FEDERAL COURT OF AUSTRALIA Contract - True construction of the Deed of Indemnity - Where trustee of one trust accepts trusteeship of another trust and incurs a liability with respect to an "inter-trust" transaction - Whether clause operated to indemnify the Trustee only with respect to liabilities resulting from accepting appointment to the later trust - Whether clause indemnified Trustee with respect to any liabilities arising from the "inter-trust" transaction - Whether clause clear and unambiguous in its meaning. Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 (Applied) Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue (1994) 50 FCR 405 (Referred to) Stamp Duties and Taxes Act 1987 (ACT) ss 17, 18 and 22 Taxation (Administration) Act 1987 (ACT) s 31 AUSTRALIAN SECURITIES COMMISSION (Applicant) v PERPETUAL TRUSTEE COMPANY (CANBERRA) LIMITED ACN 008 393 806 (Respondent) PERPETUAL TRUSTEE COMPANY (CANBERRA) LIMITED ACN 008 393 806 (Cross-Claimant) AUSTRALIAN SECURITIES COMMISSION (First Cross-Respondent) TERRENCE MARK SNOW AND GEORGE ROBERT WARWICK SNOW (Second Cross-Respondents) CAPITAL PROPERTY CORPORATION PTY LIMITED (Third Cross-Respondent) AG 3003 of 1997 FINN J CANBERRA 15 MAY 1998 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 3003 of 1997 BETWEEN: AUSTRALIAN SECURITIES COMMISSION Applicant AND: PERPETUAL TRUSTEE COMPANY (CANBERRA) LIMITED ACN 008 393 806 Respondent PERPETUAL TRUSTEE COMPANY (CANBERRA) LIMITED ACN 008 393 806 CROSS-CLAIMANT AUSTRALIAN SECURITIES COMMISSION FIRST CROSS-Respondent TERRENCE MARK SNOW AND GEORGE ROBERT WARWICK SNOW SECOND CROSS-RespondentS CAPITAL PROPERTY CORPORATION PTY LIMITED THIRD CROSS-Respondent JUDGE: FINN J DATE OF ORDER: 15 MAY 1998 WHERE MADE: CANBERRA THE COURT ORDERS THAT: The preliminary question be answered as follows: No. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 3003 of 1997 BETWEEN: AUSTRALIAN SECURITIES COMMISSION Applicant AND: PERPETUAL TRUSTEE COMPANY (CANBERRA) LIMITED ACN 008 393 806 Respondent PERPETUAL TRUSTEE COMPANY (CANBERRA) LIMITED ACN 008 393 806 CROSS-CLAIMANT AUSTRALIAN SECURITIES COMMISSION FIRST CROSS-Respondent TERRENCE MARK SNOW AND GEORGE ROBERT WARWICK SNOW SECOND CROSS-RespondentS CAPITAL PROPERTY CORPORATION PTY LIMITED THIRD CROSS-Respondent JUDGE: FINN J DATE: 15 MAY 1998 PLACE: CANBERRA REASONS FOR JUDGMENT The Separate Preliminary Issue The applicant, the Australian Securities Commission ("the ASC"), having instituted proceedings against the respondent, Perpetual Trustee Company (Canberra) Ltd ("Perpetual"), under s 1324 of the Corporation Law in respect of Perpetual's trusteeship of the Capital Property Trust ("the CP Trust"), I made an order under O 29 r 2 of the Federal Court Rules that a separate preliminary issue be determined. That issue was the question: "Whether on the true construction of the Deed of Indemnity dated 14 June 1989 and in the events which happened the Respondent in its capacity as trustee of the Capital Property Trust was entitled under clause 6 of the Deed of Indemnity to enforce any obligation on the part of Terrence Mark Snow and George Robert Warwick Snow and Capital Property Corporation Pty Limited to pay the stamp duty imposed upon the Respondent by notice of assessment dated 9 June 1992." To appreciate the burden of the question it is necessary first to identify the various companies, trusts and individuals involved in this matter and, secondly, to provide a somewhat lengthy account of the factual setting. The Various Actors (a) The Companies 1. Perpetual was at all relevant times trustee of the CP Trust. On 14 June 1989 it was appointed as well the trustee of the T & G Trust. 2. Capital Property Corporation Pty Ltd ("CP Co") was until 14 June 1989 the trustee of the T & G Trust. It also held all the units in that trust albeit as trustee for yet another trust, the Empire Trust. Two of the directors, and the sole shareholders of CP Co are George and Terrence Snow. 3. Capital Property Management Ltd ("CP Management") is the manager of the CP Trust. Terrence and George Snow are two of its directors and they, or companies associated with them, make up its shareholders. (b) The Trusts 1. The CP Trust is a public unit trust having significant assets. The Messrs Snow and related parties held, it would seem, around 23 per cent of the issued units of the CP Trust. 2. The T & G Trust's sole beneficiary as I have noted was the CP Co. The principal trust asset up until the events to be described was a commercial property in Canberra, the Advance Bank Centre ("the AB Centre"). 