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DISMIN INVESTMENTS PTY LTD v FC of T

Members:
Hill J
Drumond J
Goldberg J

Tribunal:
Full Federal Court

MEDIA NEUTRAL CITATION: [2001] FCA 690

Decision date: 14 June 2001

Hill, Drummond and Goldberg JJ

The appellant appeals against an order of a judge of the Court on 20 December 2000 setting aside the decisions of the respondent (``the Commissioner'') on two objections to income tax assessments made in respect of the appellant's assessable income for the year ended 30 June 1993. The primary judge remitted the matter to the Commissioner to be dealt with in accordance with his Honour's Reasons published on 24 November 2000 [ reported at 2000 ATC 4782].

2. The assessments arose out of a transaction which involved a number of steps which took place between January and April 1993.

3. The background to the transaction and the steps taken which ultimately resulted in the relevant circumstances are set out in his Honour's Reasons for Judgment as follows [at 4784-4787]:

``1. In 1989 two Canadian companies Carling O'Keefe Breweries of Canada Limited (`Carling') and The Molson Companies Limited (`Molson') formed a partnership called The Molson Partnership (`the Partnership') to carry on the business of brewing in North America. In 1993 each of the partners sold for [C]$169,941,035... a ten per cent interest in the Partnership to the United States brewer Miller Brewing Inc (`Miller'). The capital gain, if any, made by Carling on that transaction has been brought within the purview of Australian tax law because the ultimate owner of Carling was the present applicant Dismin Investments Pty Ltd (`Dismin'), an Australian company

ATC 4379

and a member of the Foster's Brewing Group.

2. Dismin owned Mindis NV, a company incorporated in the Netherlands Antilles. Mindis NV in turn owned Mindis BV (`MBV') a Netherlands company, which owned FBG Canadian Investments Inc (`FBG Canadian'), which owned Carling. MBV was, in relation to Dismin, a controlled foreign company (`CFC') for the purposes of Pt X of the Income Tax Assessment Act 1936 (Cth) (`the Act').

3. MBV was a resident of a `listed country' within the meaning of s 320(1) and Dismin was an `attributable taxpayer' in relation to MBV (s 361). Dismin's assessable income for the Australian financial year ended 30 June 1993 included its share of MBV's `attributable income' (s 456(1)). The attributable income of MBV is the amount which would be its taxable income if it were assumed (inter alia) to be a taxpayer and a resident (ss 382, 383(a)). The attributable income (if any) of MBV included the `notional assessable income' (if any) of MBV (s 385(2)(a)) referable to the relevant transaction, a term which will be defined more precisely hereafter.

...

12. In the case of the ten per cent interest sold by Carling the agreement for sale was contained in a document called `Stock Purchase Agreement' dated 14 January 1993. The parties were MBV, Carling, Foster's Brewing Group Limited, Miller and two Miller subsidiaries. The agreement recited (i) that prior to the closing (as defined) Carling will have transferred to an Ontario corporation (called in the agreement `Sub') which will be a wholly owned subsidiary of MBV inter alia `the ten per cent Partnership interest in the Partnership' (ii) that MBV wishes to sell and one of the Miller subsidiaries (called `the Purchaser') wishes to buy all of the issued and outstanding shares in the capital stock of Sub and (iii) that the Purchaser has advised MBV that it is its present intention immediately after the closing to cause Sub to be wound up and to distribute to the Purchaser all of Sub's assets `(including the ten per cent Interest in the partnership)'.

...

