Supreme Court New South Wales Medium Neutral Citation: Leppington Pastoral Co Pty Ltd v Chief Commissioner of State Revenue [2023] NSWSC 463 Hearing dates: 20 September 2022 Date of orders: 4 May 2023 Decision date: 04 May 2023 Jurisdiction: Equity - Corporations List Before: Williams J Decision: The plaintiff is entitled to orders revoking the assessment issued by the defendant on 20 February 2017 (as revised on 9 November 2021) under the Duties Act 1997 (NSW). Catchwords: TAXATION – agreement between landowner and developer preserving call options previously granted to developer to acquire land in stages, granting rights to developer to obtain exclusive possession of parcels of the land for the purpose of development without exercising those call options and granting other extensive rights to developer to develop the land – landowner entitled to be paid a sum determined in accordance with an agreed methodology for the parcels of land that the developer acquires or takes exclusive possession of the purpose of the development project – landowner entitled to terminate the agreement and exercise step-in rights if developer commits an event of default – whether the agreement includes a clause recording the landowner's acknowledgment and agreement that the developer "has a beneficial and equitable interest in" the land – whether the agreement effected or evidenced a declaration of trust within the meaning of s 8 of the Duties Act 1997 (NSW) in respect of the land – whether requisite intention to create express trust – held that agreement did not effect or evidence a declaration of trust in respect of the land. CONTRACTS – interpretation – whether parties can be taken to have created an express trust in respect of the land having regard to the language of the agreement and other agreements that the parties entered into at the same time, the nature of the transactions and the circumstances attending the parties' relationship – whether permissible to have regard to clause in agreement expressly disallowing any intention to create a relationship of trustee and beneficiary. Legislation Cited: Duties Act 1997 (NSW), ss 8(1)(b)(ii), 8(2), 8(3), 10, 11, 58(2) Income Tax Assessment Act 1936 (Cth), s 6(1) Taxation Administration Act 1996 (NSW), ss 25, 27(3)(a), 97(1)(a), 101 Cases Cited: Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd (2017)18 BPR 36,683; [2017] NSWCA 99 BB Australia Pty Ltd v Danset Pty Ltd [2018] NSWCA 101 Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510 Bundanoon Sandstone Pty Ltd v Cenric Group Pty Ltd (2019) 373 ALR 591; [2019] NSWCA 87 Byrnes v Kendle (2011) 243 CLR 253; (2011) 85 ALJR 798; (2011) 279 ALR 212; (2011) 4 ASTLR 260; [2011] HCA 26 Cherry v Steele-Park (2017) 96 NSWLR 548; (2017) 351 ALR 521; [2017] NSWCA 295 Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 Commissioner of Taxes (Queensland) v Camphin (1937) 57 CLR 127; 11 ALJ 104; [1937] ALR 401; (1937) 4 ATD 315; [1937] HCA 30 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 96 ALJR 89; (2022) 398 ALR 404; (2022) 312 IR 1; [2022] HCA 1 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98; (2005) 79 ALJR 1724; (2005) 221 ALR 196; (2005) 60 ATR 371; 2005 ATC 4925; [2005] HCA 53 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (New South Wales) (1982) 149 CLR 431; (1982) 56 ALJR 287; (1982) 40 ALR 1; (1982) 82 ATC 4125; (1982) 12 ATR 874; [1982] HCA 14 Domson Pty Ltd v Zhu [2005] NSWSC 1070 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; (2017) 91 ALJR 486; (2017) 343 ALR 58; [2017] NSW ConvR 56-377; [2017] V ConvR 54-888; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; (2014) 88 ALJR 447; (2014) 306 ALR 25; (2014) 7 ARLR 361; [2014] HCA 7 Jackson v Richards [2005] NSWSC 630 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; (2010) 84 ALJR 446; (2010) 266 ALR 462; (2010) 2 ASTLR 553; (2010) 4 BFRA 701; [2010] HCA 19 Kondylis v Bacic [2017] NSWSC 66 Korda v Australian Executor Trustees (SA) Limited (2015) 255 CLR 62; (2015) 89 ALJR 340; (2015) 317 ALR 225; (2015) 105 ACSR 498; (2015) 145 ALD 495; (2015) 12 ASTLR 306; (2015) 10 BFRA 182; [2015] HCA 6 Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; (2013) 87 ALJR 985; [2013] HCA 35 Newey v Westpac Banking Corporation [2014] NSWCA 319 Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145; (1993) 26 ATR 353; (1993) 117 ALR 27; (1993) 93 ATC 4835; (1993) 117 ATR 353; [1993] HCA 1 Roberts v Investwell Pty Ltd (in liq) (2012) 88 ACSR 689; [2012] NSWCA 134 Saunders v Vautier (1841) 49 ER 282; [1841] 4 Beav 115 SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue (2021) 113 ATR 24; (2021) 20 BPR 41,275; [2021] NSWSC 395 Texts Cited: D J Farrands, The Law of Options And Other Pre-Emptive Rights (Lawbook Co, 2010) J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016) Category: Principal judgment Parties: Leppington Pastoral Co Pty Ltd (Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: D Thomas SC with C Peadon (Plaintiff) S Balafoutis SC with I Young (Defendant) Solicitors: Marsdens Law Group (Plaintiff) Crown Solicitor for NSW (Defendant) File Number(s): 2021/354398 Publication restriction: N/A Judgment Introduction 1. In June 2008, Leppington Pastoral Co Pty Ltd (LPC), Greenfields Development Company Pty Ltd (GDC), and Landcom entered into a suite of deeds, agreements, and securities for the development of agricultural land owned by LPC (the Project, the Project Land and the 2008 transaction documents). The 2008 transaction documents included a Call Option Deed pursuant to which LPC conferred on GDC the right to be the sole and exclusive developer of the Project and the Project Land, and LPC granted to GDC an option to acquire the Project Land in stages by issuing notices exercising the option in respect of specified parcels of the Project Land. 2. The 2008 transaction documents were amended and supplemented by a further suite of deeds, agreements, and securities entered into in October 2010 (the 2010 transaction documents). The 2010 transaction documents included the "Development Rights Agreement – Oran Park Project" between LPC and GDC (the DRA). The DRA expressly preserved the Call Options referred to above, but granted rights to GDC to issue "Development Notices" requiring LPC to deliver up possession of parcels of the Project Land for the purpose of GDC exercising its development rights. 3. Clause 16.1 of the DRA included an express acknowledgment and agreement by LPC that "GDC has a beneficial and equitable interest in the Project Land". 4. In November 2016, LPC lodged the DRA with the Chief Commissioner for assessment in accordance with the Duties Act 1997 (NSW) after a question was raised during the hearing of land tax proceedings in this Court about whether the DRA effected or evidenced a dutiable transaction. 5. On 20 February 2017, the Chief Commissioner issued a Duties Notice of Assessment to LPC in the amount of $26,981,990.66, comprising duty in the amount of $15,596,805.50, interest in the amount of $10,605,344.88, and penalty tax at the rate of five per cent (in the amount of $779,840.28). 6. The letter accompanying the Duties Notice of Assessment stated that the Chief Commissioner had determined that the DRA "effects or evidences a dutiable transaction for the purposes of Chapter 2 of the Act, in the form of a declaration of trust over dutiable property (land in NSW)". The Commissioner's reasons for that determination were set out in the letter. 7. Section 8(1)(b)(ii) of the Duties Act imposed duty on a "declaration of trust over dutiable property". [1] 8. A "declaration of trust" was defined in s 8(3) as: "any declaration (other than by a will or testamentary instrument) that any identified property vested or to be vested in the person making the declaration is or is to be held in trust for the person or persons, or the purpose or purposes, mentioned in the declaration although the beneficial owner of the property, or the person entitled to appoint the property, may not have joined in or assented to the declaration" 1. Any such declaration in respect of "dutiable property", which was defined in s 11 as including land in New South Wales, was a "dutiable transaction" by reason of s 8(2) of the Act and therefore liable to duty at the rates set out in the Act. Section 10 provided that it was immaterial whether a dutiable transaction was effected by written instrument or by any other means. 2. On 19 April 2017, LPC filed an objection to the assessment on five grounds: 1. that there is no declaration of trust in the DRA; 2. alternatively, that the DRA does not identify the property that is the subject of any trust declared, with the result that the duty payable is limited to $500.00 pursuant to s 58(2) of the Duties Act; 3. in the further alternative, that the assessment was based on an inflated valuation of the land and any duty should be reduced to reflect the true value of the land; 4. that the penalty tax should be remitted pursuant to s 27(3)(a) of the Taxation Administration Act 1996 (NSW) on the basis that LPC took reasonable care to comply with taxation law; and 5. that the Chief Commissioner should remit the interest, or at least the premium component of the interest. 1. On 9 November 2021, the Chief Commissioner upheld grounds three and four of the objection, which resulted in a reduction of the duty to $7,685,490.00, a corresponding reduction of the interest to $6,518,812.40, and the waiver of the whole of the penalty tax. The Chief Commissioner duly issued a revised Duties Notice of Assessment. 2. LPC commenced these proceedings by summons filed on 14 December 2021, seeking a review of the assessment (as revised) pursuant to s 97(1)(a) of the Taxation Administration Act 1996 (NSW), on grounds that broadly correspond with grounds one, two, and five of its objection referred to above. 3. For the reasons that follow, I have determined that the DRA did not effect or evidence a declaration of trust by LPC in favour of GDC in respect of land in New South Wales. The main issue 1. The subject of the review is the assessment itself, not the Chief Commissioner's decision in relation to LPC's objection. [2] Upon review, the Court is to consider the correct application of the Duties Act and the Taxation Administration Act and the exercise of the powers conferred by those Acts in the context of the materials before the Court, which are not limited to the materials that were before the Chief Commissioner in making the assessment. [3] 2. The main issue to be determined is whether the DRA effected or evidenced a declaration of trust within the meaning of s 8(3) of the Duties Act, pursuant to which the Project Land was to be held by LPC on trust for GDC. 3. The principles to be applied in determining the main issue are well established and, for the most part, were not the subject of dispute between the parties. Those principles were considered and applied by the High Court most recently in Korda v Australian Executor Trustees (SA) Limited (Korda v AET). [4] As French CJ said in that case: [5] "The question whether an express trust exists must always be answered by reference to intention. An express trust cannot be created unless the person or persons creating it can be taken to have intended to do so. Absent, as in this case, an explicit declaration of such an intention, the court must determine whether intention is to be imputed. It does so by reference to the language of the documents or oral dealings having regard to the nature of the transactions and the circumstances attending the relationship between the parties." 