• The impact of this case on ATO policy is discussed in Decision Impact Statement: MTAA Superannuation Fund (R G Casey Building) Property Pty Ltd v Commissioner of Taxation (VID 1325 of 2011).

MTAA SUPERANNUATION FUND (R G CASEY) BUILDING PROPERTY PTY LTD v FC of T

Judges:
Gilmour J
Perram J
Jagot J

Court:
Full Federal Court, Melbourne

MEDIA NEUTRAL CITATION: [2012] FCAFC 89

Judgment date: 20 June 2012

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Gilmour, Perram and Jagot JJ

1. This is an appeal from the decision of the Administrative Appeals Tribunal in
MTAA Superannuation Fund (R G Casey Building) Property Pty Ltd v Commissioner of Taxation 2011 ATC ¶10-213[2011] AATA 769. It turns primarily on the construction of s 13 of the A New Tax System (Goods and Services Tax Transition) Act 1999 (Cth) (the GST Transition Act) sometimes referred to as the "safe harbour rule" for agreements made before 8 July 1999 the day on which the GST Transition Act received the royal assent.

2. More particularly, the appeal concerns whether the applicant (MTAA) was liable to pay Goods and Services Tax (GST) in respect of payments received from the Department of Foreign Affairs and Trade (DFAT) in the period between 1 March 2001 and 30 June 2005 (the relevant period) under a lease dated 24 April 1998 commencing on 25 April 1998 with a term expiring on 28 February 2012 (the Lease), and if GST was not payable, whether the assessments issued by the respondent (the Commissioner) for each of the tax periods for the relevant period are excessive and MTAA is entitled to a refund of the overpaid amounts of GST.

3. In these reasons the "relevant supplies" refers to supplies made under the Lease between 1 March 2001 and 30 June 2005.

4. The following questions of law were raised by the applicant:

• (a) whether the Tribunal erred in its construction of s 13 of the GST Transition Act in concluding that s 13 did not apply to the relevant supplies;
• (b) whether the Tribunal denied MTAA procedural fairness;
• (c) whether the Tribunal erred in its construction of s 13(5) of the GST Transition Act in concluding that the rent review constituted a "review opportunity";
• (d) whether the Tribunal erred in its construction of s 105-65 of Sch 1 to the Taxation Administration Act 1953 (Cth) (the TA Act) in concluding that:
  • (i) s 105-65 applies to supplies that are "GST free" pursuant to s 13 of the GST Transition Act;
  • (ii) the conditions of s 105-65(c)(i) were met in circumstances where MTAA had undertaken to reimburse (but had not actually reimbursed) overpaid GST to the recipient of the supplies; and
• (e) whether the Tribunal erred in law in relation to how it would have exercised the Commissioner's discretion under s 105-65 (had it not determined that the supplies were not GST free).

5. The Commissioner does not press his notice of contention.

Factual background

6. MTAA, together with its partner in the R G Casey Building Partnership, from 1998 to 2009, owned the property at the corner of Sydney Avenue and John McEwen Crescent, Barton, ACT, on which a building known as the R G Casey Building had been constructed. The partnership leased part of the R G Casey Building to the Commonwealth of Australia under the Lease pursuant to which the building was occupied by DFAT. The term of the Lease spanned the whole of the period from the date of royal assent to the GST Transition Act, namely 8 July 1999 to 30 June 2005.

7. Both the partnership and DFAT were registered for GST, and the partnership paid GST on a quarterly basis.

8. Before it was purchased by the partnership, the property (including the R G Casey Building when its construction was completed in 1996) was owned by the Commonwealth of Australia. During the construction of the building, DFAT commissioned various building works to be performed and, following completion of construction, the Commonwealth leased the premises to DFAT for an initial term of 15 years. In addition to rent, DFAT agreed to pay the Commonwealth $519,996 per annum for the duration of the initial Lease to reflect the amortisation of costs of the works it commissioned.

9. By an agreement dated 27 February 1998 the partnership agreed to buy the property from the Commonwealth.

10. The consideration payable under the Lease had four components: the rent component, amounts reflecting amortisation of some of the cost of construction, a share of statutory outgoings and an annual fee for car park spaces.

11. Clause 4 of the lease obliged the lessee to pay "the rent specified in Item 5, as reviewed under cl 5 …". Item 5 specified the annual rent to be $16,395,048.00, due from 25 April 1998. The rent was payable monthly.