17. The steps by which the Stock Purchase Agreement was implemented were as follows:

  • Step 1
    • (i) On 23 February 1993 a company called 1019387 Ontario Limited (`Ontario Co') was incorporated. This is the Sub foreshadowed in the Stock Purchase Agreement. Its raison d'être is to be the conduit for the transfer of the ten per cent interest in the Partnership sold by Carling to Miller.
    • (ii) On 25 February 1993 the one common share in Ontario Co was issued to MBV.
  • Step 2
    • (i) On 1 April 1993 Carling amalgamated with its parent FBG Canadian under s 177M(1) of the Business Corporations Act of Ontario. The amalgamated corporation continued to have the name Carling O'Keefe Breweries of Canada Limited but it will be convenient to refer to it hereafter as `New Carling'.
    • (ii) Upon the amalgamation MBV owned the single common share in New Carling.
    • (iii) The single common share held by MBV in FBG Canadian before amalgamation was the same common share it held in New Carling after the amalgamation.
    • (iv) New Carling owned a 50 per cent interest in the Partnership as well as the other assets already mentioned which were not taken into the Partnership.
  • Step 3
  • On 1 April 1993 the single common share held by MBV in New Carling was converted into 1000 common shares and 1000 shares of a newly created class called class X. The class X shares were redeemable for an amount equal to the product of the fair market value of a ten per cent share in the Partnership plus its undivided interest in the promissory note. (The terms of the issue of the class X shares, contained in the amended Articles of Association of New Carling, incorporate the more detailed definition of the amount payable on redemption

    ATC 4380

    contained in par 12 of an advance tax ruling issued by Revenue Canada to Price Waterhouse on 22 December 1992.)
  • Step 4
  • On 2 April 1993 MBV transferred its 1000 class X shares in New Carling to Ontario Co in consideration of the issue by that company to MBV of a further 1000 common shares.
  • Step 5
  • On 2 April 1993
    • (i) New Carling transferred a ten per cent interest in the partnership and an undivided interest in the promissory note to Ontario Co.
    • (ii) In consideration of the transfer Ontario Co issued 1000 redeemable class A shares to New Carling. The class A shares were redeemable for an amount equal to the fair market value of the assets transferred.
  • Step 6
  • On 2 April 1993
    • (i) New Carling redeemed the class X shares held by Ontario Co and issued a promissory note for the redemption amount.
    • (ii) Ontario Co redeemed the class A shares held by New Carling and issued a promissory note as payment for the redemption amount.
    • (iii) New Carling and Ontario Co each set off the cross-liabilities created on the redemptions, one against the other, and paid out the promissory notes.
    • (iv) For the purposes of this cross- redemption and set-off, the value of the class X shares and the class A shares was equivalent to the fair market value of a ten per cent share in the Partnership plus the undivided interest in the promissory note.
    • (v) Following the mutual redemption of shares, Ontario Co was divested of any shareholding in any other entity.
    • (vi) At the conclusion of step 6, MBV owned all of the issued shares in Ontario Co which in turn owned a ten per cent interest in the Partnership and the undivided interest in the promissory note. The proportionate interest in the promissory note was 5.61 per cent.
  • Step 7
  • MBV sold its shareholding in Ontario Co (the 1001 common shares) to Miller Brewing of Canada Ltd (a Miller subsidiary) for $169,941,035.''

4. His Honour noted that the relevant transaction before him, as identified by counsel for the Commissioner, was step 4. His Honour observed that the Commissioner argued that the disposal by Mindis Investments BV (``MBV'') of the class X shares in New Carling to Ontario Co was caught by the operations of the capital gains tax provisions of Pt IIIA of the Income Tax Assessment Act 1936 (Cth) (``the Act'') as modified by Sub-Divs B and C of Div VII of Pt X. His Honour rejected the appellant's submission that the expression ``gains or profits of a capital nature that arise from the sale or disposal of all or part of an asset'' in reg 152B(1) of the Income Tax Regulations 1936 referred to capital gains or profits according to ordinary concepts and accepted the Commissioner's argument. His Honour found that step 4 gave rise to ``attributable income'' for the purposes of s 456(1) of the Act. As will appear hereafter the Commissioner did not seek to maintain that argument on appeal.

5. In order to understand how the issues presently before the Court arose, it is necessary to set out some of the earlier events prior to the hearing of the appeal by his Honour.

6. On 28 August 1992, prior to the transaction being entered into, the accountants for the appellant sought a private ruling as to the application of the Act to the transaction proposed to be entered into. The transaction was described by reference to seven steps which were implemented in the terms described by the primary judge.

7. On 26 October 1992, the Commissioner provided a private ruling to the appellant. The ruling stated that it was a ``private ruling'' for the purposes of Pt IVAA of the Taxation Administration Act 1953 (Cth). The ruling stated:

``WHAT THIS RULING IS ABOUT:

Will the proposed arrangements result in the exposure of Dismin Investments Pty Ltd to Australian taxation?