3. The units of the T & G Trust were held by CP Co on trust for the Empire Trust. The beneficiaries of that trust I will describe somewhat inaccurately, but sufficiently for present purposes, as the families of Terrence and George Snow and their descendants. The Individuals Terrence and George Snow are prominent Canberra businessmen. As a result of the proceedings initiated by the ASC a cross claim has been made against them by Perpetual. I will for convenience refer to them collectively as "the Snows". Factual Setting 1. By early May 1989 CP Co and the Snows had evolved a plan under which, to put it colloquially, the CP Trust would acquire the AB Centre from the T & G Trust at valuation. That plan underwent some variation but in essence it involved the following steps: (i) Perpetual was to be appointed trustee of the T & G Trust in place of CP Co; (ii) Perpetual would have vested in it the assets of the T & G Trust; (iii) As trustee of the CP Trust, Perpetual would receive an investment proposal from the trust's manager, CP Management, to acquire the beneficial interest in the AB Centre with the approval both of the unit holders of the T & G Trust (ie CP Co) and, because of stock exchange requirements, of the unit holders of the CP Trust; and (iv) The acquisition of the beneficial interest in the AB Centre for the CP Trust was to be evidenced by a "declaration of trust" by Perpetual that it held that property as trustee for the CP Trust. 2. The above steps were put into effect. (a) On 14 June 1989 step (i) occurred: A Deed of Appointment was executed between CP Co acting as unit holder of the T & G Trust and Perpetual, under which Perpetual was appointed, and consented to its appointment as trustee of the trust. Importantly, associated with this deed was a Deed of Indemnity of the same date executed by CP Co, Perpetual and the Snows. The relevant provisions of these two deeds are set out below. (b) On 14 June in part effectuation of step (ii) application was made under s 138A of the Real Property Act 1995 to have Perpetual registered as the trustee of the leasehold estate on which the AB Centre was registered. I would note that s 138A, insofar as presently relevant provides: "Appointment of new or additional trustees 138A. (1) Where any land or interest under this Act is held by a trustee, either solely or jointly with other trustees, and - (a) the trustee vacates his or her office and a new trustee is appointed in his or her place or the vacancy is not filled; or ... the Registrar-General, upon receipt of the instrument effecting the vacancy or appointing the new or additional trustee, or of an office copy thereof, or of a copy thereof verified by affidavit, or upon production of such other evidence as the Registrar-General thinks sufficient, and upon being satisfied that the vacation of office or the new or additional appointment, as the case may be, is in accordance with law, shall, subject to this Act, enter in the folio of the Registrar constituted by the grant or certificate of title effected, a memorandum setting forth the fact of the vacation of the office or of the new or additional appointment, as the case may require. (2) Upon the entry being made, the new trustee, the continuing trustees, or the continuing trustees and the new trustee or the additional trustee, as the case may be, shall be deemed to be the registered proprietor or proprietors of the land or interest, and as such to be subject to this Act as if he or she or they were the trustee or trustees originally registered as proprietor or proprietors of the land or interest." (c) Step (iii) - ie the making to Perpetual as trustee of the CP Trust of an investment proposal by CP Management to acquire the beneficial interest in the AB Centre - occurred in July 1989. The proposal, which went through some iterations, was contained in several letters from CP Management. The purchase price was to be $49.75 million. The meeting of the CP Trust unitholders to approve the acquisition occurred on 16 August 1989. The proposal is unrevealing as to the precise legal machinery to be employed in effecting the acquisition. (d) In relation to step (iv) it is not possible on the material before me to indicate precisely how and by whom the beneficial interest in the AB Centre was vested in the beneficiaries of CP Trust. I need not inquire into this matter. I need merely note that on 31 August 1989, as step (iv) envisaged, Perpetual executed a deed in which it declared it held as trustee of the CP Trust the unexpired residue of the leasehold on which the AB Centre stood. I should add that I am unprepared to assume that this "declaration of trust" presupposed that Perpetual was the beneficial owner of the property concerned at the time of its making: see Jacobs' Laws of Trusts in Australia, para 401, 5th ed. For present purposes I need regard it as no more than an acknowledgment that it held the property as trustee of the CP Trust. 3. On 9 June 1992 the Commissioner for ACT Revenue assessed Perpetual "as trustee for the Capital Property Trust" for stamp duty in relation to the acquisition of the AB Centre. On 24 June 1992 the Commissioner's legal adviser confirmed that the assessment was "based on the Deed of Appointment dated 14 June 1989". 