Appeal Panel - Internal CITATION: Ross v Chief Commissioner of State Revenue [2010] NSWADTAP 74 APPELLANT Raymond Ross PARTIES: RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 109020 HEARING DATES: 8 September 2010 SUBMISSIONS CLOSED: 8 September 2010 DATE OF DECISION: 11 November 2010 BEFORE: Needham J SC - Deputy President; Perrignon R - Judicial Member; Blake C - Non-Judicial Member CATCHWORDS: Duties Act – exemption from ad valorem duty for transfer from "apparent purchaser" to "real purchaser" – meaning of "apparent purchaser" – must be more than mere transferee DECISION UNDER APPEAL: Ross v. Chief Commissioner of State Revenue (No 2) [2010] NSWADT 51 FILE NUMBER UNDER APPEAL: 096043 LEGISLATION CITED : Duties Act 1977 Administrative Decisions Tribunal Act 1977 Commissioner of Stamp Duties v. Pendal Nominees Pty Ltd (1989) 167 CLR 1 Jones v. Dunkel (1959) 101 CLR 298 CASES CITED: Fabre v Arenales (1992) 27 NSWLR 437 at 444 Allied Pastoral Holdings Pty Ltd v Cmr of Taxation [1983] 1 NSWLR 1 Truskett v. Commissioner of Stamp Duties (NSW) (1976) 6 ATR 1 Tooheys Ltd v. Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 APPELLANT VRW Gray, barrister REPRESENTATION: RESPONDENT AH Rider, instructed by Crown Solicitors ORDERS: The appeal is dismissed. REASONS FOR DECISION 1 Mr Ross appealed from a decision of Judicial Member Verick dated 18 February 2010. In that decision, the learned Tribunal Member affirmed the decision of the respondent, the Chief Commissioner of State Revenue, that a transfer of land from the applicant to his sister, Mrs Macedo, was liable to ad valorem stamp duty. 2 In doing so, the learned Tribunal member rejected the applicant's argument that nominal duty of $10 was chargeable in respect of the transfer pursuant to section 55 (1)(b) of the Duties Act 1977 ("the Act"). 3 The Notice of Appeal filed 19 March 2010, as refined in oral argument, relied on the following grounds:- a)denial of procedural fairness; b)an error of law as to the nature of the transfer and whether the transfer fell under section 55 of the Act; c)an error of law arising out of an unfounded reliance upon Commissioner of Stamp Duties v. Pendal Nominees Pty Ltd (1989) 167 CLR 1; d)an error of law arising out of an erroneous disregard of s 304 of the Act; e)an error of law arising out of a misapplication of Jones v. Dunkel (1959) 101 CLR 298; f)an error of law arising out of the identification of the "apparent purchaser"; and g)an error of law as to the question of provision of the purchase money. 4 The applicant sought leave to extend the appeal to a consideration of the merits of the decision. A ruling on that issue was deferred to the giving of this decision. Facts 5 The facts are generally not in dispute. The learned Tribunal Member found that on 7 February 1997, a contract was entered into to purchase property at Naremburn, New South Wales. The consideration in the contract was $372,000, and the special conditions for the contract described the purchaser as "Raymond Ross, trustee for Amanda N Ross". Amanda N Ross is the daughter of the applicant. 6 The contract was stamped by the respondent on 12 March 1997, apparently without the words "trustee for Amanda N. Ross". The contract was completed on 28 April 1997. 7 At some point, not revealed by the evidence, but seemingly after the completion of the contract, the description of the purchaser on the front page of the contract was altered to strike through the words "Raymond Ross, trustee for Amanda N. Ross" and by adding the name of Mrs Macedo as purchaser. 8 The special conditions to the contract, which contained a reference to Mr Ross as trustee for his daughter as the purchaser, were not altered. The transfer was altered by adding Mrs Macedo as transferee. Neither alteration was stamped. 9 The property became registered in the name of Mrs Macedo on 30 October 1998. It is not clear, given the discrepancies between the stamped documents and the registered documents, how this happened. At some date after the purchase, Mrs Macedo signed a transfer in favour of the appellant. 10 The course of dealings between the appellant and the respondent in relation to the application for concessional duty on the transfer from Mrs Macedo to Mr Ross is set out in a manner which is uncontroversial in paragraph [15] of the decision below. The application for concessional duty was refused on 8 February 2008, an objection was made on 11 February 2008, and the objection was disallowed on 21 February 2008. The proceedings for review were filed on 27 March 2009. The proceedings for review 11 The proceedings for review of the original decision were heard on 29 January 2010 before Judicial Member Verick. 12 Mr Ross gave evidence before the Tribunal as to the reasons for the purchase of the property in names other than his own. He gave evidence that he borrowed sums of money from family members and used money in a joint account held by himself and his wife, notwithstanding the fact that he and his wife were then involved in some level of matrimonial dispute. He says that the family funds were borrowed from members of the family who were not resident in Australia, and that those funds were repaid. 