Softcorp Holdings Pty. Ltd. v. Commissioner of Stamps (S.A.)

Judges:
Bollen J

Court:
Supreme Court of South Australia

Judgment date: Judgment handed down 5 May 1987.

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Bollen J.

On 3 February 1983 a Deed of Trust was executed by Voula Andreadis as "the founder" and Ceneangle Pty. Ltd. as "the trustee". Ceneangle Pty. Ltd. later changed its name to Softcorp Holdings Pty. Ltd. ("Softcorp"). The reason for the making of the

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deed appears on p. 1 of it under the useful word "whereas". The deed recites:

"A. The Founder is desirous of establishing a Trust Fund with the intent that the benefits and obligations of the trusts herein contained shall enure to the extent provided herein to every holder of units in the Trust Fund who shall hold such units in the manner hereinafter set out.

B. For the purpose of giving effect to such desire the Founder has paid to the Trustee the sum of NINE DOLLARS ($9.00).

C. The Trustee has consented to become the Trustee hereof upon the trusts and with and subject to the powers and provisions hereinafter contained."

Voula Andreadis steps briefly on to the stage as the founder. He departs. No more will be heard of him. So a trust fund was set up for the benefit of those who later were to hold units in the trust fund. Clause 1(d) of the Deed of Trust defines "trust fund" thus:

"(d) `Trust Fund' means and shall comprise -

• (i) the sum of referred to in paragraph B of the Recitals hereto;
• (ii) all moneys investments and property paid or transferred to and accepted by the Trustee as additions to the Trust Fund;
• (iii) any accumulations of income made pursuant to this Deed;
• (iv) any accretions to the Trust Fund;
• (v) all property from time to time representing the said money investments property accumulations and accretions or any part or parts thereof respectively;"

`Unit' and "Unit Holder" are defined by cl. 1(g) and (h) respectively thus:

"`Unit' means an undivided part or share in the Trust Fund.

(h) `Unit Holder' or `Holder' means the person for the time being registered under the provisions of this Deed as the holder of a Unit and includes persons jointly so registered."

The trust deed was duly stamped under the Stamp Duties Act.

The deed was amended on 30 August 1985. It was amended by what has been called the amending deed. It was really a unilateral declaration by Softcorp as trustee. I think it well to set out the provisions of this amending deed:

"THIS DEED is made the 30th day of August 1985 BY:

• SOFTCORP HOLDINGS PTY. LTD. (formerly called Software Corporation of Australia Pty. Ltd. and originally called Ceneangle Pty. Ltd.) a company incorporated in Victoria having its registered office at 2nd Floor, 449 Swanston Street, Melbourne (`the Trustee')

RECITALS:

• A. The Trustee is the trustee of The S.C.A. Trust a trust constituted pursuant to a certain Deed of Trust made 3rd February 1983 between Voula Andreadis therein described as founder of the one part and the Trustee as trustee of the other part (`the Trust Deed').
• B. The Trustee proposes to amend the Trust Deed in the manner hereinafter set forth and to that end has obtained the consent of a resolution passed by the holders of not less than 75% of the Units issued in the Trust at a duly convened meeting of unit holders to such amendment.

OPERATIVE PART:

NOW THIS DEED WITNESSES that the Trust Deed is hereby amended in the manner following:

1. By mserting the following sub-clause immediately after sub-clause (7) of clause 3:

• (8) Notwithstanding anything contained in this Deed the Trustee may, upon application being made therefor, issue to Technology Ventures Pty. Ltd., a company incorporated in South Australia, for the consideration of $1.00, one Unit (hereby designated as a `B Class Unit') in the Trust Fund. The rights privileges conditions and restrictions set out below shall attach to the B Class Unit, namely:
  • (a) the B Class Unit shall entitle the holder thereof to one-quarter in number of all ordinary shares of twenty cents each in the capital of

