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INTERNATIONAL CURRENCY TRADING CORPORATION PTY LIMITED & ORS v DEUTSCHE BANK AG

Judges:
Davies J

Court:
Federal Court

Judgment date: Judgment handed down 20 July 1994

Davies J

This proceeding involves, inter alia, a consideration of that unusual provision, s. 261 of the Income Tax Assessment Act 1936 (Cth) (``the Act''), which provides inter alia:-

``261(1) A covenant or stipulation in a mortgage, which has or purports to have the purpose or effect of imposing on the mortgagor the obligation of paying income tax on the interest to be paid under the mortgage-

  • (a) if the mortgage was entered into on or before 13 September 1915 - shall not

    ATC 4477

    be valid to impose on the mortgagor the obligation of paying income tax to any greater amount than the amount (if any) which would have been payable by the mortgagor if his taxable income consisted solely of a sum equivalent to the amount of interest to be paid under the mortgage without taking into account any income tax payable on that interest; and
  • (b) if the mortgage was entered into after that date - shall be absolutely void.

...

261(5) For the purposes of this section, `mortgage' includes any charge, lien or encumbrance to secure the repayment of money, and any collateral or supplementary agreement, whether in writing or otherwise, and whether or not it be one whereby the terms of any mortgage are varied or supplemented, or the due date for the payment of money secured by mortgage is altered, or an extension of time for payment is granted.''

The early progenitors of this section provided for the avoidance of arrangements which altered the incidence of tax as between mortgagors and mortgagees and lessors and lessees. Such a provision was contained in the Income Tax Act 1895 (Vic), the application of which was considered in
Elder v. Dennis (1886) 18 ALT 25. Like provisions appeared in s. 63 of the Land Tax Assessment Act 1910 (Cth) and s. 68 of the Land Tax Act 1915 (Vic). These provisions were the subject of consideration in
In Re Lucks Ltd (In Liquidation) (1928) 49 ALT 229.

A provision precluding the imposition on a mortgagor of the obligation to pay the tax on mortgage interest appeared in s. 54 of the Income Tax Assessment Act 1915 (Cth) and in s. 94 of the Income Tax Assessment Act 1922 (Cth). Amendments were made in 1931 and 1932 to overcome an arrangement avoiding these provisions which had been upheld by the Full Court in Victoria in Elder v. Dennis and was upheld by the High Court of Australia in
Brett v. Barr Smith (1919) 26 CLR 87. The present section, which appeared in the Act on its enactment in 1936, incorporated those changes. Subsequent amendments have been minor.

Even now, the provision may not avoid the arrangement which was the subject of consideration in In Re Lucks Limited (In Liquidation). In this case Irvine CJ rejected a contention put by Mr Dixon KC that there was a breach of the Commonwealth and State Land Tax Acts in the circumstance that a lease stipulated a rental of £100 a week yet the parties voluntarily adopted the practice whereby the tenant paid £90 a week to the landlord and paid the land tax.

The section has gained new impetus since the decision of the High Court of Australia in
Davids Securities Pty Ltd & Ors v. Commonwealth Bank of Australia 92 ATC 4658; (1992) 175 CLR 353, in which it was held that a payer is prima facie entitled to recover moneys paid under a mistake if it appears that the moneys were paid in the payer's mistaken belief that he or she was under a legal obligation to pay them or that the payee was legally entitled to payment. The distinction previously drawn between a payment made under a mistake of fact and a payment made under a mistake of law was held not to be part of the law of Australia. The Court also gave a wide meaning to the definition of ``mortgage'', holding that it encompassed both a loan agreement and a separate mortgage agreement which secured the loan.

The applicant, International Currency Trading Corporation Pty Ltd (``ICTC''), is an Australian company which deals in international currencies. One of its directors is Mr J.C. Cawood. The respondent, Deutsche Bank AG (``Deutsche Bank''), was created from the merger of other corporations, including European Asian Bank AG (``Eurasia''). It is incorporated in the Federal Republic of Germany and registered as a foreign company in Australia. The loan transaction the subject of the dispute was a transaction between ICTC and Eurasia effected before the merger. At the time, Eurasia carried on business in Singapore and elsewhere and the subject loan was effected through its Singapore branch. It is not in dispute that Deutsche Bank has taken over the rights and liabilities of Eurasia. I shall hereafter refer to the lender as ``Deutsche Bank''.