1. Thus, the ascertainment of an express trust (including, as a first step, the ascertainment of the requisite intention to create that trust) depends on the construction of the transaction documents in accordance with the ordinary principles of contractual interpretation. The parties' subjective intentions are not relevant. [6] 2. The principles of contractual interpretation are well established. As the majority of the High Court said in Electricity Generation Corporation v Woodside Energy Ltd: [7] "The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption 'that the parties … intended to produce a commercial result'. A commercial contract is to be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience'." 1. In Cherry v Steele-Park, [8] Leeming JA (with whom Gleeson and White JJA agreed) conducted an extensive review of relevant authority and concluded that it is not necessary to pass through an "ambiguity gateway" before regard may be had to surrounding circumstances when construing a contract. [9] However, "[t]he starting point and the ending point of the construction of a written commercial contract is the language chosen by the parties to record their bargain" and so there is "limited scope for evidence of surrounding circumstances to detract from the contractual text". [10] As Gleeson JA stated in Newey v Westpac Banking Corporation, with the concurrence of Basten and Meagher JJA: [11] "… there is no licence for 'judicial rewriting' of an agreement… The ability of courts to give commercial agreements a commercial and business-like interpretation is constrained by the language used by the parties. If, after considering the contract as a whole and the background circumstances known to both parties, a court concludes that the language of a contract is unambiguous, the Court must give effect to that language unless to do so would give the contract an absurd operation…" 1. Certainty of intention, subject matter, and object are required in order to create an express trust. [12] The identification of a commercial purpose that would be served by an express trust might be relevant to the existence of the requisite intention, but "that which is commercially desirable for one party is not, on that account, a commercial purpose of both." [13] An express trust is not to be inferred or implied merely because a court thinks it is an appropriate means of protecting or creating an interest. [14] 2. The main issue in these proceedings is not to be approached from a starting point of reluctance to infer the existence of an express trust, but nor is the language of the relevant documents to be strained to discover an intention to create a trust. As French CJ said in Korda v AET: [15] "To eschew an historical reluctance is one thing. To construct intention out of straws plucked from textual and contextual breezes, some blowing in different directions, is quite another." 1. The Chief Commissioner's submissions relied on the following statement from the judgment of Mason CJ, Deane, Toohey, and Gaudron JJ in Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation: [16] "… unless there is something in the circumstances of the case to indicate otherwise, a person who has 'the custody and administration of property on behalf of others' or who 'has received, as and for the beneficial property of another, something which he is to hold, apply or account for specifically for his benefit' is a trustee in the ordinary sense." 1. I reject LPC's submission that this passage has no application to the determination of the main issue in these proceedings because it reflects an extended statutory definition of the term "trustee" per s 6(1) of the Income Tax Assessment Act 1936 (Cth). It is plain from the passage itself, and from the text immediately following it, that their Honours were referring to a trustee "in the ordinary sense" rather than to any statutory definition of a trust. That is how the passage appears to have been read by Bell, Gageler, and Keane JJ when their Honours cited it in Legal Services Board v Gillespie-Jones when referring to "orthodox trust analysis" (albeit in an entirely different context). [17] 2. However, I accept LPC's submission that the main issue cannot be answered merely by asking whether the DRA created a relationship of the kind referred to in the passage extracted above. As Mason CJ, Deane, Toohey and Gaudron JJ expressly stated in that passage, one has to consider all the circumstances. As both parties to these proceedings accepted, the critical question is "whether in substance a sufficient intention to create a trust has been manifested" by the provisions of the DRA, construed in accordance with the ordinary principles of contractual interpretation. [18] If a relationship of the kind described above were created by the terms of the DRA, properly construed, that would be one factor relevant to the determination of that critical question. 3. I also accept LPC's submission that the inclusion in the DRA of a clause expressly disclaiming a relationship of trustee and beneficiary is relevant to the critical question, albeit not determinative. 4. In submitting that there was no basis for the court to take the disclaimer clause in the DRA into account when determining whether there is a declaration of trust, the Commissioner relied on Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd. [19] 5. In that case, the High Court held that the relationship between a labour hire company and an individual was one of employment, notwithstanding that their written contract described the individual as a "self-employed contractor". Kiefel CJ, Keane and Edelman JJ stated that: [20] "… where the terms of the parties' relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship." 1. Their Honours continued later in their joint reasons for judgment: [21] "[63] To say that the legal character of a relationship between persons is to be determined by the rights and obligations which are established by the parties' written contract is distinctly not to say that the 'label' which the parties may have chosen to describe their relationship is determinative of, or even relevant to, that characterisation. [64] Subject to statute, under the common law the parties are free to agree upon the rights and obligations by which they are to be bound. But the determination of the character of the relationship constituted by those rights and obligations is a matter for the court. [65] In Chaplin, Lord Fraser of Tullybelton said that a provision of a contract, whereby the parties sought to define their relationship as one of 'Principal and Agent and not that of Master and Servant', 'cannot receive effect according to its terms if they contradict the effect of the agreement as a whole'. It was accepted, however, that ambiguity in the character of a relationship might be removed by a provision whereby the parties agreed on terms descriptive of their status or relationship. [66] As a matter of principle, however, it is difficult to see how the expression by the parties of their opinion as to the character of their relationship can assist the court, whose task it is to characterise their relationship by reference to their rights and duties. Generally speaking, the opinion of the parties on a matter of law is irrelevant. Even if it be accepted that there may be cases where descriptive language chosen by the parties can shed light on the objective understanding of the operative provisions of their contract, the cases where the parties' description of their status or relationship will be helpful to the court in ascertaining their rights and duties will be rare." 1. Gageler and Gleeson JJ said: [22] "Legal characterisation of a relationship into which parties have entered under a written contract has never been thought to be controlled by the contractual language chosen to describe the relationship. The characterisation must turn on the substantial relations between the parties, which might be informed but cannot be altered by the presence in the contract of 'elaborate provisions expressed in terms appropriate to some other relation'." 1. Gordon J said: [23] "The whole of the contract is to be construed including whatever labels the parties have used to describe their relationship, but those labels are not determinative". 1. Steward J agreed with Gordon J's expression of the test to determine whether a person is an employee. [24] 2. The Chief Commissioner relied particularly upon the observations of Kiefel CJ, Keane and Edelman JJ at [66]. As the Chief Commissioner submitted, those observations are not confined to contracts of employment. However, nor were they directed to the question whether the terms of a contract manifest the requisite intention to create an express trust. In my opinion, their Honours' observations do not require a court engaged in such an inquiry to disregard entirely any term of the relevant contract that expressly disclaims an intention to create a relationship of trustee and beneficiary. Whilst not determinative, such a term is plainly relevant to the question whether the contract as a whole, properly construed, evidences the requisite intention. As LPC submitted, the joint judgment of Gageler and Gleeson JJ, and the judgment of Gordon J (with whom Steward J agreed), confirm that the Court is to have regard to such disclaimer clauses, albeit without treating them as determinative. 3. Contrary to the Chief Commissioner's submission, taking disclaimer clauses into account in that manner does not facilitate the parties to the DRA in the present case avoiding the imposition of stamp duty "simply by relabelling their relationship". Such an outcome would flow only from treating the disclaimer clause as determinative of the legal character of the relationship created by the DRA and the 2010 transaction documents. 4. The starting point for the application of the principles summarised above is a close examination of the transaction between LPC and GDC concerning the Project Land, as evidenced by the complex and lengthy suite of agreements, deeds, and securities entered into on 26 June 2008 and 11 October 2010 in relation to the development of the Project Land. The circumstances in which LPC and GDC entered into the relationship created by those documents were the subject of brief affidavit evidence, which was not the subject of any contest. The matters in dispute are confined to the legal effect of the transaction documents and whether the DRA, properly construed, effected or evidenced the alleged declaration of trust. 5. The following account of the uncontested evidence and the salient provisions of the transaction documents draws heavily on the parties' detailed written and oral submissions. The 2008 transaction documents 1. Since its incorporation in 1963, LPC has been owned by members of the Perich family. Its primary business activity has been dairy farming, conducted from its extensive landholdings in the Leppington and Bringelly areas of New South Wales. Those landholdings include a property known as Oran Park. 2. In the early 2000s, the New South Wales State Government was consulting with landowners in the Leppington and Bringelly areas concerning the potential rezoning of some land for residential development. In that context, the State-owned land and property development entity Landcom approached LPC with a proposal to assist in the development of part of LPC's land in and around Oran Park. 3. In anticipation of the rezoning, LPC and another Perich family entity entered into arrangements with Landcom in 2002 and 2003 for the development of the land. 4. The Oran Park land was rezoned in July 2006. However, the arrangements made in 2002 and 2003 were no longer considered commercially viable due to changes in the projected costs and returns of developing the Oran Park land. LPC and Landcom entered into discussions in 2006 to renegotiate the terms of the proposed development. LPC proposed that any development would be undertaken by a new Perich family entity. GDC was incorporated in May 2007 for that purpose. The continuing negotiations included GDC from May 2007 and culminated in LPC, GDC, and Landcom rescinding the 2002 and 2003 arrangements, and entering into the 2008 transaction documents on 26 June 2008. 