Federal Commissioner of Taxation v. Mercantile Credits Limited.

Judges:
Bowen CJ
Wilcox J
Burchett J

Court:
Full Federal Court

Judgment date: Judgment handed down 21 February 1986.

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Bowen C.J., Wilcox and Burchett JJ.

The question debated upon these appeals is whether, by virtue of sec. 128G of the Income Tax Assessment Act 1936, certain interest payments made in respect of two loans, obtained by the respondent Mercantile Credits Limited from overseas corporations, were exempt from witholding tax. It was not in dispute that, if the terms of sec. 128G were satisfied, the respondent was entitled to certificates under sec. 128H.

By Div. 11A of Pt III of the Income Tax Assessment Act 1936, provision is made for the imposition of withholding tax upon dividends and interest paid to persons not resident in Australia. Where withholding tax is payable, by Div. 4 of Pt VI of the Act, obligations are cast upon, amongst others, borrowers paying interest, to make appropriate deductions and remit moneys to the Commissioner of Taxation. Interest upon certain overseas loans has been exempted from withholding tax, and one of the exempting provisions is sec. 128G, which reads as follows:

``(1) This section applies to interest in respect of a loan where -

• (a) the loan was raised outside Australia;
• (b) if the loan was raised by the issue of bearer debentures, the debentures were issued outside Australia by a company, the loan was raised in a currency other than the currency of Australia and the interest is or was paid outside Australia in a currency other than the currency of Australia; and
• (c) the Commissioner has issued a certificate under section 128H in respect of the loan.

(2) Tax is not payable, and shall be deemed not to have been payable, in accordance with this Division in respect of interest to which this section applies.

(3) This section does not apply to interest paid on or after the date of commencement of this sub-section in respect of a loan raised in pursuance of a contractual obligation entered into on or after 20 May 1983.''

During the year 1982, the respondent obtained two loans, each of $US5,000,000, from Mellon Bank N.A. of Hong Kong (``Mellon'') and Samuel Montagu and Co. Limited of London (``Montagu''), respectively. The agreement relating to the Mellon loan was dated 15 March 1982, and included a provision with respect to the period of the loan as follows:

``1.5 `Term of the Facility' means the period commencing on 15th March 1982 and ending -

• 1.5.1 on a date on which the Facility hereby created shall have been terminated in accordance with the terms hereof by either party, or
• 1.5.2 if not so terminated on 15th March 1984, or
• 1.5.3 if not so terminated, and the parties so agree before the expiration of the said period of two (2) years, on such later date as the parties shall agree in writing.''

The agreement relating to the Montagu loan was entered into by what was apparently called a ``Facility Letter'' dated 16 June 1982, but amended 2 August 1982, and as amended included a provision as follows:

``9. Repayment

Subject to Clause 12 (Cl. 12 was a default clause) hereof the Advance shall be repaid in one amount either 18 months after drawdown or on 31st March 1984, whichever date falls earlier. However we hereby agree to consider any request received from MCL (i.e. the respondent)

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prior to 31st March 1984 to renew this facility. Any renewal would be subject to terms and conditions to be discussed and agreed at that time.''

Shortly after the making of each loan, a certificate was sought by the respondent under sec. 128H. The certificates sought were issued, and it is accepted by the Commissioner that each loan was raised outside Australia. But the controversy upon these appeals had its origin in later events. By an offer in writing dated 2 March 1984, made by Mellon, accepted by the respondent on or about 9 March 1984, that is shortly before 15 March 1984, the date when the term of the loan by Mellon would have ended under para. 1.5 of the agreement of 15 March 1982, the reference to 15 March 1984 in that paragraph was amended to 15 March 1987, and the reference to a period of two years was amended so as to refer to a period of five years. Also, by letter dated 28 February 1984 Montagu confirmed its agreement ``to extend this Facility (i.e. the loan by it to the respondent previously referred to) for a period of three years'', and suggested an amendment of the agreement, as follows:

``Our Facility Letter should now be amended as follows:

• Clause 9: Repayment
• Delete in its entirely and substitute therefor
  • `Subject to Clause 12 hereof all amounts outstanding under this Facility shall be repaid in one amount on 6 March 1987'.
• All other terms and conditions of the Facility Letter remain unaltered.''