4. A succession of applications and proceedings between Perpetual and the Commissioner in the Administrative Appeals Tribunal of the ACT, the Supreme Court of the ACT and the Full Court of this court have resulted in a settlement under which the duty (though not all of the interest thereon) paid by Perpetual to the Commissioner was repaid to it. Before dealing with the stamp duty concerns of the parties in effectuating the "plan", it is necessary to refer briefly to the ACT's stamp duty legislation. Stamp Duty Legislation The definition section (s 4(1)) of the Stamp Duties and Taxes Act 1987 (ACT) ("the Act") defines: (i) "conveyance" to mean (inter alia): "(a) a lease of land, or a transfer, assignment or grant of a lease of land; (b) an agreement for a transfer, assignment or grant of a lease of land." (ii) "scheme" to mean: "(a) an agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or (b) a scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise." (iii) "tax avoidance scheme" to mean: "'tax avoidance scheme' means a scheme where the person who has, or one or more of the persons who have, entered into or carried out the scheme or a part of the scheme did so for the purpose of securing: (a) that an amount of stamp duty or tax would not be payable by a person, being an amount that would have been, or might reasonably be expected to have been, payable by the person: ... if the scheme had not been entered into or carried out, or for purposes of which that purpose was the dominant purpose." Section 17 of the Act prescribes the instruments subject to stamp duty. Sub-section (1) provides (inter alia): "17(1) The determined amount of stamp duty is payable on the following instruments: (a) a transfer, or an agreement for a transfer, of an estate in fee simple; (b) a Crown lease (not being a lease referred to in paragraph (ca)), or a transfer or an agreement for a transfer of a Crown lease." Section 18 provided at the relevant time that: "18. Stamp duty is not payable on an instrument in respect of a conveyance of a kind specified in Schedule 1." Section 22 prescribes the person liable to pay stamp duty. It provides: "22 The stamp duty payable on: (a) a transfer of an estate in fee simple or a lease of land, or an agreement for such a transfer; (b) an assignment of a lease of land, or an agreement for such an assignment; (c) a lease of land other than a Crown lease; (d) a Crown lease; is payable by the transferee, assignee, lessor or lessee respectively." Schedule I (ie that referred to in s 18) declared at the time that certain conveyances were "Exempt Conveyances". One such was: "A conveyance: ... (f) by way of a transfer or assignment of an estate in fee simple or a lease of land, being an estate or lease held on trust, where the transfer or assignment: (i) is made in consequence of the appointment or retirement of a trustee, or other change in the trustees, in order to vest the estate or lease, as the case may be, in the trustees for the time being entitled to hold it; and (ii) is not made in connection with a tax avoidance scheme." Of the provisions of the Taxation (Administration) Act 1987 (ACT) I need merely note that s 30(1) provides: "30(1) [Double the amount of tax or duty payable] A person who fails: (a) to lodge a return, or to give any information, in relation to a matter or thing; (aa) to make an application for the renewal of a licence; (b) to lodge an instrument for assessment; or (c) to cause an instrument to be duly stamped. as required by a tax law, is liable to pay, as a penalty, an additional amount equal to double the amount of tax, licence fee or duty payable in respect of the matter, thing, renewal or instrument, as the case requires." The Plan and Stamp Duty Concerns It is the case that prior to the plan being put into effect both the "Capital Property Group", if I can so compendiously describe the companies and trusts related to the Snows, and Perpetual were alert to the possible incidence of stamp duty on the instruments that were to effectuate it. The principal legal advice on the matter - supplied to Perpetual - was given by a member of the firm of solicitors advising the Capital Property Group. I merely note that the burden of that advice was conveyed to Perpetual's solicitors in a letter from the Capital Property Group's solicitors of 8 June 1989. It expressed the views that: (i) neither the Deed of Appointment nor the s 138A application was dutiable; (ii) if the s 138 A application was to be characterised as a transfer (contrary to the adviser's view), it would be exempt under Schedule I(f) of the Act; (iii) there was no tax avoidance scheme in place; (iv) even if not exempted by Schedule 1(f), as the s 138A application only transferred a bare legal title ad valorem duty would not be payable; and (v) under ACT law no ad valorem duty was payable on the declaration of trust. The 8 June letter concluded: "3.1 Therefore, in conclusion, it is our view that no ACT stamp duty is payable in respect of this transaction and that no penalty duty or fines will be payable in respect of the transaction, for the reasons set out above. 