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Deputy Federal Commissioner of Taxation v. Mostyn.

Judges:
Bowen CJ
Sheppard J
Wilcox J

Court:
Full Federal Court

Judgment date: Judgment handed down 3 December 1987.

Bowen C.J., Sheppard and Wilcox JJ.

To be determined are an appeal and cross-appeal brought against the judgment of a single Judge of this Court (Beaumont J.) delivered on 28 May 1987 (
Mostyn v. D.F.C. of T. 87 ATC 4482; (1987) 73 A.L.R. 396). The appeal brought by the Deputy Commissioner of Taxation seeks the setting aside of the principal order made by his Honour, namely, that the Deputy Commissioner consider the respondent's request for the remission of additional tax assessed in respect of the 1979 and 1981 years of income and determine such request in accordance with law. By his cross-appeal the respondent seeks an order directing the Deputy Commissioner to remit all additional tax imposed by him on the respondent in respect of the 1979 and 1981 years of income, or, in the alternative, an order that each of the assessments of additional tax be declared void and of no effect.

The facts of the matter are conveniently stated in the judgment of Beaumont J. from which the following account is taken. In his return of income for the year ended 30 June 1979, the respondent claimed to be allowed a deduction of $103,416 as his share of the loss incurred by a partnership of which he was a member. The claim to the deduction, which was said to be justified by the decision in
Curran v. F.C. of T. 74 ATC 4296; (1974) 131 C.L.R. 409, was disallowed. On 6 March 1980, the Deputy Commissioner made an assessment of additional tax of $22,737.90 said to be payable by the respondent as a result of his wrongly including the deduction in his return. The assessment was made pursuant to subsec. 226(2) of the Income Tax Assessment Act 1936. On 30 April 1980, the respondent objected to the disallowance of the Curran scheme deduction and the assessment of the additional tax. Amongst other things, the respondent claimed that the Deputy Commissioner should remit the additional tax.

In his return of income for the year ended 30 June 1981 the respondent claimed a deduction in the sum of $88,832 for calls paid on shares held in Hail Afforestation Pty. Limited. The deduction was disallowed. The Deputy Commissioner assessed additional tax of $14,695.22. On 31 December 1982, the respondent objected to the disallowance of the deduction and the assessment of the additional tax. Again a claim for remission of the additional tax was made.

After the assessments of additional tax had been made, the Full Court of this Court decided. In
F.C. of T. v. Rabinov & Anor 83 ATC 4437; (1983) 50 A.L.R. 541, that a failure properly to characterise an amount which has been disclosed does not attract additional tax under subsec. 226(2) of the Act. Leave to appeal from this decision was refused by the High Court.

On 18 January 1984 the Deputy Commissioner of Taxation disallowed each of the respondent's objections.

On 25 February 1985 this Court dismissed an appeal from a decision of the Supreme Court of Victoria in which a taxpayer, who was a medical practitioner, was a member of a share trading partnership. The return lodged by the partnership showed that it had suffered a loss

ATC 5058

from participation in a Curran scheme. In his personal return, the taxpayer claimed a deduction for his share of the partnership loss. The Commissioner disallowed the claim and assessed tax under subsec. 226(2) of the Act. It was held that the taxpayer's claim for his share of the partnership loss was not a claim in respect of expenditure incurred by him so that subsec. 226(2) had no application. See
F.C. of T. v. Sahhar 84 ATC 4167, 85 ATC 4072; (1984-1985) 59 A.L.R. 98.

The Supreme Court of Victoria gave judgment in the Sahhar case on 20 March 1984. There followed negotiations between the parties in this case. The Deputy Commissioner eventually wrote to the respondent's accountants informing them that legal action to recover additional tax under subsec. 226(2) would be deferred until further notice. By letter to the respondent dated 11 June 1984, the respondent's accountants sought information as to the respondent's current outstanding tax position. In his reply dated 24 July 1984 the Deputy Commissioner said that, as no appeals had been lodged against the assessments for the income tax years 1979 and 1981, legal action to recover the additional tax imposed under subsec. 226(2) could no longer be deferred. Demand for payment of a total sum of $86,599.49 was made.

In 1985 there were further discussions and correspondence between the respondent's representatives and the Deputy Commissioner. On 13 December 1985, the Deputy Commissioner sued the respondent in the District Court of New South Wales. On 15 July 1986, the respondent's solicitors wrote to the Deputy Commissioner again requesting remission of the additional tax. This was refused.

