Camp Seabee Properties Pty Ltd v Commissioner of State Revenue [2014] QCAT 258

CITATION: Camp Seabee Properties Pty Ltd v Commissioner of State Revenue [2014] QCAT 258 PARTIES: Camp Seabee Properties Pty Ltd (Applicant) v Commissioner of State Revenue (Respondent) APPLICATION NUMBER: GAR252-13 MATTER TYPE: General administrative review HEARING DATE: 24 February 2014 HEARD AT: Brisbane DECISION OF: Member Howard DELIVERED ON: 4 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The reviewable decision is confirmed. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW – STAMP DUTY – where duty assessed on 5 transactions for the purchase of real property in one development – where same vendor, developer and purchaser in each transaction – where all contracts dated the same day, subject to same conditions and settled on the same day – where Commissioner later reassessed duty payable, aggregating the dutiable transactions and assessing as one transaction under s 30 of the Duties Act 2001 – whether the transactions together form, evidence, give effect to or arise from what is substantially one arrangement Acts Interpretation Act 1954 (Qld), ss 14A, 14B, 14D Duties Act 2001 (Qld), ss 5, 9, 10, 30 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Taxation Administration Act 2001 (Qld), ss 3, 6, 71 -- 1 of 17 -- 2 Brianco Nominees Pty Ltd v CSR [2008] VCAT 999 Chief Commissioner of State Revenue v Pacific General Securities and Finimore Holdings Pty Ltd (No 2)(RD) [2005] NSWADTAP 54 Jeffrey v Commissioner of Stamps [1980] 23 SASR 398 Oceanic Life Ltd v Chief Commissioner of Stamps (1999) 186 ALR 211 O’Grady v Northern Queensland Co Ltd (1990) 92 ALR 213 Old Reynella Village Pty Ltd v Commissioner of Stamps (SA) (1989) 51 SASR 378 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 058 APPEARANCES and REPRESENTATION (if any): APPLICANT: Camp Seabee Properties Pty Ltd was represented by Ms Jamie Nuish of Tucker & Cowan, Solicitors RESPONDENT: The Commissioner of State Revenue was represented by Ms Madeline Brennan, Counsel instructed by The Commissioner of State Revenue REASONS FOR DECISION [1] To date, there have been no published decisions about the operation and application of s 30 of the Duties Act 2001 (Qld), which provides for aggregation of dutiable transactions for the purposes of assessing duty, if the section applies. [2] Camp Seabee Properties Pty Ltd contracted to purchase from TradeCoast Land Pty Ltd 5 proposed lots of land (which are now lots 2, 3, 6, 7 and 8 on Survey Plan 198681, in the County of Stanley, Parish of Toombul) which are part of the redeveloped site of the former Brisbane airport. Transfer duty was assessed (by way of self-assessment lodged by Camp Seabee’s lawyers) on 19 August 2008, totalling $1,144,642. [3] In May 2012, following an audit of self-assessment records, the Commissioner of State Revenue reassessed duty on the basis that s 30 of the Duties Act 2001 (‘the Act’) applied, aggregating the dutiable transactions and assessing them as one transaction. Additional duty of $30,095.50 was assessed and unpaid tax interest applied. -- 2 of 17 -- 3 [4] Camp Seabee Properties Pty Ltd objected to the reassessment. It has sought review of the Commissioner’s decision on it’s objection. In essence, Camp Seabee submits that there is no common purpose, and no intention to do more than acquire various lots for separate lease and that, therefore, s 30 is not enlivened. [5] The Commissioner submits that ‘there are significant unifying factors indicative of Camp Seabee undertaking substantially the one arrangement to contemporaneously purchase multiple lots of vacant land in close proximity to each other for subdivision and general industry development under a registered BCCM Scheme’1 as part of Camp Seabee’s investment portfolio. [6] There is no issue about the calculation of the duty assessed if the Tribunal concludes that s 30 applies. [7] For reasons to be explained, I have concluded that s 30 applies and that the dutiable transactions must be aggregated and treated as a single dutiable transaction for the purposes of assessing duty. The review process [8] The purpose of the Tribunal’s review is to produce the correct and preferable decision, following a fresh hearing of the matter on the merits.2 The Tribunal considers the matter afresh, making its own decision, based on the evidence before it and according to law. In essence, in its review jurisdiction, the Tribunal stands in the shoes of the decision-maker for the decision reviewed (in this case, the Commissioner of State Revenue) and makes its own decision.3 [9] Generally, a review of the Commissioner’s decision is to be heard and decided by way of reconsideration of the evidence before the Commissioner when the decision was made and in accordance with the same law that applied to the making of the original decision: s 71(3) of the Taxation Administration Act 2001 (Qld). However, the Tribunal may allow new evidence in the interests of justice: s 71(3)(a). The original decision means the ‘assessment or reassessment that was the subject of the relevant objection’. [10] The reassessment that was the subject of the objection was dated 3 May 2012. There have been no amendments to s 30 since that time and there is no issue between the parties that s30 as currently in force is the version I must consider. [11] In this proceeding, both parties made oral application at the hearing to rely on new evidence. In the interests of justice I allowed both to rely on new evidence. For Camp Seabee, this new evidence consisted of two aerial 1 Submissions of the Commissioner filed 27 November 2013, [27]. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20. 3 See for example, Kehl v Board of Professional Engineers of Queensland [2010] QCATA 058. -- 3 of 17 -- 4 photographs and oral evidence of Mr David Tucker about pre-contractual negotiations and mortgages to ING Bank and Tuckerloan Pty Ltd. For the Commissioner, it consisted of 5 land titles searches for the 5 lots purchased. Background to the transactions [12] Camp Seabee purchased the 5 lots of land concerned from TradeCoast Land. Three of the lots are adjoining. They are across the road from the other 2 lots, which are adjacent to one another but separated by common property under the BCCM Scheme. Separate commercial or industrial structures have been built on each of the 5 lots. They do not share any common facilities, services, driveways or areas. Each is distinct from the other and leased to unrelated companies for different lease periods: namely, Smorgon Steel Distribution Pty Ltd (for the term 18 September 2008 to 17 September 2023);4 Daher Australian Aerospace Pty Ltd (for the term 10 December 2008 to 9 December 2018);5 Schneider Electric (Australia) Pty Ltd (for the term 24 November 2008 to 23 November 2023);6 Pacific Brands Holdings Pty Ltd (for the term 2 July 2008 to 1 July 2018);7 and APT Management Services Pty Ltd (for the term 22 December 2012 to 21 December 2027).8 [13] Mr David Tucker explained the context in which the contracts to purchase the 5 lots were entered into. Following a tender process conducted by the Brisbane City Council, TradeCoast Central Pty Ltd was selected by Council as developer of land at the former Brisbane airport site which the Council intended to develop as an industrial area under a community title under the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act). The development was to be called TradeCoast Central. [14] Mr David Tucker described the land as being developed, sub-divided and sold as a joint venture between TradeCoast Central Pty Ltd and the Brisbane City Council. Trade Coast Central Pty Ltd was the developer; Brisbane City Council operated the joint venture through TradeCoast Land Pty Ltd. In each of the contracts for sale to Camp Seabee, the vendor was TradeCoast Land. TradeCoast Central was named in the contracts as developer. [15] At the relevant time, Mr David Tucker was the director of Camp Seabee, and his father, one of the directors of TradeCoast Central, the developer. There were a number of directors of TradeCoast Land. 4 Section 21(2) documents, page 222. 5 Section 21(2) documents, page 283. 6 Section 21(2) documents, page 337. 7 Section 21(2) documents, page 384. 8 Search of the Records of the Department of Natural Resources and Mines, Queensland, for lot 6 on Survey Plan 224036, County of Stanley, Parish of Toombul dated 13 November 2013, attached to the submissions of the Commissioner filed on 27 November 2013. Leave was granted to the Commissioner to rely on this new evidence at the hearing. -- 4 of 17 -- 5 [16] TradeCoast Central was being approached by prospective tenants, but it was not in a position to act on these approaches. [17] Mr David Tucker began to negotiate on behalf of Camp Seabee with various prospective tenants. He ascertained interest from various companies in leasing premises on lots which constituted part of the former airport premises, if Camp Seabee acquired and built premises on them. He describes these as separate negotiations with separate potential tenants. He gave evidence that he also had a tenant arranged for lot 6, but that the tenant pulled out. [18] On behalf of Camp Seabee, Mr David Tucker also entered into negotiations for the purchase of 5 proposed lots in the development. He said that he also tried unsuccessfully to buy another lot in the development. Offers were presented, but not all at the one time, for the purchase the 5 proposed lots which are the subject of the decision which are variously sized lots and for a variety of purchase prices. His evidence was that at the times the purchase prices were offered, TradeCoast Central agreed, but the Brisbane City Council did not. [19] The Council subsequently accepted the offers made by Camp Seabee. Mr David Tucker says that there was no discount for purchasing multiple properties. The contracts were executed by TradeCoast Land and all dated the same day, that is, 8 March 2007. They were all in similar terms and subject to the identical conditions precedent regarding the development of the land,9 relating to registration of the plans under the Land Title Act 1994 and recording of the Community Management Statement establishing the scheme under the BCCM Act. They were all subject to the same special conditions. They were not conditional upon one another. All proposed lots were described as vacant general industry land. In due course, settlement of all of the contracts occurred on the same day, 19 August 2008. [20] The total purchase price was some $27 Million. Securities were granted to ING and Tuckerloan Pty Ltd over all 5 lots. ING financed about $20 Million and have a first mortgage over each of the lots, as well as several other properties owned by Mr David Tucker or companies he controls. Tuckerloan Pty Ltd, of which Mr David Tucker is a director, also advanced monies for the purchases, and has a registered