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    Software Corporation of Australia Limited, a company incorporated in South Australia, which at any time form part of the Trust Fund BUT not to more than 2,250,000 in aggregate of such shares;
  • (b) upon any such shares in Software Corporation of Australia Limited forming part of the Trust Fund, the shares to which the holder of the B Class Unit is entitled shall thereupon be transferred to that holder in specie and that holder shall indemnify the Trust Fund against all costs and expenses associated with such transfer;
  • (c) save as provided in this sub-clause the B Class Unit shall not entitle the holder thereof to any interest in the Trust Fund or to exercise any rights or privileges which a unit holder is entitled to exercise under this Deed by virtue of holding Units; and
  • (d) upon the maximum number of shares to which the holder of the B Class Unit may become entitled hereunder being transferred to such holder pursuant to this clause the B Class Unit shall be deemed ipso facto to have been surrendered and cancelled absolutely and the holder thereof shall have no further rights in respect thereof.'

2. By adding the following clause after clause 17:

• `17A In addition and without prejudice to the powers of the Trustee and the provisions of this Deed the Trustee may in its absolute discretion at any time and from time to time until Vesting Day or sooner determination of the Trust hereby created:
  • (a) out of the capital of the Trust Fund raise any sum or sums or set aside any property and pay or transfer the same (in addition to any entitlement to income or share of income) to unit holders in proportion to the Units registered in their respective names for their own use and benefit absolutely or apply the same to or for the benefit of the unit holders in like proportions;
  • (b) pay any money or transfer any property appropriated to a share to which any person is or becomes absolutely entitled to such person absolutely."'

After 30 August 1985 the appellant was the sole trustee of the SCA Trust constituted pursuant to a deed of trust dated 3 February 1983 and amended by the deed dated 30 August 1985.

In due course four instruments executed pursuant to the deed of trust were submitted for the opinion of the Commissioner of Stamps. Each was a transfer of 2,250,000 shares by the appellant as trustee in "an undertaking called Software Corporation of Australia Limited" to the named transferee. The transferees were Corporter Pty. Ltd. ("Corporter"), Cenecountry Pty. Ltd. ("Cenecountry"), Corpland Pty. Ltd. ("Corpland"), and Technology Ventures Corporation Pty. Ltd. ("Technology Ventures").

The appellant carried out the obligations of the trustee imposed on it as trustee by executing the memoranda of transfer. Pursuant to sec. 23 of the Act the memoranda of transfer were lodged in October 1985 for the opinion of the Commissioner of Stamps about the amount of stamp duty with which each was chargeable.

On 22 April 1986 the Commissioner assessed each memorandum to ad valorem duty. Later he charged each with penalty duty.

The appellant says that the memoranda should not have been assessed to ad valorem duty. It appealed. In accordance with the usual practice the Commissioner has stated a case for the opinion of the Court. The facts appear in the case stated. Some I have already mentioned. I can best recite other facts by setting out relevant paragraphs of the case stated. They are:

"4. On the 30th day of August, 1985 pursuant to the Trust Deed as amended by the amending Deed, one B class unit in the Trust was issued to Technology Venture Corporation Pty. Ltd. (erroneously referred to in the amending Deed as `Technology Ventures Pty. Ltd.') for the consideration of $1.00. Thereupon the holders of all the units in the Trust that had been created and

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issued, and the number of units held by them respectively, were as follows:

• Corporter Pty. Ltd. - 3 units
• Cenecountry Pty. Ltd. - 3 units
• Corpland Pty. Ltd. - 3 units
• Technology Venture Corporation Pty. Ltd. - 1 B class unit

5. On the 31st day of August, 1985 the appellant subscribed for and was issued with 9,000,000 ordinary shares of twenty cents each in the capital of Software Corporation of Australia Limited (`the shares') at par.

6. On the 19th day of September, 1985, 2,250,000 of the shares were transferred to Technology Venture Corporation Pty. Ltd. pursuant to the Trust Deed as amended by the amending Deed.