12. DFAT's obligation for statutory outgoings was to pay 91.34 per cent of statutory outgoings in excess of statutory outgoings incurred in each base year. Base years were the year ended 30 June 1997 and in each rent review period the financial year completed immediately prior to rent review dates. "Statutory outgoing" is defined in cl 6A.1(g) of the lease to mean "council rates, water rates and land tax …".

13. Clause 5 provided for rent reviews on specified dates. On rent review dates, the first four of which were 1 March 1999, 1 March 2001, 1 March 2003 and 1 March 2005, the rent component of the lease consideration was to be reviewed to the current open annual market rental value in accordance with prescribed procedures for this value to be determined.

14. There was no provision for adjustment or review of the amortisation or outgoing components of the consideration.

15. Schedule 4 provided that the parties should first seek to agree on a new rent. Failing agreement, two valuers (the Valuers) were to be appointed. In the event of their failure to agree, a third valuer (Umpire) was to be appointed. The Valuers or Umpire were to determine "the current annual open market rental value of the premises". In determining the market rental value for the premises, the schedule contained a requirement "to take into account all relevant matters on the date when that rent is to apply for the premises assuming" a number of factors. The first factor was that "the Lessor is a willing but not anxious Lessor and the Lessee is a willing but not anxious Lessee". A number of other factors were specified. No reference to taxes, whether GST or otherwise, is contained in the factors.

16. In June 2000 the partnership advised DFAT that from 1 July 2000 it would begin charging GST on the rent component of the lease consideration payable by DFAT. It responded in July in terms that GST was not payable until the following rent review date, 1 March 2001, and that the net effects of GST would be accommodated in the rent calculations at that time. Nothing further was done in this respect until February the following year.

17. Representatives of the partnership and DFAT met on 23 February 2001 to discuss the implementation of the GST and the rent review generally. At that meeting DFAT's representatives indicated that an initial increase of 10 per cent to cover GST would be acceptable to it. This increase was not an agreement made pursuant to the rent review process under the Lease.

18. JG Service Pty Ltd (which had been appointed by the partnership as property manager for the R G Casey Building) wrote to DFAT on 16 March 2001 stating that the GST component of the monthly rent would be included effective from 1 March 2001, as agreed. GST was initially included on the base rental, car parking, and the amortisation amounts on invoices issued in March and April 2001.

19. By 7 May 2001, following exchanges of correspondence in March and April 2001, DFAT and the partnership agreed that GST would be paid on the rental component but not on the amortisation component and subsequent tax invoices included GST amounts for the rental and car park components of the Lease consideration.

20. MTAA confirmed on 8 May 2001 that JG Service had been instructed to issue a revised tax invoice that excluded GST on the amortisation fee pending the ATO ruling. Invoices were then issued including GST on the base rental component and car parking for the rental periods from 1 March 2001.

21. DFAT wrote to the partnership on 21 June 2001 saying "your request for an increase in rent is not agreed". This triggered the rent review procedure set out in cl A.4 of Sch 4 to the Lease. This was a separate question to that concerning payment of GST.

22. The respective Valuers appointed by the partnership and DFAT could not agree upon a joint determination as to the "current annual open market rental value" of the premises.

23. Accordingly, in or about December 2001, Graham Jeffress, of Colliers Jardine Consultancy and Valuation Pty Ltd, was appointed as the Umpire to determine the current annual open market rental of the premises.

24. By letter dated 25 January 2002, the Umpire determined the following rental rates as at 1 March 2001: office space - $395 per square metre per annum; storage space - $100 per square metre per annum.

25. By letter dated 5 February 2002, the Umpire advised the parties that the rental rates he had determined were the GST-exclusive market value. An amount equivalent to 10 per cent of the rental and car parking components was then added to reflect the GST liability. The new rental including GST was paid by DFAT backdated to 1 March 2001.

26. The rent, amortisation, car park and outgoings components of the Lease consideration paid by DFAT over the period from 1 July 2000 to 30 June 2005 are set out in the following table:

Lease consideration component	GST exclusive total paid	GST inclusive total paid	% of GST inclusive Aggregate
Rent	$83,246,843.75	$90,478,524.85	94.20%
Car Park	$2,610,750.01	$2,836,600.01	2.96%
Amortisation	$2,599,980.00	$2,599,980.00	2.71%
Statutory Outgoings	$140,169.87	$140,169.87	0.15%
Aggregate		$96,055,274.73

27. The partnership paid almost $7.5 million in GST to the Commissioner on the rental and car park components quarterly from the 1 March 2001 rent review date. These amounts had been paid to it by DFAT. It did not pay GST on the amortisation or outgoings components.

