Beach Energy Limited v Commissioner of State Revenue [2018] QCAT 270

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Beach Energy Limited v Commissioner of State Revenue [2018] QCAT 270 PARTIES: BEACH ENERGY LIMITED (applicant) v THE COMMISSIONER OF STATE REVENUE (respondent) APPLICATION NO/S: GAR088-17 MATTER TYPE: General administrative review matters DELIVERED ON: 14 August 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: The decision of the Commissioner of State Revenue is confirmed. CATCHWORDS: TAXES AND DUTIES – STAMP DUTIES – EXEMPTIONS – where parties entered into a Farmout agreement – where the Commissioner issued an assessment of duty for the grant of the Farmout agreement – where the applicant failed to give notice as stipulated to earn the Farmout interest – where the applicant had conducted exploration activities including drilling a first well prior to that – where the applicant sought reassessment of the duty paid on the basis the Farmout agreement was a cancelled agreement under s 115 of the Duties Act 2001 (Qld) – where the Commissioner refused to make a reassessment – whether the Farmout agreement was a cancelled agreement as provided for in the Duties Act 2001 (Qld) Acts Interpretation Act 1954 (Qld), s 14A(1), s 14B(1)(c), s 14B(1)(a), s 14B(2)(a), s 35C(1) Duties Act 2001 (Qld), s 8, s 9, s 22(2), s 84C, s 84 G, s 115(1)(b), s 115(1)(d) Australian Airlines Ltd v Commissioner of Stamp Duties (Qld) [1988] HCA 33 Australian National Airlines Commission v Commissioner of Stamp Duties [1989] 1 Qd R 246 Barob Pty Ltd v Commissioner of Stamp Duties [1999] 2 Qd R 468 -- 1 of 11 -- 2 Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 Hytch v O'Connell [2018] QSC 75 REPRESENTATION: Applicant: H G Lakis, instructed by DMAW Lawyers Respondent: G Hartridge APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] Beach Energy Limited (‘Beach’) entered into a Farmout agreement with Drillsear c h Energy Ltd (‘DS’) and Circumpacific Energy (Australia) Pty Ltd (‘CP’) on 28 July 2014 with prospects of acquiring a 45% interest in Authority to Prospect 924 (ATP 924). [2] The Commissioner of State Revenue (the Commissioner) issued an assessment of transfer duty for the grant of the Farmout agreement (subsequently reassessed and the assessment increased) of $299,753.50 which Beach paid. [3] On 17 May 2016 Beach advised the Commissioner that the Farmout agreement had expired due to the non-fulfilment of a condition of the agreement. Beach asked the Commissioner to make a reassessment of duty on the basis the Farmout agreement was a cancelled agreement as provided for in s 115 of the Duties Act 2001 (Qld) (‘the Act’) and therefore exempt from duty. [4] The Commissioner refused to make a reassessment. Beach objected to that decision. The decision of the Commissioner not to make a reassessment under s 115 was upheld on 10 February 2017 on internal review. [5] Beach has applied to the Tribunal for review of the internal review decision of 10 February 2017. The Legislation Duties Act 2001 Chapter 2 Part 8A 84C What is a deferred farm-in agreement (1) A deferred farm-in agreement is a written agreement entered into by a farmor and another person (the farmee) in relation to an exploration authority, under which— (a) the farmee is entitled to 1 or more transfers from the farmor of a stated interest in the exploration authority, each interest being less than 100% of the total interest in the authority; and (b) the entitlement to each transfer arises only if the farmee spends a stated amount (an exploration amount) on relevant exploration or development— (i) after the agreement is entered into; and (ii) on or before the expenditure completion date for the amount. -- 2 of 11 -- 3 (2) However, if the farm-in agreement is a 100% transfer farm-in agreement, the last interest in the exploration authority to be transferred under the agreement need not be subject to an obligation mentioned in subsection (1)(b). 84G Farm-in agreement is an agreement for the transfer of dutiable property (1) A farm-in agreement is an agreement for the transfer of dutiable property mentioned in section 9(1)(b). 115 Exemption—cancelled agreements (1) Transfer duty is not imposed on a dutiable transaction that is an agreement for the transfer of dutiable property (the cancelled agreement) if— (a) the agreement is ended because of a breach of it by a party to it; or (b) the agreement is ended because of non-fulfilment of a condition of it; or (c) the agreement is brought to an end by frustration; or (d) the agreement is ended with the consent of the parties to it and there is no resale agreement. [6] The Farmout agreement was a farm-in agreement as provided for under the Act. The Farmout Agreement [7] The Farmout agreement provided for the transfer of an interest in ATP 924 to Beach subject to Beach completing Option Exploration Activities which included paying a Capped Hurron Seismic Contribution of $5,551,784.70 and undertaking and paying for further exploration by drilling a First Well. [8] By clause 2.3 of the Farmout agreement however, Beach was not entitled to a transfer of the interest unless the Farmout requirements in clause 2.4 were performed (including, subject to certain financial limits, drilling a second well) and pursuant to clause 2.5 Beach giving notice by no