7. On the 19th day of September, 1985 pursuant to the Trust Deed as amended by the amending Deed, the Directors of the appellant resolved that the balance of the shares be transferred to the unit holders in proportion to the units registered in their names. In accordance with that resolution, those remaining shares were thereupon transferred to Corporter Pty. Ltd., Cenecountry Pty. Ltd. and Corpland Pty. Ltd. in proportion to the units registered in their names.

8. No consideration was paid or given for any of the transfers."

In para. 10 the Commissioner says that he thought that the memoranda were conveyances operating as voluntary dispositions inter vivos pursuant to sec. 71 of the Act and, therefore, chargeable without ad valorem duty. If he is right his assessment of duty is right.

The deed, the amending deed, the memoranda of transfer and the applications for the opinion of the Commissioner were all annexed to the case as part of the case. I have studied the case proper and all the documents.

The questions asked are:

• (1) Whether the transfers or any of them are liable to duty as assessed by the Commissioner
• (2) if not, how much?

When someone transfers property to someone else the memorandum of transfer is usually chargeable with ad valorem stamp duty. If I transfer property for a consideration to someone else I must render that which is due to Caesar unto Caesar. But a beneficent Parliament recognises that some instruments which might seem to be conveyances operating as voluntary dispositions inter vivos are not or should not be so treated. Section 71(5)(e) of the Act, therefore, is:

"(5) Subject to subsection (6), an instrument effecting or acknowledging, evidencing or recording, any of the following transactions shall be deemed not to be a conveyance operating as a voluntary disposition inter vivos:

• ...
• (e) a transfer of property to a person who has the beneficial interest in the property by virtue of an instrument that is duly stamped."

If the instrument passes the legal title to the person who had the equitable title or interest the instrument is not a conveyance operating as a voluntary disposition inter vivos.

A big advantage of a case stated is that the facts on which one is to adjudicate are set out in it. I do not need to travel through minute books of the various companies nor of any other primary documents. I do not need to examine whether relevant actions were done pursuant to the trust deed as amended. The case stated (signed by the Commissioner) tells me that the actions relevant here were so done. After the issue of one B class unit in the trust fund to Technology Ventures the holders of all the units in the trust fund and their holdings were three units to each of Corporter, Cenecountry and Corpland and one B class unit to Technology Ventures.

On 31 August 1985 the appellant subscribed for and received 9,000,000 ordinary shares at 20 cents each in Software Corporation. But it subscribed for them pursuant to its obligations under the trust deed. It held those shares as trustee. It transferred those shares to those whom it believed to be entitled to the legal estates in them pursuant to the trust deed and the amending deed [see para. 6 and 7 of the case stated - quoted above].

The appellant considered that each transferee was by virtue of its "unit holding" entitled to the beneficial interest in shares in Software Corporation and as trustee it transferred what it

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believed the transferees were entitled to have, namely, the legal estate in those shares. I have spoken a little loosely in deference to one of Mrs Branson's arguments.

The route by which Technology Ventures got its shares is rather different to the route by which the others got their shares.

Each counsel discussed the memorandum of transfer to Technology Ventures first and adopted arguments about that transfer to the other transfer as part of the argument touching the other transfers.

Much of the argument and debate was about "identification" or lack of it. The appellant's contention is that sec. 71(5)(e) applies here. Mrs Branson, for the Commissioner, stood on the definite article in that placitum. The transferee must have "the" beneficial interest in "the" property which is transferred. Not an interest. Not an interest in some property but "the" beneficial interest in "the" property. If not, then sec. 71(5)(e) does not apply. Mrs Branson said that "The test is whether they had the beneficial interest in the shares". Of each transferee Mrs Branson said that it had not the beneficial interest in any identifiable shares. Mrs Branson said that Technology Ventures was not an ordinary unit holder. The other three transferees were ordinary unit holders. Upon the allotment of shares the unit holders held an undivided interest in all of the trust fund and thus an undivided interest in all of the nine million shares. Of Technology Ventures Mrs Branson said that once the B class unit had "issued" and the trust fund contained ordinary shares in the capital of Software Corporation all that Technology Ventures had was a right to the transfer of 2¼ million shares but not any particular 2¼ million of the nine million shares. Mrs Branson said further that Technology Ventures had no beneficial interest in anything. That interest was held as to all shares by the ordinary unit holders until the transfer took place. Mrs Branson said, therefore, that no transferee had the beneficial interest in the shares transferred in each memorandum of transfer.