The second, third and fourth applicants have been joined to ensure that all persons who have an interest in the proceedings are parties. Relevant mortgages securing the loan to ICTC

ATC 4478

were given by Torbella Pty Limited (``Torbella'') and Sandtara (``Sandtara''). Relevant cheques were drawn by ICTC, Todbern Pty Ltd (``Todbern''), Kyldow Pty Ltd (``Kyldow''), Torbella and Sandtara.

On 20 November 1984, by letter of that date, Eurasia offered to lend to ICTC the equivalent in Swiss francs of AUS$1,900,000. The period of the loan was 3 years 11 months with interest 2% above 6 months Singapore Interbank Rate payable semi-annually in arrears. The repayment was to occur in three instalments with the first instalment due 24 months from the date of draw-down. The letter of offer contained the following term:-

``Withholding tax payable in Australia on interest payments will be for the account of International Currency Trading Corporation Pty Ltd.''

On 11 March 1985, a loan agreement was executed by Deutsche Bank and ICTC, by two directors of ICTC, Mr Cawood and Mr B.J. Sproule, and by Sandtara and Torbella. Each of those four guaranteed the liability of ICTC. The terms set out in the loan agreement were in general those as had been offered in the letter. However, the interest rate was increased to 2.25% per annum above the six months Singapore Interbank Rate. There were two other differences which are important for present purposes. The first is that the letter of offer had provided that the facility and its securities would be governed by and construed in all respects with the laws of the Republic of Singapore. The agreement of 11 March 1985 provided that the deed should be governed by and construed in accordance with the laws of the State of New South Wales and that the parties agreed to submit to the jurisdiction of the courts of that State in all matters arising out of the deed. This was subject to a proviso which I need not set out. Another difference was that the agreement of 11 March 1985 did not include the provision with respect to withholding tax and included no provision dealing with the incidence of tax.

Much of the complexity in the present case disappears when it is noted that the agreement of 11 March 1985 made no provision in relation to withholding tax or any other form of tax. The defence did not raise an allegation that there was an agreement between ICTC and Deutsche Bank that ICTC would meet the withholding tax obligations of Deutsche Bank. Counsel for Deutsche Bank submitted that there was a relevant contractual term between the parties, being the term stated in the offer of November 1984. However, no such term was pleaded in the defence or included in the deed of 11 March 1985. Having regard to the pleadings and the lack of evidence on the matter, I could not find that the term formed part of the arrangements between ICTC and Deutsche Bank.

Mr Cawood gave evidence that he had been unaware that the taxation laws required the deduction of withholding tax from dividends and interest paid to non-resident companies. It is a little difficult to accept this evidence, but Mr Cawood was not cross-examined on it. Accordingly, for the purposes of this case, I accept his evidence. Support for the conclusion may be gained from the fact that ICTC did not remit withholding tax to the Commissioner of Taxation until after the term of the loan had expired, when it was required to do so by the Commissioner of Taxation. Mr G.J. Dustow, a chartered accountant who prepared the annual accounts of ICTC, gave evidence that he was aware of the provisions with respect to withholding tax on dividends and interest but that it did not come to his attention that withholding tax was required to be deducted from the interest paid to Deutsche Bank.

In this circumstance, s. 261 of the Act has no operation. There is nothing to avoid. Had the offer set out in the letter of offer of November 1984 been accepted, the position would have been different.

However, I should comment upon some of the points raised with respect to the application of s. 261. I am satisfied that the loan agreement was collateral to the mortgages given by Torbella and Sandtara and thus fell within the definition of mortgage contained in s. 261(5). In Davids Securities at ATC 4662-3; CLR 364-5, Mason CJ, Deane, Toohey, Gaudron & McHugh JJ. rejected the view that the term ``collateral'' imported any notion of primacy. Their Honours said at ATC 4662; CLR 365:-

``Collateral contracts are so called not because they are subordinate or of lesser importance (although they may well be, depending on the facts of the case), but because they impinge upon and are related to another contract... Once the notion of primacy is jettisoned, `collateral' must be understood in the sense of `related to' or even `in addition to'.''