28. Following the decisions in
DB Rreef Funds Management Ltd v Commissioner of Taxation 2005 ATC 4302(2005) 218 ALR 144,
Commissioner of Taxation v DB Rreef Funds Management Ltd 2006 ATC 4282; (2006) 152 FCR 437 and
Westley Nominees Pty Ltd v Coles Supermarkets Australia Pty Ltd 2006 ATC 4363; (2006) 152 FCR 461, the partnership claimed that s 13 of the GST Transition Act applied and that GST was not payable at all. The partnership sought refunds totalling $7,457,531.10 which the Commissioner has refused.

29. It is by no means clear why MTAA, which is not out of pocket for the GST payments, it having received the full amount of GST from DFAT, has brought these proceedings. The explanation by its senior counsel that it was in order to enforce its rights was not illuminating.

Grounds of appeal

30. The relevant grounds relied upon by the applicant are as follows. We have, for reasons which will become apparent, omitted those referable to s 105-65 of Sch 1 of the TA Act concerning the statutory discretion in the Commissioner not to refund GST overpaid by a taxpayer.

Ground 1

31. The Tribunal erred in finding at [34]-[37] of the Reasons for Decision that s 13(1) of the GST Transition Act did not apply to the Lease from the rent review date because:

• (i) the supplies made after the rent review date were not made for consideration identified in the terms of the Lease;
• (ii) the rent review clause in the Lease was to be a product of the market at the time of the review and there was no mechanism in the Lease which could provide "a way of working out the consideration, in money, for the supply'; and alternatively
• (iii) the consideration for supply was agreed separately from the terms of the Lease because the parties, after a process of negotiation, determined that GST would be paid on the rent component of the lease consideration.

Ground 2

32. The Tribunal should have found that s 13(1) of the GST Transition Act did apply to the Lease from the time of the rent review on 1 March 2001 and further that:

• (i) the existence of the rent review procedure in the Lease provided a way of "working out" the consideration payable for supplies made after the rent review date so as to satisfy the provisions of s 13(1) of the GST Transition Act; and
• (ii) having held at [25] of the Reasons for Decision that the rent review process concluded with a GST inclusive market value rent being paid, the Tribunal should have found that the increase in the rental to cover GST payable in respect of the Lease was made as part of that rent review process.

Ground 3

33. Further, the reason set out at Ground (1) above was not relied on by the parties or raised at the hearing and the Tribunal failed to afford the applicant procedural fairness by making its decision without affording the applicant an opportunity to address the Tribunal on the matter.

Ground 4

34. The Tribunal erred in finding at [44] of the Reasons for Decision that if a material part of the consideration cannot be reviewed then there is no "review opportunity" for the purposes of s 13(5) of the GST Transition Act. The Tribunal should have found that if a de minimis part of the consideration (by reference to value and proportion), being an amount so trifling in value or in amount as to be negligible, cannot be reviewed then there is no review opportunity.

Ground 5

35. The Tribunal erred in finding at [45] of the Reasons for Decision that in circumstances where 97.14 per cent of the lease consideration was reviewable and 2.86 per cent was not, nearly all of the consideration was reviewable and that therefore a "review opportunity" within the meaning of s 13(5) of the GST Transition Act arose on the rent review date of 1 March 2001. The Tribunal should have found that the amount of 2.86 per cent of the rent, being an amount of $2,740,149.87 over the tax periods in question, was not a de minimis amount and there was not an ability for the applicant to review "all or nearly all" of the consideration so as to constitute a "review opportunity" within the meaning of s 13(5) of the GST Transition Act.

Ground 6

36. Having found at [44] of the Reasons for Decision that the setting in which the Full Court used the term "nearly all" in
DB Rreef 2006 ATC 4282(2006) 152 FCR 437 and Westley Nominees suggested an enquiry as to unfairness might be used as a guide to what would constitute nearly all, in conducting that enquiry the Tribunal erred at [45] by looking at the proportion represented by the GST liability on the non-reviewable components of the Lease as against the total consideration paid under the Lease. The Tribunal should have looked solely at the GST liability on the non-reviewable components of the consideration under the Lease as the applicant was able to recover from DFAT the GST liability on the reviewable components. The Tribunal should also have considered the fact that the applicant was exposed to a continued GST liability with respect to the non-reviewable components for the remainder of the Lease and that the applicant was not able to alleviate this financial burden by utilising the statutory "gross-up" provisions in Div 2 of the GST Transition Act.