13 Mr Ross argued both before the Tribunal and before the Appeal Panel that he was the person who provided the funds for the purchase, not his family members and that no resulting trust in favour of his family members arose. 14 The Tribunal found that the transfer from Mrs Macedo, in whose name the land was eventually registered, was not entitled to concessional duty under section 55 of the Act, as Mrs Macedo was not the "apparent purchaser" of the property on trust for Mr Ross. 15 The learned Tribunal Member found that, as the purchaser named in the contract was Mr Ross as trustee for his daughter, and the transfer and contract were altered after settlement, the "land was not vested in Mrs Macedo [on] trust for the real purchaser when the land was purchased" (see par [33]). The learned Tribunal Member further found that the funds were not provided solely by Mr Ross (at [34] to [36]. 16 The application was dismissed. 17 The case before the Appeal Panel was argued with each party being heard individually on related issues, rather than in the more traditional way of the appellant addressing first, followed by the respondent. Accordingly, this decision will deal with the issues sequentially. Ground 1 -- denial of procedural fairness 18 The appellant argued that the learned Tribunal Member failed to afford Mr Ross procedural fairness, in breach of a number of provisions of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). In particular, the appellant relies upon the failure of the learned Tribunal Member to admit an affidavit of Marie Ross sworn 14 January 2010. Further, as was revealed by the transcript, the learned Tribunal Member refused to admit an affidavit of Mrs Macedo on the basis that it had not been served and that Mrs Macedo was not available for cross examination. The affidavit of Mrs Macedo in question was included in the documents filed by the respondent pursuant to s 58 of the ADT Act, but it was an affidavit filed in local court proceedings, and no indication was given by the applicant prior to the day of hearing that it would be relied on by him by way of Mrs Macedo giving evidence in the proceedings. 19 The appellant argued that he was not legally represented at the hearing, and did not understand that the Tribunal was likely to place a minimal amount of weight on, or even to disregard, evidence by a witness if that witness was not available for cross-examination. The appellant pointed to s 73 of the ADT Act, and in particular sub-sections (3) and (4), and submitted that an unrepresented applicant would not necessarily realise, in the absence of a specific request, that a witness was required for cross examination. 20 The appellant said that it was not explained to him at the hearing the significance of the ruling that Mrs Macedo's and Mrs Ross' affidavits were either not relied upon or given insignificant weight because of a lack of cross examination. It was submitted that there was a statutory duty on the Tribunal to explain the rule in Jones v. Dunkel, and that if the evidence of Mrs Ross was relevant and would have assisted the appellant then it was incumbent upon the Tribunal Member to explain the impact of its rejection to the appellant. 21 The respondent noted that the affidavit of Mrs Ross was only presented on the day of the hearing. It was sworn after the matter had been set down for hearing. Likewise, no notice of any reliance upon Mrs Ross's affidavit in the appellant's case was given to the respondent prior to the hearing. 22 The Tribunal Member did offer an opportunity to the appellant to have the matter stood over. It was conceded that the opportunity so given was not made in any heartfelt or welcoming way but, nonetheless, it was submitted by the respondent that the applicant was given such an opportunity and rejected it. 23 It was further submitted by the respondent that the evidence of Mrs Ross (which went to whether Mr Ross was lent the money for the purchase) would not have assisted the applicant in any event, because of the finding as to "apparent purchaser". 24 The respondent noted that the appellant had been legally represented, and was so represented at most of the directions hearings in the proceedings below. There were seven directions hearings, two of which gave directions for the filing of evidence. The appellant was not represented at the hearing of the application for review, but it was submitted by the respondent that the directions made prior to the matter being set down for hearing indicated that all evidence should be served well prior to the hearing. He was represented at some of those directions hearings. 