ATC 4479

It was further submitted by counsel for the respondent that, notwithstanding that the loan agreement was, for the purposes of s. 261, a mortgage or one of the documents comprising a mortgage, nevertheless there was no covenant or stipulation which had or purported to have the effect of imposing on the mortgagor the obligation of paying income tax on the interest to be paid under the mortgage. It was submitted by counsel for the respondent that ICTC was not a mortgagor. I reject this submission as it appears to me that the documents must be read together, the loan agreement with the security documents. That is because the Act so requires, for they were collateral, one with another.

Clause 6 of each mortgage covenanted that the mortgagor, Torbella or Sandtara, would repay the principal sum. The principal sum was defined as comprising all moneys as owing or to become owing to the mortgagee by ICTC, and thus included the interest payable by ICTC to Deutsche Bank. Clause 14 in each mortgage provided that:-

``Although as between the Debtor and the Mortgagor, the Mortgagor is a security only yet between the Mortgagor and the Mortgagee, the Mortgagor is and shall be deemed to be a principal debtor.''

As ICTC, Torbella and Sandtara were all tied to the obligation to repay the sum lent and to pay the interest thereon as stipulated in the agreement of 11 March 1985, it seems to me that s. 261, if it applied, would have operated to avoid any clause in the loan agreement which was in breach of s. 261.

I now turn to the provisions of the Act dealing with withholding tax. Section 128A(1) defined ``interest'' as including ``an amount in the nature of interest'' and s. 128A(4) defined ``income tax'' as including withholding tax. Section 128B provided, inter alia:-

``(1A) In this section, a reference to a person to whom this section applies is a reference to the Commonwealth, a State, an authority of the Commonwealth or of a State or a person who is, or persons at least 1 of whom is, a resident.

(2) Subject to sub-section (3), this section also applies to income that-

  • (a) is derived, on or after 1 January 1968, by a non-resident; and
  • (b) consists of interest that-
    • (i) is paid to the non-resident to whom this section applies and is not an outgoing wholly incurred by that person in carrying on business in a country outside Australia at or through a permanent establishment of that person in that country; or
    • (ii) is paid to the non-resident by a person who, or by persons each of whom, is not a resident and is, or is in part, an outgoing incurred by that person or those persons in carrying on business in Australia at or through a permanent establishment of that person or those persons in Australia.

...

(5) A person who derives income to which this section applies that consists of interest is, subject to sub-sections (6) and (7), liable to pay income tax upon that income at the rate declared by the Parliament in respect of income to which this sub-section applies.''

Section 128C provided, inter alia:-

``(1) Withholding tax is due and payable by the person liable to pay the tax at the expiration of 21 days after the end of the month in which the income to which the tax relates was derived by him or of such further period as the Commissioner, in special circumstances, allows.

(2) Withholding tax, when it becomes due and payable, is a debt due to the Queen on behalf of the Commonwealth and payable to the Commissioner.

(3) Subject to sub-section (4), if any withholding tax remains unpaid at the expiration of 60 days after the time when it became due and payable, additional tax, by way of penalty is due and payable at the rate of 20% per annum on the amount unpaid, computed from the expiration of that period.''

Section 221YL(2) provided:-

``Subject to this section and to section 221YM, where-

  • (a) a dividend of a company that is a resident is paid to the Commonwealth, a State, an authority of the Commonwealth or of a State or a person in Australia (in this sub-section referred to as `the payee'); and

    ATC 4480

  • (b) another person who is a non-resident is entitled-
    • (i) to receive the dividend or a part of the dividend, or the amount of the dividend or of a part of the dividend, from the payee; or
    • (ii) to have the dividend or a part of the dividend, or the amount of the dividend or of a part of the dividend, credited to him, or otherwise dealt with on his behalf or as he directs, by the payee,

the payee shall, except as provided by the regulations, forthwith make a deduction from the dividend, or the part of the dividend, of an amount determined in accordance with the regulations.''

Section 221YN provided, inter alia:-

``(1) Where a person has made a deduction from a dividend or from interest and that deduction was made, or purports to have been made, under section 221YL-

  • (a) that person shall, within 21 days after the end of the month in which the deduction was made, pay to the Commissioner an amount equal to the deduction; and
  • (b) that person shall, before the expiration of 2 months after the end of the financial year in which the deduction was made or within such further time as the Commissioner allows, furnish to the Commissioner a statement with respect to the deduction, in a form authorized by the Commissioner, signed by or on behalf of the person who made the deduction.

...

