Millard v Commissioner of Taxation (Cth) [1962] HCA 28

High Court of Australia Taylor J. Millard v Commissioner of Taxation (Cth) [1962] HCA 28

ORDER Appeal dismissed with costs.

Cur. adv. vult.

Taylor J delivered the following written judgment:—

June 12 Taylor J

For some years prior to 5th May 1957 the appellant was a registered bookmaker and as such he conducted a successful business at three racecourses in and about Melbourne. But on that date he entered into an agreement with a company which had been incorporated during the previous month—R. F. Millard Pty. Limited—and it is this agreement and the attendant circumstances which have given rise to the questions which have been debated in this case. The agreement recited that the appellant had for many years carried on the business of a bookmaker, that he was licensed to operate as a bookmaker by leading racing clubs in Victoria and elsewhere and that the parties to the agreement had agreed that as from the date thereof the company should take over from the appellant and carry on the said business on its own behalf on the terms and conditions thereinafter appearing. Thereupon it was provided that as from the date thereof the company should take over from the appellant and carry on the said business on its own behalf (cl. 1) and that, as from the same date, the appellant should carry on all bookmaking activities thitherto carried on by him on his own behalf for and on behalf of the company as its agent (cl. 2). By cl. 3 the company bound itself to pay the appellant for his services as such agent the sum of £3,500 per year payable by equal quarterly instalments in each year during the continuance of the agreement. The appellant, on his part, bound himself to apply from time to time for all necessary renewals of his bookmaking licences and to use his best endeavours to obtain any further licences which might become necessary from time to time to enable him fully to carry on the said business as the agent of the company (cl. 5). By cl. 6 he undertook not to conduct any wagering activities whatever whether as bookmaker or bettor on his own account and to account to the company for all wagering and betting transactions of whatever nature conducted by him. All expenses properly incurred by the appellant in connexion with his services to the company were to be paid by the company (cl. 7). The agreement was to continue until determined by mutual consent or pursuant to the provisions therein contained. By cl. 9 the agreement was determinable by either party giving to the other six months' notice in writing and by cl. 8 it was specified that in the event of the appellant's licences to operate as a bookmaker being endangered "by virtue of the agreement" it should forthwith be at an end. In that event the appellant was to be at liberty to carry on the said business on his own behalf and without let or hindrance by the company.