Re Kirby and Collector of Customs
(1989) 20 ALD 369(Decision by: Bulley J (Presidential Member), K Beddoe (Senior Member) and J D Horrigan (Member))
Putney Group Pty Ltd
v. Royal Rehabilitation Centre Sydney
Member:
Bulley J (Presidential Member), K Beddoe (Senior Member) and J D Horrigan (Member)
Decision date: 27 May 2009
Decision by:
Bulley J (Presidential Member), K Beddoe (Senior Member) and J D Horrigan (Member)
Background
The applicant Brian Stanley Kirby was born in Australia on 8 January 1938. In April 1987 he was living in Boroko, Papua New Guinea and carrying on a fishing nets business there. He had become a resident and a citizen of Papua New Guinea.
By April 1987 Mr Kirby had decided to sell up all his interests in Papua New Guinea, to do some touring of Europe and then to go to Australia to take up permanent resident there.
In the early part of 1977 Mr Kirby had imported a Range Rover into Australia and had been able to obtain concessions as to the payment of duty on that occasion.
In late March or early April 1987 Mr Kirby went to the office of the Australian High Commissioner in Papua New Guinea and obtained a brochure detailing the law applicable to the obtaining of duty concessions on the import of motor vehicles to Australia.
Mr Kirby had in mind purchasing a Mercedes Benz motor vehicle to be built up according to his requirements at the Daimler Benz factory in Stuttgart, in the Federal Republic of Germany. He wished to obtain the vehicle on a tourist delivery basis in December 1987 and then to use it for touring Europe for in excess of 6 months prior to bringing it to Australia permanently.
In pursuance of his plans Mr Kirby went to Meridien Motors Pty Ltd a company which dealt in Mercedes Benz motor vehicles in Boroko. Thereafter he had dealings with a Mr Kelly, the then general manager of the company, and with a Mr Stifter, the sales and service manager of Mercedes Benz products and the company's expert in those products. Mr Kelly was also in May 1987 a director of Meridien Motors Pty Ltd.
Mr Kelly stated in oral evidence before the Tribunal that there was at the relevant time no pro forma order form for the purchase of a Mercedes Benz because the orders and the cars were so complicated as there were so many options available. He said that the company were processing 6 to 12 of these vehicles a year ex factory on a tourist delivery basis and that 90% of the orders were placed by letter, the remainder being by telex or facsimile. There were in existence no standard order forms required for or by Daimler Benz.
At the relevant time Mr Kelly's role was to carry out the ordering negotiations. Mr Stifter's duties were related to carrying out technical negotiations.
Mr Kelly made the point in his evidence that Meridien Motors only placed an order with Daimler Benz if there existed a binding agreement between the customer and his company. He said that if an order were placed by his company in the absence of such an agreement then his company would be bound to accept the vehicle and such a vehicle would be of no use to the company in Papua New Guinea because of the difference in Australian design and other requirements.
Mr Kelly further pointed out that Meridien Motors Pty Ltd had no connection with Daimler Benz in the sense that it was not a subsidiary of that entity nor did it form any part of its organisational set up. In legal terms Meridien Motors Pty Ltd acted as a principal.
By letter delivered by hand on 4 May 1987 Mr Kirby advised Meridien Motors of his decision to pursue negotiations for the purchase of a Mercedes Benz motor vehicle. Over the following days Mr Kirby spent a good deal of time with Mr Kelly and Mr Stifter going over the components and options for a 420 SEL Mercedes Benz. He then on 8 May 1987 delivered by hand the following letter duly signed by him to the general manager of Meridien Motors:
Thank you for the time you and Mr Stifter spent with me on Tuesday and Wednesday going over the components and options for a 420 SEL.
This letter will serve to confirm what I want and also my understanding of terms, delivery etc, as explained to me.
As you are aware, I am, along with my family, intending to migrate to Australia around the middle of next year. Because of this, I am able to avail myself of the privilege of importing to Australia a car free of duty and sales tax.
Thus the vehicle will be collected by me at the factory in Stuttgart some time around mid-December 1987 if all goes well. From there, I must use it around Europe and England for a full six (6) months before I can ship it to Australia under the conditions pertaining to the special privilege.