5. The 2008 transaction documents comprised: 1. Call Option Deed – Oran Park Project, between LPC and GDC (the Option Deed); 2. Project Delivery Agreement – Oran Park, between GDC and Landcom (the PDA); 3. Oran Park Tripartite Security Deed – Oran Park, between LPC, GDC, and Landcom (the Tripartite Deed); 4. Registered mortgage AE72754M, between LPC and Landcom; 5. Floating Charge, between LPC and Landcom; 6. Fixed and Floating Charge, between GDC and Landcom; and 7. Equitable Mortgage of Securities, between Arrovest Pty Ltd (the sole shareholder of GDC) and Landcom. 1. The recitals to the Option Deed recorded that GDC wished to undertake the Project on the Project Land, and that LPC had agreed to grant GDC a Call Option to allow it to acquire the Project Land in stages, as well as certain development rights, in circumstances where LPC's farming, dairy production, and grazing operations were no longer the highest and best use of the land following the rezoning, and LPC had determined that it would receive the best capital return on the land if it disposed of the land in stages over an extended period of time rather than in a single transaction. 2. Clause 1.2 of the Option Deed provided: "The purpose of this deed is to: (1) set out the agreement between the parties in relation to LPC's grant to GDC of an option for GDC or the Nominee to purchase the Project Land for the Price and on the terms set out in the Contract; and (2) grant the Development Rights to GDC; and (3) identify the obligations and responsibilities of each party in relation to the Project Land in order to provide GDC sufficient security: (a) concerning GDC's Development Rights and GDC's rights to acquire the Project Land; and (b) to allow GDC to expend the capital required to undertake the Project on a staged basis." 1. The Option Deed defined the "Project Land" as part of the Oran Park land owned by LPC. The Project Land was part of a larger area of land owned by LPC that was defined as the "LPC Land". The Option Deed defined the "Project" as: "the development of the Project Land, or any part of it as the context requires, as a residential, commercial and/or employment land development including the preliminary subdivision of the Project Land and the conduct of other works required to create Tranche Land parcels, the acquisition of the Project Land (in staged Tranche Land parcels), the creation of fully serviced vacant lots on those Tranche Land parcels, the sale (including any required transfers and dedications) of those lots, and the facilitation of the building of improvements on those lots." 1. The "Development Rights" were defined as those rights described in clause 6.6, referred to below. 2. The term "Proceeds" was defined as meaning all revenue from the Project and any other income of the Project. 3. By clauses 6 to 8 of the Option Deed, LPC granted GDC an option to acquire the Project Land for the "Price" by serving on LPC a notice exercising the Call Option, a contract for sale of the land in respect of which the option was being exercised (signed by GDC as purchaser) and, if that land had not yet been subdivided from the Project Land, a proposed plan of subdivision with respect to the relevant land. Clauses 6.1 and 6.2 provided that the Call Option was exercisable at any time, and that it may be exercised in stages so as to allow GDC to acquire "Tranche Land parcels" individually. By clause 5 of the Option Deed, LPC acknowledged that GDC would subdivide the Project Land into Tranche Land parcels and conferred on GDC the sole discretion to determine the parcel of land to comprise each Tranche Land parcel. The "Price" payable by GDC on the exercise of the Call Option in respect of each Tranche Land parcel was the residual land value of that parcel, as determined by a valuer applying a residual feasibility analysis methodology in accordance with Schedule 3 to the Option Deed. Schedule 3 required such a valuer to take into account the gross revenue of the relevant Tranche Land parcel (including the anticipated sales price of proposed development lots in that parcel) and the Project costs attributable to the development of the relevant Tranche Land, and to allow for a development margin such that the gross margin percentage would equal 15.5 per cent. 4. By clause 6.5 of the Option Deed, LPC "acknowledge[d] and agree[d]" that: "… the Project Land will be developed by GDC in any manner GDC thinks fit." 1. Clause 6.6 of the Option Deed provided: "(1) LPC acknowledges and agrees that GDC is entitled to exercise the Development Rights as from the date of this deed. (2) The parties acknowledge and agree that the Development Rights: (a) entitle GDC: (i) if applicable, with a Third Party Developer, to be the sole and exclusive developer of the Project and of the Project Land; and (ii) to the economic benefit of the Project, being the Proceeds; and (iii) if applicable, with a Third Party Developer, entitle GDC to carry out the Project for GDC's sole benefit; and (b) include the benefit of LPC's rights (but subject to LPC's obligations) under all Approvals as they may exist as at the date of this deed." 1. The Option Deed defined "Third Party Developer" as meaning any party to a Project Delivery Agreement other than GDC. 2. In clause 10.1 of the Option Deed, GDC acknowledged that LPC was entitled to continue its farming, dairy production, and grazing operations on such parts of the Project Land as had not been acquired by GDC at any time. 3. Clause 13 of the Option Deed relevantly provided: "13.1 Further security (1) LPC agrees to provide reasonable security (including the Securities) over the Project Land from time to time as requested by GDC. The provision of these securities is to be on terms reasonably acceptable to LPC. (2) If required by GDC, LPC agrees that it will enter into any documentation necessary (including any tripartite security arrangements between the parties to this deed and any Third Party Developer) for LPC to grant in favour of any Third Party Developer, appropriate security over the Project Land to: (a) secure the provision of the Project Land by LPC in accordance with this deed and LPC's compliance with its obligations under this deed (including to grant the Securities); and … 13.2 GDC security If no securities have been granted pursuant to clause 13.1, or if there are no securities then on issue pursuant to clause 13.1: (1) LPC agrees to grant to GDC a Real Property Act 1900 (NSW) charge over the Project Land to secure the interest of GDC under this deed. (2) GDC may lodge a caveat on the title of the Project Land to record the charge granted under paragraph (1). (3) If required by GDC, LPC will allow the charge granted in paragraph (1) over the Project Land to be used to secure any advance required to be obtained by GDC for the purpose of funding the lead in works associated with the Project. … 13.5 Registration of security Further to clause 13.1, LPC will allow any security granted under that clause to be registered on the title of the Project Land if required by GDC." 1. The Option Deed defined the term "Securities" (being the Securities that LPC agreed by clause 13.1(1) to provide) as meaning: "(1) subject to clause 13.1, such securities as GDC as developer might reasonably require to secure the Development Rights and LPC's obligations to GDC under this deed, including, in favour of GDC, a charge under the Real Property Act 1900 (NSW) over the Project Land; and (2) such securities as a Third Party Developer might reasonably require to secure the benefit of the Development Rights and LPC's obligations under this deed and any other Transaction Document, including, in favour of the Third Party Developer, a mortgage over the Project Land." 1. Clause 3 of the Option Deed described the parties' roles in the following terms: "3.1 Role of LPC is limited The parties acknowledge and agree that: (1) the role of LPC is limited, as described in this clause and in this deed; and (2) LPC must hold the Project Land subject to the grant of the Development Rights and Call Options pursuant to this deed, and any Securities; and (3) LPC must not act contrary to GDC's rights and interests under this deed; and (4) LPC will: (a) not play any active role in undertaking or executing; (b) not be entitled to make any decisions concerning; and (c) have no entitlement to receive any Proceeds or profits from, the Project. 3.2 Role of GDC The parties acknowledge and agree that: (1) GDC wishes to acquire the Project Land on the terms of this deed for the purpose of undertaking the Project; and (2) GDC must pay and fund all costs of the Project; and (3) the Project is and will be at GDC's sole risk, including the risk of obtaining Approvals; and (4) GDC will have sole discretion as to how and when it funds and executes the Project, including the acquisition of Tranche Land pursuant to any Call Option; and (5) GDC will be entitled to all Proceeds derived from the Project." 1. Clause 3.3 provided that no term of the Option Deed, or implication arising from it, constituted, created, or was to be construed as giving rise to, inter alia, a relationship of trustee and beneficiary. 2. Clause 4.1 of the Option Deed provided: "GDC acknowledges and agrees that except as expressly provided in this deed (for example the right of GDC to access the LPC land (see clause 12), the rights conferred on it upon the exercise of the Call Option (see clause 5) and the rights under the Securities (see clause 13)): (1) nothing contained or implied in this deed operates to transfer to, or vest in, GDC any estate or interest in the LPC Land; and (2) the legal and beneficial ownership of the Project Land will remain vested in LPC until it is acquired by GDC." 1. Clause 9 of the Option Deed contemplated that GDC would enter into Project Delivery Agreements in connection with the funding and execution of the Project. 2. The PDA contained detailed provisions setting out the rights and obligations of GDC and Landcom in relation to the funding and execution of the Project. Landcom's obligations included the provision of both funding of up to $30,000,000.00 and of certain services for the Project. GDC was obliged to acquire the Project Land by exercising its rights to acquire Tranche Land parcels under the Option Deed, subject to a Management Committee established by GDC and Landcom determining the land to be included in each parcel, and to the timing of GDC's exercise of the Call Option in respect of that parcel. 