Australian Prudential Regulation Authority v Holloway [2000] FCA 579

FEDERAL COURT OF AUSTRALIA Australian Prudential Regulation Authority v Holloway [2000] FCA 579 SUPERANNUATION – alleged contravention of s 85 of Superannuation Industry (Supervision) Act 1993 (Cth) – years of income prior to 1998-99 – whether there can be a contravention of s 85 concerning market value ratio of in-house assets of regulated superannuation fund for years of income prior to 1998-99 – s 83 of Act prohibits acquisition of in-house assets of a fund if a certain market value ratio results from that acquisition – whether s 83 concerning acquisition of assets applies to years of income prior to 1998-99. SUPERANNUATION – alleged contravention of s 85 of Superannuation Industry (Supervision) Act 1993 (Cth) – artificial reduction in market value ratio of in-house assets of regulated superannuation fund – ss 76-80 impose restrictions on historical cost ratio of in-house assets of fund for years of income 1994-95 to 1997-98 – whether scheme to avoid provisions of the Act concerning historical cost ratio of in-house assets of fund may contravene s 85. SUPERANNUATION – alleged contravention of s 85 of Superannuation Industry (Supervision) Act 1993 (Cth) – in-house asset – investment by regulated superannuation fund in units in unit trust where investments by unit trust controlled by trustees of superannuation fund and directors of employer-sponsor unit trust lends monies from such investment to employer-sponsor – whether investment in units in unit trust an "in-house asset" of superannuation fund – whether investment in units a loan to or an investment in employer-sponsor within s 71(1). SUPERANNUATION – alleged contravention of s 85 of Superannuation Industry (Supervision) Act 1993 (Cth) – in-house asset – investment by regulated superannuation fund in units in unit trust where investments by unit trust controlled by trustees of superannuation fund and directors of employer-sponsor – unit trust lends monies from such investment to employer-sponsor – whether investment in units an "in-house asset" of superannuation fund – whether investment in units result of agreement for purpose of achieving result that loan to or investment in employer-sponsor would be made – whether "in-house asset" by operation of s 71(2)(c). SUPERANNUATION – alleged contravention of s 85 of Superannuation Industry (Supervision) Act 1993 (Cth) – meaning of "scheme" in s 85(4) – whether requirement for mutual obligations – whether requirement for proscribed intention on part of two or more persons to contravene s 85(1) – whether necessary to show intention to artificially reduce market value ratio of in-house assets of fund or whether sufficient to show intention to carry out or cause to be carried out acts which had that effect – whether necessary intention established. SUPERANNUATION – alleged contravention of s 85 of Superannuation Industry (Supervision) Act 1993 (Cth) – investment by regulated superannuation fund in units in unit trust pursuant to agreement for purpose of achieving result that money so invested would be paid to employer-sponsor to reduce indebtedness of unit trust to employer sponsor – whether loan to or investment in employer-sponsor – whether investment by superannuation fund an "in-house asset" of superannuation fund in those circumstances. Acts Interpretation Act 1901 (Cth) s 13 and s 48 Australian Prudential Regulation Authority Act 1998 (Cth) Pt 8 and Pt 21 Financial Sector Reform (Amendments and Transitional Provisions) Act 1998 (Cth) Foreign Acquisitions and Takeovers Act 1975 (Cth) Income Tax Assessment Act 1936 (Cth) ss 26AAB, 38A, 121C, 177A Occupational Superannuation Standards Act 1987 (Cth) Superannuation Entities (Taxation) Act 1987 (Cth) s 7(1) Superannuation Industry (Supervision) Act 1993 (Cth) ss 2(4), 66, 70, 71, 74, 75, 76-80, 81, 82, 83, 85, 193, 196(3)(4), 194, 199(1), 221, 285, Div 2 and Div 3 of Pt 8 Trade Practices Act 1974 (Cth) s 45 Occupational Superannuation Standards Regulations regs 16A(1), 16A(8), 16A(17), 16B Securities Industry Act 1970 (NSW) s 70 Briginshaw v Briginshaw (1938) 60 CLR 336 applied Trevisan (Trustees of the Forli Pty Ltd Superannuation Fund) v Federal Commissioner of Taxation (1991) 29 FCR 157 applied Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1 applied Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 applied Bevanere Pty Ltd v Lubidineuse (1985) 59 ALR 334 applied Chalmers v Thompson (1913) 30 WN (NSW) 161 distinguished K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 distinguished Oyston v Blaker [1996] 2 All ER 106 applied Inglis v Robertson [1898] AC 616 applied Knight v Lambrick Contractors Ltd [1957] 1 QB 562 referred to Elliott v Grey [1960] 1 QB 367 referred to Qualter Hall & Co Ltd v Board of Trade [1961] 3 WLR 825 referred to Fisher v Raven [1964] AC 210 referred to Tolley v Giddings [1964] 2 QB 354 referred to Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 referred to The Wik Peoples v The State of Queensland (1996) 187 CLR 1 referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied Charles v Federal Commissioner of Taxation (1954) 90 CLR 598 referred to Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 referred to Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 40 FLR 83 referred to Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) 30 ALR 80 referred to News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 referred to Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 applied R v The Associated Northern Collieries Ltd (1912) 14 CLR 387 at 400 referred to McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 24 ALR 175 at 178 referred to Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 referred to Commonwealth v Baume (1905) 2 CLR 405 applied Victorian Chamber of Manufacturers v Commonwealth (1943) 67 CLR 335 applied Federal Commissioner of Taxation v Peabody (1994) 181 CLR 359 cited CPH Property Pty Ltd v Federal Commissioner of Taxation (1998) 98 ATC 4983 cited Grollo Nominees Pty Ltd v Commissioner of Taxation (1997) 73 FCR 452 cited Peabody v Federal Commissioner of Taxation (1993) 40 FCR 531 cited Canwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 cited Commissioner for Taxation v Spotless Services Pty Ltd (1996) 186 CLR 404 applied North v Marra Developments Ltd (1981) 148 CLR 42 considered Fame Decorator Agencies Pty Ltd v Jeffries Industries Ltd (1998) 28 ACSR 58 cited Australian Securities Commission v Nomura International PLC (1999) 89 FCR 301 considered Bishop v Smyrna & Cassaba Railway Co [1895] 2 Ch 265 referred to Bond v Barrow Haematite Steel Co [1902] 1 Ch 353 referred to Re Spanish Prospecting Co Ltd [1911] 1 Ch 92 referred to Apand Pty Ltd v Kettle Chip Co Pty Ltd (1999) 162 ALR 505 referred to Lees & Leech Pty Ltd v Commissioner of Taxation (1997) 73 FCR 136 referred to