On several points of technical nature, I would like to have further talks with Mr Herbert Stifter, but listed hereunder are the items which I know at this stage I want included in the build-up:
420 SEL built to Australian Design Rules (ADR) and certified accordingly.
DM Metallic paintwork (colour unknown at this stage) 1410 Upholstery -- leather (colour unknown at this stage) 2260 240 -- Outside temperature gauge 195 251 -- Mexico cassette, electronic, full stereo in rear 2085 256 -- Limited slip differential 440 280 -- Leather steering wheel and gear shift Std Equ 286 -- Parcel nets on both front seats Std Equ 402 -- Sliding roof with tilt, electric operated 1545 405 -- Orthopaedic driver's seat PHD 475 420 -- Automatic transmission Std Equ 422 -- Power steering Std Equ 430 -- 2 head restraints, rear Std Equ 442 -- Air bag -- driver's seat -- RHD 2000 451 -- Rev counter/analogue clock Std Equ 466 -- Master locking system Std Equ 470 -- Anti-lock braking system Std Equ 481 -- Metal protective sump shield 160 507 -- Near side exterior mirror for RHHD electric 290 524 -- Paint preservation kit 30 531 -- Electric aerial with radio installation 345 543 -- Sunvisor with illuminated mirror 120 551 -- Anti-theft warning system 1205 570 -- Front folding armrest Std Equ 581 -- Air-conditioning with automatic climate control 4250 584 -- Electric windows 640 440 -- Tempomat cruise control 545 592 -- Tinted glass all round, rear window electric heated (laminated glass) 680 600 -- Headlight wiper unit 545 611 -- Exit lights all doors 115 640 -- 5 light alloy wheels 1400 682 -- Fire extinguisher 2 kg halon 145 877 -- Reading lights, rear 115 480 -- Self-levelling suspension 1025 221/222 -- Front seats electric adjustment (both) 1850 731 -- Wood finish burr walnut 390 452 -- Dual tone horn ? BASIC VEHICLE PRICE 70,930
The above schedule gives us a total of some DM95,190 with coded 280 and 452 to be added when known.
In addition, I understand that the shipping costs from Germany will be approximately DM10,500 plus, perhaps, several hundred dollars (unknown) for wharfage and handling charges at the port entry.
Will you please ascertain the production schedules for this model so that we can make all the necessary arrangements for collection around mid-December 1987. Please also find out the later possible collection dates up to the end of January 1988 to allow in possible delays in my programmed plans.
As soon as Mrs Kirby and I have agreed on the colour schemes we will advise you. In the meantime, will you please advise the 2 unknown prices at your earliest.
I understand that when you have received advice from Germany concerning the definite production date etc, I will be required to pay a deposit of 25% of the full vehicle value the remainder being due some six (6) weeks before the final production is undertaken; this arrangement is quite satisfactory to me.
I am sure that I will have to make several more enquiries before all things are finalised, but please accept this letter with my signature as my firm order. (As a small trader, we do not make purchases from within Papua New Guinea, so we do not have a purchase order book.)
Again, many thanks for your time and that of Mr Stifter; if all goes well I will realise the dream of a lifetime.
Meridien Motors replied by letter dated 9 May 1987 under the hand of Mr Stifter:
We thank you for your order dated 8 May 1987 of a tourist delivery (ex-factory) Mercedes Benz and herewith have pleasure in confirming the cost and specifications as discussed.
One Mercedes Benz 420 SEL fitted with a 420cc fuel injected emission controlled to Australian Design Rules matched to a MB 4 speed automatic transmission.