3. GDC was also required to disburse the gross sale proceeds of lots sold as part of the Project in accordance with clause 10 of the PDA. Essentially, after payment of costs, an amount calculated by reference to the land value of the lot was retained by GDC (referred to as the GDC Lot Amount), a development fee calculated as 60 per cent of the net proceeds plus an incentive amount was paid to Landcom, and the balance was retained by GDC. 4. Clause 5 of the Tripartite Deed recorded certain undertakings given by each of LPC and GDC in favour of Landcom, including an undertaking by LPC to perform its obligations and to permit GDC to exercise its rights under the Option Deed, and to notify Landcom as soon as possible after LPC became aware of any event of default by GDC under the Option Deed or under a contract for sale of land entered into as a result of GDC exercising its rights under the Option Deed. 5. If LPC became entitled to terminate, rescind, or suspend the performance of its obligations under the Option Deed, clause 7 of the Tripartite Deed required LPC to refrain from so doing until and unless it had first given notice to Landcom, and Landcom had not exercised its Step-in Rights under clause 7 within 40 business days. If Landcom did exercise its Step-in Rights, LPC and Landcom agreed to be bound by the terms and conditions of the Option Deed as if Landcom had originally been named as the GDC party to the Option Deed. 6. Clause 11 of the Tripartite Deed required LPC to grant to Landcom a first-ranking registered charge in respect of the whole of the Project Land along with additional securities—referred to collectively as "the Landcom Charges". Landcom was required to provide a full discharge in respect of land that became the subject of a contract for sale of land entered into between LPC and GDC as a result of GDC exercising its rights under the Option Deed, on completion of each such contract. 7. By clause 10 of the Tripartite Deed, LPC covenanted not to dispose of, encumber, or deal with its interest in the Tripartite Deed or any Project Land, save for the first-ranking charge and other securities required to be granted to Landcom under clause 11. 8. Registered mortgage AE72754M granted a mortgage in favour of Landcom over LPC's interest in the Project Land as security for the payment of all amounts owing or payable under or in connection with the PDA, the Tripartite Deed, or any other Transaction Document, and as security for the performance of the obligations of GDC under the PDA and of the obligations of LPC and GDC under the Option Deed and the Tripartite Deed. The Floating Charge between LPC (as chargor) and Landcom (as chargee) applied to all of LPC's assets, and provided further security for the payment of those moneys and performance of those obligations. 9. The Fixed and Floating Charge between GDC (as chargor) and Landcom (as chargee) operated as a fixed charge over certain assets of GDC, including its rights under the Option Deed, and as a floating charge over all of its other assets, as security for the payment of all amounts owing or payable by GDC or LPC under or in connection with the PDA, the Tripartite Deed, or any other Transaction Document, and as security for the performance of the obligations of GDC under the PDA and the obligations of LPC and GDC under (relevantly) the Option Deed and the Tripartite Deed. 10. Pursuant to the Equitable Mortgage of Securities, Arrovest Pty Ltd granted a mortgage over its shares in GDC in favour of Landcom as security for the Project. The 2010 transaction documents 1. When GDC first exercised its rights to acquire a tranche of the Project Land under the Option Deed, the Commissioner issued a stamp duty assessment to GDC in the amount of approximately $1,000,000.00. That caused LPC, GDC, and Landcom to negotiate amendments to the 2008 transaction documents with a view to avoiding stamp duty being paid by GDC each time it acquired land for the Project pursuant to the 2008 Option Deed, with further stamp duty being paid by the ultimate purchasers of that land once developed. The negotiations also addressed other commercial matters, including amendments to the 2008 transaction documents to provide for the development of a greater area of the Oran Park land by GDC and Landcom, and an increase in the maximum amount of funding to be provided by Landcom (to $36,000,000.00). 2. These negotiations culminated in the execution of the 2010 transaction documents on 11 October 2010, namely: 1. Oran Park PDA – Amendment Deed, between GDC and Landcom, by which the parties agreed that the PDA remained in full force and effect on the amended terms and conditions set out in the marked up copy of the PDA in Annexure 1 to the Amendment Deed (the Amended PDA); 2. Deed of Variation – Call Option Deed – Oran Park, between LPC and GDC, which varied the Option Deed to read as set out in the marked up copy of the original Option Deed in Annexure 1 to the Deed of Variation (the Amended Option Deed); 3. Development Rights Agreement – Oran Park, between GDC and LPC (the DRA); 4. Power of Attorney, between LPC and GDC; 5. Oran Park Tripartite – Amendment and Restatement Deed, between Landcom, GDC, and LPC, which varied the Tripartite Deed to read as set out in the marked up copy of the original Tripartite Deed in Annexure A to the Amendment and Restatement Deed (the Amended Tripartite Deed); 6. Fixed Charge – Proceeds Account, between GDC and Landcom; 7. Variation of Mortgage, between LPC and Landcom; 8. Amendment Deed – Floating Charge, between LPC and Landcom; 9. Amendment Deed – Fixed and Floating Charge, between GDC and Landcom; 10. Amendment Deed – Mortgage of Contractual Rights, between LPC and Landcom, amending a Mortgage of Contractual Rights that those parties had apparently entered into on 28 June 2010; [25] 11. Mortgage of Contractual Rights, between LPC and Landcom; 12. Mortgage of Contractual Rights, between GDC and Landcom; 13. Guarantee and Indemnity, between LPC and Landcom; 14. Fixed Charge, between LPC and Landcom; 15. Amendment Deed – Equitable Mortgage of Securities, between Arrovest and Landcom; and 16. Quadpartite Security Deed – Oran Park, between LPC, GDC, Greenfields Development Company No. 2 Pty Ltd and Landcom. 1. As I have mentioned earlier in these reasons, the Amended PDA increased the maximum funding to be provided by Landcom for the Project to $36,000,000.00. 2. GDC's obligations in relation to the payment of Gross Proceeds under clause 10 of the PDA were not changed by the Amended PDA in any way that is material to these proceedings. 3. The Deed of Variation – Call Option Deed – Oran Park amended the Option Deed by: 1. amending clause 4.1; 2. expanding the land included in the definition of Project Land, and making certain amendments to other defined terms that are not relevant for the purpose of these proceedings; and 3. amending the provisions of Schedule 3, which stipulated how the Price payable by GDC to LPC for Tranche Land parcels was to be determined. 1. Clause 4.1 of the Amended Option Deed, as marked up in Annexure 1 to the Deed of Variation, read as follows: "LPC acknowledges and agrees that GDC has a beneficial and equitable interest in the Project Land. GDC acknowledges and agrees that except as expressly provided in this deed (for example the right of GDC to access the LPC land (see clause 12), the rights conferred on it upon the exercise of the Call Option (see clause 5) and the rights under the Securities (see clause 13))for any Securities that may exist from time to time: (1) nothing contained or implied in this deed operates to transfer to, or vest in, GDC any legal estate or interest in the LPC Land; and (2) the legal and beneficial ownership of the Project Land will remain vested in LPC until it is acquired by GDC." 1. The amendments to Schedule 3 of the Option Deed did not alter the requirements for the valuer to determine the residual land value of the Tranche Land by applying a residual feasibility analysis methodology, taking into account the gross revenue of the relevant Tranche Land parcel (including the anticipated sales price of proposed development lots in that parcel) and the Project costs attributable to the development of the relevant Tranche Land, and allowing for a development margin such that the gross margin percentage equals 15.5 per cent. 2. The recitals to the DRA recorded: "A LPC owns the LPC Land, which includes the Project Land. B LPC and GDC have previously entered into the OPP Call Option Deed which, amongst other matters, granted the Call Option to GDC and permitted GDC to undertake the Project on the Project Land. C GDC has requested that LPC allow GDC to undertake the Project on the Project Land without GDC being required to first acquire the Project Land under the OPP Call Option Deed. D LPC has agreed to allow GDC to continue to undertake the Project as described in recital C on the terms of this document." 1. The "Project" was defined in the DRA in terms that were not materially different from the definition in both the Option Deed and PDA executed in 2008. Those definitions were not changed in the Amended Option Deed or Amended PDA. 2. Clause 3 of the DRA provided that the Amended Option Deed continued in full force and effect, subject to certain provisions being suspended during the operation of the DRA. Those suspended provisions did not include clauses 6.1 and 6.2 of the Amended Option Deed, pursuant to which LPC granted the Call Option to GDC. 3. Clause 4.1 of the DRA described the "limited" role of LPC in terms very similar to clause 3.1 of the Option Deed (and Amended Option Deed) referred to at [53] above: "4.1 Role of LPC is limited The parties acknowledge and agree that: (1) The role of LPC is limited, as described in this clause and in this document; (2) LPC must hold the Project Land subject to: (a) The Development Rights granted under this document; (b) The Call Options; and (c) any Securities, (3) LPC must not act contrary to GDC's rights and interests under this document, including, except as expressly permitted under this document: (a) not Assigning, leasing or otherwise dealing with the Project Land or any part of it; nor (b) not creating an Encumbrance over the Project Land; nor (c) not Assigning or otherwise dealing with LPC's rights in this document, nor (d) allowing any Encumbrance over LPC's rights in this document, to arise or be varied, and (4) LPC will: (a) not play any active role in undertaking or executing the Project (b) not be entitled to make any decisions concerning the Project; and (c) other than as set out in clauses 26 & 33, have no entitlement to receive any Gross Proceeds from, the Project." 1. The "Development Rights" referred to in clause 4.1(2)(a) above were defined as the rights described in clause 6.1 of the DRA, and GDC's rights under the DRA to develop the Project Land and carry out the Project. Clause 6.1 of the DRA conferred Development Rights on GDC in the same terms as clauses 6.6(1) and (2) of the Option Deed referred to at [48] above. [26] That is to say, GDC was entitled to be the sole and exclusive developer of the Project and the Project Land (with a Third Party Developer, if applicable), to the economic benefit of the Project (being the "Gross Proceeds", which was defined as any income derived from the Project including the amount receivable as consideration for the sale of lots), and to carry out the Project for GDC's sole benefit (either alone, or with a Third Party Developer). LPC's entitlements to Gross Proceeds under clauses 26 and 33 of the DRA, referred to in clause 6.1(4)(c) above, are referred to in some detail later in these reasons. In short, LPC was entitled under clause 26 of the DRA to receive an amount from the Gross Proceeds of each contract for sale of a lot in a subdivision of the Project Land. If LPC lawfully exercised its rights under clause 31 to terminate the DRA following an event of default committed by GDC, LPC had additional entitlements to Gross Proceeds under clause 33 of the DRA. 2. The "Call Options" in clause 4.1(2)(b) above referred to the Option Deed, as amended. 