mortgage over each lot. Through Tuckerloan, he loans monies to companies he is associated with protected by mortgage. He uses this manner of structuring his affairs. [21] It is common ground that TradeCoast Land and Camp Seabee are not related entities for the purposes of s 61 of the Act. 9 Land is defined in the contract terms as lot 31 on RP895254, Lot 2 on SP112300 and Lot 30 on RP 895254, Lot 16 on RP179509 County of Stanley, Parish of Toombul. -- 5 of 17 -- 6 Section 30 [22] Section 30 applies to ‘dutiable transactions that together form, evidence, give effect to or arise from what is, substantially 1 arrangement.’: s 30(1). Dutiable transaction is defined by s 9 to include an agreement to transfer dutiable property. Dutiable property is defined by s 10 to include land in Queensland. The term ‘arrangement’ is not defined, and nor are the other words (other than dutiable transaction) used in s 30. [23] If the section applies, transfer duty must be assessed on the aggregated transactions and treated as one single dutiable transaction: s 30(2). An example is given for s 30(2), as follows: Example for subsection (2)— A conducts a business of manufacturing bullbars. A agrees to sell the business to B as a going concern for $500000.00. The property included in the agreement comprises land, plant and equipment, goodwill and the business name. The land is dutiable property being land in Queensland and each of the other assets are dutiable property being Queensland business assets. The agreement, so far as it relates to the sale of the land, is a dutiable transaction being an agreement to transfer land in Queensland and, so far as it relates to the agreement to sell each of the business assets, is a dutiable transaction being an agreement to transfer dutiable property that is a Queensland business asset. Accordingly, there are 4 dutiable transactions under the agreement. Because the dutiable transactions together form 1 arrangement, they must be aggregated under this section for imposing transfer duty. [24] In deciding whether the transactions together form, evidence, give effect to or arise from what is substantially one arrangement, ‘all relevant circumstances relating to the dutiable transactions must’ be considered: s 30(3). Sub-section 30(4) sets out some ‘relevant circumstances’ which must be considered. Section 30(4) therefore contains a non-exhaustive list of relevant matters which must be considered in deciding the question whether the transactions together form, evidence, give effect to or arise from what is substantially one arrangement. On a plain reading, all other relevant circumstances, in the particular circumstances of the transactions, must also be considered. [25] Section 30(5) prescribes the manner in which transfer duty on dutiable transactions aggregated under the section must be assessed and apportioned. That is, duty must be paid on the total of the dutiable values and then apportioned as decided by the Commissioner. An example is provided for s 30(5), as follows: Example for subsection (5)— Under 4 agreements between a builder and a developer, the builder agrees to purchase 4 lots of land from the developer for $100000 each. The lots are dutiable property being land in Queensland and each of the agreements -- 6 of 17 -- 7 is a dutiable transaction being an agreement to transfer land in Queensland. Even though the sale of the 4 lots was negotiated at the same time, the agreements were signed on different dates over a 10 month period, had different settlement dates and were not conditional on each other. Under section 24 (Rates of transfer duty) and schedule 3 (Rates of duty on dutiable transactions and relevant acquisitions for landholder and corporate trustee duty), the agreements for lots 1 to 3 have been separately stamped for $2350 transfer duty. When the agreement for lot 4 is lodged for stamping, the commissioner decides this section applies because the transactions together formed 1 arrangement. Accordingly, the transactions must be aggregated under this section for imposing transfer duty and the duty apportioned between them. Under subsection (5)(a), the total of the dutiable values of the dutiable transactions on which transfer duty is imposed is $400000, being the value of each of the lots when the liability for transfer duty arose for each of the transactions, regardless of a variation in the values since the liability arose. Under section 24 and schedule 3, transfer duty imposed on the aggregated transaction is $12475. If the commissioner decides to apportion the transfer duty equally between the dutiable transactions, the amount of transfer duty payable is $3118.75 for each transaction. Under the Administration Act, part 3, the commissioner will make a reassessment for the transactions for lots 1 to 3. The assessment notice must state the matters mentioned in section 26(2) of that Act. [26] The Commissioner has issued Public Ruling DA030.1. The Commissioner submits that the Public Ruling confirms the Commissioner’s long-held views as to the application of s 30. For reasons of consistency in decision-making, policy may often be applied in administrative review unless there are cogent reasons not to do so, for example where the policy is unlawful or tends to produce an unjust result.10 However, I am satisfied that the Public Ruling should not, in the interests of justice, be applied given that it is common ground that it was created only after the assessment was made. Therefore, I give no weight to DA030.1 in determining the review. Discussion about the construction of s 30 of the Duties Act 2001 [27] Camp Seabee says that I must read s 30 as a whole, and I accept that is so. However, more broadly, as a matter of statutory construction, a provision must be construed in its overall context and the words of a legislative provision given the meaning Parliament intended, having regard to Parliament’s legislative purpose.11 The interpretation that will best 10 Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; see also comments in Hyde v Chief Executive, Office of Liquor and Gaming and Anor [2012] QCAT 13. 