DM Basic cost 70,930 Metallic paintwork 1410 Upholstery leather 2260 221 Front seat electric adjustment left RHD 925 222 Front seat electric adjustment right RHD 925 240 Outside temperature gauge 195 251 Radio Becker Mexico cassette electronic full stereo including loudspeakers rear 2085 256 Limited slip differential 440 280 Leather covered steering wheel plus gearshift lever 270 286 Parcel nets on both front seats Std Equ 400 Arm rest foldable rear Std Equ 405 Front seat right orthopaedic RHD 475 412 Electric sliding roof with lifter 1545 420 MB Automatic transmission Std Equ 422 MB Power steering Std Equ 430 2 head restraints rear Std Equ 442 Air bag driver's side 2000 490 Tempo mat 545 451 Rev counter Std Equ 452 Dual tone horn 250 466 Master locking system Std Equ 470 Anti-lock braking system Std Equ 480 Self-levelling suspension 1025 481 Protective metal sump shield 160 507 Outside mirror left electric 290 524 Paint preservation 30 531 Electric aerial with radio installation 345 543 Sun visors illuminated mirror 120 551 Anti-theft warning system 1205 570 Front armrest foldable Std Equ 581 Automatic climate control 4250 584 Electrically operated windows front and rear 1400 592 Tinted laminated glass all around 680 600 Headlight wiper unit 545 601 Special oil for rear axle Std Equ 602 Fastener for customs number plates Std Equ 611 Exit lights in the doors 115 613 Headlights asymetrical RHD Std Equ 625 ADR to be advised 640 5 light alloy wheels 1400 677 Tropics battery Std Equ 682 Fire extinguisher 2 kg halon 145 731 Wood finish borled walnut 390 876 Courtesy light in the rear Std Equ 877 2 reading lights rear 115 TOTAL 110,067 14% VAT 13,517 TOTAL 110,067
Registration and insurance
The vehicle will be registered with customs number plates and can be driven in Europe under this registration during your stay.
However, a liability insurance is compulsory and we advise the addition of a comprehensive insurance to be taken out.
DM Customs number plates 35 Liability insurance 6 months 907 Comprehensive insurance 650 DM deductible 2252 3194
Prices
The above quotation is based on current manufacturer's prices but it is subject to revision should they alter between now and the delivery of your vehicle.
Production schedules
Our discussions per phone to Daimler-Benz AG Germany on 8 May 1987 regarding your order indicate an earliest production date of end of September 1987. Your collection date of mid-December will allow therefore enough time on your final choice of paintwork and upholstery.
Payments
A deposit of 25% of the total cost is required on the submittance of your choice of paintwork and upholstery. The outstanding balance is due 6 weeks prior to completion of production.
VAT
Value added tax of 14% will be refunded if vehicle is exported from Germany and supplied form is submitted to Daimler-Benz AG Germany.
We thank you for your order of a new Mercedes Benz and should you require any further information or clarification we shall be happy to oblige.
Mr Kirby delivered another letter by hand to Meridien Motors dated 11 May 1987 as follows:
Further to my letter/order of 8 May, I have had further talks with Mr Herbert Stifter, mainly concerning technical things.
Apart from several items which I decided I did not need, by far the most important thing discussed was that the engine emission controls MUST conform to the strict ADR specifications for a vehicle of 1987 manufacture.
Following are my notes from that talk:
- (1)
- I should NOT need rear speakers with balance control as the Mexico unit is understood to incorporate these.
- (2)
- I will NOT have memory in the electrically adjustable front seats.
- (3)
- I will NOT have illuminated ashtrays in the rear.
- (4)
- I will NOT have the trip computer.
- (5)
- I will NOT have 47/1 the ASR.
I have still not decided finally on the colours, but I understand that this is not yet a problem for a little while. Believe me, I will get back to you just as soon as I have decided.
Thank you again, for the effort you are putting in to assist me in my selection.
PS: Thus, my orders stand as per my letter of the 8th; only colours to be advised.
By letter dated 25 May 1987 Meridien Motors again under the name of Mr Stifter wrote to Mr Kirby in the following terms:
We appreciate the time Mrs Kirby and yourself have spent in finalising the most important aspect of your new Mercedes Benz, its appearance.
Your choice of paintwork and upholstery, the addition of electric adjustment rear seat and coco matting will be included in your initial order of 8 May 1987.
In regard to the collection date of your vehicle we are contacting Daimler-Benz to confirm delivery can be made in December 1987. We regretfully point out a typing error in our letter dated 9 May 1987, the 14% VAT and total amount should have been respectively DM15,409.38 and DM125,476.38.
The deletion of code 286 which is STD equipment and the addition of 223 (electric seats rear) and code 335 (coco matting) will change the total amount to:
DM 111,247 VAT 15,575 TOTAL 126,822
We acknowledge your payment of K16,176.27 as deposit on your order. The breakdown is as follows:
TOTAL AMOUNT DM126,822.00 25% DM 31,705.50 EXCHANGE RATE DM1.96 = 1 KINA KINA 16,176.27
The outstanding amount of DM95,116.50 on your vehicle and DM3194 for registration and insurance is due 6 weeks prior to completion of production. We also await price confirmation on Code 625 ADR from Daimler Benz Germany which will then be added to the above final outstanding total. All other terms mentioned in first letter will remain unchanged.