3. The "Securities" in clause 4.1(2)(c) referred to: "(1) such securities as GDC as developer might reasonably require to secure the Development Rights and LPC's obligations to GDC under this document, including, in favour of GDC, a charge under the Real Property Act 1900 (NSW) over the Project Land; and (2) such securities as a Third Party Developer might reasonably require to secure the benefit of the Development Rights and LPC's obligations under this document including, in favour of the Third Party Developer, a mortgage over the Project Land." 1. Clause 4.2 of the DRA described the role of GDC in terms very similar to clause 3.2 of the Option Deed (and of the Amended Option Deed) referred to at [53] above: "4.2 Role of GDC The parties acknowledge and agree that: (1) GDC wishes to undertake the Project on the terms set out in this document; (2) GDC must pay and fund all costs of the Project; (3) the Project is and will be undertaken by GDC's sole risk, including the risk of obtaining the Approvals: (4) GDC will have sole discretion as to how and when it funds and executes the Project, including any acquisition of any part of the Project Land pursuant to the OPP Call Option Deed; and (5) GDC will be entitled to all Gross Proceeds from the Project." 1. Clause 4.3 of the DRA provided that no term of the DRA, or implication arising from it, constituted, created, or was to be construed as giving rise to, inter alia, a relationship of trustee and beneficiary. 2. By clause 5.1 of the DRA, GDC acknowledged and agreed that the farming, dairy production and grazing operations carried on by LPC as at the date of the DRA would continue on the Project Land, until such time as GDC took possession of the Project Land (or part thereof) in accordance with a Development Notice issued under the DRA or a contract for sale of land entered into between LPC (as vendor) and GDC (as purchaser) as a result of GDC's exercise of rights under the Amended Option Deed. 3. Clause 5.4 of the DRA provided: "LPC must not, without the prior written consent of GDC: (1) except as expressly permitted under this document, Assign, deal with or part with possession of any of its interest in this document or the Project Land, either in a single transaction or in a series of transactions whether related or note and whether voluntarily or involuntarily; (2) change the character of the business conducted by it as at the date of this document with respect to the Project Land; or (3) permit any Insolvency Event in relation to LPC." 1. Clause 3 of the DRA suspended the Development Rights granted to GDC under clause 6.6 of the Amended Option Deed. However, clause 6.1 of the DRA conferred equivalent Development Rights on GDC, as referred to at [77] above. Clauses 6.2 and 6.3 provided that GDC was entitled to develop the Project Land in any manner it thought fit, but that it was not obliged to undertake or complete the Project in a particular manner, to a particular standard, or at all. 2. Clause 16.1 of the DRA provided: "16.1 Estate or interest in Project Land LPC acknowledges and agrees that GDC has a beneficial and equitable interest in the Project Land (and in the Project Land Extension Option parcel) and in the Gross Proceeds of the Project, as those are described in the Transaction Documents. GDC acknowledges and agrees that, as between LPC and GDC, subject to any Securities that may exist from time to time and GDC's beneficial and equitable interest, as described: (1) nothing contained in or implied by this document, operates to transfer to, or vest in, GDC any legal estate or interest in the Project Land; and (2) the legal ownership of the Project Land remains vested in LPC until it is acquired by GDC or a Purchaser." 1. The "Project Land Extension Option parcel" refers to land owned by LPC which GDC had a right to include as part of the Project Land governed by the Option Deed (and the Amended Option Deed) by written notice to LPC under clause 4.3, and to include as part of the Project Land governed by the DRA by written notice to LPC under clause 15.1 of the DRA, and which it was then able to put to the Project by giving written notice to Landcom under clause 4.4 of the PDA (and the Amended PDA) including the parcel as part of the Project Land that is subject to the terms of the PDA (and the Amended PDA). 2. Clause 16.1 of the DRA is consistent with the amendments to clause 4.1 of the Option Deed, referred to at [71] above 3. The Chief Commissioner's submissions relied heavily on clause 16.1 of the DRA as supporting the assessment that the DRA effected or evidenced a declaration that LPC holds the Project Land on trust for GDC. 4. Clauses 17 and 18 of the DRA conferred rights and obligations on the parties to facilitate GDC carrying out the Project on the Project Land without first acquiring that land, as referred to in recital C to the DRA. 5. By clause 17.1, LPC acknowledged that GDC would subdivide the Project Land into development lots. Clause 17.2 required GDC to undertake all physical and other work necessary to do so, and to procure the registration of subdivision plans, at its own cost. LPC was required to assist GDC in obtaining approvals for subdivisions and establishing the title for lots to be created on the registration of each subdivision plan. GDC was obliged to pay LPC's reasonable costs of providing that assistance. Clause 17.4 conferred on GDC the sole discretion to determine the parcel of land to be included in each subdivision plan. 6. Clause 18 conferred on GDC the right to serve on LPC at any time a "Development Notice" identifying the part of the Project Land to which the notice applied and stipulating the date by which GDC required LPC to vacate that part of the Project Land. Subject to one important qualification, LPC was obliged to vacate the relevant part of the Project Land by the date specified in the Development Notice (referred to as the "Possession Date") in order to enable GDC to undertake the Project on that land. GDC was entitled from the Possession Date to enter onto, use, and remain in possession of the land specified in the Development Notice, and to exclude any other person from that land (referred to as the "Development Land"). The important qualification is that LPC was entitled to "refuse" a Development Notice if, at the time that GDC issued the Development Notice, there were more than 25 hectares of existing Development Land upon which GDC had not yet commenced development by engaging a principal contractor and/or starting physical works. Clause 13 of the DRA required LPC to maintain insurance cover for the Project Land until the Possession Date for any Development Land, after which time LPC was entitled to require GDC to maintain insurance cover for that Development Land. The cost of the insurance policies was to be borne by the party required to maintain those policies. 7. GDC's entitlement to the Gross Proceeds of the Project was given practical effect by clause 12 of the DRA, which relevantly provided: "12.2 GDC's intention with respect to Sale Contracts The parties acknowledge and agree that it is the intention of GDC, so far as is possible, to: (1) cause Lots to be sold as part of the Project while those Lots remain in the ownership of LPC; and (2) accordingly require LPC to be the vendor in any Sale Contract. 12.3 Sale Contract process (1) Subject to the balance of this clause 12.3, GDC will: (a) cause the marketing of the Lots to be undertaken; (b) negotiate the terms and determine the content of the Sale Contracts; (c) engage and providing instruction to the solicitor or conveyancer acting for the vendor in relation to the Sale Contracts; and (d) receive and then cause the Gross Proceeds from any Sale Contract to be dealt with in accordance with clause 26. (2) LPC: (a) must not undertake any of the matters referred to in paragraph (1); (b) must enter into any Sale Contract as soon as is reasonably practicable after being requested to do so by GDC; and (c) must comply with: (i) the terms of any Sale Contract entered into by it; and (ii) any reasonable direction provided by GDC in relation to a Sale Contract entered into by it. (3) GDC indemnifies LPC against any Claims arising under a Sale Contract, except to the extent that any such Claim arose as a result of an act or omission of LPC. 12.4 Appointment of GDC as attorney (1) LPC, for valuable consideration, irrevocably appoints GDC and each Authorised Officer of GDC from time to time individually as LPC's attorney to sign any Sale Contract. (2) At any time, if requested by GDC, LPC must execute and deliver to GDC a power of attorney in a form capable of registration at the NSW Land & Property Information Office in order to allow GDC to exercise the rights conferred under paragraph (1)." 1. The 2010 transaction documents executed by LPC on 11 October 2010 included a power of attorney as referred to in clause 12.4 of the DRA. 2. Clause 26.1 of the DRA required GDC to pay LPC an amount calculated in accordance with Schedule 2 of the DRA, referred to as the "LPC Lot Amount", on completion of each contract for the sale of a lot in a subdivision of the Project Land. 3. Schedule 2 provided that the LPC Lot Amount was to be calculated by applying a value rate per square metre to the net saleable area of the lot. 4. For lots within part of the Project Land known as the "Tranche (2nd) Land Parcel", the value rate was derived from a valuation of the market value of the whole of the Tranche (2nd) Land parcel as a single, undeveloped site. 5. For lots within other parts of the Project Land, the value rate was to be derived from the residual land value of the relevant Tranche Land, as determined by a valuer adopting a residual feasibility analysis methodology and taking into account the gross revenue of the relevant Tranche Land parcel (including the anticipated sales price of proposed development lots in that parcel) and the Project costs attributable to the development of the relevant Tranche Land, and allowing for a development margin such that the gross margin percentage equals 15.5 per cent. 6. In both cases, the valuation was to be undertaken prior to the commencement of construction of civil works on the relevant Tranche (2nd) Land parcel or Tranche Land parcel. 7. Although LPC had the contractual right under clause 26.1 of the DRA to receive the LPC Lot Amount, it expressly acknowledged and agreed in clause 26.2 that it had "no interest in the Gross Proceeds of and in connection with a Sale Contract". 8. Clause 31.1 of the DRA provided that, if either LPC or GDC committed an "Event of Default", the other party was entitled to serve a notice on the defaulting party identifying the event of default, stipulating what the non-defaulting party requires the defaulting party to do to rectify the default, and stipulating a reasonable period of time within which the defaulting party must rectify the default. The DRA defined "Event of Default" as including non-payment of any money payable under the DRA within 20 business days of the due date for such payment. Failure by the defaulting party to comply with a default notice entitled the non-defaulting party to terminate the DRA immediately by notice in writing. Clause 31.2 provided that, if GDC occasioned an event of default and failed to comply with an ensuing default notice served by LPC under clause 31.1, LPC was entitled to exercise the "Step-in Rights" provided in clause 31.2 in addition to the rights conferred on LPC by clause 31.1. 