disposal of its Westpac shares in favour of County Natwest until completion of the FPA. Upon the footing therefore of what I have summarised to date, Lend Lease submitted that there was no value in the nature of so-called putative property of any kind which could have been rightly included until 30 April 2000 (or any subsequently varied contractual date) for the purpose of determination of any capital gain or loss made or sustained by Lend Lease pursuant to Part IIIA of the Tax Act.


case_text: Lend Lease submitted moreover that the construction of s 160ZD(1) of the Tax Act, by reference to the juridical basis upon which it framed its case, accorded also with 'business commonsense', and further that 'the consideration in respect of the disposal' of the Westpac shares, pursuant to the operation of subss 160ZD(1) and (2), constituted no more than the purchase price expressed to be payable by County Natwest as purchaser of those shares pursuant to the FPA. The Court was referred in that context generally to the following passage in the speech of Lord Wilberforce in Aberdeen Construction Group Ltd v Inland Revenue Commissioners [1978] AC 885 at 892-3: 'The capital gains tax is of comparatively recent origin. The legislation imposing it, mainly the Finance Act 1965, is necessarily complicated, and the detailed provisions, as they affect this or any other case, must of course be looked at with care. But a guiding principle must underlie any interpretation of the Act, namely that its purpose is to tax capital gains and to make allowance for capital losses, each of which ought to be arrived at upon normal business principles. No doubt anomalies may occur, but in straight-forward situations, such as this, the courts should hesitate before accepting results which are paradoxical and contrary to business sense. To paraphrase a famous cliché, the capital gains tax is a tax upon gains: It is not a tax upon arithmetical differences.' I would have difficulty nevertheless in describing the present situation as 'straight forward'. The essence of that aspect of his Lordship's speech in Aberdeen Construction , incidentally, was cited with approval in Commissioner of Taxation v Orica Ltd [1998] HCA 33 ; (1998) 194 CLR 500 at 545 [118] (Gummow J).