We look forward to your reply and congratulate you on the purchase of your Mercedes Benz.
The deposit referred to in this letter was paid by Mr Kirby on 22 May 1987, being 25% of the then known total price.
Mr Kelly stated in evidence that he himself considered that a concluded agreement had been reached between his com-pany and Mr Kirby by reason of the correspondence dated 8 May 1987 and 9 May 1987. He said that as a result the order was placed by his company with Daimler Benz prior to 13 May 1987.
Mr Kelly further stated that Daimler Benz had the practice of not supplying a production delivery date until an order had been placed with them.
Exhibit 2 in these proceedings is an undated letter from Mr Stifter as sales and service manager of Meridien Motors under the company's letterhead, expressed as follows:
TO WHOM IT MAY CONCERN
We Meridien Motors hereby declare that Mr Brian Kirby's letter dated 8 May 1987 was accepted as an irrevocable order on the above-mentioned vehicle. The order has been placed with Daimler-Benz on the same day as mentioned in our order confirmation dated 09/05/1988 under the paragraph production schedules.
Mr Kelly stated in evidence that Mr Stifter was currently back living in Austria.
It would appear that Mr Kirby took delivery of the vehicle in Stuttgart on 26 February 1988. He apparently then used it for touring Europe. He came to Australia on 9 October 1988 and the vehicle entered Australia on 4 November 1988 as an import. Mr Kirby was granted permanent residence in Australia after entering this country with a Papua New Guinea passport and a "migrant" visa.
On 22 November 1988 the Collector of Customs made a decision that the importation of Mr Kirby's Mercedes Benz motor vehicle was liable to duty. Mr Kirby paid this assessed duty under protest on 5 January 1989.
By application dated 29 March 1989 Mr Kirby sought a review of this decision of the Collector of Customs by the Ad-ministrative Appeals Tribunal.
This application was heard by the Tribunal on 8 November 1989. In addition to written evidence placed before the Tribunal oral evidence was given by Mr Kirby and Mr Kelly. Both these gentlemen were cross-examined. No evidence was called by the Collector.
The Tribunal reserved its decision in the matter.
The issues
The Collector in the decision of 22 November 1988 rejected the concessional entry of the subject motor vehicle on 2 bases. The first basis was that such concession was restricted to vehicles imported by a migrant and that Mr Kirby was not a "migrant" as defined in para 9 of customs by-law 8740019.
At the outset of the hearing before the Tribunal the Collector abandoned this first basis. Without going into detail the Tribunal on the available evidence considered that such an abandonment was proper and well-founded.
The second basis of rejection and the basis which was persisted in before the Tribunal was that the Collector was not satisfied that Mr Kirby had on or before 13 May 1987 entered into a binding arrangement to purchase the subject vehi-cle.
This contention was grounded on the provisions of proviso (1)(b) of column 2 of the Table in customs by-law No 8740019. This provided for a concessional rate of duty to vehicles imported by a migrant who:
(b) further satisfies the Collector ... that the arriving person had, on or before 13 May 1987, entered into a binding arrangement to purchase the vehicle;.
It remained the contention of the Collector that a binding arrangement to purchase the subject Mercedes Benz had not been entered into by Mr Kirby on or before 13 May 1987. It was this contention which was disputed by the applicant before this Tribunal.
The law to be applied
It was submitted on behalf of the applicant that the term "binding arrangement" as used in the Table meant a legally enforceable contract. The meaning of the term "arrangement" as used in a Commonwealth taxation statute was adjudicated upon in the Federal Court in Re Hutchins; Jarlas Pty Ltd v FCT (1987) 74 ALR 455 at 470-1 by Jenkinson J. The term was interpreted to involve as Diplock J observed in Re British Basic Slag's Agreements [1963] 2 All ER 802 at 819, a meeting of minds and mutuality.
As to the meaning of the term "binding" Lord Goddard in Peter Long and Partners v Burns [1956] 2 All ER 25 at 26-7 stated: "What is the meaning of the words 'binding contract?' I have to give a meaning to the word 'binding'. I think that it means a contract that is enforceable. Every contract that is entered into freely between 2 persons, provided that it is not one of those contracts which is void, as, for instance, a contract entered into by an infant or a contract entered into for some immoral or illegal purpose, is a binding contract ... I think that the words 'binding contract' mean, in a case of this sort of contract which can be enforced by the vendor against the purchaser ... 'Binding', I think, means binding in law." This decision was affirmed by the House of Lords in [1956] 3 All ER 207.