25 The Appeal Panel has read the evidence which was sought to be relied upon, and has read the transcript dealing with the application to rely upon the evidence of Mrs Macedo and Mrs Ross. 26 The requirements of section 73 of the ADT Act are relevantly as follows:- 73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss at any stage any proceedings before it in any of the following circumstances: (i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate, (ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings, (iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and (h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure. (5A) An application made to the Tribunal to reinstate proceedings under subsection (5) (h) must be made: (a) within 28 days after the Tribunal dismissed the proceedings that are sought to be reinstated, or (b) within such further time as the Tribunal may allow. (6) A judicial member may: (a) hold a directions hearing in relation to any proceedings before the Tribunal, or (b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal. 27 The Tribunal is required to balance the need for a fair hearing with the need to resolve proceedings as quickly as possible. In doing so, s 73(4) of the ADT Act requires that the Tribunal explain, if requested to do so, aspects of procedure and the meaning of any rulings made during the proceedings (emphasis added). The requirement to explain on request in sub-s 73(4)(b) differs from the requirement to ensure that the applicant understand the fundamentals of the issues in the proceedings (see sub-s 73(4)(a)). 28 The appellant did not ask for the ruling to be explained to him. However, the learned Tribunal Member did explain the difference between the respondent serving the Macedo affidavit as part of the s 58 documents, and the respondent relying upon that affidavit as evidence in chief as to its truth. He also explained the difference between rejecting an affidavit, and receiving it subject to questions of weight (see pp 8-9 of the Transcript). 29 The appellant made a separate submission in relation to the principle of Jones v. Dunkel, which is considered separately below. Leaving that issue to one side for the time being, it is the view of the Appeal Panel that the learned Tribunal Member dealt appropriately with the question of the affidavits. The learned Tribunal Member in effect indicated that he would have regard to Mrs Macedo's affidavit, as it was included in the s 58 documents. The affidavits, having only been produced (Mrs Ross) or the applicant having indicated that they would be relied upon in chief (Mrs Macedo) on the morning of the hearing would have had a seriously prejudicial effect upon the respondent's conduct of his case. 30 There is no basis for the contention that Mr Ross was denied procedural fairness in the manner in which the Tribunal conducted the hearing and, in particular, in which it dealt with the issue of the Macedo and Ross affidavits. Ground 4 – misapplication of principle in Jones v. Dunkel 31 Allied with the first ground, but articulated separately, was the appellant's ground of appeal which arose out of paragraph [32] of the decision below. That paragraph read, relevantly- 32. "It is important at this stage to note that Mrs Macedo did not give any evidence at the hearing nor make herself available for any cross-examination. The Applicant sought to rely on a document described as a "Trust Deed" between him and Mrs Macedo. ... Other than his own oral evidence given at the hearing, no independent corroborative evidence was produced to support the claims made by the Applicant. The absence of Mrs Macedo's evidence did not assist the Applicant's case. On the contrary, the only inference that the Tribunal can make is that her evidence would not have assisted the Applicant". 32 The appellant submitted that a Tribunal, not bound by the rules of evidence and bound to act "according to equity, good conscience and the substantial merits of the case" (see s 73(3)) should not have been constrained to apply the rule in Jones v. Dunkel in relation to Mrs Macedo's evidence. 33 The appellant further submitted that Mrs Macedo was not, in fact, a witness who was not called, but one who gave evidence by affidavit but was not available for cross-examination. 34 Finally, the appellant submitted that the Tribunal misapplied the rule, in that there were other inferences which could easily be drawn from Mrs Macedo's failure to be cross-examined. Examples given were her "being dead, in a coma, of unknown whereabouts etc". The appellant submitted that the inference drawn was one of the least amount of assistance to Mr Ross' case. 35 The respondent dealt with this issue by submitting that the affidavit was not one properly relied on in the appellant's case, as it was an affidavit which was provided to the Commissioner in the course of the submission of documents in relation to the original decision. 36 In the circumstances, it is the view of the Appeal Panel that the rule in Jones v. Dunkel was not so misapplied as to constitute an error of law. Halsbury's Laws of Australia says this on the failure to call evidence:- 'Where a fact is in issue, the failure by the party disputing it to call available contrary evidence has the following consequences, including: (1) The failure cannot be used to make up any deficiency of evidence. (2) The fact which might have been contradicted can be more readily accepted. (3) The failure is a factor in favour of whether, as a matter of logical reasoning, an identified inference which is otherwise open from the proved facts, should be drawn. The rationale for the failure to call evidence is that the party fears that the available evidence would have exposed facts unfavourable to the party (Fabre v Arenales (1992) 27 NSWLR 437 at 444 per Mahoney JA; Jones v Dunkel (1959) 101 CLR 298 at 312). 