Deputy Federal Commissioner of Taxation v. I.C.I. Australia Operations Pty. Ltd.
Judges:Murray J
Court:
Supreme Court of Victoria
Murray J.
In this action the plaintiff claims sales tax and additional tax in respect of three vehicles owned and operated by the defendant which are known as mobile manufacturing units (M.M.U.). The three units in question are units numbered 119, 122 and 321. The claim is made in the first instance pursuant to the provisions of sec. 17 Sales Tax Assessment Act (No. 1) 1930 (as amended from time to time). Section 17 provides, so far as relevant, as follows:
"(1) Subject to, and in accordance with, the provisions of this Act, the sales tax imposed by the Sales Tax Act (No. 1) 1930 shall be levied and paid upon the sale value of goods manufactured in Australia by a taxpayer and... applied to his own use.
(2)... the reference in sub-section (1) to goods manufactured in Australia by a taxpayer and applied to his own use shall be read as a reference -
- (a) to goods manufactured in Australia by a manufacturer in the course of carrying on a business and applied to his
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own use, whether for the purposes of that business or for any other purpose and whether or not the goods are of a class manufactured by the manufacturer for sale;"
The plaintiff claims that in or about June 1983 the defendant applied to its own use certain goods manufactured by it in Australia and he refers to the three mobile manufacturing units and claims that the amount for which the defendant could reasonably be expected to purchase goods identical to the units from another manufacturer is $646,903. The plaintiff proceeds to allege that the defendant failed to pay the sales tax due in respect of those units and became liable to pay additional tax of a stated amount. At the outset I was informed that there was no dispute on the facts of the case nor of the assessment of tax and additional tax if, as a matter of law, such tax was payable.
The plaintiff's statement of claim proceeds to make alternative claims based upon premises that if the units as a whole were not taxable then certain elements of them were pursuant to the provisions of the Sales Tax Assessment Act (No. 4) 1930 and the Sales Tax Assessment Act (No. 8) 1930. At this stage it is not necessary for me to set out in more detail the way that the alternative claims are put.
In its defence the defendant claims that the units consist of machinery, implements and apparatus (other than road vehicles of the kinds ordinarily used for the transport of persons or the transport or delivery of goods, or parts for those road vehicles) for use in the mining industry in carrying out mining operations... within the meaning of item 14 of the First Schedule of the Sales Tax (Exemptions and Classifications) Act 1935 (the Exemptions Act). Alternatively, the defendant relies on the provisions of items 113B and 113C of the Exemptions Act.
Section 5(1) of the Exemptions Act provides as follows:
"Notwithstanding anything contained in any Sales Tax Assessment Act, sales tax shall not, subject to this section, be payable upon the sale value of any goods covered by any item or sub-item in the first column of the First Schedule, under any Act specified in the second column of that Schedule opposite that item or sub-item."
Item 14 in the First Schedule provides as follows:
"14(1) Machinery, implements and apparatus (other than road vehicles of the kinds ordinarily used for the transport of persons or the transport or delivery of goods, or parts for those road vehicles), for use in the mining industry in carrying out mining operations or in the treatment of the products of those operations.
14(2) Parts for goods covered by sub-item (1)"
Regulation 4 of the Sales Tax Regulations contains the definition of "parts" as follows:
"`parts', in relation to road vehicles, includes bodies for those road vehicles (including insulated bodies, tank bodies and other bodies designed for the transport or delivery of goods of particular kinds), underbody hoists and other equipment or apparatus of a kind ordinarily fitted to road vehicles, being equipment or apparatus used in connection with the transport or delivery of goods by those road vehicles;"
The Acts to which the exemption applies include Acts Nos 1, 4 and 8.
Item 113B provides:
"Goods (other than lubricants) manufactured by any person and applied by him to his own use as aids to manufacture or as auxiliaries to aids to manufacture"
This exemption applies to Act No. 1.
Item 113C provides:
"Goods (other than lubricants) applied by a registered person to his own use as aids to manufacture (as defined by regulations made under the Sales Tax Assessment Acts) or as auxiliaries to aids to manufacture (as so defined)"
Exemption 113C applies to Acts Nos 1, 4, 6 and 8.
In relation to items 113B and 113C it is necessary to refer to the definition of "aids to manufacture" as it appears both in the Regulations and in the First Schedule to the Exemptions Act. It is not necessary to set out the definition in full. The definition commences as follows:
"`aids to manufacture' means goods for use by a manufacturer in the course of carrying
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on a business (where that use is exclusively, or primarily and principally, for the purposes of that business), being -"
A number of subparagraphs then follow and after para. (d) the section provides:
"but does not include the following goods
- ...