This suggested amendment was accepted in writing by the respondent on or about 7 March 1984, over three weeks before the date specified for repayment failing renewal.

Applications were made by the respondent for extension of the certificates previously granted in respect of the loans under sec. 128H, but were refused by the Commissioner, who took the view that sec. 128G(3) applied to exclude from the benefit of the section all interest paid after the arrangements extending the periods of the loans. The respondent then applied for judicial review of the Commissioner's decisions. There was a challenge in limine to the right of the respondent to proceed under the Administrative Decisions (Judicial Review) Act 1977, but this was determined against the Commissioner by Morling J. (
Mercantile Credits Limited v. F.C. of T. 85 ATC 4544; (1985) 61 A.L.R. 331), and from that decision there has been no appeal. The hearing proceeded, and by the judgment which has been appealed to this Court it was declared that the interest in dispute in each case was interest to which sec. 128G applies.

For the appellant Commissioner it was argued that new contractual obligations came into existence, in respect of each loan, in March 1984, after the date critical for the application of sec. 128G. It was submitted that more than a variation of contract was involved, since the date of repayment of a loan is one of the essential terms of the agreement. Counsel referred to the well-known decisions in
Morris v. Baron (1918) A.C. 1 and
British & Benningtons Ltd. v. North Western Cachar Tea Co. Ltd. (1923) A.C. 48, where a distinction was drawn between a later agreement that varies an earlier agreement (even, perhaps, in so important a respect as the salary agreed in a contract of engagement of a music hall artist - see per Lord Dunedin in Morris v. Baron at p. 25), and a later agreement that is inconsistent with the earlier to an extent which requires the conclusion that the parties intended to rescind and replace it.

It is unquestionable that the date of repayment is a most important term of a contract of loan, though in each of these cases the original contract clearly contemplated that the parties might mutually agree to change the date they had appointed, and the later agreement purported, whilst changing the date, to leave the original contract otherwise intact. To Mellon's proposal for amendment there was added the following:

``All words used in this amendment shall have the same meanings as in the aforementioned agreement and all other terms and conditions of the said agreement shall remain in full force and effect.''

Montagu's confirmation of the amendment to the term of its loan contained, as the quotation made from it earlier in these reasons shows, a precisely similar reservation. It is plain that so far as it was open to the parties to do so, they intended merely to vary the contracts, not to

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rescind and replace them. In
Tallerman & Co. Pty. Ltd. v. Nathan's Merchandise (Victoria) Pty. Ltd. (1956-1957) 98 C.L.R. 93 at p. 144 Taylor J. said: ``[T]he determining factor must always be the intention of the parties as disclosed by the later agreement.'' (See also per Kitto J. at p. 135.) The Privy Council in
United Dominions Corporation (Jamaica) Ltd. v. Shoucair (1969) 1 A.C. 340 at p. 348 also described the doctrine of Morris v. Baron (supra) as ``based on the intention of the parties''.

But it is unnecessary to pursue the question whether what happened in each of these cases amounted to a variation of the contract of loan, or its rescission with the substitution of a fresh contract. For, whether there was a variation or a fresh contract, the issue upon which sec. 128G(3) turns is whether the interest was paid ``in respect of a loan raised in pursuance of'' (a new contractual obligation). It would not be enough to find a contractual obligation entered into after 20 May 1983, unless it could also be said that in pursuance of it a loan was raised.