The trust deed provides that the founder was desiring of establishing a trust fund for the benefit of unit holders. Paragraph (2) of the deed of trust appears under the subheading "Declaration of Trust". It is:

"(1) In consideration of the premises the Founder hereby declares that the Trustee shall and the Trustee hereby declares that the Trustee will henceforth hold the Trust Fund and the income thereof upon trust for the Unit Holders upon the trusts and with and subject to the powers and provisions hereinafter expressed concerning the same.

(2) Save as provided in Clauses 7, 12 and 17 hereof, no Unit Holder or any combination thereof shall be entitled to call for a transfer to it or them of any of the assets or property comprising the Trust Fund and save as is hereinafter provided, no Unit Holder shall be entitled to interfere with or question the exercise or non-exercise by the Trustee of any discretion in relation to the Trust Fund or to the conduct of any business carried on by the Trustee pursuant to the powers and duties hereinafter contained."

Mrs Branson drew attention to the restrictions in para. 2(2). But here the trustee did transfer. It is, in my opinion, nothing to the point to say now that the transferees may not have been able to compel a transfer.

The nine million shares became part of the trust fund. On 31 August 1985 the trustee purchased those shares. It purchased them for the benefit of the unit holders only, including the B class holder. It purchased them pursuant to the trust deed as amended. Had those deeds not existed the appellant would not have been the trustee of SCA Trust because that trust would not have existed. The trust deed declared that the trustee should hold the trust fund for the unit holders. The amending deed brings Technology Ventures into the ambit of the trust. The amending deed by cl. 8 dealt with the situation of Technology Ventures. It is clear that on 30 August 1985 the purchase of the nine million shares in Software was under way. It was culminated on 31 August 1985 (cl. 5 of case stated). On 30 August the trustee, thinking of Technology Ventures, executed the amending deed.

The amending deed provided that Technology Ventures as a B class unit holder would be entitled to one quarter in number of the shares in Software which at any time formed part of the trust fund. It provided for transfer of those shares in specie. Pursuant to the declaration of trust in the amending deed the appellant as trustee transferred 2,250,000 in Software to Technology Ventures.

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It is true that the shares transferred were not identifiable by number. By that I mean it was not possible to point to numbered certificate or scrip and say "Those are yours". The same applies to the transfer to the other transferees. But the effect of the deed of trust and amending deed is that each transferee is to have one quarter of the nine million shares in Software. Why is each to have these shares? Because that is what documents creating a trust and the terms of a trust say. In my opinion, each unit holder, including Technology Ventures, at the time of the transfer (19 September 1985) had the beneficial interest in the property transferred. The very nature of what was declared in the trust documents and of what happened means that each had the beneficial interest in an equal number of shares. The legal title in all shares was in the appellant. But the beneficial interest in one quarter was in one transferee and so on. I think it too stringent a reading against the taxpayer of sec. 71(5)(e) to say that that placitum of that subsection does not apply because one could never precisely identify which shares were held and which transferred. By "precisely" I mean by reference to numbered scrip or certificate.

There was a sufficient identification. The whole cake was identifiable. Each transferee was entitled to a slice the size of one quarter of the whole. In the circumstances of this case I think that sufficient identification. There were transfers of property to persons who had the beneficial interest in the property transferred.