- (e) road vehicles of the kinds ordinarily used for the transport of persons or the transport or delivery of goods;"
At the outset therefore it will be seen that the units which are the subject of the dispute in this action will not fall within the terms of item 14 or item 13B or 13C if they are road vehicles of the kinds ordinarily used for the transport of persons or the transport or delivery of goods or parts for those road vehicles. It is common ground that the units in their completed state are properly described as units manufactured by the defendant and applied to its own use. Sales tax is therefore payable unless the units fall within the terms of one or other of the exemptions.
I turn now to consider the construction, nature and purpose of the units in respect of which a considerable amount of evidence was called.
The raison d'être for the existence of the mobile manufacturing units was explained in evidence by Mr Neil Charles Kemp the senior projects manager of the defendant. Mr Kemp said that until 1967 the defendant manufactured mainly nitro-glycerine based explosives at its explosives factory at Deer Park. A number of small on-site plants were established in various parts of Australia which also manufactured this type of explosive, commonly referred to as packaged or bulk explosives. The production of nitro-glycerine based explosives commenced at Deer Park in 1874 and was concerned in the supply of explosives to the mines in Bendigo and Ballarat. Mr Kemp said that since 1970 or thereabouts the explosives industry had moved away from nitro-glycerine based explosives to other types of explosives. He explained this in the following terms:
"The industry has not moved entirely away from nitro-glycerine based explosives, which continue to be made to the present day, but the major quantities of explosive manufactured are not nitro-glycerine based explosives any more. You get an impression of that change if you relate to Deer Park factory which in 1959 produced just over 20,000 tonnes of explosive all of which was nitro-glycerine based and which served the total needs of Australia and a few associated islands including New Zealand. Nowadays Deer Park production of explosives is about 3,000 tonnes of nitro-glycerine based explosive and about 2,000 tonnes of emulsion explosive which is a small diameter explosive used in underground mining and quarrying predominantly. The total market is around 200,000 tonnes of explosive; use on that scale in mining has grown so tremendously in that period. There has been a progressive change over the years and it is a combination of mining technique improvements which have seen the size of blast hole rise from around 4 to 5 inches diameter up to 17 inches diameter which is the biggest I am aware of... The growth in usage and the increase in blast hole size meant that it was no longer feasible to transport explosives from Deer Park base, in central Victoria, to a mine 2,000 miles away for example in West Australia or central Queensland, because the cost of transport in explosives, because it is explosives, is very very high, so through the sixties there were - initially in 1956 the Anfo explosives came into being, being just the main intra-fuel oil explosives that enable the explosives to be produced on site very cheap."
Mr Kemp explained that some blast holes were full of water for various reasons whilst others remained dry. This difference required the development of different explosives. In general terms "Anfo" is constituted by ammonium nitrate prills (by which I understand is meant small particles) which when mixed with the correct proportion of fuel oil become a stable explosive. Anfo is susceptible to water and can only be used in dry blast holes. Of the three M.M.U.s the subject matter of this action M.M.U. 321 produces Anfo. Mr Kemp went on:
"Because of the growth in the mining industry through the early sixties and early seventies overseas and in Australia - it was going on because generally the ore bodies were much less rich than what they have been previously so mining had to increase, you found a situation where there was this
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magnificent explosive for use in dry blast holes which met the needs of mining... but there was no explosive used in wet blast holes which involved the mining operators having to throw packaged explosives down holes in what were large quantities. So there was this parallel development of explosive technology to develop a wet hole product which could be used in wet blast holes and which was easier to handle than the packaged explosives..."