later than the Election date: … whether it elects to meet the Farmout Requirement (Election Notice)… If Beach does not give an Election Notice on or before the Election Date … Beach shall have no further rights to or an interest in earning the Farmout Interest and this Agreement will be deemed to have expired on and from the Election Date. [9] Beach did not give the notice by the Election Date and the agreement ended. Beach’s Contentions [10] Beach maintains as follows. The agreement ended in circumstances which satisfied the requirement for a cancelled agreement under s 115(1)(b) or s 115(1)(d) or both. Under either head it was entitled to a reassessment and refund of duty. [11] First the agreement ended because of the non-fulfilment of a condition which fell within the scope of s 115(1)(b). [12] Further or alternatively the cancellation of the agreement was subsequently confirmed by statutory declaration signed on behalf of Beach on 11 May 2016 and a written -- 3 of 11 -- 4 acknowledgement signed by DS and CP on the same day whereby the parties agreed the agreement had come to an end for failure of condition 2.5(a). Accordingly the agreement also ended by express consent of the parties within the terms of s 115(1)(d). [13] The words ‘the agreement is ended’ should be given their ordinary meaning. In the Macquarie Dictionary1 ‘end’ is defined as: to bring to an end or natural conclusion to come to an end; terminate; cease [14] Accordingly, to qualify as having ‘ended’ under s 115(1)(b) or (d) merely requires that an agreement concludes, comes to an end, terminates or ceases. The provision is not ambiguous or obscure. Given such a meaning to the provision does not lead to a result that is manifestly absurd or unreasonable. [15] The primary focus in both the repealed Stamp Act 1894 (Qld) (‘Stamp Act’) and the Act has always been whether or not an agreement results in the actual transfer of property and an entitlement to a reassessment and refund has always occurred if the agreement did not result in the transfer of property. [16] Under neither revenue statute has there been a denial of refund due to performance by parties of mere ‘technical’ obligations. Under the repealed s 54(8) of the Stamp Act where the entitlement to refund also required the parties to ‘have been returned to the original positions in respect of the property the subject of the contract or agreement’, that requirement was only imposed in respect of the property the subject of the contract. It did not also require the reversal of any mechanical activity described in the contract. [17] The agreement attracted assessment of duty initially because it was an agreement to transfer dutiable property. That no transfer ultimately occurred under the mechanis ms in the agreement meant that performance of the main object of the agreement did not take place. [18] It is absurd to maintain, as does the Commissioner, that termination of the agreement, because that was provided for in the agreement, amounts to a method of performance of the agreement. [19] Clause 2.5(a) of the Farmout agreement required Beach to give the Election Notice to say whether it elected to meet the Farmout requirement. That was an essentia l condition to be satisfied in order for Beach to become entitled to a transfer of the Farmout interest, and that was a condition that was not satisfied. Clause 2.5(b) provided that if that condition was not met then Beach ‘shall have no further rights to or interests in earning the Farmout interest and this agreement will be deemed to have expired on and from the Election date.’ Such circumstances satisfied the requireme nt in s 115(1)(b) that the agreement end because of non-fulfilment of a condition. [20] Further clause 2.5(b) provided that the agreement would end if all parties consented to that. The parties acknowledged that decision by writing signed by all parties. There was no re-sale agreement as mentioned in s 115(1)(d) or as elaborated on by s 115(2) and in such circumstances the requirement in s 115(1)(d) that the agreement end by 1 Online: https://www.macquariedictionary.com.au. -- 4 of 11 -- 5 mutual consent was satisfied, which on that basis also entitled Beach to a reassessment of duty. The Commissioner’s Contentions [21] The Commissioner contends as follows. To ascertain the possible application of s 115 it is important to first consider the terms and conditions of the agreement and the extent to which it was performed. [22] After execution of the agreement, amongst other things, Beach completed the Option Exploration Activities which entailed paying the Capped Hurron Seismic Contribution on receipt of an invoice from DS ($5,551,784.70); undertook to pay the costs of drilling the First Well; obtained the right to determine with DS the location of the First Well; was entitled to geographical, exploration drilling and other technica l information and results of tests; and obtained the right to plug and abandon the First Well or agree to continue drilling with the consent of the Farmors. [23] The Farmors, amongst other things, were required to provide information and test results; to give notice to the Department administering the Petroleum Act 1923 (Qld) of the delegation of operatorship of the farmout work to Beach; obtained the benefit of the seismic and drilling operations