3.2 We are instructed that our clients do intend to lodge the Application under section 138A with the ACT Stamp Duties Office. If, despite submissions made on behalf of our clients that no duty is payable in respect of that document, an assessment for ad valorem duty is made by the ACT Stamp Duties Office, then our clients will be required to pay that duty. We are instructed that our clients will, if so required, pay that duty. There would remain the question whether our clients would then wish to appeal against the assessment by taking court proceedings. That will be a matter that will need to be decided by them at the appropriate time, in consultation with your client. Your client would of course be indemnified in respect of the obligation to pay duty by the beneficiaries and hence, even if, contrary to our view, an assessment is made for duty, there would not be an ultimate liability for your client to pay the duty." I mention this conclusion, not because it assists in the construction of the Deed of Indemnity to which I will turn, but rather to provide some explanation of the provenance of clause 6 of that Deed. The Deed of Appointment and the Deed of Indemnity Of the Deed of Appointment of 14 June 1989 I need only note that its clause 2 provided: "2. The [CP Co] in exercise of the power given to it in clause 25(d)(ii) of the Trust Deed resolves to appoint as substitute trustee of the T & G Trust in place of the [CP Co] [Perpetual] and declares that the estate and interest in the property of T & G Trust shall vest in [Perpetual] from the date of this deed." The Deed of Indemnity of the same date needs to be set out at some length. In so doing I note that its reference to the New Trustee is a reference to Perpetual, and the reference to Capital Property is to the CP Co. I should also note (a) that the highlighted provisions of cl 6 are a handwritten contemporaneous amendment; and (b) that the Deed has no cl 5. "RECITALS: A. By deed made 2nd March 1977 between Patrick Joseph McGlade as Settlor and Capital Property (then called "Stirling Finance Co Pty Limited") (the "Trust Deed") the Settlor settled upon Capital Property the sum of $100 and established the "T & G Trust". B. Capital Property wishes to be removed from the trusts of the T & G Trust and it is proposed that the New Trustee be appointed as substitute Trustee. C. At the request of the Snows the New Trustee is prepared to accept the appointment as Trustee of the T & G Trust subject inter alia to the execution of this deed. OPERATIVE PROVISIONS: 1. Capital Property at the request of the New Trustee warrants to the New Trustee as follows: (a) Capital Property has not committed any breach of the trusts conferred upon it by the Trust Deed. (b) The accounts of the T & G Trust present a true and fair view of the assets and liabilities of the Trust as at the date of the accounts. (c) The financial records of the T & G Trust have been kept in such a manner as to enable them to be conveniently audited. 2. Capital Property and the Snows each warrant and represent to the new Trustee that: (a) the T & G Trust is a valid and subsisting trust constituted by deed dated 2 March 1987 and amended only by deeds dated 10 March 1987 and June 1989. (b) Capital Property as unit holder holds all of the issued units in the T & G Trust and does so in its capacity as trustee of the Empire Trust constituted by deed dated 24 May, 1984. 3. The Snows and each of them hereby request the New Trustee to accept the appointment as trustee of the T & G Trust. 4. Capital Property and the Snows jointly and each of them severally covenant with the New Trustee to at all times indemnify the New Trustee: (a) against all actions preceedings [sic] claims demands costs and expenses whatsoever arising from: (i) Acceptance by the New Trustee of appointment as trustee of the T & G Trust. (ii) In the absence of misconduct by the New Trustee the exercise and purported exercise by the New Trustee of all or any of the powers set out in the Trust Deed and all deeds amending that deed. (iii) In the absence of misconduct by the New Trustee All or any act matter or thing arising as a result of the New Trustee acting or purporting to act as trustee of the T & G Trust. (b) for its fees and expenses in relation to the administration or purported administration by the New Trustee of the T & G Trust. ... 6. All stamp duty and other taxes, imposts and charges payable on or in respect to this deed and the deed of appointment of new trustee and any document evidencing or recording the substitution of the New Trustee for Capital Property as trustee of the Trust or the change in the ownership in the legal estate in the assets of the Trust executed contemporaneously with this deed (including penalties) be payable by Capital Property and the Snows." The Question of Construction It is convenient now to reiterate the question to be determined as a preliminary issue. It is: "Whether on the true construction of the Deed of Indemnity dated 14 June 1989 and in the events which happened the Respondent in its capacity as trustee of the Capital Property Trust was entitled under