9. The Step-in Rights under clause 32 of the DRA entitled LPC to: 1. serve written notice on GDC stating that it intended to exercise the Step-in Rights and stipulating the Development Land in respect of which it intended to exercise those rights (referred to as the "Step-in Land"); 2. require GDC to provide vacant possession of the Step-in Land from a date not less than 20 days after that notice (referred to as the "Step-in Effective Date"), after which time the Step-in Land ceased to be Development Land within the meaning of the DRA; and 3. transfer or novate the rights and interests of GDC in, to, and under any agreements entered into by GDC in connection with the Project (including any civil works contracts) to any third party engaged by LPC to undertake the development of the Step-in Land. 1. In the event that LPC exercised those Step-in Rights, clause 32 of the DRA obliged GDC to promptly do all things reasonably required by LPC for the purpose of LPC exercising the Step-in Rights and permitting a third party to develop the Step-in Land in such manner as LPC sees fit, including all things required for the novation or transfer of contracts referred to above. 2. Clause 33 of the DRA provided for the following consequences of LPC terminating the DRA under clause 31.1, irrespective of whether LPC exercised its Step-in Rights: 1. LPC was immediately entitled to vacant possession of any Development Land; 2. LPC was entitled to assign its interest in the remaining Project Land and/or to engage a third party to develop that remaining Project Land; 3. GDC's entitlement to any proceeds from the sale of the remaining Project Land or the development of that remaining Project Land was limited to any "Lot Shortfall Amount"; and 4. LPC was required to distribute the Gross Proceeds of any lots that were registered, serviced lots at the time of termination in the following order of priority: 1. reimbursement or payment to LPC for all costs incurred in completing the stages of the Project in which those lots were included; 2. payment of the LPC Lot Amount to LPC; 3. payment of the Lot Shortfall Amount to GDC in respect of lots that had not been sold to a third party as at the date of termination (referred to as the "Remaining Lots"), being an amount calculated as GDC's total unrecovered costs of the Project that are not referable to a specific stage of the Project (e.g. infrastructure, headworks, community facilities) apportioned pro-rata amongst all of the Remaining Lots; and 4. the balance to be retained beneficially by LPC. 1. As referred to at [60] above, the Tripartite Deed required LPC to notify Landcom—and to give Landcom an opportunity to exercise Step-in Rights—before LPC terminated, rescinded, or suspended performance of the Option Deed. Clause 7 of the Amended Tripartite Deed imposed a similar obligation on LPC before terminating, rescinding, or suspending performance of the DRA. Termination of the DRA would plainly have significant consequences for GDC and for Landcom, including that GDC would no longer be entitled to the Gross Proceeds (by reason of clause 33 of the DRA), and would therefore be unable to disburse those Gross Proceeds in the order of priority provided for in clause 10.3 of the PDA referred to at [58] above (or, indeed, at all). That order of priority, which was not materially changed by clause 10 of the Amended PDA, entitled GDC to retain any surplus from the Gross Proceeds of sale of a lot after paying GST, selling costs, specified Project costs, a GDC Lot Amount, and a development fee to Landcom. As referred to immediately above, LPC became entitled to retain any surplus Gross Proceeds if it terminated the DRA pursuant to clause 31.1 following an event of default committed by GDC. 2. Before leaving the subject of Gross Proceeds, it is relevant to note that GDC was the account holder of the bank account into which Gross Proceeds were paid, and that the Fixed Charge – Proceeds Account executed as part of the 2010 transaction documents charged that account in favour of Landcom as security for payment of all moneys owing or payable by GDC or LPC to Landcom under or in connection with the PDA, the Tripartite Deed, or any other transaction document, and as security for the performance of GDC's obligations under the PDA and the performance of the obligations of GDC and LPC under the DRA, the Amended Option Deed, the Amended Tripartite Deed, and the Quadpartite Security Deed. 3. Clauses 35.1 and 35.2 of the DRA contained promises by LPC to provide security over the Project Land, in the same terms as clauses 13.1 and 13.2 of the Option Deed (and the Amended Option Deed) referred to at [51] above. 4. The Variation of Mortgage executed as part of the 2010 transaction documents varied registered mortgage AE72754M between LPC (as mortgagor) and Landcom (as mortgagee) by, inter alia, expanding the "Secured Obligations" to include the obligations owed by GDC and LPC under the DRA. The amendments to the Floating Charge between LPC and Landcom, and to the Fixed and Floating Charge between GDC and Landcom, as part of the 2010 transaction documents also expanded the scope of the "Secured Obligations" in this way. 5. The 2010 transaction documents included additional securities created for the benefit of Landcom, namely: 1. the Guarantee and Indemnity, pursuant to which LPC guaranteed to Landcom the performance of GDC's obligations under the Amended PDA, the DRA, the Amended Option Deed, and the Tripartite Deed, as well as the payment of all amounts owing or payable by GDC to Landcom on any account at any time. Landcom was also indemnified in respect of any loss it may suffer as a result of such guaranteed obligations and guaranteed moneys being unenforceable or irrecoverable from GDC; 2. the Fixed Charge between LPC and Landcom, pursuant to which LPC charged property, including "all the Chargor's interest (legal or equitable) both present and future in… the LPC Land and all other real property (freehold and leasehold) owned or acquired by the Chargor in connection with the Project…", as security for the performance of GDC's obligations under the Amended PDA, and for the performance of the obligations of GDC and LPC under the DRA, the Amended Option Deed, and the Tripartite Deed, as well as for the payment of all amounts owing or payable by GDC or LPC to Landcom on any account in connection with the Amended PDA, the Tripartite Deed, or any other transaction document; and 3. the two Mortgages of Contractual Rights, pursuant to which each of LPC and GDC granted a mortgage over their respective rights under the DRA in favour of Landcom as security for the Project. Consideration and determination 1. After considering all of the parties' extensive written and oral submissions, I have determined for the reasons explained below that the DRA did not effect or evidence a declaration of trust by LPC in favour of GDC in respect of the Project Land. 2. The Chief Commissioner did not contend that the 2008 transaction documents effected or evidenced a declaration of trust. Rather, the Chief Commissioner relied on clause 16.1 of the DRA, read in the context of the DRA as a whole and together with the other 2010 transaction documents (including the 2008 transaction documents as amended and restated by the 2010 transaction documents). 3. Contrary to the submissions made on behalf of the Chief Commissioner, neither the DRA nor the other 2010 transaction documents imposed obligations on LPC that, in substance, required LPC to hold the Project Land for the benefit of GDC. Rather, as LPC submitted, it owned the Project Land for its own benefit, subject to the extensive contractual rights conferred on GDC by the 2010 transaction documents and the corresponding obligations imposed on LPC. 4. GDC's rights included the right to exercise the Call Option under the Amended Option Deed to acquire Tranche Land parcels of the Project Land at any time. [27] GDC also had the right to serve Development Notices on LPC from time to time requiring LPC to vacate part of the Project Land, following which GDC became entitled from the Possession Date to exclusive possession of that part of the Project Land. [28] Those rights to acquire or obtain exclusive possession of the Project Land in stages were plainly intended to facilitate the exercise of GDC's Development Rights under clause 6.1 of the DRA. Those Development Rights entitled GDC to be the sole and exclusive developer of the Project on the Project Land (with a Third Party Developer, if applicable), to the economic benefit of the Project (being the Gross Proceeds), and to carry out the Project at its own cost and for its own sole benefit. [29] Clauses 17.1 and 17.2 of the DRA confirmed that all work necessary for the Project was to be undertaken at GDC's cost. [30] 5. Clause 4.1 of the DRA required LPC to hold the Project Land subject to GDC's Development Rights, the Call Options, and any Securities—including any charge over the Project Land in favour of GDC or such other securities as GDC may reasonably require to secure the Development Rights. [31] LPC was not entitled to deal with its interest in the Project Land or part with its possession of the Project Land, or to change the nature of LPC's farming, dairy, and grazing business carried out on the Project Land as at the date of the DRA, without GDC's prior written consent. [32] 6. It was submitted on behalf of the Chief Commissioner that GDC's right under clause 6.1 of the DRA to "carry out the Project for GDC's sole benefit" supported a construction of clause 4.1 of the DRA—particularly when read together with clause 4.1 of the Amended Option Deed and clause 16.1 of the DRA—as manifesting an intention that LPC would hold the Project Land on trust for GDC. 7. I reject that submission for two reasons. 