The application for judicial review in this matter was filed in September 1986. It sought the review of the Deputy Commissioner's decisions to seek to recover the additional tax and to commence the proceedings in the District Court. The grounds of the application were that the decisions were contrary to law and an improper exercise of power.

The relevant subsections of sec. 226 in the form in which it was at the times in question here were as follows:

"(2) Any taxpayer who omits from his return any assessable income, includes in his return as a deduction for, or as a rebate in respect of, expenditure incurred by him an amount in excess of the expenditure actually incurred by him or, in relation to a claim to be entitled to a rebate under section 23AB, 79A, 79B, 159J, 159K or 159L, includes in his return information that is false in any particular, shall be liable to pay as additional tax an amount equal to double the difference between the tax properly payable by him and the tax that would be payable if it were assessed upon the basis of the return furnished by him, or the amount of $2, whichever is the greater.

...

(3) The Commissioner may in any case, for reasons which he thinks sufficient, and either before or after making any assessment, remit the additional tax or any part thereof."

In his judgment Beaumont J. ordered that the Deputy Commissioner consider the respondent's request for the remission of additional tax and determine such request in accordance with law. The principal contention of the Deputy Commissioner is that his Honour had no jurisdiction to make that order with the consequence that it should be set aside and the respondent's application to this Court dismissed. In his cross-appeal, the respondent, as we have said, seeks an order, in lieu of that made by Beaumont J., that the Deputy Commissioner be directed to remit all additional tax imposed by him in respect of the 1979 and 1981 years of income. Alternatively he seeks an order that each of the assessments of additional tax be declared void and of no effect.

The essence of the dispute between the parties lies in the question whether the Deputy Commissioner had power to remit the additional tax. In his submission he has no such power because the respondent did not prosecute his appeals against the assessments of additional tax. It is the Deputy Commissioner's contention that a taxpayer seeking the remission of additional tax may only do so successfully by invoking the appeal and review provisions contained in Pt V of the Act. The Deputy Commissioner has no power himself to remit additional tax at the request of a taxpayer in the absence of there being an appeal currently on foot. The respondent contends that the Deputy

ATC 5059

Commissioner has ample power to rectify matters, notwithstanding that there is no pending or current appeal relating to the matter.

The case for the Deputy Commissioner depends upon two propositions on which he relies cumulatively and in the alternative. The first is a submission that the matter is governed by two decisions of the High Court, namely,
Richardson v. F.C. of T. (1931-1932) 48 C.L.R. 192 and
Jolly v. F.C. of T. (1935) 53 C.L.R. 206. The second proposition is that, in the circumstances of the present case, the Deputy Commissioner had no power to amend the assessments of additional tax either pursuant to the provisions of sec. 170 of the Act or of any other section thereof.

Both the decisions in Richardson's case and Jolly's case were decisions in relation to subsec. 67(1) of the Income Tax Assessment Act 1922. At the relevant time it provided as follows:

"(1) Notwithstanding anything contained in the last preceding section, any person who -

  • (a) fails or neglects to duly furnish any return or information as and when required by this Act or the regulations or by the Commissioner; or
  • (b) fails to include any assessable income in any return; or
  • (c) includes in any return as a deduction an amount which is in excess of that actually expended or incurred by him,

shall, if a taxpayer to whom paragraph (a) of this sub-section applies, be liable to pay additional tax at the rate of ten per centum per annum upon the amount of tax assessable to him (such percentage to be calculated for the period commencing on the last day allowed for furnishing the return or information and ending on the day upon which the return or information is furnished or the day upon which the assessment is made, whichever first happens), or the sum of One pound, whichever is the greater, or, if a taxpayer to whom paragraph (b) or (c) of this sub-section applies, shall be liable to pay by way of additional tax the amount of One pound or double the amount of the difference between the tax properly payable and the amount of tax previously assessed to be paid by the taxpayer, or, if no amount of tax has previously been assessed, the amount of tax that would be payable by him if he were assessed for tax upon the basis of the return furnished by him, whichever is the greater, in addition to any additional tax which may become payable by him in accordance with section fifty-six of this Act:

Provided that the Commissioner may, in any particular case, for reasons which he thinks sufficient, remit the additional tax or any part thereof."