(refer to all steps below)

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Is the amalgamation of Old COBOC and Investments treated as a disposal for Australian tax purposes?

(refer to step 1 below)

Is any capital gain on the disposal by Mindis of the New COBOC shares not `exempt from tax' and therefore not `eligible designated concession income'.

(refer to step 4 below).''

8. The ruling addressed each of the seven steps set out in the request for the ruling. It made observations on the taxation consequences of each step. The ruling made the following comment in relation to step 4:

``Mindis will sell and transfer certain new Coboc shares to Newco

The sale of the shares will result in the application of Part IIIA of the Income Tax Assessment Act (ITAA), as modified by Subdivision C of Division 7 of Part X of that Act. This is determined on the assumption that any capital gain that arises on the transaction is exempt from taxation in the Netherlands.

The issue of the common shares by Newco to Mindis will not constitute a sale or disposal of an asset for the purposes of regulation 152B of the ITR. Designated concession income will not arise in relation to that transaction.''

The ruling made the following observation in relation to step 7:

``Mindis sells its shares to Acquisitionco

If no gains or profits of a capital nature arising [sic] from this particular transaction then there is no designated concession income in relation to that sale or disposal.''

9. The ruling did not say that any other taxation liability arose in relation to the transaction or any of the seven steps.

10. On 1 March 1993, at the request of the accountants for the appellant, the Commissioner stated that variations to the transaction which had been described by the accountants did not affect the private ruling provided on 26 October 1992. The variations are not relevant for present purposes.

11. On 16 May 1994, the appellant lodged its return for the year ended 30 June 1993. In that return the appellant included an amount of $483,558 as assessable income in relation to the disposal of 1,000 class X shares in Carling O'Keefe Breweries of Canada Limited (``COBOC'') (referred to by the primary judge as ``New Carling'') which represented 20% of the 50% interest COBOC had in the Molson Breweries partnership. By virtue of the provisions of s 166A of the Act, an assessment was deemed to have been made on that date in respect of the appellant's taxable income.

12. On 21 April 1998, the appellant lodged an objection to that deemed assessment claiming that the assessment should be reduced by the exclusion of $483,558 from its assessable income.

13. On 13 May 1998, the Commissioner issued an amended assessment to the appellant in which the Commissioner assessed taxable income of $16,481,925.16 in respect of the capital gain of $29,822,772 arising from the transaction to which we have referred. On 22 May 1998, the appellant lodged an objection to that amended assessment.

14. Each of the objections was disallowed in part by the Commissioner in September 1998. The appellant then appealed to the Court against the objection decisions.

15. The Commissioner filed a Statement of Facts, Issues and Contentions in accordance with O 52B r 5(a)(v) of the Federal Court Rules. The Commissioner set out the seven steps involved in the sale of COBOC's interest in the partnership to which we have referred. In the statement, the Commissioner submitted that the disposal by MBV of the 1000 class X shares in COBOC to Ontario Co (see step 4) represented the disposal of a 10% interest in the partnership and gave rise to the operation of the capital gains tax provisions of Pt IIIA of the Act as modified by Sub-Div C of Div 7 of Pt X of the Act. Most of the statement was taken up with issues and contentions as to the calculation of the income and capital gain which should be attributed to the appellant.

16. The two appeals were heard before a judge of the Court in October 2000. His Honour adopted the procedure, on the submission of both parties that he should answer five questions, the answers to which would enable the parties to submit appropriate orders to dispose of the appeals. The first question was:

``Did the relevant transaction give rise to attributable income under Pt X by way of

ATC 4382

capital gain? (The issue is whether there was in truth an profit or gain at all.)''

His Honour observed later that ``the relevant transaction for present purposes is step 4'' and answered the first question in the affirmative.

17. It was common ground between the appellant and the Commissioner before the learned primary judge that the only part of the transaction which required consideration for the purposes of determining whether Pt X of the Act initially applied was step 4 (see par 3 above). The Commissioner submitted, and it was common ground, that this question turned upon whether reg 152B(1) of the Income Tax Regulations applied at step 4. Regulation 152B(1), at the relevant time, provided:

``Subject to subregulation (3), in this Part (other than in regulation 152F), `capital gains' , in relation to a CFC that is a resident of a listed country at the end of a statutory accounting period, means gains or profits of a capital nature that arise from the sale or disposal of all or part of an asset that is sold or disposed of by the CFC during that accounting period.''