The Collector did not submit before the Tribunal that the term "binding arrangement" meant other than a legally en-forceable contract. The Tribunal proceeds on the basis that this is the proper interpretation of the term.
It was not argued on the Collector's behalf that Mr Kirby did not enter into a binding arrangement to purchase the sub-ject Mercedes Benz. What was contended was that Mr Kirby was unable to satisfy the Collector that he entered into such an arrangement on or before 13 May 1987.
The formal announcement of the 13 May 1987 date in the subject by-law was not made until that date itself. Mr Kirby stated that he himself did not become aware of this date until the end of May 1987 when he was advised by the Australian High Commissioner in Papua New Guinea.
It was not suggested before the Tribunal that Mr Kirby in any way was involved in concocting or manufacturing or tailoring any of his evidence to suit his case. Indeed Mr Seglenieks who appeared for the Collector quickly and properly emphasised to the Tribunal that he was not suggesting Mr Kirby was "cooking anything up" to use his words. Mr Segle-nieks said it was simply a matter of law he was arguing on the facts presented.
Onus of proof and standard of proof
It was submitted by Mr Seglenieks for the Collector that the onus of proving the requisite matters set out in the relevant proviso lay on Mr Kirby. The use in the subject proviso of the words "a migrant who ... satisfies the Collector" clearly places the onus of proving the facts necessary to lead to the concession sought, on the applicant.
However, it was also submitted on behalf of the Collector that the standard of proof required should be satisfaction beyond a reasonable doubt.
In support of this contention reliance was placed on the Tribunal's decision in Re Cherry Lane Pty and Collector of Customs (1988) 17 ALD 1 ; 8 AAR 460. The statutory provisions being considered in that decision, the factual situation presented and the goods under review were all markedly different from the equivalent at this hearing.
It was pointed out in Re Cherry Lane, supra, that s 43(1) of the Administrative Appeals Tribunal Act 1975 provides: "For the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ..."
Thus so far as onus and standard of proof are concerned the Tribunal is in a similar position to the administrator whose decision the Tribunal reviews.
The Tribunal recognises in passing the reference to us by Mr Seglenieks to certain remarks made by the Tribunal in Re Ladybird Children's Wear Pty Ltd and Department of Business and Consumer Affairs (1976) 1 ALD 1 at 5 as follows, on the facts of that matter: "Of course, the language of the tariff or the state of the known facts may give rise to some onus of proof resting on one party or another in a particular case, but such an onus does not arise from the making of a decision which is brought up to the Tribunal for review."
It is noted that on the facts of the Cherry Lane case, supra, the Tribunal reviewing that matter felt that there were very considerable difficulties particularly in terms of resources for the Collector in evidentiary terms (see p 472 of the report in particular).
Nevertheless the provision of the by-law being considered in this review is not a criminal or quasi-criminal provision. It is a revenue provision. It is concerned with the importation of motor vehicles. Apparently in recognition of the more difficult evidentiary position of the Collector the onus of proof for the concession is placed on the person seeking such a concession.
Having said that, this Tribunal does not consider that there is sufficient warrant on the facts of this particular case and on a consideration of para 1(b) of column 2 of the Table to the relevant by-law to apply a standard of proof other than the civil standard bearing in mind the seriousness of the matter being a revenue collecting provision and bearing in mind the evidentiary difficulties of the Collector. In other words this Tribunal applies the sort of approach adopted in Briginshaw v Briginshaw (1938) 60 CLR 336. In regard to that approach this Tribunal contents itself with the following statement by Dixon J (as he then was) at 362 of the report of that case: "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
Before departing the Cherry Lane decision, supra, this Tribunal stresses that it would not wish it thought that it approves the following conclusion set out at 477 of the report of that decision: "The conclusion is in our view, inescapable, that, if a requirement of 'reasonable satisfaction' imports the civil standard of proof, a bare require-ment that the Collector be 'satisfied' must import a higher standard."