Section 67 was the precursor of sec. 226. It is to be observed that there is a material difference between the two sections in that sec. 67 does not contain any provision similar to so much of subsec. 226(3) which provides that the Commissioner may, in any case, "... and either before or after making any assessment, remit the additional tax or any part thereof". For the purposes of this case the critical words of the subsection are, "after making any assessment".

In Richardson's case the appellant failed to include in his income tax returns certain profits derived from the carrying on of a hotel. The profits were returned as part of the income of a nominee of the appellant. The Commissioner discovered the true facts and amended the assessments, including the hotel profits in the appellant's assessable income. By the amended assessments the Commissioner assessed the appellant to income tax on the income as so increased and, applying sec. 67 of the Income Tax Assessment Act 1922, he added by way of additional tax double the amount of the difference between the tax assessed upon the income as increased and the tax assessed upon the basis of the returns lodged. It was held that the procedure of assessment, objection, review and appeal applied to additional tax under sec. 67 and that the High Court had jurisdiction, on an appeal from a Board of Review, to consider the liability of the taxpayer to the additional tax.

This view of sec. 67 was confirmed in Jolly's case. There Rich J. and Dixon J. (as he was) said (p. 211):

"In Richardson v. F.C. of T. (1932) 48 C.L.R. 192, we decided that the procedure of assessment, objection, review and appeal does apply to additional tax under sec. 67 (see per Starke J. at p. 195, Dixon J. at pp. 201-205 and Evatt J. at p. 215). This

ATC 5060

decision means that the additional tax under sec. 67 as well as the ordinary income tax imposed upon the taxpayer must be dealt with by the machinery of assessment and alteration of assessment under Part IV. It also means that a taxpayer may under sec. 50 object to the amount of tax and additional tax which the assessment is expressed to levy. From the disallowance of that objection he may appeal to the Court or to the Board of Review."

Their Honours then referred to some of what had been said in Richardson's case and continued (pp. 213-214):

"In our opinion one of the functions of the Commissioner exercisable in the course of assessing to additional tax is the consideration of the question whether any and what part of the amount prima facie imposed by sec. 67(1) should be remitted. The amount imposed should appear in the assessment. If after assessment part is remitted under the proviso, an alteration of the assessment should be made under sec. 37 to show the amount ultimately to be levied. We think so much almost necessarily follows from Richardson's case (1932) 48 C.L.R. 192. The proviso to sec. 67(1) cannot be treated as a separate authority to forgo a debt due to the Crown exercisable by the Commissioner independently of the question whether the taxpayer is within the conditions which expose him to the prima facie liability to full additional tax. As a mere matter of strict construction, the liability is imposed by sec. 67(1), not absolutely, but subject to the proviso. It is a liability to ten per cent or double the difference in tax unless there is a remission. In form the provision does not impose an absolute liability and then confer an independent power of remission. But in substance it is reasonably clear that it was intended that the Commissioner should have in his hands a summary power of imposing upon taxpayers guilty of the kinds of act or omission specified a liability to further exaction commensurate with their fault."

In the submission of the Deputy Commissioner the two decisions of the High Court govern the construction of sec. 226 of the present Act notwithstanding some differences in language between its provisions and those of sec. 67 of the former Act. His Honour rejected that submission saying that the language of subsec. 226(3), particularly when contrasted with the language of the proviso to subsec. 67(1) of the former Act, indicated that Parliament must have intended that the power to remit could be exercised independently of the process of assessment.

Section 170 of the Act is in Pt IV thereof which is entitled, "Returns and Assessments". It provides for the amendment of assessments. By subsec. (1) the Commissioner may, subject to the section, at any time amend any assessment by making such alterations therein or additions thereto as he thinks necessary, notwithstanding that tax may have been paid in respect of the assessment. The apparently wide words of the subsection need to be read having in mind that an important phrase used therein consists of the words, "subject to this section". Subsections (4), (7) and (8) are as follows:

"(4) No amendment effecting a reduction in the liability of a taxpayer under an assessment shall be made except to correct an error in calculation or a mistake of fact; and no such amendment shall be made after the expiration of 3 years from the date upon which the tax became due and payable under that assessment.