by Beach; and agreed not to reach agreement about Native Title interests or deal with any portion of the Farmout interest without the prior written consent of Beach. [24] Beach performed the Option Exploration Activities and paid the Option fee but the agreement ended on 1 March 2016 in accordance with clause 2.5(b) (failure to give the Election Notice). [25] The heading to s 115 refers to ‘cancelled agreements’ as too do the Explanatory Notes to the legislation. The word ‘cancelled’ suggests the section applies where agreements end without completion. [26] The agreement did not end because of non-fulfilment of a condition or a term of the contract. Rather it expired as expressly provided for in the contract itself on the election of Beach not to deliver the Election Notice, which was in fact one way the contract could be performed. Accordingly s 115(1)(b) has no application. [27] As to ending the agreement by consent as provided for in s 115(1)(d), the word consent infers action by both parties, but in this case the agreement was brought to an end solely at the discretion of Beach. Discussion [28] Beach says s 115(1) uses plain and unambiguous language in providing an exhaustive definition for a ‘cancelled agreement’. There is no explanation about what that means or how that conclusion is reached. Beach suggests that the subparagraphs that follow define the words ‘cancelled agreement’. [29] Then Beach argues the common critical words in s 115(1)(b) and (d) are ‘the agreement is ended’. Beach says these words are not defined in the Act or the Acts Interpretation Act 1954 (Qld) and consequently they should take their ordinary meaning. Beach suggests one should then consider the ordinary dictionary meaning of the word ended. -- 5 of 11 -- 6 [30] This proposed construction pays scant regard to the ordinary meaning of the word cancelled used in the provision however, and I see no justification for also not according the word cancelled, at least from outset consideration, its ordinary meaning. [31] The Commissioner indeed places emphasis on the ordinary meaning of the words cancelled agreement and argues that if their ordinary meaning is given effect the Farmout agreement is not a cancelled agreement for the purpose of s 115. [32] Where words are not defined in an Act they are to be given their plain and ordinary meaning, unless the contrary is shown to be appropriate.2 [33] The word end is defined in the Macquarie Dictionary3 to mean ‘to bring to an end or natural conclusion; to come to an end; terminate; cease.’ [34] In turn the word terminate used there is defined as ‘bring to an end; put an end to; to end, conclude, or cease.’ Cease is defined as ‘to put a stop or end to; discontinue.’ [35] The word cancelled is not defined in the Act but is used both in the heading to s 115 and then again in subsections (1) (2) and (4). The heading to a section in an Act of course forms part of the provision to which it is a heading.4 [36] Cancel is defined5 as ‘to make void; annul.’ The word annul in turn is defined as ‘to make void or null; abolish (used especially of laws or other established rules, usages, and the like): to annul a marriage.’ Void is defined as ‘to make void or of no effect; invalidate; nullify’. [37] If reliance is placed on the ordinary meaning of the expressions ends and cancelled used in s 115, it seems to me that a cancelled agreement is something potentially very much narrower in scope than an agreement falling within the far broader expression ended. [38] My initial reading of s 115(1) based on the ordinary meaning of the words used in the provision is that if an agreement is a cancelled agreement within the ordinary meaning of those words, which means that it is an agreement made null and void, then if it ends in one of the 4 ways set out in subsection (1) transfer duty is not imposed on it. [39] I turn to other possible sources to assist in confirming that interpretation conveyed by the ordinary meaning of the words.6 [40] The Explanatory Notes to the Duties Bill 2001 (Qld) state that the reason for the Bill was a rewrite of the Stamp Act. The policy objective was to replace the Stamp Act with modern legislation expressed in clear language. The rewrite was undertaken in accordance with a number of listed principles which included: 2 Hytch v O'Connell [2018] QSC 75, applying Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 per Dixon J: ‘…words although general should be understood in their primary and natural signification unless there are sufficient indications of some other meaning’. 3 Online: https://www.macquariedictionary.com.au. 4 Acts Interpretation Act 1954 (Qld), s 35C(1). 