Section 13 of the GST Transition Act

37. The GST is a broad-based indirect tax, which replaced the wholesale sales tax and a number of State and direct taxes. The GST was introduced by A New Tax System (Goods and Services Tax) Act 1999 (Cth), which received the royal assent on 8 July 1999 and commenced on 1 July 2000. Under s 7(1) of the GST Transaction Act, GST is payable on a "supply" or "importation" to the extent that it is made after 1 July 2000.

38. As Sackville J observed in
DB Rreef 2005 ATC 4302; (2005) 218 ALR 144 at [3]:

The introduction of the GST required Parliament to give consideration to the application of the new tax to subsisting transactions. What was to happen under agreements which were entered into before the GST regime came into force, but which set the price of goods and services supplied after 1 July 2000? Was GST to apply in such situations? If so, who was to bear the burden of GST in the absence of an agreement specifically addressing the issue?

39. Section 13(1) of the GST Transition Act addresses those questions and provides as follows:

• (1) This section applies if:
  • (a) a written agreement specifically identifies a supply and identifies the consideration in money, or a way of working out the consideration in money, for the supply; and
  • (b) the agreement was made before the day on which this Act received the Royal Assent.

40. Sections 13(2) and 13(5) of the GST Transition Act provide as follows:

• (2) The supply is GST-free to the extent that it is made before the earlier of the following:
  • (a) 1 July 2005;
  • (b) if a review opportunity arises on or after the day of Royal Assent - when that opportunity arises.
• (5) In this section:

  review opportunity , for an agreement to which this section applies, means an opportunity that arises under the agreement:

  • (a) for the supplier under the agreement (acting either alone or with the agreement of one or more of the other parties to the agreement) to change the consideration directly or indirectly because of the imposition of GST; or
  • (b) for the supplier under the agreement (acting either alone or with the agreement of one or more of the other parties to the agreement) to conduct, on or after 1 July 2000, a general review, renegotiation or alteration of the consideration; or
  • (c) for the supplier under the agreement (acting either alone or with the agreement of one or more of the other parties to the agreement) to conduct, before 1 July 2000, a general review, renegotiation or alteration of the consideration that takes account of the imposition of the GST.

41. Again, as Sackville J noted in
DB Rreef 2005 ATC 4302; (2005) 218 ALR 144 at [30]:

The GST Transition Act does not define some of the key terms used in s 13(5)(b), namely "opportunity", "general", "review", "renegotiation" or "alteration". However, the word "consideration" is broadly defined and includes any payment in connection with the supply of anything: GST Act, s 9-15(1)(a); GST Transition Act, s 5(2).

42. The Full Court in
DB Rreef 2006 ATC 4282; (2006) 152 FCR 437 at [9] per Edmonds J (Ryan and Heerey JJ concurring) observed that:

The purpose of s 13 is to avoid unfairness which would result if the supplier, under a contract of the kind specified in s 13(1), is made liable for GST in circumstances where the supplier is not able to take GST into account in arriving at the consideration payable for its supply.

43. The Tribunal acknowledged this to be the purpose of s 13 at [31] of its Reasons for Decision. The unfairness to which s 13 is directed is absent in circumstances where the supplier and recipient agree to increase the consideration for the supply on account of GST. In these circumstances there is no unfairness in requiring the supplier to remit GST.

Consideration

Does s 13(1) apply to the Lease? (Grounds 1-2)

44. The Tribunal found that s 13(1) did not apply to the Lease from 1 March 2001 because the relevant supplies from that date were not made for consideration "satisfactorily identified" in the Lease as it was prior to the date of royal assent.

45. Central to the Tribunal's analysis of s 13 is the proposition that, in order for s 13 to apply, the agreement referred to in s 13(1)(a) must identify the supplies and the consideration for supplies made after 1 July 2000. It is the need for this identification of the post-1 July 2000 supplies and the consideration for them that led the Tribunal to frame the relevant enquiry at it did and to conclude that s 13 did not apply to the relevant supplies. The Tribunal concluded, correctly in our opinion, that the supplies made after 1 March 2001 were not made "for consideration satisfactorily identified in the pre-royal assent date lease".