(4) Where an amount payable to the Commissioner by a person under sub- section (1) (in this sub-section referred to as the `principal amount') remains unpaid after the expiration of the period within which, by this section, it is required to be paid-

  • (a) the principal amount continues to be payable by that person to the Commissioner; and
  • (b) an additional amount is, in addition to any other penalty to which that person may be liable, payable by that person to the Commissioner, by way of penalty, at the rate of 20% per annum on so much of the principal amount as remains unpaid, computed from the expiration of that period.''

Section 221YQ provided, inter alia:-

``(1) Where a person has refused or failed to make a deduction from a dividend or from interest in accordance with section 221YL or has contravened sub-section 221YP(1), (2) or (3A) in relation to a dividend or interest, that person is liable, in addition to any other penalty to which he may be liable, to pay to the Commissioner-

  • (a) an amount equal to any unpaid withholding tax payable in respect of that dividend or interest; and
  • (b) an amount equal to any unpaid additional tax payable under sub-section 128C(3) in respect of that withholding tax.

(2) Where a person has paid to the Commissioner an amount payable by virtue of paragraph (1)(a), that person may recover an amount equal to that amount from the person liable to pay the withholding tax to which that first-mentioned amount relates.

(3) Where an amount payable under sub- section (1) has been paid to the Commissioner, the person liable to pay the withholding tax to which the amount relates is entitled to a credit equal to that amount.''

It is not in dispute that the interest which was paid to Deutsche Bank was income of Deutsche Bank that was subject to s. 128B(2) and that, under s. 128B(5) Deutsche Bank was liable to pay tax thereon. As the withholding tax was not paid by Deutsche Bank within the time specified by s. 128C, it became a debt due and payable by Deutsche Bank to the Queen on behalf of the Commonwealth.

Nor is it in dispute that ICTC did not make deductions of the tax in accordance with s. 221YL(2A), nor forward those deductions to the Commissioner in accordance with s. 221YN. Failure to make the deductions and to remit them to the Commissioner rendered ICTC liable to a penalty under s. 221YN(4). Under s. 221YQ(1), ICTC became liable to pay to the Commissioner the amount equal to the unpaid withholding tax and an amount equal to any unpaid additional tax payable under s. 128C(3).

In 1992, the Commissioner of Taxation sought payment from ICTC in relation to the

ATC 4481

interest which had been paid to Deutsche Bank. The result of negotiations was set out in a letter of 11 December 1992 written by Mr Dustow to Deutsche Bank, which stated inter alia:-

``Negotiations with the Australian Taxation Office audit team has resulted in their acceptance of a proposal that withholding tax of 10% is payable calculated on the amount of interest payments remitted by ICTC to your bank and its assigns during the term of the credit facility and will not be calculated under their formula of 10% of 10/9 of interest paid a saving of $11700.29. The withholding tax payable has been calculated at $105302.60.

Negotiations have also been successful in reducing the penalties for non-payment from substantially in excess of 100% of the withholding tax to a flat 20% penalty amounting to $21060.52.

The total amount assessed by the Australian Tax Office including penalties as set out above is $126363.12.

It has been further negotiated with the Australian Taxation Office as part of the settlement proposed that payment of the above amount will be effected in full on or before 15th December 1992.''

The sums mentioned by Mr Dustow together with the sums payable in respect of another loan were remitted to the Commissioner of Taxation on 15 December 1992. Payment was made by a cheque drawn by Todbern in the sum of $284,261.40. A letter of 17 December 1992 from the Australian Taxation Office acknowledged receipt of an amount of $126,363.12, being $105,302.60 interest withholding tax and $21,060.52 additional tax assessed on interest payments made to Deutsche Bank during the years ended 30 June 1986 to 30 June 1989 inclusive.

Although ICTC did not draw the cheque that was paid to the Commissioner of Taxation, I am satisfied that payment was made by ICTC for the purposes of the words ``has paid'' in s. 221YQ(2). Todbern was a company of which Mr Cawood and Mr Sproule were the shareholders and directors. The interest payments made to Deutsche Bank were made either directly by ICTC or by Todbern, by Kyldow, a company of which Mr Cawood and Mr Sproule were the directors and shareholders, by Torbella, a company of which Mr Cawood was a director and shareholder or by Sandtara, a company of which Mr Cawood and Mr Sproule were shareholders and directors. In each case, whenever a payment was made by one of the companies other than ICTC, it was made on behalf of ICTC and, in its accounts, ICTC acknowledged indebtedness in respect of the sums paid on its behalf.