Mr Kemp then said that there was developed in the United States a mixed pump unit system which took non-explosive ingredients to blast holes where it mixed them together to produce a waterproof explosive which was pumped down into wet blast holes by the unit. The defendant obtained a licence to use that technology in 1970 and has continued to use and develop the system ever since. M.M.U. 119 and M.M.U. 122 are units of this kind. He said that since 1976 mine owners have tended not to do their own manufacturing but to employ explosive manufacturing companies and that so far as he was aware no mining company produced explosives for use in wet blast holes. This was because the technology involved is much more difficult. He said that the variety of the equipment varies from something like the M.M.U. concept where the explosive is manufactured on the mine bench as it is placed in the blast hole to a pumper truck system where the explosive is manufactured at a base plant, loaded into a kind of tanker unit which is fitted with a pump and delivered to the blast hole in that form. Mr Kemp said that this latter technology was not used by his company because his company considered the mixed pump technology the safest and best. He said:
"Well firstly immediately you work with any explosive, it doesn't matter whether it's nitro-glycerine explosive or Anfo explosive which is considerably less sensitive or water gel type products, there is an element of risk involved as long as you have the mixed explosives present so that for that reason we say there is a safety inherent in the mixed pump tank system... No longer do you have to sort of travel along the road with 10 tonnes of explosives in a tanker running the risk of an accident which might set the vehicle on fire and have an explosion. There is also the flexibility of these units which is important. They can make a range of products and they can make more than one product in any given load that is being placed in the blast hole. Units 122 and 119 can make two types of explosives and place it in the blast hole using the same ingredients but mixing them in different ways - so you can vary the mix of the explosive if the mine wishes..."
Mr Kemp said that the three units the subject of this action are licensed to manufacture explosives but they are not licensed to transport explosives. This is because they are not transporting explosives but merely the individual ingredients which go to the manufacture of explosives.
Turning to the construction of the three units Mr Kemp explained that each one was based on a cab chassis purchased from International Harvester Company Limited and known as a TK 2650 unit. This unit consists of the driver's cabin, power unit and chassis of a vehicle upon which can be constructed various types of body according to the wishes of the purchaser. The cost of the units as at August 1982, exclusive of sales tax, was $53,349. The defendant company however ordered various alterations to the units to be carried out by International Harvester which increased the initial cost by over $10,000. The cost of an ordinary flat tray top for the purpose of carrying goods was said to be in the order of $3,000. The alterations ordered by the defendant included the addition of two steering sets of wheels by reason of the load-carrying capacity which was required, heavier springs, a heavier suspension on the rear axles and heavier tyres. The exhaust system was modified so as to comply with explosive safety requirements and electric tachometers replaced the normal tachometer and meters fitted so as to measure the hours of running time for maintenance purposes instead of the number of kilometres travelled. A number of alarms were fitted to the engine to ensure that the operator at the rear of the unit during the process of manufacturing explosive would become aware of any malfunction in the engine. Special air cleaners and special isolation switches were fitted to enable the motor to be shut down in an emergency. In addition windscreen guards and bull bars were fitted to the vehicles. Certain other modifications were made by International Harvester which it is not necessary for present purposes to enumerate.
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When the cab chassis are delivered to the defendant company in their modified condition the various components which go to make up the manufacturing capacity of the unit are fitted by the defendant or by contractors employed in that behalf. Mr Kemp explained the units in detail by reference to photographs tendered in evidence. He had earlier explained that his company fitted two power take-off units to the gearbox of the vehicle and that these take-offs provide the main motive power for the manufacturing unit. Electric power for the unit also is provided by the electrical system of the cab chassis. He said:
"I referred to the unit as a drive unit rather than an international cab chassis because it is the integral part of the manufacturing unit which in fact provides all the power to drive the manufacturing equipment on each of the units. The degree of integration is firstly in respect of the diesel engine which provides indirectly the motor for power to all of the movement on the rear of the vehicle. The engine drives through the gearbox and then two power take-offs as mentioned yesterday which in turn drive two hydraulic pumps... so you get a situation where the engine transmits the power from the engine through the gearbox through the power take-off and drives those two large hydraulic pumps which in turn drive the motors which provide the actual motions in the unit. So that is quickly the first degree of integration of the unit and if you are not connected to the engine of the vehicle your manufacturing equipment doesn't work. It is not a case of having a unit on the back which is independent. It is part of the manufacturing equipment, the so-called cab chassis. The cab chassis also provides the power because there is a very complex electrical control circuit which activates the appropriate motors, the hydraulic motors, at the correct time and that electrical supply is also taken off the drive unit, cab chassis, whatever we call it. So again if you did not have the drive unit present the rear of the vehicle doesn't work... we also have to control the temperature of the hydraulic oil, otherwise the accuracy of the metering gets a little off and then we make a poor product... there is a thermostatically controlled valve which as the temperature of the hydraulic oil moves up it diverts the flow through the radiator which is placed in front of the cab chassis radiator. So that, with two radiators in this way, one is the normal coolant for the diesel engine and in front of that is placed another radiator which is in fact the oil cooling system for the drive unit - for the manufacturing unit. That briefly is the connection and the integration of the unit, of the cab chassis, and manufacturing unit. It is all one in essence. You cannot manufacture unless you have the drive unit present."