But did those transferees have their beneficial interest "by virtue of an instrument that is duly stamped" (sec. 71(5)(e)). Mrs Branson said that it was not by virtue of an instrument that the transferees held the beneficial interest. The instruments did not inexorably lead to the having of that interest. She referred to the fact that neither deed compels the issue of a B class unit to Technology Ventures. Nor does either deed compel the purchase of shares. But the definition of "trust fund" in the original deed controls the purchase of shares in Software. Perhaps the trustee was not compelled to buy them. But it did buy them as trustee of the SCA Trust. That done it was bound to hold the shares for the unit holder. Why? Because the deed as amended told it so to do. No doubt things happened to bring about the holding of any beneficial interest in the shares. But wherever there is a deed providing for rights it provides rights in respect of things done, being done or to be done. The trustee purchased shares. It purchased as trustee of the SCA Trust. Therefore, by virtue of those deeds creating and defining the trust fund it held the beneficial interest in the shares for the unit holders, for the companies intended and designated as beneficiaries by the deeds.

Mrs Branson offered a third reason why the transfers to Corporter, Cenecountry and Corpland do not fall within sec. 71(5)(e). Mrs Branson submitted that the effect of sec. 71(7) prevented the operation of sec. 71(5)(e) in relation to these three transfers. Section 71(7) is:

"(7) For the purposes of subsection (5)(e), a person who is an object of a discretionary trust by virtue of an instrument that is duly stamped shall not be regarded as having a beneficial interest in the trust property by virtue of an instrument that is duly stamped unless that person has been appointed to be a beneficiary under the discretionary trust by a further instrument that is duly stamped."

The definition of "discretionary trust" for the purposes of sec. 71 is in sec. 71(15). It is:

"`discretionary trust' means an arrangement, however made, under which a person holds property, and the beneficial interest in all or any part of that property may be vested in a person (in this section referred to as an `object') upon the exercise of a discretion, whether subject to any other contingency or not and whether the exercise of the discretion is obligatory or optional"

There is no "further instrument that is duly stamped" (sec. 71(7)). Mrs Branson's submission was recorded thus:

"But there is, in my submission, yet a third reason which in my submission is a compelling reason, why these three transfers do not fall within sec. 71(5)(e), and this argument is dependent on the proper meaning of sec. 71(7) (supra)

First your Honour will see that there's no reliance in this case on a further stamped interest, that is an instrument other than the trust instrument. I draw your Honour's attention to the wide definition of discretionary trust that appears in sec. 71(15) (supra). I draw your Honour's attention to the amending deed once again, Exhibit C,

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the clause relied on to support the three transfers of which I am now speaking was the new cl. 17A (supra) that was inserted into the trust deed to allow distribution in specie. I draw your Honour's attention to the fact that that is a discretionary clause. The trouble is I just don't understand what para. (b) there is about but I don't think my friend relies on para. (b) of cl. 17A. I understand him to rely on 17A subpara. (a). In my submission the trust as that clause is implemented is a discretionary trust within the meaning of the Stamp Duties Act. I submit it falls directly within the definition in sec. 71(15) and I say for that reason sec. 71(7) simply knocks the exemption out so far as these transfers are concerned, no further stamped instrument of the character described in subsec. (7) can be pointed to."

I repeat that the "three transfers" are those to Corporter, Cenecountry and Corpland. If those transferees are "the objects of a discretionary trust" then Mrs Branson is correct.