46. As the Tribunal identified, the consideration originally provided for in the pre-royal assent date Lease was varied by a two step process: first, there was an agreement to increase the rent by 10 per cent on account of GST and, second, the rent was subsequently varied by the application of the rent review procedure, which resulted in the rent being reviewed to the market.

47. The consideration paid for the supplies made from 1 March 2001 changed from that applicable under the Lease in its original terms. From 1 March 2001, the consideration changed because the amounts paid for rent and car parking were increased by 10 per cent for GST, not pursuant to the terms of the Lease, but pursuant to the agreement between MTAA and DFAT, reached at the latest by 7 May 2001. Consequently, s 13 no longer applied. It was not until March 2002 that the increased rental (backdated to March 2001) was applied following the determination of the Umpire.

48. MTAA argued that no such agreement was made and that what occurred at the meeting of 23 February 2001 and the follow-up correspondence is to be characterised as negotiations forming part of the ultimate rent review reached in March 2002. This does not bear scrutiny. Whilst it might be said that the statement of agreed facts (SOAF) in this respect could have been expressed more cogently, nonetheless, when considered in light of the relevant contemporaneous documentary evidence, it is clear enough that such an agreement was reached by 7 May 2001.

49. MTAA submits, in effect, that the Tribunal's findings in this respect are ambiguous. We do not agree. Relevantly, the Tribunal made the following findings of fact at [23]:

At that meeting [a meeting on 23 February 2001] the Department's [DFAT's] representatives indicated that an initial increase of 10% to cover GST would be acceptable to the Department. This increase was not an agreement made pursuant to the rent review process under the lease. By 7 May 2001, following exchanges of correspondence in March 2001 and April 2001, the Department and the partnership agreed that GST would be paid on the rental component but not on the amortisation component and subsequent tax invoices included GST amounts in the rental and car park components of the lease consideration. (emphasis added)

50. That the Tribunal made these findings of fact are plain enough. To the extent that it might be said that these findings were at odds with other parts of the Tribunal's reasons, and we are not persuaded that this is so, the well-established caution that courts of review ought not construe such reasons for decision "minutely and finely with an eye keenly attuned to the perception of error" is apt:
Collector of Customs v Pozzolanic Enterprises Pty Ltd 96 ATC 5240; (1993) 43 FCR 280 at 287. As the plurality of the High Court observed in
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, in such circumstances the Court reviewing a decision must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This is the very course, as it seems to us, which the applicant has embarked upon.

51. Importantly, as the Tribunal found, this agreement was separate from the increased rental arrived at through the dispute resolution process governing rent reviews. MTAA's notice of appeal does not contend that the Tribunal erred in law in making this finding of fact, and it is not open to it to challenge it in this Court, whether by a side wind or otherwise.

52. Those parts of the Tribunal's reasoning which consider whether the rent review clause provided a "way of working out the consideration in money" for supplies made after 1 July 2000 acknowledge that the terms of s 13(1) allow for the possibility that an agreement may not set out "the consideration" in terms, but may include a mechanism or "way of working out" the consideration in monetary terms. It was in this context that the Tribunal concluded that the supplies made after royal assent must be made for consideration which is identified in the pre-royal assent agreement.

53. Section 13 does not afford protection to suppliers who make supplies after the royal assent for a consideration which is not specified, or worked out pursuant to an agreement entered into before the date of royal assent. As the Tribunal noted, MTAA and DFAT departed from the consideration specified in the pre-royal assent Lease by agreeing that DFAT would pay an additional 10 per cent on account of GST.

54. Indeed the agreement by DFAT to pay GST on the rental and car park components of the Lease consideration enured beyond the rent review which was determined by the Umpire on a GST exclusive basis. GST was added to the reviewed rental.