37 The court is not obliged to draw the inference: Allied Pastoral Holdings Pty Ltd v Cmr of Taxation [1983] 1 NSWLR 1 at 13 per Hunt J. Whilst it is not correct to say, as the learned Tribunal Member did, that the "only" inference that could be drawn is that the evidence of Mrs Macedo could not assist the applicant's case, it was certainly one of the available inferences, and a fair one in the circumstances. The inference sought to be drawn from the "Trust Deed" was not one that assisted the applicant's case; even if the Tribunal had accepted the Trust Deed at face value, there would have been no difference to the outcome, given the construction given to the words "apparent purchaser", as appears below. Grounds 2, 3 and 5 – meaning of s 55 and "apparent purchaser". 38 These grounds were dealt with together in argument. 39 Section 55 of the Duties Act provides:- 55 Property vested in an apparent purchaser (1) Duty of $50 is chargeable in respect of: (a) a declaration of trust made by an apparent purchaser in respect of identified dutiable property: (i) vested in the apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property, or (ii) to be vested in the apparent purchaser upon trust for the real purchaser, if the Chief Commissioner is satisfied that the money for the purchase of the dutiable property has been or will be provided by the real purchaser, or (b) a transfer of dutiable property from an apparent purchaser to the real purchaser if: (i) the dutiable property is property, or part of property, vested in the apparent purchaser upon trust for the real purchaser, and (ii) the real purchaser provided the money for the purchase of the dutiable property and for any improvements made to the dutiable property after the purchase. (1A) For the purposes of subsection (1), money provided by a person other than the real purchaser is taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser. (1B) This section applies whether or not there has been a change in the legal description of the dutiable property between the purchase of the property by the apparent purchaser and the transfer to the real purchaser. Note. For example, if the dutiable property is land, this section continues to apply if there is a change in the legal description of the dutiable property as a consequence of the subdivision of the land. (2) In this section, purchase includes an allotment 40 The appellant argued that the Tribunal erred in its treatment of this issue. The learned Tribunal Member found that the nominal duty provided for in s 55 of the Duties Act is payable only when the conditions in the section are strictly met. The learned Tribunal Member applied Truskett v. Commissioner of Stamp Duties (NSW) (1976) 6 ATR 1 per Rath J, and Tooheys Ltd v. Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 per Dixon J at 612 to find that the trust in favour of the "real" purchaser must be extant at the time of the purchase. The appellant sought to distinguish the decision in Tooheys Ltd on the basis that that case related to stamp duty payable on a company superannuation trust, and the principle for which it was cited had nothing to do with s 55. The appellant also sought to distinguish Truskett, again on the facts that case revolved around a purchase by persons in both their trustee and personal capacities. 41 The appellant submitted that Mrs Macedo was the "apparent purchaser", and Mr Ross was the "real purchaser", with the result that nominal duty would apply. 42 The error of law asserted by the appellant in this regard is the identification of Mrs Macedo as a "transferee" and not the apparent purchaser. Instead, the learned Tribunal Member identified the purchaser as "Raymond Ross as trustee for Amanda N Ross". 43 The respondent, in his written submissions and orally, sought to meet each of the errors of law identified by the appellant by analysing the facts of the matter to ascertain the status of the persons involved in each transaction. It was submitted that the parties to the contract were relevant, not the identity of the person who eventually became registered as purchaser; in this case, the contract was exchanged, and completed, in the name of "Raymond Ross as trustee for Amanda N. Ross", and stamped under the name of "Raymond Ross". It was not until some time later that the land was registered in the name of Mrs Macedo. The respondent pointed out that "neither the altered contract nor the transfer has been stamped following their alteration" (par 16 of respondent's submissions). 44 In order for the appellant to succeed, he needs to show that the words "apparent purchaser" have the meaning he ascribes to them; that is, that they include a person who was not an original party to the contract for purchase, but whose name was written on the contract, and who became registered as proprietor after the contract had been completed. 