Mr Robertson denied that they were the objects of a discretionary trustee. Mrs Branson drew attention to the amending deed. As will have been seen she said that cl. 17A was the clause relied on to support the three transfers. Perhaps that is correct in a sense. But is it to the point? Prior to the date of the transfers these transferees were holders of units in the trust fund. On 31 August 1985 the appellant brought into the trust fund the 9,000,000 shares in Software. The appellant had subscribed for them and they were allotted to it. The appellant subscribed for and received those shares as trustee of the SCA Trust and not in any other capacity. It was acting "under" the trust deed. The shares became part of the trust fund (cl. 1(d)). Once those shares came into the trust fund cl. 2(1) of the original deed applied. The trustee held them "upon trust for the unit holders". The trustee was compelled to hold them for the unit holders. The trustee had the legal title. The unit holders had the beneficial interest. There was nothing discretionary about the vesting of the beneficial interest. Perhaps more things had to happen before the unit holders could receive hands [sic] into their own hands. But the beneficial interest had vested. It vested by virtue of the trust deed's imperative terms. Perhaps the interest had vested in expectancy. But it vested. There was nothing else, no other instrument, which did or could operate to do more than the work done by the original deed. Clause 17A of the amending deed is concerned with powers or exercise of powers or with things happening after vesting. But when the shares came into the trust fund the unit holders were known. They immediately became entitled as a right to the beneficial interest in the shares. The trust deed says so. Mrs Branson in a reply exercised by leave said: "Of course I accept that there was a beneficial interest in the trust fund. What I am relying on is the use of the definition of the beneficial interest being vested in a person." Back to the identification argument. I have dealt with that argument. Again, I say that the transferees were entitled to the beneficial interest in the shares by virtue of the imperative terms of the original deed. They were known. The equal entitlement of each inter se was known. If there had been any further instrument drawn up in purported compliance with sec. 71(7) I think it would have been otiose. It could have done nothing effective. But be that as it may, I hold that the three transferees were not the object of a discretionary trust. Section 71(7) does not apply here.

Mrs Branson submitted that: "Where you have identifiable property, in nearly every case the document that made that property identified... will have itself attracted ad valorem duty." No doubt that is so in most cases. Mrs Branson allied this to a later submission. It was recommended thus:

"Section 71 is not easy to follow. As I understand the subsection, I understand it to work this way. It is in itself in reality a form of exception to file leave. It is saying as I understand it it is true that we give an exemption to people whether the transfer of property to someone who already has the beneficial interest in the property by virtue of an instrument that is duly stamped but, and this is seven, if the stamped instrument you rely on is in fact your trust instrument you need another one, that's not going to be enough. The reason for that is of course perfectly apparent and in this case illustrates an example. Trust deeds can be set up in a way that do not themselves convey property of any significance at all, therefore they will nearly always be stamped for four dollars notwithstanding that property of great value can eventually be in them. What this State

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has chosen to do and not all the States have taken the same path, is to try and tax on the way out when the property will be identifiable and so what it is saying is that the whole of sec. 17 really is saying, is conveyance of the property of value will be stamped at as the law on duty one somewhere (sic). And therefore it is saying in subsec. (7) if your stamped document which you otherwise rely on for the purpose of (e) is itself your trust deed, it won't be enough because it will not have paid, have paid on it as the law of duty on the value of the property, therefore produce something else in itself."

[The incorrect recording marked "sic" does not obscure the force of this submission.]

I see the force of these submissions. But in my opinion they cannot affect the interpretation of the statute. They provide a background against which one may read the Stamp Duties Act. But no more. In my opinion, even paying great attention to those submissions, the three transferees are still not "objects of a discretionary trust" within sec. 71(7).

I should record that counsel referred me to cases. I have looked at them all. They were helpful in a generally educative way. Neither counsel suggested that any one case was decisive. I should perhaps say something about
Costa & Duppe Properties Pty. Ltd. v. Duppe (1986) V.R. 90. There the trust fund of a unit trust constituted by a trust deed comprised three parcels of land. A unit holder lodged a caveat in respect of each parcel claiming an equitable interest in each. The trust deed provided amongst other things that the beneficial interest in the trust should be vested in the unit holders for the time being and that each unit should entitle the holder thereof together with the other holders to the beneficial interest in the trust fund as an entirety but should not entitle the holder to any particular security or investment in the trust fund and that no unit holder should be entitled to the transfer to him of the property comprised in the trust fund otherwise than in accordance with the provisions of the deed.