55. MTAA contends that the Tribunal erred in finding that the rent review clause in the Lease did not provide any mechanism linking the new rental to the original rental and there was no mechanism which could provide "a way of working out the consideration, in money, for the supply". Applying such a narrow construction to those words, it contends, is in conflict with the intent and purpose of the section, which is to protect suppliers and is also in conflict with the judgment of Hill J in
ACP Publishing Pty Ltd v Commissioner of Taxation 2005 ATC 4151; (2005) 142 FCR 533 where his Honour outlined the broad construction to be applied to those words at [37]-[38]:

• [37] There is no policy reason which requires the adoption of a narrow construction to these words. A narrow construction might require that the words "working out" relate to there being set out in the agreement, a method of calculation. For example, the adoption of a formula. That narrow construction would exclude a case (it might be thought to be a typical case for the operation of s 13) where rental for a further term of a commercial lease was to be determined by some expert such as the President of the Real Estate Institute. There would, in such a case, be no formula applied to calculate the consideration, but the rental consideration would have been worked out by a way of working it out identified in the agreement.
• [38] No reason in policy can be advanced for excluding the expert rental calculation example from the operation of s 13. (emphasis added)

56. We agree that these remarks made were founded, as the judgment makes clear at [38], on the assumption that a rent review mechanism cannot constitute a review opportunity. However, that is an erroneous assumption, as is clear from the later decisions of the Full Court in DB Rreef and Westley Nominees.

57. The Tribunal did not err in identifying the two step process involving the agreement to increase the rent on account of GST and the increased rental resulting from the rent review process as resulting in the consideration for the relevant supplies not being identified in the pre-royal assent lease as required by s 13. The agreement to pay an additional 10 per cent on account of GST which was the first of these steps was of itself sufficient for that result. This conclusion is the same whether what occurred is characterised as a new agreement or as further consideration agreed to as a variation of the Lease.

58. The first alternative is not in conflict with the finding of fact by the Tribunal that the rent and car park components of the consideration were also reviewed from 1 March 2001, under the terms of the lease, on a GST inclusive basis. As the SOAF discloses, the Umpire determined the rent review on a GST exclusive market value. Following that valuation, a figure for GST in respect of the rent and car park components was nonetheless added pursuant to the agreement struck between the parties to the Lease in May the previous year.

59. Accordingly, the Tribunal did not err in not finding that the rent review procedure in the Lease provided "a way of working out the consideration" payable for supplies made after the review date. So understood, s 13 did not apply to the relevant supplies. It was said by the applicant that DFAT agreed to pay this additional 10 per cent in respect of GST under a mistake. However, the question whether the agreement to pay GST was the product of mistake, unilateral or mutual, was not litigated below. If it had been, the Commissioner contends that this factual question would have been explored in the evidence. It is too late now to raise this assertion.

Was MTAA afforded procedural fairness by the Tribunal? (Ground 3)

60. The question whether the rent review clause provided "a way of working out the consideration in money" for the purposes of s 13(1) was not raised by either party before the Tribunal. MTAA submits that the Tribunal made a finding on this question without affording it an opportunity to address the Tribunal on the matter, whether by evidence or submissions, thereby failing to accord MTAA procedural fairness.

61. This ground is a subsidiary one to MTAA's primary ground that the Tribunal erred in making its finding that s 13(1) did not apply to the Lease from the date of the rent review which, were it to have been successful, would have meant that it was unnecessary to remit the matter to the Tribunal for further consideration of this question. However, if resort to ground 3 is necessary then, if successful, MTAA seeks an order that the matter be remitted to the Tribunal for further consideration of this question.

62. While the Commissioner agrees that the "working out" analysis was not the subject of submissions below, he submits that it was not the ratio of the Tribunal's decision, but reflected an analysis, which was strictly not required, of why it was that that part of s 13(1)(a) did not apply in circumstances where the monetary consideration had clearly changed after 1 March 2001 from that specified in the pre-royal assent lease. We agree with this submission. That the consideration had changed was a pivotal issue raised repeatedly during argument before the Tribunal. MTAA did not submit that the change in consideration was not significant because the rent review process provided a way of "working out" the consideration in money. This is not a case like
Fletcher v Commissioner of Taxation 88 ATC 4834; (1988) 19 FCR 442 at 449 and 456 where the Tribunal disposed of an appeal on a ground not raised at all during the hearing, and which was otherwise divorced from the grounds of argument.

63. It was for MTAA to raise this issue. That the Tribunal nonetheless considered it, was not, in the circumstances, a denial of procedural fairness. This ground fails.

Was there a "review opportunity" under the lease within s 13(5)? (Grounds 4-6)

64. MTAA submits that, upon finding that 2.86 per cent of the consideration paid pursuant to the Lease over the relevant period (representing approximately $2.74 million) was not reviewable, the Tribunal should have found that there was no "general review" of the consideration payable under the Lease, so as to be a "review opportunity" within s 13(5)(b) of the GST Transition Act.