As Deutsche Bank has submitted to the jurisdiction of the Court, having entered an appearance, and in any event because the agreement of 11 March 1985 provided that the laws of New South Wales would apply, and those laws necessarily included the relevant laws of the Commonwealth of Australia, s. 221YQ(2) must be given effect in accordance with its terms. Therefore ICTC is entitled to recover the sum of $105,302.60 being the interest withholding tax remitted to the Commissioner of Taxation. Section 221YQ(2) does not authorise the recovery of the additional tax assessed.

There is no defence to the applicant's claim on this basis. Even had there been a provision in the agreement of 11 March 1985 that withholding tax would be paid by ICTC, that term would have been struck down by s. 261. But there was no such term. Nor has it been proved that there was any agreement outside the loan agreement and the mortgage documents that ICTC would meet the payments. The defence does not raise a counter claim or set off. The defence claims that the applicant waived its right to claim relief against Deutsche Bank and that it was inequitable and unjust to grant the relief sought. However, I see no basis for this claim. The primary liability was imposed upon Deutsche Bank by the Act and the Act has stipulated what will occur when payment is not made in accordance with its terms. It cannot be inequitable or unjust to grant to the applicant the relief provided by s. 221YQ(2). The defence also claimed estoppel, but this ground was not pursued by counsel.

The facts of the case may have been complicated by misunderstandings by both parties as to the effect of clause 12.02 in the agreement of 11 March 1985 which read as follows:-

``12.02 Should any form of reserve requirement, statutory reserve deposit, special deposits or other similar restrictions be imposed on the Lender during the term of the Loan by the Reserve Bank of Australia

ATC 4482

or other governmental authority or other governmental authority whether in the Commonwealth of Australia or elsewhere and the result of any of the foregoing is to increase the cost to the Lender of making or maintaining the Loan by any amount which the Lender deems material or if the Lender or any person firm or corporation from whom the Lender has borrowed funds to make advances hereunder be subjected to additional costs as a result of a change in any applicable law the Borrower shall pay the Lender upon its demand such additional amounts as will compensate the Lender upon its demand such additional amounts as will compensate the Lender for any such additional costs, then:
  • (i) the Borrower shall forthwith notify the Lender thereof;
  • (ii) The Lender promptly shall then, or, shall of its own accord notify the Borrower of the likely additional increase in cost to the Lender;
  • (iii) Upon receipt of such notification the Borrower shall within ten (10) working days advise the Lender in writing that the Borrower accepts the additional cost (from the date of notification referred to in sub-paragraph (ii) of this item) or that the Borrower will repay together with interest and other moneys then owing to the date of such repayment all (but not part only) of the Loan then outstanding whereupon the Lender's liability to provide the Loan shall be cancelled.
  • (iv) Should the borrower elect to repay the Loan repayment will be effected without penalty at the expiration of the then current Interest Period;
  • (v) In the event that the Borrower advises the Lender that it accepts the additional cost in accordance with paragraph (iii) hereof such additional costs will (subject to all necessary consents) be payable by the Borrower to the Lender upon demand or as the Lender might otherwise advise or require.''

The Treasurer of the Commonwealth of Australia released on 1 July 1986 a press release with respect to interest withholding tax exemptions in which he announced that, in order to protect Commonwealth revenues, the Government had decided to remove a number of exemptions from interest withholding tax. I need not specify the matters discussed for they did not affect the interest payments made to Deutsche Bank. Nor did the legislation which was subsequently enacted. However, on 11 July 1986, Deutsche Bank wrote to ICTC as follows:-

``The Treasurer's Statement announced legislation to amend the Income Tax Assessment Act 1936 (the `Act') with effect from 1st July, 1986 in a way which, inter alia, will remove all previous exemptions from interest withholding tax pursuant to section 128G of the Act applicable to interest payable under the above Loan Agreement.

In terms of the above Loan Agreement, the result of the change in the law announced in the Treasurer's Statement is that the Bank is subjected to additional costs, in the form of interest withholding tax, which it would not have been subjected to otherwise.

Therefore, pursuant to paragraph (ii) of Clause 12.02 of the above Loan Agreement, the Bank hereby gives the Borrower notice that the likely additional increase in cost to the Bank in [sic] ten percent (10%) gross amount of each payment of interest, or in the nature of interest, made to the Bank pursuant to the above Loan Agreement.