The trustee had sought to have each caveat removed on the ground that the caveator had no proprietary interest in the land. Brooking J. held that the caveator had, by virtue of being a unit holder, a proprietary estate or interest in each piece of land which was included in the assets of the trust. Brooking J. discussed the case of
Lord Sudeley v. Attorney-General (1897) A.C. 11 and cases following it (in time and application). That case decided that a residuary legatee or the next of kin of an intestate has no beneficial interest in any of the assets of an estate until administration has been completed. In the meantime, he has a mere right to have the estate duly administered. But the decision of the Full Court of Victoria in
New Zealand Insurance Co. Ltd. v. Commissioner of Probate Duties (1973) V.R. 647 threw some doubt on the general application of Lord Sudeley's case. Brooking J. said at p. 95:

"The decision of the Full Court in the New Zealand Insurance Case makes it clear that Sudeley will not support any general proposition that a beneficiary under a trust has a right to have the trust administered but no proprietary interest in the trust assets. In the second place, that decision rejects any general proposition that beneficiaries who are concurrently entitled have no such proprietary interest. In the third place, the decision shows that the fact that the trustee is not a bare trustee but has a range of powers and duties in relation to the administration of the trust does not negative the existence in the beneficiaries of equitable estates or interests of a proprietary nature in the trust property."

Brooking J. went on to discuss the High Court decision in
Octavo Investments Pty. Ltd. v. Knight (1979) 144 C.L.R. 360 and
Charles v. F.C. of T. (1954) 90 C.L.R. 598. He then said at p. 96:

"To my mind, having regard to the New Zealand Insurance Case, the Octavo Investments Case and what is said in Charles v. Federal Commissioner of Taxation, the conclusion is inescapable that the unit-holders in the Costa & Duppe Properties Unit Trust have a proprietary interest in all the property which is for the time being subject to the trust deed. This proprietary interest is recognized by cl. 7(a) of the deed. Clauses 7(a) and 8(a) cannot mean that the unit-holders, while having a proprietary interest in the whole, have no such interest in any of the constituent parts. If there is a proprietary interest in the entirely, there must be a proprietary interest in each of the assets of which entirety, is composed: cf.
Smith v. Layh (1953) 90 C.L.R. 102

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, at pp. 108-9. What cl. 8(a) recognises is that no unit-holder can claim to have any particular asset appropriated to his share or transferred to him otherwise than in accordance with the deed.

It is worth noting that writers on the unit trust treat unit-holders as having a proprietary interest in the trust assets: H.A.J. Ford, Unit Trusts (1960) 23 Mod. L.R. 129 at pp. 131-2 and 141; M.J. Walsh, `Unit Trusts' - Structure, Management and Taxation (1976) 10 T.I.A. 534 at pp. 537-8 and 550; M.J. Walsh, Unit Trusts (1977) 12 T.I.A. 446, at p. 447; T.W. Magney, A Comparative Analysis of Estate Planning Vehicles Part 2 (1977) 12 T.I.A. 222, at p. 226; Grbich, Munn & Reicher, Modern Trusts and Taxation, 1978, pp. 36-7 and 40-1."

Duppe's case and those cases mentioned by Brooking J. is not and are not, in my opinion, decisive of the case at bar. The case at bar depends on the interpretation of the relevant provisions of the Stamp Duties Act and the application thereof to the facts of the case stated. But to some extent the decision and reasoning of Brooking J. seems to be adverse to Mrs Branson's submission that the transferees could not come within sec. 71(5)(e) because they had no beneficial interest in identifiable shares.

In my opinion, the transfers do not amount to conveyances operating as voluntary dispositions inter vivos. They are not chargeable with duty calculated ad valorem. The appellant's contention is correct. Each transfer is chargeable as a conveyance of any other kind not before charged for which the duty is $4 per transfer (Second Schedule to the Act).

I answer the questions asked in para. 14 of the case stated:

1. No.

2. $4 per transfer.