The Commissioner submitted that the regulation did apply at step 4 because the word ``profits'' in the regulation was to be construed as referring to capital gains under Div IIIA of the Act. The appellant, on the other hand, submitted that the word ``profits'' in the regulation was used in its ordinary accounting or commercial sense and that no profit arose from the disposal of the 1,000 class X shares at step 4.

18. It suffices for present purposes to say that before income can be attributed to the appellant pursuant to the provisions of Pt X of the Act, and on the present facts, it would be necessary for there to be a profit within reg 152B(1) of the Income Tax Regulations. It would also be relevant to know whether tax is payable in a country outside Australia in relation to that profit. The relevant statutory provisions are set out in the judgment appealed from and need not be repeated.

19. The case before his Honour was conducted on the basis that the only issue as to the existence of a capital profit was whether a capital profit arose at step 4. If it did, then a question arose as to the application of Pt IIIA of the Act to that profit and the determination of its quantum.

20. In his Reasons for Judgment, his Honour accepted the Commissioner's submission as to the proper interpretation of reg 152B and, having regard to the provisions of Pt IIIA of the Act, found that there was a capital profit. His Honour then considered the manner in which the quantum of the profit was to be determined.

21. In its Notice of Appeal, the appellant raised grounds, which in substance, repeated the submissions it had made before his Honour, namely that no profit had been made at step 4, the word ``profit'' being used in the commercial or accounting sense.

22. On Monday 7 May, two days before the appeal was listed to commence, the Commissioner filed and served an outline of his submissions. For the first time, the Court and the appellant were put on notice that the Commissioner had changed his position from that taken at trial. The following paragraphs appeared in the outline of submissions.

``7. At first instance, the Commissioner contended - and the learned trial Judge accepted - that the expression in Reg. 152B(1)-

`gains or profits of a capital nature that arise from the sale or disposal of all or part of an asset'

extended to capital gains within the meaning of Part IIIA.

8. Having reviewed the position, the Commissioner no longer maintains the argument which the Court accepted. The Commissioner accepts, as Dismin contends, that the phrase `gains... of a capital nature' is to be given its ordinary meaning, that is, it applies only to gains which are gains of a capital nature according to ordinary concepts.

9. For the reasons set out in paragraphs 10-26 below, however, the trial Judge was correct to find that MBV made a gain or profit of a capital nature, within the meaning of Reg. 152(B)(1).

...

15. In short, MBV and Dismin have proceeded - correctly - on the basis that-

  • (a) the question whether MBV derived a gain was to be determined by reference to the transaction as whole and not by reference to one of the constituent steps,

    ATC 4383

    each of which was necessary to effect the transaction; and
  • (b) MBV did derive a gain from the transaction.''

23. In the submissions, and at the hearing of the appeal before us, the Commissioner made it clear that he did not contend that a profit or gain according to ordinary concepts arose at step 4. He sought to submit that a profit, in the ordinary sense of that word, arose either at step 7 or at a combination of steps which seemed to comprise the whole transaction, but certainly more than one step. We were informed by senior counsel for the Commissioner that the Commissioner's change in approach to the construction of reg 152B(1) arose because, after reviewing the primary judge's reasons for judgment, it was concluded that unintended consequences might follow which cast the revenue net wider than it had been understood to cover. The Commissioner took the view that the proposition that a reg 152B gain included a Pt III gain had unintentionally broad implications. What the unintended consequences were was not elaborated upon.

24. The Commissioner's outline of submissions pointed to the fact that in its profit and loss account for the year of income MBV recorded an extraordinary gain of Dutch Guilders 236,818,865. There was a note to the accounts of MBV in the following terms:

``[MBV] incorporated a Canadian company, 1019387 Ontario Limited. The investment was disposed of on April 2, 1993, resulting in a gain as reflected in the profit and loss account.''