clause 6 of the Deed of Indemnity to enforce any obligation on the part of Terrence Mark Snow and George Robert Warwick Snow and Capital Property Corporation Pty Limited to pay the stamp duty imposed upon the Respondent by notice of assessment dated 9 June 1992." As I understand the parties contentions the twin issues raised here are, first, does clause 6 of the Deed inure to the benefit of Perpetual in its twin capacities of trustee of the T & G Trust and of the CP Trust, or is it limited to the former of these; secondly, if it benefits Perpetual in both capacities, could it have been activated by the 9 June 1992 notice of assessment. I say "could" because I have not been addressed on the question whether that notice would in fact have activated cl 6. Counsel for the ASC, Perpetual and the Snows necessarily have accepted that the rules of construction to be applied are those stated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347ff. They differ somewhat in their application of these principles and this, in part at least, because of the manner in which they locate both the Deed of Appointment and the Deed of Indemnity in the "objective framework of facts within which [they] came into existence": Codelfa, above, at 352. The ASC's case is in two parts, the first of which can be put as follows. Clause 6 of the Deed of Indemnity (a) merely identifies instruments which, under the ACT stamp duty regime, might be found to give rise to an obligation in Perpetual to pay duty and (b) creates the obligation assumed by CP Co and the Snows to pay the duty, if any, that might become so payable by Perpetual "on or in respect to" those instruments, but (c) it does not in any way limit the capacity in respect of which Perpetual's obligation may so arise and, as a matter of construction, it should not be so limited. In so construing clause 6 I am being asked (i) to locate the instruments to which it refers in the context of the scheme leading to the transfer of the beneficial interest in the AB Centre to the CP Trust; and (ii) to acknowledge that the clause envisaged the possibility of duty being imposed on those instruments in consequence of a scheme of avoidance being found. Implicit in proposition (c) above is the contention that either the deed of appointment or the s 138A application was capable of being found to be a dutiable instrument for the purpose of Perpetual's acquisition of the beneficial interest in the AB Centre for the CP Trust - a transaction in contemplation from the outset - and for which it could be liable for duty in that capacity. This last contention would seem to rest on the proposition that either of the instruments referred to could properly be found on appropriate evidence to be the instrument chosen by CP Co and Perpetual to implement or else to express their agreement that the beneficial interest in question was to be transferred to Perpetual as trustee of the CP Trust. Reliance in this was placed upon observations of Davies J in Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue (1994) 50 FCR 405 at 409 where his Honour said in relation to the Deed of Appointment in issue in this matter: "it seems to me that, if there was a sale and purchase of the beneficial interest in the subject Crown lease and if the deed of appointment was executed as the means by which the Crown lease would be conveyed from the vendor or a trustee for the vendor to the purchaser or a trustee for the purchaser, and thereby as the means by which the purchaser or a trustee for the purchaser would achieve registration as registered proprietor of the Crown lease, then the deed of appointment could be held to be a transfer of the Crown lease for the purposes of s 17 of the Stamp Duties and Taxes Act." The alternative bases on which the ASC puts its case is that if clause 6 is ambiguous then it is appropriate to have resort to the circumstances surrounding the execution of the Deed of Indemnity. If such is done, so it is said, the factual context existing at and immediately prior to 14 June 1989 makes clear that one of the objects and commercial purposes of clause 6 was to impose on CP Co and the Snows the very risk which subsequently occurred, namely the liability for stamp duty and penalties on the Deed of Appointment in connection with the contemplated transfer of the AB Centre to the CP Trust. Perpetual's submission is that, construed as a term of the Deed of Indemnity itself, clause 6 is clear and unambiguous in its meaning. The recitals of the Deed make plain its provenance: before Perpetual would be prepared to accept appointment as trustee of the T & G Trust it required that the Deed be executed. Clauses 1, 2 and 4 of the Deed, in differing ways, relate to the T & G Trust and the rights and liabilities of Perpetual as trustee of it. Clause 3 for present purposes is of no particular significance. In this setting, though clause 6 does not refer expressly to Perpetual or to its trusteeship of the T & G Trust, the instruments to which it refers relate to its