65. It contends that the Tribunal erred in finding that in DB Rreef and Westley Nominees the Full Court confirmed that a review of "nearly all" of the consideration could be regarded as a general review of the whole of the consideration. As MTAA puts it, the ratio of the Full Courts can be found in the following extract from the judgment in Westley Nominees at [57]:

The concept of a "general review" for the purpose of para (b) of s 13(5) of the GST Transition Act requires a complete or almost universal consideration of the same subject: DB Rreef at [98] per Sackville J. The words "the consideration" refer to the whole of the consideration for the supply, not to a mere part of that consideration. (emphasis added)

and that those parts of the judgments in DB Rreef and Westley Nominees referring to a general review being "the whole or nearly all" and "nearly all" of the consideration were obiter statements.

66. MTAA submits that if those obiter statements reflect the law, the Tribunal erred in finding that if a "material" part of the consideration cannot be reviewed, there is no review opportunity. The proper approach, it says, is to apply a de minimis rule, to determine whether the amount is "so trifling in value or in amount as to be negligible", and had it done so the Tribunal should have found that the non-reviewable part of the consideration was not a de minimis amount. This, it submits, is consistent with the approach of the Full Court in Westley Nominees where the focus of the Court's discussion was on contributions to a promotion fund which represented some 0.53 per cent of the total amount paid. It is also, MTAA contends, consistent with the enquiry into fairness referred to by the Tribunal as a guide to what would constitute "nearly all".

67. MTAA submits that in undertaking this enquiry into fairness, the Tribunal erred in relying on the proportion of the GST liability on the non-reviewable component as compared to the total consideration paid, which improperly reduced the percentage to 0.26 per cent of the total consideration period. It observes that no such approach was undertaken or considered by the Full Court in DB Rreef or Westley Nominees, and that further, the Tribunal failed to have regard to the evidence that MTAA was exposed to an ongoing detriment through its liability to pay GST on all of the consideration while being entitled to recover only a smaller part from DFAT.

68. We do not accept these submissions.

69. The Tribunal, for the reasons it gave, concluded that "nearly all" of the consideration under the Lease was reviewable and, on that basis, a "review opportunity" arose under s 13(5). The Full Court in DB Rreef adopted the construction of the words "general review" articulated at first instance by Sackville J: "a complete or almost universal" consideration of the same subject. At [82] the Full Court employed a synonymous phrase "the whole or nearly all of the consideration for the supply". The Full Court in Westley Nominees again described "general review" in the terms employed by Sackville J. His Honour in DB Rreef at first instance at [98] arrived at that construction by attributing the ordinary dictionary meaning for the words "general review".

70. The Tribunal found that the amortisation amounts and statutory outgoings were not reviewable and that these non-reviewable components represented 2.86 per cent of the total consideration paid for supplies made during the relevant period. It seems that the correct percentage is 3.1 per cent but nothing turns on this difference nor was it contended otherwise. It also found that the GST liability in respect of the non-reviewable Lease consideration represented 0.26 per cent of the total consideration paid. Section 13(5)(b) of the GST Transition Act does not, for the following reasons, compel a different conclusion.

71. A "review opportunity" under s 13(5)(b) of the GST Transition Act, requires that the supplier have the opportunity to conduct a "general review" of the whole consideration. Here, the issue is whether the review opportunity afforded by the rent review process under the Lease was a "general" review. The word "general" qualifies the nature of the review and allows but does not require that the review be "universal". It is enough, as was held by Sackville J in DB Rreef, that it is "almost universal". It does not exclude only trivial or de minimis amounts of consideration. Such expressions are unjustifiable glosses on the meaning of "general" qualifying the word "review". They are also at odds with the meaning adopted by the Full Court in each of DB Rreef and Westley Nominees.

72. We are of the opinion that the Tribunal correctly approached the question of whether the rent review clause in issue gave rise to a "general" review by examining the proportion of the total consideration that is excluded from the review. It made the comparison by considering the 2.86 per cent figure. That it also considered the proportions by considering the 0.26 per cent figure did not detract from its first comparison. Had it considered only the 0.26 per cent figure, the position may have been different.

73. Contrary to MTAA's submissions, this approach of proportionality finds support in the Full Court decisions in DB Rreef and Westley Nominees.