(7) Nothing contained in this section shall prevent the amendment of any assessment in order to give effect to the decision upon any appeal or review, or its amendment by way of reduction in any particular in pursuance of an objection made by the taxpayer or pending any appeal or review.

(8) Where -

  • (a) any provision of this Act is expressly made to depend in any particular upon a determination, opinion or judgment of the Commissioner; and
  • (b) any assessment is affected in any particular by that determination, opinion or judgment,

then if, after the making of the assessment it appears to the Commissioner that the determination, opinion or judgment was erroneous, he may correct it and amend the assessment accordingly in the same circumstances as he could under this section amend an assessment by reason of a mistake of fact."

ATC 5061

Subsection (10) provides that nothing in sec. 170 prevents the amendment, at any time, of an assessment for the purpose of giving effect to the provisions of a variety of sections of the Act none of which is of relevance to the present case. Similarly, subsec. (10A) is a provision authorising the amendment of an assessment for the purpose of giving effect to yet other provisions of the Act, notwithstanding that the amendment effects a reduction in the liability of the taxpayer. Again the provisions of the Act referred to are not relevant to this case. Similar considerations apply in relation to subsec. (12) and (13).

Section 170A provides that, where a provision of the Act authorises the Commissioner to amend an assessment, that provision does not limit the power of the Commissioner to amend an assessment in accordance with any other provision of the Act. Section 172 obliges the Commissioner to refund any amount of tax overpaid where the taxpayer's liability to tax is reduced as the result of an amendment to an assessment.

Section 177 makes the production of a notice of assessment conclusive evidence of the due making of the assessment and, except in proceedings on appeal against the assessment, that the amount and all the particulars of the assessment are correct.

In the submission of the Deputy Commissioner none of the provisions of sec. 170 empowered him to amend either of the assessments and sec. 177 made the production of notices thereof conclusive evidence of the due making of the assessment.

Counsel for the Deputy Commissioner next referred to certain of the provisions of Pt VI of the Act which is entitled, "Collection and Recovery of Tax". Section 204, which is in Pt VI, provides that, subject to the provisions of Pt VI, any income tax assessed shall be due and payable by the person liable to pay the tax on the date specified in the notice as the date upon which tax is due and payable. Section 208 provides that income tax, when it becomes due and payable, shall be a debt due to the Commonwealth payable to the Commissioner in the manner and at the place prescribed. Section 209 provides for the manner in which unpaid tax may be sued for and recovered. Section 226 is not in either Pt IV or Pt VI but in Pt VII which is entitled, "Penal Provisions and Prosecutions".

Finally, it is necessary to mention sec. 8 of the Act which is in Pt II thereof entitled, "Administration". It provides that the Commissioner shall have the general administration of the Act.

It is the Deputy Commissioner's submission that a consideration of the provisions of sec. 170 of the Act relating to the amendment of assessments and the other relevant provisions of Pt IV and Pt VI compel the conclusion that the views of the members of the High Court who decided Richardson's case and Jolly's case apply equally to the provisions of sec. 226 as they did to sec. 67 of the former Act. Otherwise there would be an irreconcilable conflict between the operation of sec. 226, particularly subsec. 226(3), on the one hand, and sec. 170 on the other. The additional tax, although remitted, would remain recoverable because the amount of the assessment could not be reduced. This was said to be a situation which the legislature could not have intended.

As earlier mentioned, Beaumont J. considered that the language of subsec. 226(3) was to be distinguished from the language used in the proviso to subsec. 67(1) of the former Act. In relation to the Deputy Commissioner's submission based on sec. 170, his Honour said (at ATC p. 4488; A.L.R. p. 404):

"Once it is accepted that the procedures for remission are divorced from the processes of assessment, it must follow that remission is possible even where it is not open to a taxpayer to seek an amendment of his assessment because of the lapse of time or because, as here, a question of law rather than of fact is involved. There is nothing in the policy underlying sec. 170, as appears from its terms or as explained by the Royal Commission in 1934 (see Section L at pp. 158-159; cf. Section XLIX at pp. 157-158), which suggests that there should be no power to remit unless the parameters of sec. 170 are observed. The discretion conferred by sec. 226(3) is expressed in the widest terms. The Commissioner `may in any case, for reasons which he thinks sufficient... remit... the additional tax or any part thereof'. The exercise of the discretion is not limited to the situations where sec. 170 would permit an amendment and there is no reason, of logic or of experience, why any such limitation should be implied. Rather, it

ATC 5062

should be presumed that the discretion to remit was intended to be a wide one."