11 See Acts Interpretation Act 1954 (Qld) s 14A; and for example, see for example, K & S Lake City Firefighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 (per Mason -- 7 of 17 -- 8 achieve the purpose of the Act is to be preferred to any other interpretation.12 [28] The Duties Act is to be read together with the Taxation Administration Act 2001 as if they were a single Act.13 The main purpose of the Acts is to make provision about the administration and enforcement of revenue laws.14 [29] It is apparent that the Parliament included section 30 to provide for aggregation of duty when the full amount of duty might not otherwise be payable, broadly speaking, in circumstances when dutiable transactions of themselves do not fully reflect the arrangement. Both of the parties have referred me in submissions to aspects of the Explanatory Notes to the Duties Bill 2001. Extrinsic material may be considered in interpreting legislation if a provision is ambiguous, to provide an interpretation of it,15 or to confirm the interpretation conveyed by the ordinary meaning of the provision.16 [30] The Explanatory Notes to the Duties Bill 2001, in respect of s 30 (which I note has been amended since those Explanatory Notes, although the amendments do not appear to affect the examples touched on in the Explanatory Notes) suggest that because transfer duty is imposed at ad valorem rates, overall duty imposed can be affected if dutiable transactions are treated as separate although part of one agreement. It refers to ensuring that the appropriate amount of duty is imposed. It is also noted that in the absence of such a clause, staged dutiable transactions over a period of time so that they appear unrelated, may reduce the overall amount of duty imposed. [31] Ultimately, I am satisfied that the Explanatory Notes confirm the apparent meaning of the words and intention of the Parliament. For present purposes I note that the Explanatory Notes refer to several possible situations when aggregation was intended to apply, that is, when dutiable transactions are treated as separate although part of one agreement, and where staged dutiable transactions over time may otherwise appear unrelated. [32] As set out earlier, section 30 itself also includes several examples of the operation of the section. Examples in an Act of the operation of a provision are not exhaustive, and do not limit, but may extend, the meaning of a provision, and must be read in context of the provision.17 If the example and the provision are inconsistent, the provision prevails. J); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Lacey v Attorney General for the State of Queensland (2011) 242 CLR 573. 12 Acts Interpretation Act 1954 (Qld), s 14A. 13 Duties Act 2001 (Qld) s 5; Taxation Administration Act 2001 (Qld) ss 3, 6. 14 Taxation Administration Act 2001 (Qld) ss 3, 6. 15 Acts Interpretation Act 1954 (Qld) s 14B(1)(a). 16 Ibid s 14B(1)(c). 17 Ibid s 14D. -- 8 of 17 -- 9 The parties did not suggest that they are inconsistent, indeed Camp Seabee urged me to read s 30 as a whole. [33] It is interesting, in light of some of the decisions (discussed below) to which I was referred, that all of the examples contained in s 30 itself and in the Explanatory Notes are, broadly speaking, drawn in terms which anticipate that parties to the dutiable transactions are the same. Despite this, the plain words of s 30(1) do not suggest such a limitation, and s 30(4), which requires mandatory consideration of some factors, provides only that the Commissioner must consider in determining whether there is substantially 1 arrangement, whether the parties are the same, (leaving it open to find in an appropriate circumstances that they need not necessarily be the same for the section to apply). That said, in the current circumstances, I do not need to decide whether this is significant since the parties to the relevant dutiable transactions are the same. [34] Section 30(1) specifies that s30 applies when the ‘dutiable transactions’ ‘together form, evidence, give effect to or arise from… substantially 1 arrangement.’ Because the words must be construed in context, a dictionary definition of ‘arrangement’ (for which Camp Seabee submits) is unhelpful in my view, as are the cases, to which I was referred by the parties, which interpret ‘arrangement’ in other legislative contexts. [35] ‘Arrangement’ and ‘substantially 1 arrangement’ are general terms which do not have a specific technical or legal meaning. On their face, in s 30(1), the words appear broad enough to encompass or draw in any dutiable transactions which are found together to be connected in the manner for which the section provides for, that is, to either, ‘form’, ‘evidence’, ‘give effect to’ or ‘arise from’ a set of circumstances which is ‘substantially 1 arrangement’. [36] The section does not seek to limit or confine an arrangement to any particular type of arrangement, and on its face appears intended to cover the range of possible circumstances may which support a finding that there is ‘substantially 1 arrangement’. [37] Further, the inclusion of the word ‘substantially’ before ‘1 arrangement’ appears to broaden the intended reach of application of the sub-section. [38] In considering the South Australian equivalent (which was in significantly different terms but referred to separate conveyances which inter alia form or arise from substantially one transaction or series of transactions), the Supreme Court of South Australia considered that the word ‘substantially’ must be given some meaning, and held that it required a finding as to the ‘substance’ of the transactions.18 In considering the use of the word ‘substantially’ in the Victorian equivalent to s 30, the Victorian Civil and Administrative Tribunal considered the word ‘substantially’ was an important qualifier, since its inclusion meant that the section may apply 18 Jeffrey v Commissioner of Stamps [1980] 23 SASR 398, 406. -- 9 of 17 -- 10 when there is not one arrangement in fact, but which may still be found to be ‘substantially’ one arrangement.19 [39] Similarly, it appears to me that the inclusion of the word ‘substantially’ enhances the scope of operation of the section, and further extends the circumstances in which the section was intended to apply, again suggesting that a broad reach of the section was intended by Parliament. [40] The examples in s 30(2) and s 30(5) also provide context and may extend the section, as long as not inconsistent with it. They encompass situations where respectively, one agreement is entered into by the same parties which includes 4 dutiable transactions and where 4 transactions which are the subject of 4 separate contracts between the same parties are to be aggregated. Again, this suggests that s 30(1) was intended to apply in a variety of diverse circumstances. [41] I was referred to decisions which have considered equivalent, but not identical, aggregating provisions in other jurisdictions. A unity of purpose which unites the transactions has been considered necessary, at least in circumstances when the parties to the transactions were not the same. Also, an integral, rather than fortuitous, relationship between the transactions has also been required in some cases. [42] In Jeffrey v Commissioner of Stamps,20 the Supreme Court of South Australia considered the South Australian aggragating provision which relevantly applied to land or interests in land ‘…that together form or arise from, substantially one transaction or series of transactions.’ It held that the Commissioner was required to consider ‘“the substance” of the several transactions and determine whether they are, “in substance” one transaction although masquerading as several’.21 There were two transactions, namely two transfers of adjoining parcels of real property from common owners, one to a mother and the other to her son. The Court held that some ‘essential unity, some ‘oneness, some unifying factor’ was required to bring several transactions within the relevant provision.22 It was satisfied that there was an essential unity in the circumstances in which the second agreement was subject to satisfaction of special conditions in the first agreement, and settlement was to be effected on the same day. [43] Subsequently in Old Reynella Village Pty Ltd v Commissioner of Stamps (SA),23 the Supreme Court of South Australia considered the same South Australian provision but in different circumstances. In that case, a group of companies entered into 4 contracts to purchase land and options to purchase 16 other lots over some 6 months. In effect, the 20 properties would become one large lot if amalgamated, for the erection of a shopping 19 Brianco Nominees Pty Ltd & Ors v CSR [2008] VCAT 999. 20 [1980] 23 SASR 398. 21 Ibid, 406; this approach was approved in Old Reynella Village Pty Ltd v Commissioner of Stamps (SA) (1989) 51 SASR 378, 381. 22 [1980] 23 SASR 398, 405. 23 (1989) 51 SASR 378. -- 10 of 17 -- 11 complex. There was an assignment to the appellant which proceeded to obtain 17 transfers of individual properties covered by the contracts and options. The approach taken in Jeffrey was approved in so far as determining the substance of the transactions. It was also held that the relationship between transactions must be an integral relationship, rather than a fortuitous one, (applying the English case of Attorney-General v Cohen24 concerning a significantly different legislative provision, but which referred to a ‘series of transactions’ and in which the circumstances bore some similarity to those before the Supreme Court) for the transactions to constitute a ‘series of transactions.’ [44] Cohen’s Case concerned a public auction of residential houses offered in 12 lots. The same purchasers bought 6 of the lots which were offered by one vendor. The question for the Court of Appeal to consider was essentially whether the transactions were part of a larger transaction or series of transactions. It was held by the majority that the fortuitous or arbitrary coincidence of time or place did not constitute an integral relationship or interdependence between the transactions, and that this was not a ‘series of transactions’.25 [45] In Chief Commissioner of State Revenue v Pacific General Securities and Finimore Holdings Pty Ltd (No 2)(RD)26 the Appeal Panel of the Administrative Decisions Tribunal in considering s 25(1)(c) of the Duties Act 1997 (NSW), (which was similar to s 30 to the extent that it applies to dutiable transactions which ‘together form, evidence, give effect to or arise from what is, substantially, one arrangement’. However, after those words, in contradistinction to the Queensland s 30, appear the words, ‘relating to all of the items or parts thereof, or interests in, the dutiable property’). The Appeal Panel considered that an ‘arrangement’ could be either bilateral or unilateral. It considered that the provision was more widely expressed than the former provision and that there was no basis to construe it as limited to transaction-splitting. [46] The Appeal Panel considered it applied to transaction-splitting (that is, where a taxpayer acquired a single item and split it into several items, resulting in lower duty than on the combined amount payable for the split items) and the obverse (several individual transactions where a purchaser has a common purpose for those transactions but does not treat them as combined transactions for assessment of duty.)27 In that case, taxpayers acquired a row of 5 residential premises from various vendors for purposes of a mixed commercial and residential development across the sites. It was considered the transactions were caught by the aggregating provision. [47] I am cautious about applying the principles emerging from the authorities to which I was referred. The legislative provisions concerned are each 24 [1937] 1 KB 478. 25 [1937] 1 KB 478, 483 (per Slesser LJ); 490-491 (per Greene LJ). 26 [2005] NSWADTAP 54, [17]. 27 Ibid [19-21]. -- 11 of 17 -- 12 different in significant ways from s 30. Whereas I accept that s 30 requires that there must be a basis for concluding that the dutiable transactions are connected in some way such that they may properly be found to ‘form, evidence, give effect to or arise from’ what is substantially 1 arrangement, there is no basis for concluding that it must be through a ‘unity of purpose’ or ‘essential unity’. Given the very broad wording of the section, there may be other legitimate bases upon which such a finding may be made. [48] Further, I do not accept that there must necessarily be an interdependence between the transactions, as discussed in Cohen’s case. Section 30(4)(g) requires consideration of whether the dutiable property will be used ‘together’ or ‘dependently’. Using properties together may not necessarily indicate an interdependence. Had Parliament intended that the transactions must be interdependent for s 30 to apply, it would have been simple enough to mandate that in s 30(1). It did not. Also in s 30(4), it provided for consideration to be given to whether the properties were to be used together or dependently (rather than whether transactions are interdependent) in determining whether there is substantially one arrangement. [49] That said, there must be a sufficient link or connection which founds the determination that there is ‘substantially 1 arrangement’ which the dutiable transactions together, form, evidence, give effect to or arise from. Relevant circumstances relating to the dutiable transaction [50] In determining whether there is an arrangement, I must consider all of those matters referred to in s 30(4), as well as, pursuant to s 30(3), all (other) relevant circumstances ‘relating to the dutiable transactions’. [51] Camp Seabee made submissions to the effect that the ‘relevant circumstances’ must be confined to the dutiable transactions themselves. It criticises the Commissioner for taking into account circumstances which it says are irrelevant, for example, TradeCoast Central’s involvement as developer, when, it argues, the developer can have no bearing on duty payable. [52] As a matter of statutory interpretation, connecting phrases including ‘relating to’ (as well as ‘in respect of’ and other like phrases) have generally been interpreted broadly (although in each case they must be interpreted in their context), as requiring no more than a sufficient relationship between two subject matters.28 In context here, the circumstances must similarly have a sufficient relationship with the dutiable transactions to be considered, but are not limited to the circumstances of the dutiable transactions themselves. 28 For example, see Oceanic Life Ltd v Chief Commissioner of Stamps (1999) 186 ALR 211; O’Grady v Northern Queensland Co Ltd (1990) 92 ALR 213. -- 12 of 17 -- 13 Consideration of the section 30(4) matters [53] Each of the s 30(4) circumstances are considered below. (a) whether the transactions are contained in 1 instrument. [54] It is uncontroversial between the parties that the dutiable transactions are the 5 contracts, being agreements to transfer land in Queensland. It is uncontroversial that the transactions are not contained in one instrument. I am satisfied that there are 5 separate instruments containing the transactions. (b) whether any of the transactions are conditional on entry into, or completion of, any of the other transactions. [55] I am satisfied that none of the transactions was/were conditional upon one another, or any of the others in any way, nor does either party suggest otherwise. [56] The Commissioner suggests under s 30(4)(b) that it is significant that all 5 were subject to the same conditions. However, this is not a circumstance which