5 Macquarie Online: https://www.macquariedictionary.com.au. 6 Acts Interpretation Act 1954 (Qld), s 14B(1)(c). -- 6 of 11 -- 7  Modernisation to reflect current business practices and technological change; …  simplification of the provisions by restructuring and use of plain language; and  retention of Queensland’s revenue base.7 [41] Under the heading ‘Achievement of the Objectives’ the Explanatory Notes say the Bill will provide: … a more contemporary conceptual basis for the imposition of duty, relying on the occurrence of a transaction instead of the execution of an instrument as the trigger for liability. This recognises that modern commercial practice is increasingly transactions, as opposed to instruments, based.8 [42] The particular explanatory note for s 115 is not of great assistance in stating: Clause 115 provides for an exemption from transfer duty for an agreement for the transfer of dutiable property where the agreement is subsequently cancelled. Clause 115(1) provides that transfer duty is not imposed on an agreement that is ended in one of 4 listed ways. Clause 115(2) sets out what is a resale agreement for the purpose of the clause. [43] By s 14A(1) of the Acts Interpretation Act 1954 (Qld): Interpretation best achieving Act’s purpose (1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. [44] According to the Explanatory Notes, the change from the Stamp Act to the current Act was intended to achieve amongst other things restructuring of the legislation and the use of plain and clear language, whilst retaining Queensland’s revenue base. [45] The former relevant provision under the Stamp Act was s 54(7) which provided: (7) Ad valorem duty with which a contract or agreement would otherwise be chargeable shall not be claimed in any case where there is produced to the commissioner evidence satisfactory to the commissioner that such contract or agreement was rescinded within 30 days after its execution. [46] The key word used there was rescind which has a number of legal meanings. 7 Explanatory Notes, Duties Bill 2001 (Qld) 1. 8 Ibid 2. -- 7 of 11 -- 8 [47] The problems that arose with use of the expression rescind in the Stamp Act has been the subject of extrajudicial comment,9 and the subject of fairly significant litigation,10 litigation which prompted amendment to the former provision.11 [48] I conclude the purpose intended to be achieved by the rewritten s 115 was the use of plain language to replace the more troublesome legal language used, principally the word ‘rescind’, whilst maintaining the existing revenue base from the former legislation. This latter purpose rather suggests there was no intention of expanding the category of agreements becoming eligible for exemption under the new s 115. [49] This extrinsic evidence supports the initial construction of the meaning of the provision of giving full effect to the plain meaning of the words cancelled agreement used in the provision. Accordingly the threshold requirement is a cancelled agreement. To be a cancelled agreement the agreement concerned must have been rendered null and void and of no effect. If that is the case and the agreement ended in one of the 4 ways set out in the provision then the agreement qualifies for exemption. [50] To be null and void and of no effect surely means none of its purposes or objects have been achieved. [51] In Australian National Airlines Commission v Commissioner of Stamp Duties12 de Jersey J (as he then was) said: The language of the deed of rescission should not necessarily be definitive of what occurred. In matters like this, the court looks to the substance rather than the form of what occurred: cf. City of Brisbane v. Commissioner of Stamps [1923] St.R.Qd. 54, 58. The contract had in truth been performed, in one of the two alternative ways contemplated by it. The “rescission” effected here really amounted to an acknowledgement that the method of performance not utilized was no longer applicable. It is not necessary in this case to essay the limits of the concept of “rescission” referred to in s.54(7) of the Stamp Act. It suffices to point to the mutual inconsistency which exists between the rescission of a contract and the performance of it.13 [52] The appropriateness of similar enquiry being appropriate in respect of a cancelled agreement for the purpose of s 115 is strengthened by the Act now clearly imposing duty on transactions rather than form.14 9 ‘One of the principle difficulties posed by those sections (ss 54(7) – (10) of the Stamp Act) was the meaning of ‘rescinded’: J G Mann, Duties legislation Queensland, (Sydney: Lawbook Co. 2002) [2.14410]. 10 Australian National Airlines Commission v Commissioner of Stamp Duties [1989] 1 Qd R 246; Australian Airlines Ltd v Commissioner of Stamp Duties (Qld) [1988] HCA 33; (1988) 79 ALR 425; (1988) 62 ALJR 429; Barob Pty Ltd v Commissioner of Stamp Duties [1999] 2 Qd R 468. 11 Revenue and Other Legislation Amendment Act 1999 (Qld). 12 [1989] 1 Qd R 246. 13 Ibid 250. 14 The Act, ss 8(1), 9(1)(b). -- 8 of 11 -- 9 [53] The question becomes then, in the matter at hand, was the Farmout agreement which it is claimed ended in both the circumstances covered by s 115(1)(b) and s 115(1)(d), a cancelled agreement such that it was rendered null and void without accomplishing any of its objectives? [54] In Australian National Airlines Commission v Commissioner of Stamp Duties15 Thomas J said this about what seemed to be rescission of a contract but was really performance of the contract in accordance with its terms: The real point to address seems to be whether a contract may simultaneously be discharged by performance and rescission. What is the consequence if there is a rescission, but the rescission is itself the last act in the performance of the contract? The question cannot be answered satisfactorily in the abstract. It will be necessary in each case to see what the subject matter of the contract is, and in deciding the question of rescission it will be