The first question to be determined is whether the provisions of subsec. 226(3) were intended to have a different operation and effect from those of the proviso to subsec. 67(1) of the 1922 Act. In our opinion there are two important points of distinction, the second being more significant than the first. The first point of distinction is that the provision is now contained in a separate subsection and does not lend itself so readily to the approach which the High Court adopted in relation to sec. 67. The subsection is separate from those of the section which provide for the imposition of additional tax; the device of a proviso is no longer used. It may be that this has been done for drafting reasons to avoid the need to include a proviso to each of subsec. (1) and (2) which would otherwise have been necessary. Section 67 was a more simplified section providing for the imposition of additional tax for failure to furnish a return or information, failure to include assessable income in a return and including in a return as a deduction an amount in excess of that actually expended or incurred.

The second point of distinction relates to the words, "either before or after making any assessment", which appear in subsec. 226(3) and not in subsec. 67(1) of the former Act. These words, in our opinion, operate to confer on the Commissioner an extremely wide discretion to remit additional tax at any time. It is impossible, in our opinion, to give full effect to the words, "after making any assessment", unless one concludes that a case such as the present may fall within them. There is no reason apparent on the face of the words for reading into them the kind of limitation for which the Deputy Commissioner contends. That is all the more so when one takes into account the fact that sec. 226 is not found in that part of the Act dealing with assessments nor in that part of it dealing with the recovery of income tax. It is in a separate and distinct part of the Act dealing with penal provisions which in most cases plainly have a separate and independent operation from other parts of the Act. Thus sec. 223, 224 and 225 provide for offences for which a taxpayer may be prosecuted and fined by a court. In a similar category are sec. 227, 228, 229, 230 and 231. Section 226 alone provides for the imposition of a penalty in the way of additional tax by the Commissioner as distinct from a court. Subsection 226(4) operates to avoid liability for an offence and liability for payment of additional tax. No additional tax is to be paid unless and until the prosecution in respect of the same subject matter is withdrawn.

Once one concludes, as we think one should, that the provisions of subsec. 226(3) authorise remission of additional tax at any time, the provisions of sec. 170 and the recovery provisions in Pt VI cease to be relevant in the determination of the problem. One simply gives effect to the words of subsec. 226(3) irrespective of what notice of assessment may have issued. Subject to what follows, we agree that this may leave a situation which is administratively untidy. Furthermore, as the Deputy Commissioner has submitted, one has to face up to the fact that if the Commissioner were to bring action to recover additional tax payable pursuant to an assessment, the notice of assessment would, by virtue of sec. 177 of the Act, be conclusive evidence that the amount and all the particulars of the assessment are correct. However, once it is accepted that sec. 226 operates independently of Pt IV, there is no problem. Section 177 continues to operate on the unamended notice of assessment. But the taxpayer, if he were sued, could rely on the fact that so much of the additional tax imposed by the assessment as had been remitted by the Commissioner, was not in fact recoverable. Neither sec. 177 nor any other provision of Pt IV or VI has anything to say about the independent operation of sec. 226. If the matter were put to the test a taxpayer confronted with an action to recover additional tax which had been remitted would be entitled to a declaration that it was not payable and an injunction to restrain its recovery.

We make it clear that our conclusions are not inconsistent with the accepted view that the ordinary provisions of the Act providing for objections and appeals (Pt V) apply to assessments of additional tax made pursuant to sec. 226 and that the Administrative Appeals Tribunal has power to review exercises of discretion by the Commissioner in refusing to remit additional tax. All that we are saying is that, because of the words, "after making any assessment", in subsec. 226(3), the Commissioner is empowered to remit the additional tax long after the period limited for any objection to an assessment has passed and

ATC 5063

after the time limited for any appeal against the disallowance of such an objection has elapsed. It should be observed that sec. 227, which is the present counterpart of sec. 226, is in a substantially different form from the section which arises for consideration in this case. Nothing we have said is intended to indicate a view of the proper construction and application of the present sec. 227.