Mr Kemp also gave evidence of the work performed by the three units with reference to the distances travelled on public roads, as compared with roads constructed within various open cut mines and the times spent in travelling as compared with manufacturing when the unit itself is stationary. M.M.U. 119 and M.M.U. 122 are licensed to travel on public roads whereas M.M.U. 321 is not because it ordinarily does all its work within the confines of one mining area. If it has to travel on public roads it obtains a permit to do so from the relevant State transport authorities. The figures demonstrate that in the case of all three units the time spent in travelling on public roads is very much less than the time spent in travelling on roads within mine areas and stationary at blast holes in the manufacturing process.
Mr Bruce Desmond Arthur the training officer of Nobel Explosives which is a subsidiary of the defendant gave evidence of the training of the personnel selected to operate the equipment of the M.M.U.s. That training consists of a course involving explosive theory, hydraulic and electrical control systems, specific product knowledge and maintenance of both the drive units and the manufacturing units. The trainees undergo a week's training at Deer Park and this training is then supplemented in the field.
Mr Robert Charles Taylor the superintendent of mobile equipment employed by the defendant gave evidence of the construction of the M.M.U.s after delivery of the cab chassis units by International Harvester Limited. Mr Taylor said:
"The unit is designed to manufacture - to maximise the on-mine site application of the unit. The question is here we have a tentonne manufacturing unit. The equipment is selected to maximise the load of a single
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unit without going through the articulated system and for the purpose we use an International TK 2650 prime mover to provide power source for the operation. The equipment is also designed for high rate discharge of 350 kilograms of explosives per minute. That is delivered through a two inch hose down the blast hole and there is a 50 metre hose on the hose rail at the rear of the unit to achieve that. The unit is a single man operation, with the operator both the driver of the drive unit and also the operator that operates the mixing equipment on the rear of the unit... I would like to now go through the phases of the unit. We have split it up into a number of sections. Firstly we have the drive unit which is TK 2650 with alterations carried out by International Harvester to our specification - alterations carried out by I.C.I. to suit additional work required in our workshops, the support platform, fabrication oxidizer, solution system, the dry material system, the process fuel oil system, the chemical additive system, the mixing and delivering system, the electrical system, the hydraulic system and the auxiliary system."
Mr Taylor said that normal construction time from delivery of the cab chassis unit would be about 20 weeks. He gave a great deal of technical evidence relating to the modifications of the cab chassis unit and as to the mode by which the various components on the manufacturing unit were connected to the cab chassis unit. He said that every effort was made to achieve a complete rigidity between the chassis and the manufacturing unit. Some components used in the integration of the cab chassis unit with the manufacturing unit are unique in that, so far as the witness was aware, they were specially designed for this purpose and were not used for any other purpose.
Mr Taylor gave detailed evidence of the mode of construction of M.M.U. 321 which included the achievement of rigidity between the chassis and the manufacturing unit and the employment of the power unit of the cab chassis by the manufacturing unit to fulfil its function.
Mr Kemp had previously given evidence that there are now 58 M.M.U.s in operation, 26 of which are similar in design and function to M.M.U. 119 and M.M.U. 122.
Little if any of the evidence of the witnesses called on behalf of the defendant was disputed. From that evidence I draw the following conclusions.
1. The three units in question are constructed on a cab chassis manufactured and supplied by International Harvester Company Limited and modified in certain ways by that company at the request of the defendant.
2. The modifications carried out by International Harvester cost little over $10,000 per unit thereby increasing the price to the defendant from $53,000 odd to $63,000 odd. The additions to the unit carried out by the defendant or by its sub-contractors cost in the case of M.M.U. 122 $187,849, in the case of M.M.U. 119 $168,704, and in the case of M.M.U. 321 $103,513.
3. The function of the M.M.U.s is to carry the component materials of the explosive to be manufactured from the defendant's bases to the mine bench of open-cut mines and there, by use of the manufacturing unit, to mix those component parts and thereby manufacture the chosen explosive in measured quantities and deliver it by means of a pump and hose into blast holes previously prepared by the operators of the mine.
4. The modifications carried out to the cab chassis unit by International Harvester Company Limited would not ordinarily be sought by purchasers of the cab chassis who wish to use the cab chassis solely for the purpose of the carriage of goods. Indeed some of those modifications would not be economically advantageous for such a purpose.