When sec. 128G was amended in 1983 by the insertion of subsec. (3), the draftsman used language which was already employed in subsec. (1) of the section to identify the kind of loan the interest upon which was exempted by the section - a ``loan (that) was raised outside Australia''. Subsection (1) is concerned with where a loan was raised, and subsec. (3), in a derivative way, with when it was raised. In ordinary usage the raising of a loan seems to refer to the procurement of the moneys lent rather than their retention (see generally Shorter Oxford English Dictionary (1980) vol. 2, p. 1741, the third group of meanings of the word ``raise'' which includes its use in the sense of raising money;
Chow Yoong Hong v. Choong Fah Rubber Manufactory (1962) A.C. 209 at p. 216;
Agricultural Mortgage Corporation v. I.R. Commrs (1978) 1 Ch. 72 at pp. 98-99, 105;
Attorney-General v. South Wales Electrical Power Distribution Company (1920) 1 K.B. 552 at p. 555;
Connolly v. Keating (No. 1) (1903) 1 I.R. 353;
Reed International Ltd. v. I.R. Commrs (1975) 2 W.L.R. 622 at p. 632, referred to on appeal (1975) 3 W.L.R. 413 at p. 418; article by J.G. Monroe (1969) B.T.R. 289 at p. 291). There is also a clear distinction between the making of a loan and the extension of the term of a loan (Attorney-General v. South Wales Electrical Power Distribution Company (supra); and cf.
Burnes v. Trade Credits Ltd. (1981) 1 N.S.W.L.R. 93 at p. 95).

A number of the cases cited were analysed by Morling J. in his judgment, and it is unnecessary to repeat his discussion here.

The usage in Div. 11A accords with the suggested understanding of what is the raising of a loan. The Division commences with sec. 128A, subsec. (5) of which reads as follows:

``(5) For the purposes of this Division -

• (a) the borrowing of moneys by a company by means of the issue of a number of debentures in one borrowing operation shall be deemed to be the raising of a loan;
• (b) subject to paragraph (a), each receipt of moneys by a borrower under a contract under which moneys are to be, or may be, advanced by way of loan shall be deemed to be the raising of a loan; and
• (c) the moneys received by the raising of a loan, less the expenses of borrowing, shall be deemed to be the loan moneys in respect of the loan.''

Section 128A forms a Subdivision headed ``Interpretation''. That heading is deemed by sec. 13(1) of the Acts Interpretation Act 1901 to be part of the Act.

If an agreement for the retention of a loan, or the retention of it, for a further period, constituted a raising of it, how would the exemption (conferred by sec. 128G) dependent upon the place of raising be applied? It would not be consonant with any imaginable legislative intent to confer an exemption on a loan, not procured outside Australia, simply because arrangements for its extension were concluded outside Australia. And on the other hand, if the mere retention of the moneys were to be looked at as the raising of a loan, in the case of an extension, it would seem to follow that an originally exempt loan, utilised in compliance with sec. 128H (which specifies permissible uses of exempt loans plainly including uses within Australia), would have lost its exemption, upon being extended prior to 20 May 1983, precisely because of its compliance with sec. 128H. For if the retention of the moneys was in Australia, not outside it, and that retention was the raising of the loan, the loan could not satisfy the requirement of

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sec. 128G(1) that it must be a loan raised outside Australia. The legislature when it enacted subsec. (1), using language later adopted in subsec. (3), is not likely to have intended such consequences, which would not have ensued if the raising of a loan is to be understood as generally occurring at its inception and as being unaffected by subsequent extensions.

Furthermore, at the time subsec. (3) was inserted (by Act No. 25 of 1983) in sec. 128G, Div. 11A already contained another exemption (provided by sec. 128E(1)) which related, inter alia, to interest on moneys lent to a company before 5 May 1967, or after that date ``in pursuance of a contractual obligation entered into before that date to lend to the company a specific amount''. Subsection (3) of sec. 128E provided:

``(3) Where the period for which moneys have been lent is extended, the extension shall, for the purposes of sub-section (1), be deemed to be a loan of the moneys to which the extension applies on the day as from which the extension has effect.''

The fact that no similar provision was inserted in sec. 128G when subsec. (3) of that section was enacted as part of a series of amendments to Div. 11A, which must have involved some revision by the draftsman of the entire Division, strengthens the view that an extension of a loan does not involve the raising of a loan. Had Parliament intended to remove the exemption conferred by sec. 128G, where a subsequent extension of a loan occurred, as it had done in relation to sec. 128E, a precedent lay ready to hand; but Parliament did not choose to follow that precedent.