Two things remain to be said on this aspect of the case. Firstly, some reliance was placed by the Deputy Commissioner upon the provisions of para. (e) of Sch. 1 to the Administrative Decisions (Judicial Review) Act 1977. Subsection 3(1) operates to exclude from review a decision included in any of the classes of decision set out in Sch. 1. Paragraph (e) thereof specifies a decision making, or forming part of the process of making, or leading up to the making of an assessment of tax, inter alia, under the Act. Since the Deputy Commissioner's power to remit additional tax arises independently of his power to assess income tax, the provisions of para. (e) can have no application to this case.

Secondly, in the course of the argument, reference was made to subsec. 170(8) as a possible source of power for the amendment of the assessments here. In our opinion the subsection does not apply because subsec. 226(3) cannot be said to be a provision which "is expressly made to depend... upon a determination, opinion or judgment of the Commissioner".

In our opinion the learned primary Judge was correct in the conclusions to which he came concerning matters raised by the appeal with the consequence that the appeal should be dismissed.

We turn to deal with the matters raised by the cross-appeal. In the submission of the respondent his Honour should not have remitted the matter to the Commissioner; instead he should have ordered that the tax be remitted or declared that the assessments of additional tax were void and of no effect. In refusing this relief his Honour said (at ATC p. 4488; A.L.R. p. 405):

"Section 226(3) confers a power to remit but it does not impose any duty or obligation upon the respondent to act in any particular manner. Prima facie, his discretion is unconfined. Limitations on the factors to which the respondent may legitimately have regard, if any, must be implied, if this is appropriate as a matter of statutory construction, from the subject matter, scope and purpose of the statute (see
Minister for Aboriginal Affairs and Anor v. Peko-Wallsend Ltd. and Ors (1986) 66 A.L.R. 299 per Mason J. at p. 309). But there is no basis for reading into sec. 226(3) the limitation that the tax should be remitted where, by subsequent judicial decision, it appears that the additional tax was wrongly assessed in the first instance. This is not to say that the decisions in Rabinov and Sahhar are not relevant matters to be taken into account in the consideration of a request for remission. Clearly, they must be taken into consideration in that context but their weight is a matter for the decision-maker and not for the Court..."

During the hearing we were informed that the Deputy Commissioner concedes that, if the respondent had prosecuted his appeal against the disallowance of his objection to the 1979 assessment of additional tax, the appeal would have had to be allowed. No such concession was made in relation to the 1981 assessment of additional tax. Counsel for the respondent sought to persuade us that, as a matter of law, the Deputy Commissioner was bound to concede that the Rabinov and Sahhar cases led unquestionably to the conclusion that the additional tax was unlawfully imposed in respect of both the 1979 and the 1981 tax years. Reference was made to what had been said by counsel for the Deputy Commissioner before the learned primary Judge concerning an attempt to distinguish the 1981 tax year from the 1979 tax year.

Having considered the matter, we think that it is right to say, as Beaumont J. did, that subsec. 226(3) does not impose any duty or obligation upon the Deputy Commissioner to act in any particular manner. His discretion is unconfined. Nevertheless, he is obliged to act according to law. So far as the 1981 tax year is concerned, we do not think that this Court has sufficient factual material to make a judgment whether the respondent or the Deputy Commissioner is right in relation to that year. The matter has not been the subject of full argument and we see no alternative other than to remit that matter to the Deputy Commissioner. But the additional tax imposed

ATC 5064

in respect of the 1979 year is in a different category. On the basis of the current authorities the Deputy Commissioner has conceded that his imposition of the additional tax in respect of that year of income was not authorised by law. His reason for not remitting it was only because of the respondent's failure to prosecute his appeal and the Deputy Commissioner's contention that, in the circumstances which prevailed, he had no power to amend the assessment. Since that was his only reason for refusing to accede to the respondent's request for remission, we are of opinion that this Court should set aside the Commissioner's decision and make a declaration that the additional tax for the 1979 year is not payable.

In the result we would dismiss the appeal and allow the cross-appeal in part. We would order the Deputy Commissioner to pay the costs of the appeal and cross-appeal.

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The cross-appeal be allowed in part.

3. The order made by Beaumont J. on 28 May 1987 be varied by adding thereto a declaration that the amount of additional tax imposed by the appellant in respect of the income tax year ending 30 June 1979 is not due and payable.

4. The cross-appeal be otherwise dismissed.

5. The appellant pay the respondent's costs of the appeal and cross-appeal.


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