For your information, the Bank reminds you that, under Clause 12.02 of the above Loan Agreement, the Borrower is obliged, within ten (10) working days, to advise the Bank in writing either:

  • a) that the Borrower accepts the additional cost from the date of this notice; or
  • b) that the Borrower will repay together with interest and other moneys then owing to the date of such repayment all (but not part only) of the Loan then outstanding.

IF THE BANK DOES NOT RECEIVE A NOTICE FROM YOU BEFORE JULY 28TH, 1986 YOU WILL BE DEEMED TO HAVE MADE THE ELECTION SET OUT IN PARAGRAPH (a) ABOVE.''

ICTC did not respond.

In my opinion, the Treasurer's announcement of 1 July 1986 made no difference whatever to the situation of Deutsche Bank or of ICTC. Nor

ATC 4483

did the legislation which followed it. Furthermore, cl. 12.02 did not apply. The subject of the announcement was not a reserve requirement, a statutory reserve deposit, a special deposit or other similar restriction imposed on the lender by the Reserve Bank of Australia or other governmental authority. What were announced were proposed amendments to the Act.

Both parties have relied on this event as having some significance. Mr Cawood in his affidavit relied upon the event as providing a basis for a mistaken belief, though the nature of this mistaken belief is difficult to determine as ICTC did not alter its position in any way. It had made a payment of interest in September 1985 and other payments in April and May 1986. On no occasion then or thereafter did ICTC deduct withholding tax.

Counsel for Deutsche Bank has relied upon the event as giving rise to some form of contract, alleging that, by its failure to reply to the letter, ICTC was precluded from denying that ICTC was bound to meet the liability of Deutsche Bank for withholding tax. I would not draw any such contractual term from a mere failure to answer a letter which was misconceived both as to the meaning of cl. 12.02, on which it relied, and also as to the subject matter with which it dealt. However, there is another ground for rejecting the submission. The respondent cannot rely upon a term which, if it had been stipulated in the loan agreement in the first place, s. 261 would have struck down as void.

ICTC cannot recover the additional tax. Section 221YQ(2) does not so provide and the policy which it implies should be given effect. The additional tax flows from ICTC's failure to make deductions in accordance with s. 221YL(2A) and to remit the deducted amounts to the Commissioner in accordance with s. 221YN(1). Therefore, there is no basis in unjust enrichment to recover the sum.

The last issue is that of the limitation period. Counsel for the respondent has relied upon s. 14(1) of the Limitations Act 1969 (NSW), which applies by virtue of s. 79 of the Judiciary Act 1901 (Cth). However, I accept the contention of counsel for the applicants that the right of recovery did not accrue until ICTC had paid to the Commissioner the amount payable under s. 221YQ(1)(a). That occurred on 15 December 1992. In this event, the claim is not barred and it is unnecessary for me to discuss other issues which s. 14(1) raises.

There should therefore be judgment for the first applicant, ICTC, against the respondent, Deutsche Bank, in the sum of $105,302.60 together with interest to the date of judgment, which I assess in accordance with s. 51A of the Federal Court of Australia Act 1976 (Cth) and Schedule J to the Rules of the Supreme Court of New South Wales. I calculate that interest at $18,190.60 giving a total of $123,493.20.

Jurisdiction to give judgment for that sum arises in this way. Counsel for the parties do not dispute that the principal claim based upon the principles of unjust enrichment enunciated in Davids Securities was vested in this Court by virtue of the Cross-Vesting Legislation. The claim for relief under s. 221YQ(2) was not so cross-vested, for jurisdiction under that provision had been conferred upon the States by s. 39 of the Judiciary Act. However, that claim was so intermingled with the matters in respect of which jurisdiction was conferred on the Court by the Cross-Vesting Legislation that jurisdiction in respect thereof was conferred upon this Court by s. 32(1) of the Federal Court of Australia Act 1976 (Cth). This section provides that, to the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction is invoked. It is not in dispute that the claim under s. 221YQ(2) was an associated matter.

In the circumstances, there will be judgment for the first applicant against the respondent in the sum of $123,493.20 with costs. The second, third and fourth applicants did not seek relief and should abide their own costs.

The Court orders that:

1. There be judgment for the first applicant against the respondent in the sum of $123,493.20 with costs.

2. The second, third and fourth applicants should abide their own costs.


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