45 The respondent submits that the decision in Truskett is applicable, given the finding of the Tribunal that the "apparent" purchaser and the "real" purchaser were the same person; that is, Mr Ross. It is submitted that the Tribunal properly held that Mrs Macedo was never the purchaser, either "apparent" or "real" (see par [31] of the decision). 46 The Appeal Panel is of the view that the respondent's approach is the correct one. Even if Mrs Macedo was a transferee, she was never a "purchaser". She was not a party to the purchase agreement. The purpose of the exemption from ad valorem duty is to save payment of double duty in the circumstances set out in s 55. The property was apparently purchased by Mr Ross as a trustee for his daughter. He sought, for reasons which advantaged him at the time, to amend the documentation after the purchase was completed, to register the property in the name of Mrs Macedo. She has never been involved in the purchase of property. She was not even "apparently" involved in the purchase, and on Mr Ross' evidence, she came into the picture after the contract was entered into with the vendors. 47 The High Court, in Commissioner of Stamp Duties (NSW) v. Pendal Nominees Pty Ltd ((1988-9) 167 CLR 1, determined that a company, Pendal Nominees, could not come within the definition of "apparent purchaser" because:- "Not only does the sale deed recite that BTA is the purchaser of the shares, but it is clear from its terms that BTA is to provide the purchase money and that PN is merely to be the transferee. PN is not the "purchaser" in the ordinary sense of the word and I see no reason to give the word any meaning in this context other than its ordinary sense." (at 16, per Mason CJ, with whom Brennan J, (particularly at 21) Deane and Dawson JJ, and Toohey J (particularly at 32) agreed). 48 Pendal Nominees confirmed that the exemption from ad valorem duty is aimed at circumstances of resulting trust – where:- "a document reveals a certain person as the purchaser of property and does not reveal that another person has "actually paid the purchase money", but contains a declaration of trust by the "apparent" purchaser in favour of that other person" (at 17, per Mason CJ). 49 It seems clear to the Appeal Panel that in no sense was Mrs Macedo the purchaser, apparent or real, of the property. The appellant submitted that Pendal Nominees could be distinguished on the basis of the facts, as there was a transfer to Pendal Nominees after the purchase of (and payment of moneys by) BTA, a subsidiary of Pendal Nominees. Pendal Nominees would then hold the shares in trust for BTA. 50 While the facts are somewhat different, a proper reading of Pendal Nominees shows that the analysis of the section by the High Court is indeed relevant. In order to fall within it, and to obtain the exemption, Mrs Macedo would need to appear to the world as a purchaser of the property, when in fact she was a person who received a transfer of the legal estate at some later time. 51 The Tribunal is satisfied that the words "apparent purchaser" do not describe Mrs Macedo. On one view of it, this is sufficient to dispose of the appeal. However, two other grounds were argued and remain to be dealt with. Ground 4 – s 304, Duties Act 52 The appellant submitted that the learned Tribunal Member erred in taking into account the instrument by which Mr Ross was named as "purchaser" on the basis that s 304 of the Duties Act prohibits the Tribunal from admitting into evidence any unstamped document. The appellant argued that, as that instrument had not been stamped, it could not be taken into account by the Tribunal. 53 The relevant section provides:- 304 Receipt of instruments in evidence (1) An instrument that effects a dutiable transaction or is chargeable with duty under this Act is not available for use in law or equity for any purpose and may not be presented in evidence in a court or tribunal exercising civil jurisdiction unless: (a) it is duly stamped, or (b) it is stamped by the Chief Commissioner or in a manner approved by the Chief Commissioner. (2) A court or tribunal may admit in evidence an instrument that effects a dutiable transaction, or is chargeable with duty in accordance with the provisions of this Act, and that does not comply with subsection (1): (a) if the instrument is after its admission transmitted to the Chief Commissioner in accordance with arrangements approved by the court or tribunal, or (b) if (where the person who produces the instrument is not the person liable to pay the duty) the name and address of the person so liable is forwarded, together with the instrument, to the Chief Commissioner in accordance with arrangements approved by the court or tribunal. (3) A court or tribunal may admit in evidence an unexecuted copy of an instrument that effects a dutiable transaction, or is chargeable with duty in accordance with the provisions of this Act, if the court or tribunal is satisfied that: (a) the instrument of which it is a copy is duly stamped, or is stamped in a manner approved by the Chief Commissioner, or (b) the copy is duly stamped under section 299. 