falls within s 30(4)(b). However, it can be considered under s 30(3) and is discussed later. (c) whether the parties to any of the transactions are the same. [57] I find that the parties to the dutiable transactions are in each case the same, namely Camp Seabee as purchaser, and TradeCoast Land as vendor. [58] The Commissioner submits that the developer is also the same for the transactions. I am satisfied that in s 30(4), in context, the word ‘transaction’ means ‘dutiable transaction’. Therefore, although the developer is a party to the contracts concerned, it is not, a party to the dutiable transaction because it does not own the land to be transferred. Therefore, the developer’s status as a party to the contracts may only be considered under s 30(3) as far as it is relevant. (d) whether any party to a transaction is a related person of another party to any of the other transactions. [59] It is not controversial, and I accept, that the parties to the dutiable transactions, Camp Seabee and TradeCoast Land, are not related within the meaning of s 61 of the Act. (e) the time over which the transactions take place. [60] I am also satisfied that each of the contracts was dated 8 March 2007 and each of them settled on 19 August 2008. -- 13 of 17 -- 14 (f) whether, before the transactions take place, the dutiable property the subject of the transactions was used together, or dependently with one another, by the transferor or transferors. [61] I am satisfied that the land which is the subject of the transactions, being part of the former Brisbane airport land, which was during and after the negotiations (until the Plan and BCCM scheme was registered) and until settlement was held for the purposes of redevelopment by TradeCoast Land. (g) whether, after the transactions take place, the dutiable property the subject of the transactions will be used together, or dependently with one another, by the transferee or transferees. [62] Mr Tucker’s evidence about negotiations with prospective lessees before the contracts were signed makes it clear that it was always Camp Seabee’s intention to use the dutiable property, if purchased from TradeCoast Land, for development and leasing purposes. That is, it was intended that all of the properties be used for this common purpose. [63] I am satisfied that after the transfers, the lots have been used by Camp Seabee for development of industrial and/or commercial premises and made available for lease and leased to interested persons: namely, Smorgon Steel Distribution Pty Ltd (for the term 18 September 2008 to 17 September 2023);29 Daher Australian Aerospace Pty Ltd (for the term 10 December 2008 to 9 December 2018);30 Schneider Electric (Australia) Pty Ltd (for the term 24 November 2008 to 23 November 2023);31 Pacific Brands Holdings Pty Ltd (for the term 2 July 2008 to 1 July 2018);32 and APT Management Services Pty Ltd (for the term 22 December 2012 to 21 December 2027). I accept that there are no shared services, driveways and the like. [64] I accept that Camp Seabee has leased each of the lots to different and unrelated lessees who each use the leased premises individually. However, the issue is whether the transferee, that is, Camp Seabee, uses the dutiable properties together or dependently. [65] Camp Seabee acknowledges that it uses them for investment purposes, although submits that they are not used for these purposes together or dependently. However, in effect, Camp Seabee has through the transactions developed or established its own industrial leasing precinct comprising of the closely co-located lots. I am satisfied that whereas they are not used dependently, they are, and have been, used together by Camp Seabee for investment, development and leasing purposes. 29 Section 21(2) documents, page 222. 30 Section 21(2) documents, page 283. 31 Section 21(2) documents, page 337. 32 Section 21(2) documents, page 384. -- 14 of 17 -- 15 Further discussion about the relevant circumstances and conclusions about whether the dutiable transactions together form, evidence, given effect to or arise from ‘substantially 1 arrangement’ [66] Having regard to all relevant circumstances, I must ultimately determine whether the dutiable transactions ‘together form, evidence give effect to or arise from what is substantially 1 arrangement.’ Is there a sufficient link or connection which may found such a determination? [67] In this case, several of the s 30(4) circumstances point towards there being a link or connection. The vendor and purchaser are the same for each of the 5 contracts. All of the contracts were entered into on the same day. They all settled on the same day. The lots are used together. [68] The connection is further supported by other factors which are similar in the case of each contract. All negotiations between the vendor and purchaser occurred as a result of private negotiations and offers. It is not the case that a public auction was held and the lots sold to the highest bidder in each case (as a consequence of which it is not known until the hammer falls who will be the purchaser). There was a determined and ongoing negotiation process following which Camp Seabee and TradeCoast Land ultimately agreed about the sale of the 5 proposed lots. It is not a matter of mere happenstance that the 5 contracts were entered into between the same vendors and purchasers. Also, although they were not conditional on one another, they were all subject to the same conditions