8. First, clause 4.1 of the Amended Option Deed and clause 16.1 of the DRA, properly construed, do not manifest any such intention for the reasons explained below. [33] 9. Second, the Project that GDC was entitled to carry out for its sole benefit involved works and activities to be carried out on the Project Land. However, the 2010 transaction documents do not treat the Project as synonymous with the Project Land. As LPC submitted, it is unremarkable that, as between LPC and GDC, GDC was entitled to the economic benefits (being the Gross Proceeds) and any other benefits generated by the Project that was undertaken at GDC's cost. Clause 10 of both the PDA and the Amended PDA between GDC and Landcom required GDC to pay Project costs and Landcom's development fee out of those Gross Proceeds. GDC was entitled as against Landcom to retain the GDC Lot Amount and the balance of the Gross Proceeds, [34] but the quantum or value of those moneys retained by GDC was effectively eroded by its obligation under clause 26.1 of the DRA to pay the LPC Lot Amount to LPC. [35] As I understand Schedule 2 to the DRA, the LPC Lot Amount was determined by a valuation of the relevant parcel of the Project Land undertaken prior to the commencement of works on that parcel. [36] In other words, LPC was entitled to be paid for such of the Project Land as GDC chose to utilise for the Project, and stood to benefit (or lose) from any increase (or decrease) in the value of the Project Land during the course of the Project up until GDC acquired or took exclusive possession of the last parcel of Project Land. As between GDC and LPC, GDC was entitled to those economic benefits generated by the exercise of its contractual rights to carry out the Project at its own cost. 10. Contrary to the Chief Commissioner's submissions, [37] GDC's entitlement to the Gross Proceeds as against LPC, and LPC's disavowal of any interest in the Gross Proceeds, [38] does not manifest an intention that LPC was to hold the Project Land on trust for GDC. Rather, it makes it clear that no part of the Gross Proceeds was the subject of an equitable assignment to LPC or an equitable charge in favour of LPC as security for payment of the LPC Lot Amount. [39] Any such charge would have potentially interfered with the performance of GDC's obligations to Landcom under clause 10 of the Amended PDA, which required GDC to make many specified payments out of the Gross Proceeds before GDC became entitled to retain any of those proceeds. LPC guaranteed the performance of GDC's obligations to Landcom under the Guarantee and Indemnity entered into as part of the 2010 transaction documents. [40] GDC's entitlement as against LPC to the Gross Proceeds received from the sale of lots of the Project Land did not confer on GDC an interest in the Project Land itself in the nature of the interest of a beneficiary under a trust. [41] 11. The DRA and the other 2010 transaction documents did not confer all benefits derived from the Project Land on GDC. 12. As I have mentioned above, LPC was entitled to payment of the LPC Lot Amount calculated according to the value of each parcel of Project Land. [42] 13. LPC was also entitled to continue its existing farming, dairy, and grazing business on the Project Land for its own benefit and profit, unless and until GDC acquired parts of the Project Land by exercising its Call Options or by issuing Development Notices that then entitled GDC to exclusive possession. [43] The benefit thereby conferred on LPC was fortified by its right under clause 18 of the DRA to "refuse" a Development Notice issued by GDC if, at the time of issue, there were more than 25 hectares of existing Development Land upon which GDC had not yet commenced development by engaging a principal contractor and/or starting physical works. [44] The obvious effect, and apparent intention, of LPC's right of refusal was to ensure that LPC's express right to continue its farming, dairy and grazing business on parts of the Project Land was not undermined by GDC issuing Development Notices at a pace that outstripped the pace at which GDC was actually undertaking the work required for the Project. 14. I reject the Chief Commissioner's submission that LPC's right to continue its existing farming, dairy and grazing activities on the Project Land was a "limited" benefit. That right entitled LPC to continue the business that it had conducted on the Project Land ever since it was first acquired in about the 1970s. As a result of the rezoning, those business activities no longer represented the highest and best use of the Project Land. However, there is no evidence to suggest that the business was not profitable or that the continued operation of that business was not of material benefit to LPC. 15. LPC had the right to terminate the DRA if GDC committed an Event of Default, including by failing to make timely payment of the LPC Lot Amounts or other moneys payable to LPC under the DRA. Upon termination, LPC was entitled to vacant possession of any Development Land (noting that it already had possession of any Project Land that was not Development Land), to retain most of the Gross Proceeds of sale of any subdivided lots that had been created prior to termination (including proceeds that would otherwise have been retained by GDC), to assign LPC's interest in the remaining Project Land and/or to engage a third party to develop that remaining Project Land, and to exercise Step-in Rights that included transferring or novating GDC's rights and interests under its agreements for the Project to any such third party engaged by LPC. [45] 16. Subject to its obligations under the Tripartite Deed to give Landcom prior notice of any proposed exercise of LPC's termination rights, [46] nothing in the DRA constrained LPC from exercising its termination and Step-in Rights referred to above in its own interests. Assuming (without deciding) that an obligation of good faith was implied in the DRA and applied to the exercise of LPC's termination and Step-in Rights, that obligation would require LPC not to exercise those rights for an extraneous purpose and to have regard to the interests of both parties in deciding whether to exercise those rights, but would not require LPC to act in the interests of GDC or to subordinate LPC's own legitimate interests to those of GDC. [47] Thus, LPC was entitled to act in its own interests in enforcing its right to be paid the LPC Lot Amounts determined by a valuer in the manner agreed between LPC and GDC in Schedule 2 to the DRA, and in deciding whether to exercise its termination and Step-in Rights (subject to giving prior notice to Landcom) in the event that GDC failed to pay those LPC Lot Amounts. Any exercise of those termination and Step-in Rights by LPC would entitle it to the Gross Proceeds that would have otherwise been payable to GDC, subject only to limited exceptions. 17. As LPC submitted, its rights referred to at [120]-[124] above are fundamentally inconsistent with the fiduciary obligations that LPC would have owed to GDC, if it were the trustee of the Project Land for GDC, to hold the Project Land for the benefit of GDC, to act for and on behalf of the interests of GDC in dealing with the Project Land, and not to allow its own interests to come into conflict with those of GDC. [48] LPC was required to hold the Project Land subject to GDC's extensive rights under the DRA and the other 2010 transaction documents, but was also entitled to act in its own interests in enforcing its own rights against GDC, from which LPC stood to derive substantial benefits. 18. The Chief Commissioner's submissions failed to grapple with the substance of the benefits that LPC was entitled to derive from its ownership of the Project Land under the terms of the relationship between LPC and GDC created by the DRA and the other 2010 transaction documents. To describe those documents as imposing a substantive obligation on LPC to hold the Project Land for the benefit of GDC is, with respect, wrong. 19. During the course of the hearing, the Chief Commissioner's submission evolved into a contention that LPC was obliged under the DRA and the 2010 transaction documents to hold the Project Land "substantially for the benefit of" GDC. That merely draws attention to LPC's rights referred to above and the incongruity between those rights and the alleged trust. Contrary to the Chief Commissioner's submissions, LPC's rights are not analogous to a trustee's entitlement to be paid fees for its services as trustee. They are rights to enjoy the fruits of ownership of the alleged trust property, whilst allowing GDC to acquire or obtain possession of that property in stages for the purpose of the Project, at prices determined in accordance with an agreed methodology, and to enjoy those fruits of the Project undertaken at GDC's cost. They are rights to act in LPC's own interests in relation to the Project Land and the Project in circumstances where such interests come into conflict with GDC's interests as a result of GDC's default in performing its obligations to LPC. Contrary to the Chief Commissioner's submissions, the terms of the DRA are not "designed to regulate" that conflict. As discussed above, the DRA does not constrain LPC from exercising its termination and Step-in Rights in the pursuit of its own legitimate interests. [49] 20. As LPC submitted, GDC's continuing entitlement after 11 October 2010 to exercise Call Options in respect of the Project Land under the Amended Option Deed provides some further support for the conclusion that the terms of the DRA do not support the parties being taken to have intended to create an express trust of the Project Land for the benefit of GDC. [50] As sole beneficiary of the alleged trust, GDC would have been entitled to require the Project Land to be transferred to it by the alleged trustee in accordance with the rule in Saunders v Vautier. [51] The express preservation of the Call Options under the Amended Option Deed by clause 3 of the DRA is very difficult to reconcile—and indeed the Chief Commissioner's submissions did not offer any explanation as to how it could be reconciled—with the Chief Commissioner's assessment that the DRA effected or evidenced a declaration of trust within the meaning of s 8(3) of the Duties Act. 21. For the following reasons, I reject the Chief Commissioner's submissions to the effect that, properly construed, the references to GDC's "beneficial and equitable interest in the Project Land" in clause 16.1 of the DRA (and in clause 4.1 of the Amended Option Deed) mean an equitable interest as the beneficiary of an express trust in respect of the Project Land. 22. Neither clause 4.1 of the Amended Option Deed nor clause 16.1 of the DRA use the explicit language of trust. Taking into account all of the matters referred to at [112] to [125] above, a reasonable businessperson would not have understood the words "beneficial and equitable interest in the Project Land" in clause 16.1 of the DRA (and in clause 4.1 of the Amended Option Deed) to mean that GDC had an interest in the Project Land as the beneficiary under a trust. Rather, a reasonable businessperson would have understood those words as referring to the following equitable interests in the Project Land that GDC obtained immediately on entering into the Option Deed, and which it retained under the Amended Option Deed and clause 3 of the DRA: [52] 1. an equitable interest in the Project Land, which is measured by the injunctive relief that equity would grant to GDC to prevent LPC from disposing of the Project Land inconsistently with the Call Option or acting inconsistently with the conditions attached to the option; and 2. a contingent equitable interest in the Project Land, which is measured by the relief that equity would grant if the option were exercised, the most far-reaching relief being an order for specific performance compelling LPC to transfer the Project Land to GDC. [53] 1. As the Chief Commissioner submitted, those equitable interests do not amount to an equitable fee simple estate in the Project Land. [54] However, I reject the Chief Commissioner's submissions that clause 16.1 of the DRA (and clause 4.1 of the Amended Option Deed) operate to "split" the "beneficial ownership" or equitable estate in the Project Land from LPC's legal estate in fee simple, thereby creating or manifesting an intention to create a trust in respect of the Project Land in favour of GDC. As LPC submitted, clause 16.1(2) of the DRA expresses the consequence of the negatively expressed covenant in clause 16.1(1) that nothing contained or implied in the DRA operates to transfer or vest in GDC any legal estate or interest in the Project Land. That observation applies to clauses 4.1(1) and (2) of the Amended Option Deed. There is no "beneficial ownership" or equitable estate in the Project Land available to be separated or "split" from the legal estate in order to create a trust. Rather, if a trust had been declared, a separate equitable estate would have come into existence