54 The appellant argued that the learned Tribunal Member could only have taken into account a "notional" version of the contract, that being the form in which it was stamped. The contract was stamped in a form different to that which it originally had; the name of the purchaser was struck through and replaced with "Deirdre Anne Macedo". The appellant submitted that the proper approach would have been for the Tribunal to refuse to recognise the existence of the contract, given that it was not properly stamped. The learned Tribunal Member should have proceeded, it was submitted, only on the basis of:- a)instruments subject to duty upon which duty had been paid; b)instruments not subject to duty; and c)oral testimony and other documents properly admitted into evidence. 55 The appellant therefore contended that by having regard to the contract in its unaltered state, the learned Tribunal Member erred in having regard to it "(let alone taking [it] into account in its reasoning process)" . No finding was made about s 304 of the Act in the decision. 56 The respondent sought to meet this objection as follows:- a)Section 304(1) and (2) apply to original documents only, not copies. No original transfer or contract was produced. b)Section 304(3) requires that the original instrument be "duly stamped". In this case, the contract was only "duly stamped" in respect of its original, unaltered form as exchanged by the vendors. c)Accordingly, the evidence which the Tribunal was able to take into account was that Mrs Macedo was not the person referred to as the purchaser on the original contract. d)In any event, the change of the name of purchaser to Mrs Macedo was not, as it needed to be, stamped with additional ad valorem duty when it was altered, and the Tribunal was entitled to take into account the fact that Mrs Macedo was not the purchaser as reflected in the original documentation. 57 The Tribunal is of the view that the respondent's submissions are correct. The documents which are "duly stamped" show that Mrs Macedo was a transferee, but not a purchaser. Applying the principle in Pendal Nominees¸ in order for the exemption to apply, Mrs Macedo needed to be a purchaser named on the contract for purchase. Ground 6 – Provision of the Purchase Money 58 Given the finding of the Tribunal that Mrs Macedo was not the "apparent purchaser" – a finding with which the Appeal Panel agrees - the question of who provided the purchase moneys cannot determine this appeal. However, as this ground was argued, it will be determined. 59 The appellant sought to overturn the finding of the Tribunal that there was no evidence that the moneys provided for the purchase of the property were in fact loans, which were repaid. In paragraph [35] of the decision, the learned Tribunal Member noted that "the substantial amount of the purchase monies was from various sources other than from the Applicant. ... the Applicant produced no independent evidence that the moneys were loans to the applicant". The learned Tribunal Member then went on to make a comment about the "unusual fractional amounts" from various family members making up the total being an investment formula used by the family given the restrictions on foreign investment in real estate. The learned Tribunal Member referred to this as an "irresistible inference". 60 The appellant submitted that the only evidence before the Tribunal was consistent with the appellant's claim that the moneys, and the amounts by which they were made up, were loans. There was evidence of the amounts, or at least some amounts, being paid back. There was no evidence from any other source indicating that the amounts were not loans. The appellant sought to bring evidence from Mrs Ross as to the loans, but that evidence was rejected. 61 The respondent, in answer, submitted that the findings as to the "unusual fractional amounts" were obiter and the decision did not turn on this point. The respondent also noted that the affidavit of Mrs Ross was produced on the morning of the hearing, and that Mrs Ross was not able to be cross-examined. The appellant sought to continue with the hearing. Mrs Macedo was not, as noted above, called, and her affidavits did not assist on this point. The loan agreements relied upon were inadmissible because they had not been stamped, and no direct evidence was given to the effect that the moneys were loans. 62 The respondent acknowledged in oral argument that the negative comments against Mr Ross in relation to his family's motives in providing the money were not put to Mr Ross. 63 The Tribunal is of the view that, even if the learned Tribunal Member erred in relation to the finding as to "unusual fractional amounts", it did not affect his decision. This much is clear from the way in which the decision is structured. The question of the genesis of the money does not arise if the balance of s 55 is not enlivened. Extension to the merits 64 It does not appear to the Appeal Panel that there is any basis for an extension of the appeal to the merits, either in relation to the allegation of a denial of procedural fairness or on the question of the "apparent purchaser". Conclusion 65 The appeal is dismissed. 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.