5. The M.M.U.s are able to and do in fact travel on public roads but the proportion of their time travelling on public roads is small as compared with their time travelling on roads on mine premises and stationary at mine blast holes whilst manufacturing and delivering explosives.
6. The manufacturing units are not self-contained units which are attached to the cab chassis. Compare the ready mixed concrete vehicles referred to in
Ready Mixed Concrete (Vic.) Pty. Ltd. v. F.C. of T. 69 ATC 4038; (1969) 118 C.L.R. 177 and
Pioneer Concrete (N.S.W.) Pty. Ltd. v. F.C. of T. 86 ATC 4435.
The evidence called by the defendant as to the integration of the manufacturing
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components with the cab chassis component which together comprise the M.M.U. is strongly persuasive of the view that it is artificial for the purposes of the sales tax legislation to attempt to view the completed units upon the basis of a cab chassis fitted with various component parts. Quite apart from this the definition of "parts" appears to me to limit "parts" to equipment ordinarily fitted to road vehicles and used in connection with the transport or delivery of goods by those road vehicles. Items 113B and 113C in the Schedule to the Exemptions Act do not refer to parts. Item 14 contains the exception to the exemption "other than road vehicles of the kinds ordinarily used for the transport of persons or the transport or delivery of goods or parts for those road vehicles". It should be noted that the words are "parts for those road vehicles" and not "parts of those road vehicles". "Those road vehicles" are ex hypothesi road vehicles ordinarily used for the transport of persons or goods, etc. Parts for them are not exempt. This is not to say that parts of them are not exempt. In other words it seems to me that you must start off with a road vehicle of the kinds ordinarily used for the transport of persons or goods. Parts for those road vehicles are not exempt. But it does not follow, in my opinion, that simply because an individual part of a road vehicle happens to be of a kind ordinarily fitted to road vehicles used in connection with the carriage of goods that it is not within the terms of the exception. For example, if a mining company found it convenient to use an ordinary truck wheel as a pulley wheel for a lift carrying personnel or material up a mine shaft it would be nonsense to say that, because the wheel was of a kind ordinarily fitted to motor trucks which were used for the carriage of goods it fell within the definition of "parts" and was within the terms of the exception to the exemption in item 14.The object and intention of the extension of the exception by the addition of the words "or parts for those road vehicles" appears to me to be to ensure that individual parts purchased or manufactured for road vehicles of the kinds mentioned are themselves not exempt from tax.
For these reasons it appears to me that the basic question to be determined must be whether the M.M.U. in its final and completed state falls within the expression "road vehicles of the kinds ordinarily used for the transport of persons or the transport or delivery of goods" which appears as an exception to item 14 of the First Schedule of the Exemptions Act and as an exception to the definition of aids to manufacture which expression is part of items 113B and 113C of that Schedule.
I therefore turn to consider this basic question. In the first place it appears to me that an M.M.U. is a road vehicle. It is not to the point in my opinion that M.M.U.s may seldom travel on public roads. A vehicle may be a road vehicle and yet be exclusively used on roads within private property. The manager of a large cattle station may purchase a utility for use exclusively for travel on the property whether over rough country or on bush tracks but nevertheless the utility is still a road vehicle. Reference was made to the explanatory memorandum tabled in Parliament when the Sales Tax Amendment Bills (Nos. 1 to 9) 1981 and the Sales Tax (Exemptions and Classifications) Amendment Bill 1981 were introduced. The memorandum, in dealing with item 14 reads as follows:
"Item 14 exempts machinery implements and apparatus for use in the mining industry in carrying out mining operations and in the treatment of the products of those operations. Schedule clause 4 will omit item 14 and substitute a revised item 14 which will maintain the exemption except that ordinary road vehicles used for the transport of persons or the transport or delivery of goods will be excluded from exemption. This amendment is designed to bring the exemptions available to the mining industry in line with those available to other industries. Generally sales tax is payable on ordinary road vehicles purchased for business use. Exemption will still apply for large dump trucks and other off-road vehicles."