relevant to observe whether the object of the contract is achieved… … It is true that the original contract has now entirely gone, and that the parties have not only “rescinded” it, they have granted full releases so that there is nothing left to enforce. But it is equally true that that contract has been fully performed. … In my view, insofar as the first contract was the vehicle by which the eventual transfer was effected, it was not rescinded. In substance there has been no rescission of anything other than an empty shell. In the end the conclusion I draw from the circumstances is that the parties at all times acted pursuant to the original contract which has now been discharged by performance, not by rescission.16 [55] Australian National Airlines Commission went on appeal to the High Court17 but before it was heard amendments were made to the Stamp Act which made any determination irrelevant. The High Court did have this to say generally on the point however: …whatever the precise meaning of the expression "was rescinded" in the statutory context applicable to this case may have been, it did not comprehend a mutual or bilateral termination of a contract for sale in a case where the contract itself provided for that termination as a step towards a sale of the subject property to a nominee under the contract with the consequence that the "rescission" was itself an element in the intended operation or performance of the contract.18 [56] I consider these observations entirely appropriate in the task of ascertaining whether or not an agreement should be regarded as a cancelled agreement for the purpose of s 115 of the Act. The Beach Farmout Agreement [57] Realistically the agreement provided that: 15 [1989] 1 Qd R 246. 16 Ibid 247-248. 17 Australian Airlines Ltd v Commissioner of Stamp Duties (Qld) [1988] HCA 33. 18 Ibid [13]. -- 9 of 11 -- 10 (a) If Beach paid the capped Hurron Seismic Contribution of $5,551,784.70; (b) And if Beach paid the costs of drilling the First Well up to an agreed amount; (c) Then (depending no doubt on the commercial viability of the project going forward) Beach could do either of two things: (i) continue with the venture to earn an interest in the Permit by paying a nominal option fee of $10 and giving notice of election to continue and meeting the Farmout requirement (involving payment of an amount entitled Historical Costs Contribution) and the costs of drilling a second well; or (ii) not pay the nominal option fee or give the election notice by the set date or otherwise indicate that Beach did not wish to continue with the project to earn the Farmout interest which would mean Beach would have no further interest in the Permit or project. [58] It seems clear that the exploration activities was a key objective of the agreement. After those exploration activities ended with the First Well drilled, Beach decided to end its further involvement in the project. It had paid a considerable amount of money for the exploration activities and drilling the First Well. Ending its involvement in the project after that was contemplated by the parties and provided for under the agreement. Why Beach chose not to proceed further is irrelevant but it was most probably based on commercial considerations. [59] In such circumstances however Beach is not entitled to a reassessment of duty on the basis that the Farmout agreement was a cancelled agreement as provided for in s 115. It was something entirely different, an agreement discharged by performance. Given that, that the circumstances whereby it ended might also fall within the broad term descriptions of s 115(1)(b) or s 115(1)(d) as an agreement that has ended because of non-fulfilment of a condition or with the consent of the parties is irrelevant. Transfer of Property [60] I should also address Beach’s submission that under both the Stamp Act and the Act the primary focus has always been on an actual transfer of property and there has always been an entitlement to reassessment if the agreement did not result in the transfer of property. The reference in the preliminary wording of s 115(1) is to ‘… a dutiable transaction that is an agreement for the transfer of dutiable property…’ [61] By s 8 of the Act, Chapter 2 (within which s 115 falls) imposes duty on dutiable transactions. By s 9(1)(a) and (b) a dutiable transaction includes both a transfer of dutiable property and an agreement for the transfer of dutiable property, whether conditional or not. [62] Duty was imposed on the Farmout agreement as an agreement for the transfer of dutiable property. If an actual transfer of dutiable property subsequently occurred pursuant to the agreement there would have been no additional duty to pay on the transfer.19 That is the scheme of the Act. It cannot be argued in reverse however that 19 The Act, s 22(2). -- 10 of 11 -- 11 the primary focus of the Act being on the actual transfer of property, if a transfer of property does not occur that must mean there is no duty payable. That fails to take into account the provisions of the Act cited.20 20 By s 84G(1) of the Act: ‘A farm-in agreement is an agreement for the transfer of dutiable property mentioned in section 9(1)(b).’ It is not disputed that the Farmout agreement was a farm-in agreement within the meaning of Part 8A of the Act. -- 11 of 11 --