We observe that the note could refer either to step 4 or step 7, or perhaps a combination of those steps and other steps in the transaction to which we have referred.

25. The appellant's assessable income depends upon the attribution to it of the whole or part of the notional assessable income of MBV pursuant to the provisions of Pt X of the Act. It is not necessary to set out in any detail at this point the provisions of Pt X which are, to say the least, quite complex.

26. The Commissioner acknowledged that he was now seeking to argue the case quite differently from the manner in which it was argued by him before the primary judge and that he was seeking to put ``a totally different case''. Accordingly, he sought leave from the Court to do so. That leave was opposed by the appellant. In particular, the appellant submitted that the argument now sought to be raised by the Commissioner involved matters in respect of which it would have considered calling further evidence in the Court below. The appellant submitted that the issues now sought to be argued by the Commissioner gave rise to matters which required consideration, having regard to the terms of reg 152B, whether a profit did arise at a point of time other than step 4 and in respect of any asset. This made relevant accounting evidence as to what occurred at other steps. The appellant submitted that it would also be necessary for it to lead evidence of foreign tax law as to any taxation liability which might arise as step 7 or at some other point relied upon by the Commissioner but not being step 4. This would involve identifying the particular step or transaction in respect of which the foreign tax law attached a conclusion, if any.

27. The Commissioner asserted that the appellant did not need to lead any further evidence as to the issue of whether there might be any liability of the appellant to tax under any foreign taxation law. It was said that the persons instructing counsel for the Commissioner could not see what evidence could be led on the issue assuming one was looking at the whole transaction not just at step 4, presumably because they were of the view that no foreign tax was payable. It was submitted that the onus lay upon the appellant to demonstrate that there could be such evidence.

28. The point is not whether those instructing counsel for the Commissioner are of the view that there is no evidence that could be led as to the existence of any liability under any foreign tax law, but rather whether there is a possibility that such evidence might be led.

29. The appellant submitted that if the Commissioner had contended before the primary judge that there was a gain or profit of a capital nature within reg 152B(1) on the basis that a gain was derived by MBV on the disposal of an investment as a result of the transaction described in all seven steps, then the appellant would have conducted the trial differently before the primary judge. It would have sought to lead evidence to demonstrate that:

  • (1) consistently with generally accepted accounting principles, an accounting profit

    ATC 4384

    arising on one of the other steps would not be recorded in relation to step 4;
  • (2) in relation to the transaction as a whole, the manner in which each of the steps was recorded and, consistently with generally accepted accounting principles, how one would expect them to be recorded; and
  • (3) the manner in which each of the steps and the transactions as a whole were treated for Canadian and Netherlands taxation purposes.

It might also have been necessary to lead accounting evidence as to the quantum of profit said to arise at a particular step or as a result of a combination of steps.

30. It should be noted that the appellant sought to lead evidence before the primary judge about the application of tax law in the Netherlands in relation to the operation of s 385(2)(a)(ii) of the Act. The Commissioner abandoned reliance on s 385(2)(a)(ii) and, by agreement, that evidence was not led.

31. The relevant principles of law in this area are quite clear. In
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, the majority of the High Court (Latham CJ, Williams and Fullagar JJ) said at 438:

``The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards.''

32. In
Coulton v Holcombe (1986) 162 CLR 1, the High Court considered the principles applicable to allowing a party on appeal to argue a point not taken in the Court below. The majority of the Court (Gibbs CJ, Wilson, Brennan and Dawson JJ) said at 7-8:

``To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards...''

We consider that these principles are directly applicable to the circumstances presently before the Court. (See also
Metwally v University of Wollongong (1985) 60 ALR 68 at 71).

33. In our view, this is not one of the type of exceptional cases to which Mason J (as he then was) referred in
O'Brien v Komesaroff (1982) 150 CLR 310 at 319:

``In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh [[1892] AC 473, at 480]; Suttor v. Gundowda Pty. Ltd. [(1950) 81 CLR 418 at 438] Green v. Sommerville [ (1979) 141 CLR 594 at 607-608]). However, this is not such a case. The facts are not admitted nor are they beyond controversy.''