This passage is not as helpful, upon close examination, as it might first appear. The phrase "ordinary road vehicles used for the transport of persons or the transport or delivery of goods" suggests that the exception from the exemption is confined to ordinary road vehicles which are in fact used for the transport of persons or the transport or delivery of goods. This is not what the exception to the exemption says. The later statement that sales tax is payable on ordinary road vehicles purchased for business use begs the question because one may
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ask what is an ordinary road vehicle. Furthermore, the exception in item 14(1) does not refer to ordinary road vehicles but to road vehicles.The explanatory memorandum concludes by contrasting the excepted vehicles with large dump trucks and other off-road vehicles. There are of course numerous vehicles which might be described as off-road vehicles which may be characterised as machines capable of movement under their own power but not designed for movement on roads. A good example would be a tractor with iron spiked rear wheels for use for agricultural purposes. Having given the matter a good deal of consideration I have come to the conclusion that an M.M.U. must be characterised as a road vehicle. As I have said it is not to the point that the greater part of its use may be off roads. It is fundamentally a vehicle and a vehicle of a kind which is designed for use on roads be they public roads or private roads.
The next part of the exception raises the question whether an M.M.U. is a road vehicle of the kinds ordinarily used for the transport of persons or the transport or delivery of goods. The expression "of the kinds" is suggestive of an established number of kinds or types of vehicles which are ordinarily used for the transport of persons or goods. If this is correct then a vehicle of completely unique design but nevertheless intended to be used on roads for the transport of goods could not be said to be "of the kinds ordinarily used etc.". If I am correct in insisting upon regarding an M.M.U. as a composite unit and not as a truck cab and chassis upon which is mounted unusual components then the first M.M.U. constructed would not be of "the kinds ordinarily used, etc.". But this problem does not arise in this case because, as Mr Kemp stated, the defendant now has some 58 M.M.U.s operating, 26 of which are similar to M.M.U. 119 and M.M.U. 122. There is therefore a kind of vehicle constituted by the M.M.U.
The final question then arises which is whether the M.M.U. is ordinarily used for the transport or delivery of goods. In this connection it must be noted that the expression "where that use is exclusively or primarily and principally for the purposes of that business" as it appears in the definition of aid to manufacture does not appear. Without those words the problem is not whether the transport and delivery of goods is the principal or most important use to which the M.M.U. is put but whether the M.M.U. is ordinarily used for the purpose (inter alia) of transporting and delivering goods. In my opinion on the facts this is self-evident. One of the functions of the M.M.U. is to transport the various components of explosives to blast holes on mines benches and, having manufactured the explosives, to deliver them.
The aspect of the problem which has troubled me the most is this - should the phrase "road vehicles of the kinds ordinarily used in the transport of persons or the transport or delivery of goods" be construed with a broad brush in the sense that, whatever words are used, it is only intended to cover standard types of vehicles used for transport and does not extend to cover vehicles modified in a special way for use in a special manner in the mining industry in carrying out mining operations? This is a question in respect of which different minds may well reach different conclusions. After a good deal of consideration I have reached the view that an M.M.U. does not fall within the terms of the exemption contained in item 14. My reasoning is as follows. If the defendant purchased an ordinary tray bodied truck and used it for the purpose of transporting drums or packages of explosives to mine benches, there could be no doubt that the truck would not fall within the terms of the exemption. Secondly if the defendant erected a manufacturing plant at a mine site and used an ordinary tray bodied truck for the purpose of transporting the various ingredients from its base to the manufacturing plant at the mine site there could be no doubt that the truck would not fall within the exemption. If this be so then is there any good reason why a vehicle, built on the chassis of an ordinary truck, steered by normal steering mechanism, braked by the normal braking system and travelling on normal truck wheels should fall within the exception? The only difference is that, in addition, the vehicle performs a manufacturing process. But the question as I have already said, is not what the principal or primary or main function of the vehicle is. It is enough if it is of a kind the ordinary use of which includes the transport or delivery of goods.
From the above reasoning it follows that in my opinion an M.M.U. is: (a) a road vehicle; (b) of an established kind; (c) which is
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ordinarily used (inter alia) for the transport and delivery of goods. I therefore think that it falls within the exception to the exemption contained in item 14 and within the exception contained in the definition of aid to manufacture in para. (e). Accordingly the plaintiff is entitled to judgment for the amounts claimed in para. 15 and 17 of the amended statement of claim but lest there be some error in the calculation of the amounts due I will reserve liberty to apply. There will be judgment in accordance with the following minutes:- 1. Judgment for the plaintiff for $159,758.45 together with interest at the rate of 13% from 7 June 1985 to the date of judgment.
- 2. Order that the defendant pay the plaintiff's costs to be taxed including any reserved costs.
- 3. General liberty to apply.
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