The terms of the arrangement
It would appear that Mr Kirby had not decided on the colour of the metallic paintwork or of the leather upholstery of the subject motor vehicle on or before 13 May 1987. It was, however, his contention that these were the only relevant aspects not concluded on or prior to that date.
It was the applicant's proposition that the fact that these colours had not been chosen on or prior to 13 May 1987 did not detract from his submission that a binding arrangement had been entered into by him on or prior to that date. By his counsel he relied on the decision of Godecke v Kirwan (1973) 129 CLR 629 especially at 641 and 642 where Walsh J stated: "His Honour quoted passages from the speech of Viscount Dunedin in May and Butcher Ltd v R including the statement that 'a concluded contract is one which settles everything that is necessary to be settled and leaves nothing to be settled by agreement between the parties' ... It is clearly established that a binding agreement may be made which leaves some important matter, eg the price to be settled by the decision of a third party. I agree with respect with the view of Bray CJ that, subject to the qualifications to which he refers there is no reason in principle for holding that there cannot be any binding contract if some matter is left to be determined by one of the contracting parties."
It is therefore the view of this Tribunal that if it were found that a binding arrangement was made by Mr Kirby on or prior to 13 May 1987 then the enforceability of that arrangement at that point in time was not affected by his failure to select the colours of the paintwork or upholstery of the motor vehicle until a subsequent date.
It seems to the Tribunal that the same principle applies as to the advising of the final production date to the applicant. This date was to be supplied on the placing of the order with Daimler Benz.
The submissions of the respondent
It was argued by counsel for the Collector that the evidence was not sufficiently clear for the Tribunal to be satisfied about the real parties to the arrangement and as to the legal relationship between Mr Kirby, Meridien Motors and Daimler Benz at relevant times. It was submitted that it was not clear whether Meridien Motors was acting as agent for Mr Kirby or for Daimler Benz. It was further submitted on the evidence in any event that on or prior to 13 May 1987 Meridien Motors were merely negotiating to place an order with Daimler Benz, that the placing of the order with the German company was merely an offer which was subject to acceptance by that company. The argument proceeds that it was only on the payment of the deposit on 22 May 1987 that the binding nature of the arrangement was established.
Analysis of the evidence
Both Mr Kirby and Mr Kelly gave oral testimony before the Tribunal. Both were cross-examined closely. The Tribunal has assessed the evidence of both these witnesses very carefully.
Both gentlemen impressed as honest, responsive and forthcoming witnesses. The Tribunal accepts their evidence. The Tribunal found their evidence clear, definite, direct and exact: it had the ring of truth about it and was persuasive.
Mr Kelly described Meridien Motors Pty Ltd as acting as a principal. The letterhead of the company's letters, it was pointed out, did not describe the company as an agent but as a dealer. Mr Kelly was at pains to emphasise that the company would insist on having a firm arrangement with the customer before placing an order with Daimler Benz and so "locking themselves in".
Mr Kirby dealt in May 1987 only with Meridien Motors. His arrangement was only with that company.
Conclusion
The Tribunal has thus concluded that Mr Kirby dealt with Meridien Motors Pty Ltd as a principal and that Meridien Motors Pty Ltd dealt with Daimler Benz as a principal.
The Tribunal has further concluded and applying the standard of proof referred to above has been satisfied by Mr Kirby that he did enter into a binding arrangement to purchase the subject Mercedes Benz from Meridien Motors on 8 and 9 May 1987. On 9 May 1987 as the Tribunal decides, Meridien Motors entered into a binding contract for the supply of the subject Mercedes Benz. The Tribunal regards Ex 2 as a telling and compelling piece of evidence in this matter. The Tribunal repeats that the supply by Daimler Benz of the final production date of the motor vehicle at a date subsequent to 13 May 1987 did not detract from the binding nature of the arrangement entered into by Mr Kirby and Meridien Motors Pty Ltd prior to that date (see Godecke v Kirwan, supra).
Decision
It follows from the above reasoning and findings that the decision of the Collector under review should be set aside and in substitution for that decision this Tribunal declares that the applicant is entitled to a concessional rate of duty under the provisos set out in column 2 of the Table under customs by-law 8740019 pursuant to the Customs Tariff Act 1982 item 15 Part 1 Sch 4 in respect of the import of his Mercedes Benz motor vehicle 420 SEL chassis No 126035-2A 394024 engine No 116965-22055522.