precedent and the same special conditions. [69] Although it explains how Camp Seabee became interested in the property, the involvement of TradeCoast Central and Mr Tucker’s father’s role as director of it, are not significant in determining the ultimate question in the matter since TradeCoast Central was not the owner of the land. Similarly, the family relationships between the directors of TradeCoast Central and Camp Seabee are not relevant. It is also irrelevant that no discount was offered to Camp Seabee for purchasing multiple lots. Camp Seabee was interested in purchasing multiple proposed lots in the development and ultimately succeeded in doing so, although I accept that it wished to purchase one additional lot to those which TradeCoast Land agreed to sell it. [70] It is irrelevant that TradeCoast Central agreed with the offers made by Camp Seabee when it made them. Negotiations and agreement reached between Camp Seabee and TradeCoast Land resulted in agreement only at the time the contracts were signed. The agreement ultimately reached was for Camp Seabee to purchase 5 proposed lots from TradeCoast Land, which it intended to use for investment, development and leasing. [71] I have considered Mr Tucker’s evidence that the 5 contracts resulted from Camp Seabee making offers for the lots as negotiations with prospective lessees progressed. This circumstance explains why there are 5 separate contracts although all essential features, other than the descriptions of the parcels of land, are identical. The agreement might have been contained -- 15 of 17 -- 16 in one contract, (although separate contracts may more commonly be entered for individual lots) for the 5 parcels of land. The desire of Camp Seabee to pre-arrange prospective lessees explains how offers came to be made at different times. However, none of the contracts was subject to the lessees entering into leases with Camp Seabee. Further, on the basis of Mr Tucker’s evidence, the agreements with prospective tenants were not binding on them, since the prospective tenant for lot 6 pulled out. This evidence goes more to explain the manner in which Camp Seabee prefers to operate its business or investments (that is, by seeking to pre- arrange tenants for the proposed investment and leasing development), than its agreement or arrangement with TradeCoast Land. [72] I consider the mortgage or borrowing arrangements are likewise irrelevant. The security required by a financial institution, namely, ING, when advancing funds are a matter for it. The evidence is that Tuckerloan is a corporate vehicle through which Mr Tucker organises his financial affairs. Therefore, I do not consider that there are any conclusions which may reasonably be drawn from the registered mortgages to Tuckerloan which would affect whether or not there is substantially one arrangement. [73] Having regard to the circumstances discussed as relevant, I am satisfied that the dutiable transactions form or give effect to ‘substantially 1 arrangement’ whereby Camp Seabee contracted to purchase the 5 proposed lots from TradeCoast Land in the one development by contracts which were entered into and settled on the same day. The fact that the parties evidenced their agreement in 5 separate contracts does not affect the agreement or arrangement ultimately reached. In my view, it is a very clear case of various transactions forming or giving effect to ‘substantially 1 arrangement’. It is of no consequence that the lots are leased to different entities and for different terms. [74] This conclusion is also supported by the example in s 30(5) (which provides an example of not only circumstances in which the provision might apply, but the consequences for apportionment of duty) which is not a dissimilar situation in some respects, except that, in that example, although the builder and the developer agree at one point in time upon the sale of 4 lots in a development, the agreement is evidenced in contracts dated different dates and which settle at different times. [75] In these circumstances, s 30 applies and duty is properly assessed by aggregating the transactions and treating them as one single dutiable transaction. Observations [76] In case I am wrong about the law, and a unity of purpose or essential unity (as per Jeffrey’s case) is required for s 30 to apply, I make the observation that I would be satisfied that the intention for Camp Seabee to acquire 5 lots from TradeCoast Land in the development for the purpose of using all of them for essentially the same purpose (that is, for investment, development and leasing) constitutes as essential unity in the -- 16 of 17 -- 17 transactions. I would be satisfied that this is, for these reasons, substantially one arrangement. [77] Further, if it were necessary, I would be satisfied that the relationship between the transactions is not arbitrary or coincidental. The dutiable transactions are the result of determined and deliberate negotiations by Camp Seabee to purchase multiple lots from TradeCoast Land. Unlike Cohen’s case, it was not an arbitrary coincidence of time or place because of the circumstances surrounding the negotiations and agreement ultimately reached. On this basis, I would find that there is an integral relationship between the transactions if it was necessary to do so. Orders [78] In view of my conclusions, the Commissioner’s decision is the correct and preferable decision. I make orders confirming it. -- 17 of 17 --