Counsel for the appellant relied on certain cases decided upon the stringent provisions of moneylending legislation. In
B.S. Lyle Ltd. v. Chappell (1932) 1 K.B. 691 the Court of Appeal considered a case where a moneylender, the borrower having defaulted, entered into a new agreement for a loan on new terms, involving repayment of the earlier loan, the transaction being effected by the handling over and return of a cheque. It was held there was no valid objection under the United Kingdom Moneylenders Act 1927 to such a transaction. This case cannot properly be seen as departing from the principle of Morris v. Baron (supra), by which the basic test whether a contract has been varied, or rescinded and replaced, depends upon intention, nor is this case concerned with the meaning of the raising of a loan. However, counsel relied upon a passage in the judgment of Scrutton L.J. at p. 700 which reads:

``... I find it difficult to believe that Parliament intended to render renewals of loans or of the securities for them on altered terms impossible by requiring that a memorandum of the alteration should be signed before the original loan was made. In my opinion, when the time for payment of the original loan has expired without complete repayment, and the time for repayment is extended or altered, there is a fresh loan, and it is sufficient if the memorandum of the altered terms precedes the commencement of the extended period. The draftsmanship of s. 6 might be better, but I cannot think that Parliament intended to render renewals impossible.''

But this was in answer to a proposition (see pp. 699-700) ``that there could not be a legal memorandum of a renewal of a loan on altered terms, because the Act required a memorandum before the money was lent''. It should not be taken to lay down a rule of contract law, as distinct from construction of the meaning of a section of the Moneylenders Act there under consideration, that any extension or alteration of an agreement for loan is a fresh loan. (In any case, its terms would limit the rule to a case where the original period of the loan had already expired before the extension was granted.) If Scrutton L.J. meant to state such a broad proposition, which would have been unnecessary to the decision, the judgments of Greer L.J. and Slesser L.J. are inconsistent with it. At p. 705 Greer L.J. referred to the terms of the particular agreement, and not any supposed rule of law, as the reason why the new agreement ``could not be carried out by a renewal of the old debt with a grant of further time to pay it, plus additional interest''. At p. 708, Slesser L.J. dealt with the same section to which Scrutton L.J. had referred:

``Sect. 6 provides that the memorandum must be signed before the money is lent. If the terms on which the money is lent are subsequently varied by agreement between the parties, but there is no further loan, difficulties may arise in that the contract containing the variation of the terms cannot

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be signed before the money is lent, as the varied contract was, ex hypothesi, not in existence at that time. The method employed in the present case may have been devised as a means to overcome this difficulty and to comply with s. 6 of the Act...''

(Emphasis added.)

In
Roberts v. I.A.C. (Finance) Pty. Ltd. (1967) V.R. 231, Adam J. considered that an extension of a loan might involve its discharge and the making of a fresh loan (see p. 238), but he held the particular extension with which he was concerned, for a period of two months, was ``a mere variation of the rights and obligations under the original loan contract'' (see pp. 234, 238). See also
Payton v. S.G. Brookes & Sons Pty. Ltd. (1977) W.A.R. 91.

Counsel for the appellant also referred to Eldridge and
Morris v. Taylor (1931) 2 K.B. 416, where a moneylender took a promissory note to secure repayment, upon altered terms, of a loan in respect of which the borrower was in default. When he sued upon the note, it was held that, whether there had been a variation or a substituted agreement, the Moneylenders Act precluded enforcement of the note since there was no copy delivered or sent as required by sec. 6 of the Act. This case also turned upon the construction of the Act, but Slesser L.J. at p. 423 discussed the matter on the footing that the loan was a loan made prior to the new agreement, and Greer L.J. at p. 421 suggested that recovery might still be possible in proceedings based on the original loan.

Greer L.J.'s suggestion came up for decision by the Privy Council in United Dominions Corporation (Jamaica) Ltd. v. Shoucair (supra). The Board held that an unenforceable agreement increasing the interest, in respect of a loan repayable upon demand, from 9% to 11% (of which the lender said it ``trusted this would only be a temporary measure'' - see p. 345) was merely a variation which left the original agreement of loan intact and enforceable.

None of these cases under the moneylending legislation was concerned with the construction of a section referring to the raising of a loan, and none of them suggests the conclusion that an extension of the period of a loan involves the raising of a loan.

For these reasons, which are substantially similar to those of Morling J., the appeals should be dismissed with costs.