74. In DB Rreef, the lessee was obliged to pay or reimburse the "operating costs". These constituted approximately 17 per cent of the consideration, and the Full Court at [82] found that "the fact that such a contribution could not be reviewed is fatal to the Commissioner's case because there is no review opportunity in relation to the whole or nearly all of the consideration for the supply …".

75. Likewise, in Westley Nominees, only the "base annual rent" was reviewable and amounts payable by the lessee for the "annual percentage rental", operating expenses, after hours charges and contributions to a promotion fund were not reviewable. In Westley Nominees, the base annual rent was 70.94 per cent of the overall rent, but only 51.94 per cent of the total consideration. The Full Court observed at [66] that:

[I]f all the elements of the consideration could be reviewed other than Coles' contribution to the promotion fund, then it would be open to conclude that the review was, nevertheless, a general review being a review of nearly all of the consideration. … However, where more than 48 per cent of the (whole of the) consideration is not open to review, it cannot be said that there has been an opportunity for a general review of the consideration for the supply.

76. The ratio in each of
DB Rreef 2006 ATC 4282; (2006) 152 FCR 437 and Westley Nominees is not constituted only by the passage in Westley Nominees at [57] relied upon by MTAA. Where it referred to the "whole of the consideration" in that passage the context was a rejection by the Full Court of the trial judge's reasons, which did not characterise all amounts to be paid as "the consideration" but implicitly found that there were two supplies such that the question of whether there was a "general review" did not require account to be taken of the lessee's contribution to outgoings as part of the consideration for the supply, namely, the lease. So much is apparent from [58] of the Full Court's judgment which immediately follows the passage relied on by MTAA as well as what is to be found at [66] to which we referred above.

77. In any event it is the whole of the consideration which is to be the subject of the review but, importantly, that review has only to be a general review. The consideration is the whole of the amounts payable under the Lease. It is not a requirement of s 13 that the question of whether or not a review is general is to be considered by an examination of the several components to each of which part of the consideration is attributed. Rather, it is the total amount of money payable which is the product of the consideration referable to those several components which must be generally reviewable.

78. The whole consideration under the Lease rounded up to the nearest dollar was $88,597,745. That part of the consideration, for amortisation and statutory outgoings, which was not reviewable, also rounded up to the nearest dollar amounted to $2,740,150. It is the product of the second of these figures expressed as a percentage of the whole consideration which is 3.1 per cent.

79. Doubtless minds could differ as to whether a review of approximately 97 per cent of the whole consideration supported a conclusion that "nearly all" of the consideration was reviewable. Nonetheless, the Tribunal, acknowledging as it did that approximately 3 per cent of the consideration was not reviewable, found, as a fact, that "nearly all" of the consideration under the Lease was reviewable and that this constituted the necessary "general" review amounting to a "review opportunity" for the purposes of s 13(5). This is a finding of fact that cannot be challenged in this Court. This raises the qualification to the fifth general proposition set out by the Full Court in Pozzolanic at 287-8. If the proper legal test has been identified giving the relevant statutory language its ordinary meaning, as is the case here, the question whether the facts as found fall within those words or not and where it is reasonably open to hold that they do, is a question of fact. Accordingly, no error of law is manifest because it might be said that on the material before the Tribunal different conclusions were open as to whether the identified test was satisfied or not. The contrary proposition on which MTAA's submissions implicitly relied, that it was not reasonably open to the Tribunal to conclude that an opportunity to review approximately 97 per cent of the whole consideration involved "a general review" of the consideration within the meaning of s 13(5), should not be accepted.

80. Grounds 4 to 6 fail.

Section 105-65 of Schedule 1 of the TA Act

Grounds 7-9

81. Senior counsel for the applicant informed the Court that if its other grounds of appeal failed then there was no need for this ground to be determined. Other practical considerations apart this approach commends itself to the Court as the discretion under s 105-65 was never exercised by the Commissioner nor reviewed by the Tribunal. We will follow that course although we think it appropriate to observe that we reject the applicant's submission that s 105-65 of the TA Act does not operate to restrict the recovery of refunds on GST overpaid in respect of agreements which were GST-free pursuant to s 13 of the GST Transition Act because this would otherwise frustrate the purpose of s 13.

82. We respectfully agree with and adopt here the reasons on this point, of the Tribunal at [56]-[57] of its Reasons for Decision.

Conclusion

83. The appeal will, for all these reasons, be dismissed with costs.