assuming that trusteeship and to its becoming the registered proprietor of property to be held on that trust. The indemnity given by the clause is clearly only for liabilities incurred by Perpetual as trustee for the T & G Trust. For this reason it is unnecessary and inappropriate to look beyond the Deed itself to the surrounding factual matrix. There is no ambiguity, no possible diversity in meanings, that needs to be resolved. As an ancillary submission Perpetual has contended that the instruments referred to in clause 6 relate to its assumption of the T & G Trust. If any of them (but particularly the s 138 Application) is found to give rise to duty because it is not an exempt transfer, the transfer necessarily is to Perpetual as such trustee and consequently any duty payable by it as transferee is payable as trustee of that trust: see the Act, s 22. Perpetual has made additional submissions to the effect that if there is an ambiguity resort to the factual matrix supports the construction for which it contends in any event. Counsel for the Snows have made submissions similar in substance to those of Perpetual. They contend, first, that the promise implicit in clause 6 - it is in form a statement - is a promise to Perpetual in its capacity as trustee of the T & G Trust because the instruments referred to relate to Perpetual as such trustee and are quite unrelated to the CP Trust; but, secondly, even if Perpetual's capacity as promisee is not so qualified, if any of the instruments in question, and particularly the s 138A application, is found to be a dutiable transfer that instrument given its character could relate only to the process of Perpetual becoming transferee as trustee of the T & G Trust. For my own part I would have to say that I consider the construction of clause 6 as free from difficulty. Though, as counsel for the Snows rightly identifies and all parties accept, it contains an implicit promise in the setting of the Deed itself, that promise is to Perpetual as trustee of the T & G Trust. The Deed was the condition of acceptance of that Trust; the covenants expressly creating obligations relate to Perpetual in virtue of that trusteeship; and clause 6, in the instruments to which it refers, likewise is related to the process of the appointment of, the evidencing of, and any change of legal ownership of T & G Trust assets consequent upon the appointment of, Perpetual as trustee of the T & G Trust. The Deed is silent in order to the CP Trust of which Perpetual was already trustee. It is inappropriate, given the declared condition the Deed satisfied, for the "implicit promise" of clause 6 to extend to Perpetual's trusteeship of that trust and in respect of transactions (even if part of a scheme) that were to occur subsequent to the limited set of events which the instruments in clause 6 were intended to evidence. For this reason I would answer the preliminary question: "No". The indemnity did not extend to a liability incurred by Perpetual in its capacity as trustee of the CP Trust. I should, though, make the following additional comments. Accepting that Perpetual's appointment to the trusteeship of the T & G Trust was, as the ASC has submitted, the first step towards the acquisition of the beneficial interest in the AB Centre on behalf of the CP Trust, the evidence before me does not in any way suggest that that acquisition occurred (as a result of prior agreement for value or otherwise) either on Perpetual's acceptance of the T & G trusteeship or on the registration of the s 138A application. On the contrary. For this reason I have some difficulty in understanding the present relevance of the observations of Davies J in the Perpetual Trustee Company case, to which I earlier referred in outlining the ASC's submissions. More fundamentally, though, I am on the material before me left quite in the dark as to precise legal means by which the beneficial interest in the AB Centre was "acquired by the CP Trust" - to put the matter colloquially. Indeed I do not know whether it was to and did occur in a way which could not have involved Perpetual in liability for stamp duty in any event, even assuming the acquisition did not result from an effective declaration of trust. It is unnecessary for me to speculate on such matters as the possible role that the Imperial Acts (Substituted Provisions) Act 1986 (ACT), Sched 2 Part 11 cl 1(1)(a) and/or (c) may have had in the matter: cf generally Meagher, Gummow & Lehane, Equity: Doctrines and Remedies, Ch 7 (3rd Ed). I refrain from doing so. I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn Associate: Dated: 14 May 1998 Counsel for the Applicant: M A Pembroke SC with M J Lawler Solicitor for the Applicant: Australian Securities Commission Counsel for the Respondent: G Palmer QC with Mr Speakman Solicitor for the Respondent: Minter Ellison Counsel for the Cross-Respondent: A J Meagher SC Solicitor for the Cross-Respondent: Malleson Stephen Jaques Date of Hearing: 27 April 1998 Date of Judgment: 15 May 1998