at that time as a consequence of the declaration. [55] 2. The Chief Commissioner submitted that there was a commercial rationale for "vesting the beneficial interest in the Project Land to GDC", namely that the vulnerability of GDC (and its financiers) associated with GDC undertaking the Project on the Project Land before it owned that land would be minimised if LPC held the Project Land on trust for the benefit of GDC. That may be so, but the existence of that rationale is not a proper basis upon which to attribute an intention to the parties to create an express trust in circumstances where the parties entered into detailed and complex alternative security arrangements, and where the substance of their respective rights and obligations under the 2010 transaction documents referred to above leaves no room for the core fiduciary obligations that would be owed by a trustee of the Project Land. [56] The Chief Commissioner's submission effectively urges the Court to find the requisite intention to create an express trust merely because that is one way in which the parties could have addressed the commercial risk for GDC and its financiers. That approach would be contrary to authority. [57] 3. Before leaving the subject of the security arrangements, I mention for completeness that LPC relied on clause 35.2 of the DRA as a further source of the equitable interest held by GDC in the Project Land that LPC submitted is referred to in clause 16.1 of the DRA. Clause 35.2 provided that, if no securities had been granted pursuant to clause 35.1, then LPC agreed to grant to GDC a charge over the Project Land to secure the interest of GDC under the DRA. I accept the Chief Commissioner's submission that clause 35.2 had no application, because securities were granted pursuant to clause 35.1 at the same time as the DRA was entered into. The Guarantee and Indemnity and the Fixed Charge, both entered into between LPC and Landcom, fell within the definition of "Securities" referred to in clause 35.1 of the DRA. [58] It follows that, from the time the DRA was entered into, clause 35.2 did not operate to create an equitable interest in the Project Land by way of an equitable charge in favour of GDC. Nor did LPC's promise in clause 35.1 to provide certain securities on request and on terms reasonably acceptable to LPC create an equitable charge in favour of GDC. [59] That is of no consequence to the determination of the main issue because, for the reasons explained above, on the proper construction of clause 16.1 of the DRA, the "beneficial and equitable interest in the Project Land" refers to the equitable interest of GDC created by the Call Options granted under the Option Deed and continued under the Amended Option Deed and clause 3 of the DRA. 4. In summary, for all of the reasons above, the "beneficial and equitable interest in the Project Land" acknowledged and agreed by LPC in clause 16.1 of the DRA (and in clause 4.1 of the Amended Option Deed) refers to the equitable interest of GDC created by the Call Options. The DRA, read in the context of the 2010 transaction documents, does not manifest an intention to create an express trust in respect of the Project Land for the benefit of GDC. Neither clause 16.1, nor any other clause of the DRA, effects or evidences a declaration of trust in respect of the Project Land within the meaning of s 8(3) of the Duties Act. Whilst not determinative by itself, clause 4.3 of the DRA provides further support for that conclusion which I have reached independently of that clause for the reasons explained above. Remaining issues 1. The remaining issues raised by LPC's application for review—being whether the land the subject of the alleged trust was properly identified in the "trust instrument", and whether all or part of the interest included in the assessment (as revised) should be remitted pursuant to s 25 of the Taxation Administration Act—do not arise in light of my determination of principal issue in favour of LPC. Orders 1. For all of the reasons above, LPC is entitled to the orders sought in the Summons revoking the assessment issued on 20 February 2017 (as revised on 9 November 2021). 2. LPC also sought orders allowing its objection dated 19 April 2017 and setting aside the Chief Commissioner's determination dated 9 November 2021 allowing that objection in part. It is not clear to me why those further orders are necessary, given that the assessment and revised assessment are be revoked pursuant to s 101 of the Taxation Administration Act. However, I will hear from the parties in the event that LPC contends that those additional orders are necessary or appropriate in order to give effect to these reasons. 3. LPC also sought an order for costs. I am not aware of any reason why costs would not follow the event, but I will hear from the parties in the event that the Chief Commissioner submits that the Court should not make an order requiring them to pay LPC's costs of the proceedings on the ordinary basis, as agreed or assessed. 4. The parties are directed to provide to my Associate within 14 days a minute of proposed orders giving effect to these reasons, including orders as to costs. 5. In the event of disagreement between the parties about the terms of the orders that are appropriate to give effect to these reasons, or any disagreement in relation to costs, each party is to comply with that direction by providing a minute of the orders which that party contends should be made to give effect to these reasons, together with written submissions of no more than three pages in support of its contention. 6. The matter will be listed at 9.15am on 25 May 2023 for the making of final orders, on the basis that the listing may be vacated if the terms of the orders are not the subject of dispute and if such orders are able to made in chambers. ********** Endnotes 1. In these reasons, all references to the Duties Act 1997 (NSW) are references to the provisions of that Act as they applied at the time of the alleged dutiable transaction on 11 October 2010. 2. Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 at [28] (Basten JA, Giles and Campbell JJA agreeing). 3. SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue (2021) 113 ATR 24; (2021) 20 BPR 41,275; [2021] NSWSC 395 at [55] (Payne J) and the authorities there cited. 4. (2015) 255 CLR 62; (2015) 89 ALJR 340; (2015) 317 ALR 225; (2015) 105 ACSR 498; (2015) 145 ALD 495; (2015) 12 ASTLR 306; (2015) 10 BFRA 182; [2015] HCA 6. 5. Ibid at [3] (references omitted). 6. Ibid, especially at [7]-[8] (French CJ) and [107]-[109] (Gageler J). 7. (2014) 251 CLR 640; (2014) 88 ALJR 447; (2014) 306 ALR 25; (2014) 7 ARLR 361; [2014] HCA 7 at [35] (French CJ, Hayne, Crennan, and Kiefel JJ) (references omitted). See also Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; (2017) 91 ALJR 486; (2017) 343 ALR 58; [2017] NSW ConvR 56-377; [2017] V ConvR 54-888; [2017] HCA 12 at [16]-[17] (Kiefel, Bell, and Gordon JJ). 8. (2017) 96 NSWLR 548; (2017) 351 ALR 521; [2017] NSWCA 295. 9. Ibid at [71] and [77]-[85] (Leeming JA, Gleeson JA agreeing) and the authorities there referred to. 10. Ibid at [72]-[73] and the authorities there referred to. 11. [2014] NSWCA 319 at [91] (references omitted), referred to with approval in Cherry v Steele-Park, supra, at [73] (Leeming JA, Gleeson and White JJA agreeing). 12. Korda v AET, especially at [7] (French CJ) and [204] (Keane J). 13. Ibid at [53] (French CJ). 14. Ibid, especially at [10]-[11] (French CJ). 15. Ibid at [49]; see also [208] (Keane J). 16. (1993) 178 CLR 145; (1993) 26 ATR 353; (1993) 117 ALR 27; (1993) 93 ATC 4835; (1993) 117 ATR 353; [1993] HCA 1 at 178 CLR 165-166 (references omitted). 17. (2013) 249 CLR 493; (2013) 87 ALJR 985; [2013] HCA 35 at [113]; see also Korda v AET at [206]-[207] (Keane J). 18. Byrnes v Kendle (2011) 243 CLR 253; (2011) 85 ALJR 798; (2011) 279 ALR 212; (2011) 4 ASTLR 260; [2011] HCA 26 at [13]-[17] (French CJ) and [55]-[65] (Gummow and Hayne JJ). 19. (2022) 96 ALJR 89; (2022) 398 ALR 404; (2022) 312 IR 1; [2022] HCA 1. 20. Ibid at [43] (references omitted). Their Honours made further statements to similar effect at [59]-[61]. 21. Ibid at [63]-[66] (references omitted). 22. Ibid at [127] (references omitted). 23. Ibid at [184]. 24. Ibid at [203]. 25. The evidence tendered in these proceedings did not include a copy of any Mortgage of Contractual Rights between LPC and Landcom dated 28 June 2010. Schedule 1 to the Amendment Deed is an unexecuted copy of a Mortgage of Contractual Rights between LPC and Landcom dated 26 June 2008. The evidence did not include an executed copy of any such mortgage. 26. I note that the operation of clause 6.6 of the Amended Option Deed was suspended for the duration of the DRA pursuant to clause 3.2 of the DRA. 27. See [46] and [75] above. 28. See [91] above. 29. See [77] above. 30. See [90] above. 31. See [77]-[80] above. 32. See [83] above. 33. See [129]-[133] below. 34. See [58] and [69] above. 35. See [94]-[98] above. 36. See [94]-[98] above. 37. Under clause 6.1 of the DRA, as referred to at [77] above. 38. Under clause 26.2 of the DRA, as referred to at [99] above. 39. See Jackson v Richards [2005] NSWSC 630 at [17]-[19]; Domson Pty Ltd v Zhu [2005] NSWSC 1070 at [52]-[53]. 40. See [108] above. 41. Kondylis v Bacic [2017] NSWSC 66 at [4] and the authorities there referred to. 42. See [117] above. 43. See [77] and [82] above. 44. See [91] above. 45. See [58], [69] and [100]-[103] above. 46. See [104] above. 47. Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 at [144] (Bathurst CJ, Macfarlan and Meagher JJA agreeing); Bundanoon Sandstone Pty Ltd v Cenric Group Pty Ltd (2019) 373 ALR 591; [2019] NSWCA 87 at [154]-[156] (Gleeson JA, Meagher and McCallum JJA agreeing). The parties' submissions did not address whether an obligation of good faith would be implied. 48. John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; (2010) 84 ALJR 446; (2010) 266 ALR 462; (2010) 2 ASTLR 553; (2010) 4 BFRA 701; [2010] HCA 19 at [87]-[90]; J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016) at paragraphs 1-01 to 1-10. 49. See [124] above. 50. See [75] above. 51. (1841) 49 ER 282; [1841] 4 Beav 115; see CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98; (2005) 79 ALJR 1724; (2005) 221 ALR 196; (2005) 60 ATR 371; 2005 ATC 4925; [2005] HCA 53 at [50]. 52. See [75] above. 53. See Commissioner of Taxes (Queensland) v Camphin (1937) 57 CLR 127; 11 ALJ 104; [1937] ALR 401; (1937) 4 ATD 315; [1937] HCA 30 at 57 CLR 133-134 (Lathamn CJ, Rich and McTiernan JJ agreeing); Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd 18 BPR 36,683; [2017] NSWCA 99 at [95]-[109] (Ward JA, McColl and Gleeson JJA agreeing); BB Australia Pty Ltd v Danset Pty Ltd [2018] NSWCA 101 at [51] (Barrett AJA, Meagher JA and Simpson AJA agreeing); D J Farrands, The Law of Options And Other Pre-Emptive Rights (Lawbook Co, 2010), pp 40-48. 54. Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510 at 524 (Young CJ in Eq). 55. DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (New South Wales) (1982) 149 CLR 431; (1982) 56 ALJR 287; (1982) 40 ALR 1; (1982) 82 ATC 4125; (1982) 12 ATR 874; [1982] HCA 14 at 149 CLR 442-444 (Gibbs CJ) and 473-474 (Brennan J) and the authorities there cited. 56. See [112]-[127] above. 57. See [20] above. 58. See [108] above. 59. See Roberts v Investwell Pty Ltd (in liq) (2012) 88 ACSR 689; [2012] NSWCA 134 at [29]-[32] (Bathurst CJ, Beazley JA and Tobias AJA agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 May 2023