34. Although evidence might ultimately lead to a different conclusion, the decision of the High Court in
FC of T v Becker (1952) 10 ATD 77; (1952) 87 CLR 456 would prima facie lead to the view that step 7 would not, of itself, lead to a profit arising. In Becker, the Commissioner sought to argue that a profit arose to a taxpayer in circumstances where a taxpayer who owned a capital asset transferred that asset to avoid certain war time regulations to a company owned by him in exchange for shares in that company, and then sold the shares at a price in excess of the face value of shares. The High Court held that no profit arose. This was because the shares, although having a face value less than the value of the asset transferred, had a cost equal to the value of that asset. When the shares were transferred, the price received for them was thus equal to their real cost. A similar argument would no doubt be advanced on behalf of the appellant here.

ATC 4385

35. Since the Commissioner conceded that step 4 itself did not lead to a profit or gain arising according to ordinary concepts and step 7 did not prima facie lead to the same conclusion, there is a real question as to whether reg 152B(1) could ever apply to this situation. However, we do not need to decide this point because, absent any accounting evidence as to profit and also evidence as to foreign tax law, it would be impossible to reach a final conclusion on the appellant's tax liability.

36. Consistently with the authorities to which we have referred, we are of the view that the Commissioner should not now be allowed to argue, for the first time on appeal, a basis for assessment not argued at first instance and a basis, had it been argued at first instance, which would have called for consideration by the appellant whether to lead evidence not called having regard to the manner in which the case was run below.

37. Having regard to the fact that we refuse the leave sought by the Commissioner, it follows that the appeal should be allowed with costs. The Commissioner did not contend to the contrary but submitted that it was open to the Court, having allowed the appeal, to remit the matter to the primary judge to have the confined issue of fact determined by him. The Commissioner was unable to point to any case where such a step in circumstances similar to those before us, had ever occurred. In our view, it is not an appropriate course to undertake.

38. An alternative submission was made, not one may say with great conviction, that this Court on appeal should remit the matter to the learned primary judge so as to permit both parties to lead such evidence as they may wish on the new case which the Commissioner now sought to advance. No authority could be cited and we know of none, of any case being remitted on appeal to a single judge, in effect to permit a party to advance a new case that had not been advanced at first instance. Such a course would fly in the face of the need for finality of litigation and, the corollary, that a party will ordinarily be bound by the evidentiary case presented at first instance.

39. Not only does the Commissioner seek to argue a point not argued in the Court below, in respect of which the appellant would seek to lead the evidence to which we have referred, but the Commissioner has also departed from a position which he had maintained consistently since the publication of his private ruling. It was fundamental to the private ruling and the case argued before the primary judge that there was a profit or gain at step 4. The Commissioner before us expressly resiled from that position.

40. The system of binding private rulings depends upon an applicant for such rulings being able to rely upon the ruling, particularly when the ruling is sought prior to entry into a significant commercial transaction and where a system of self assessment of income taxation has been adopted. It was suggested inferentially that the Commissioner, when asked to advise on the income tax consequences of a particular transaction, might advise only on the application to the transaction of one section of the Act and later seek to resile from the overall ruling by relying on some other section of the Act. It is not necessary to decide here whether that suggestion was correct, or indeed whether in the present case the Commissioner was entitled to ignore the ruling he gave and make an assessment on the basis of there being a tax consequence either at step 7 or as a result of a combination of steps. Such a course would, to say the least, be contrary to the spirit of the system of binding private rulings to be found in Pt IVAA of the Taxation Administration Act 1953 (Cth).

41. The order of the Court will be that the appeal be allowed with costs, that the order of the primary judge is set aside and, in lieu thereof, it is ordered that the objection decisions dated 21 September 1998 and 25 September 1998 be set aside and, in lieu thereof, it be ordered that the objections be allowed. The Commissioner should also pay the costs of the appellant of the trial before the primary judge.

42. We will give the parties the opportunity to speak to the form of orders which should be made.

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The order of the Court on 21 December 2000 be set aside.

3. The decisions on objection dated 21 September 1998 and 25 September 1998 be set aside and, in lieu thereof, it be ordered that the objections be allowed in full.

ATC 4386

4. The respondent pay the costs of the appellant before the primary judge.

5. The respondent pay the costs of the appellant of this appeal.


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