REVLON MANUFACTURING LTD v FC of T

Judges: Beaumont J

Wilcox J
Tamberlin J

Court:
Full Federal Court

Judgment date: Judgment handed down 14 December 1995

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Wilcox J

I have read in draft form the reasons for judgment of Beaumont J. In those reasons his Honour states the relevant facts and the history of the litigation. I need not repeat that material. I will confine myself to a discussion of the four issues that were raised before us, three by the applicant, Revlon Manufacturing Limited (``Revlon''), and one by the respondent and cross-applicant, the Commissioner of Taxation (``the Commissioner''). The issues raised by Revlon were: the validity of the assessment dated 4 September 1992, the application to the case of s. 18A of the Sales Tax Assessment Act (No. 1) 1930 and the entitlement of the Commissioner to require payment of additional tax. The Commissioner called in question the Tribunal's decision that he was obliged to remit additional tax in respect of unpaid sales tax accruing due prior to 4 September 1989 because he did not require payment until 4 September 1992: see s. 12B of the Sales Tax Procedure Act 1934.

Validity of the assessment

As Beaumont J recounts, on 4 September 1992 the Commissioner issued a notice of assessment addressed to Revlon. The notice claimed that Revlon was ``liable to pay sales tax as shown hereunder in accordance with an assessment that has been made under the provisions of subs. 25(2) of the Sales Tax Assessment Act (No. 1) 1930, as amended''. That subsection requires the Commissioner to make an assessment in relation to goods whose sale value has been altered under s. 18(3A) or (4) or s. 18A(5) or (6). It says nothing about any other situation. As it is now common ground that none of those four subsections has anything

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to do with the case, it is clear that the notice of assessment's reference to s. 25(2) was a mistake. Does this affect the validity of the notice of assessment? In addressing that question, it is pertinent to note that a notice of assessment, in the same terms but for a reference to s. 46 of the Act, could have been made under s. 25(1). That subsection provides:

``(1) Where the Commissioner finds in any case that tax or further tax is payable by a person, the Commissioner may make an assessment in relation to the person.''

In support of their submission that the erroneous reference to s. 25(2) invalidates the notice of assessment, counsel for Revlon point to evidence suggesting that the officers concerned with its issue thought it appropriate to use that subsection; the reference was not a mere typographical error. Mr B J McMahon, the Deputy President who constituted the Administrative Appeals Tribunal, described this evidence as ``equivocal'' but thought it irrelevant. He said:

``Assessments and notices of assessments have necessarily a statutory finality which cannot be influenced by the thought processes or consultations of officers involved in the development of the assessment process. Because of the provisions of s. 67, the notice of assessment speaks for itself, whatever the views of those who were previously involved in its authorship.''

I agree. It seems to me that the question is entirely one of law. Is a notice of assessment that could validly have been issued under s. 25(1) of the Act rendered invalid by the fact that it erroneously refers to s. 25(2) of the Act? The applicant's counsel submit that this question should be answered affirmatively. In that connection they cite a line of cases dealing with assessments of income tax:
Danmark Pty Ltd v FC of T (1944) 7 ATD 333 , FC of T v Wade (1951) 9 ATD 337; (1951) 84 CLR 105 and
FC of T v Jackson 90 ATC 4990 ; (1990) 27 FCR 1 . The principle they adopt was expressed in Wade by Kitto J at ATD 344; CLR 116-117 in these words:

``... where there are two provisions of an assessment Act, each giving the Commissioner a power to make an assessment, and each creating a liability to tax in the event of the power it confers being exercised, an assessment made in exercise only of the power given by one of those sections cannot be supported as effective under the other.''

Counsel also mention Magna Stic Magnetic Signs Pty Ltd v FC of T 89 ATC 5000, a case in which I held that a notice of assessment issued under one Sales Tax Act could not be treated as a valid notice of assessment under a different Act. The case went on appeal - see 91 ATC 4216; 28 FCR 39 - but that conclusion was unchallenged.

Counsel for the respondent contend that the income tax cases and Magna Stic are both distinguishable. There is no question in this case, they say, of liability to tax depending on the Commissioner's exercise of a power; the liability arises by virtue of the Act itself. And the liability arises under the same Act as that in respect of which the notice of assessment issued; consequently the reasoning in Magna Stic (at 5010) is inapplicable. The critical point, they say, is that s. 67 makes the mere production of a notice of assessment ``conclusive evidence of the making of the assessment''; the only available issue is whether the assessment is excessive.

I accept the respondent's submissions. Revlon's liability to pay sales tax does not depend upon the exercise of a power by the Commissioner; it arose out of the operation of the Act itself. The subsections referred to in s. 25(2) being inapplicable, the Commissioner was not under an obligation to issue a notice of assessment. He was empowered to do so, by s. 25(1). It is pertinent to observe that, in Wade , Kitto J at ATD 344; CLR 116-117 went to contrast the situation he had described, of liability depending on the Commissioner's exercise of power, with a situation where liability was imposed by the Act itself.

``The situation in the present case is quite different. If the £ 2,016 formed part of the taxpayer's assessable income by reason of s. 26(j), as I think it did, its inclusion in his assessable income in the course of making the assessment was right, whether or not the Commissioner referred to s. 26(j), and even though he described the amount accurately. No conduct on the part of the Commissioner could operate as an estoppel against the operation of the Act.''

The Commissioner having issued a notice of assessment, s. 67 applied. As with s. 177 of the Income Tax Assessment Act 1936, which is in

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similar terms, the result is to render immune from challenge ``the procedure or mechanism by which the taxable income and tax is ascertained or assessed'': see
George v FC of T (1952) 10 ATD 65 at 70; (1952) 86 CLR 183 at 206 , noting that this decision has been recently reaffirmed by the High Court in
FC of T v Dalco 90 ATC 4088 ; (1989-1990) 168 CLR 614 and
DFC of T v Richard Walter Pty Ltd 95 ATC 4067 ; (1995) 127 ALR 21 .

Section 18A

Section 18A(1) of the Sales Tax Assessment Act (No. 1) reads:

``Where -

• (a) goods (in this section referred to as the `relevant goods'), not being goods treated by the manufacturer as stock for sale by retail, have been sold by the manufacturer to an unregistered person or to a registered person who has not quoted his certificate in respect of the sale;
• (b) under an agreement entered into for the purpose, or for purposes that included the purpose, of securing that the amount of the sale value of the relevant goods would be less than the amount that could reasonably be expected to be the amount of the sale value of the relevant goods if the agreement had not been entered into, valuable consideration (in this section referred to as the `relevant consideration') has been given, directly or indirectly, by the purchaser, or by another person, to the manufacturer or another person for, or in connection with, any of, or any 2 or more of, the following acts:
  • (i) the grant of a right or option to purchase goods;
  • (ii) the exercise, in whole or in part, of a right or option to purchase goods;
  • (iii) the surrender or other termination, in whole or in part, of a right or option to purchase goods;
  • (iv) allowing a right or option to purchase goods to lapse in whole or in part;
  • (v) the assignment, in whole or in part, of a right or option to purchase goods;
  • (vi) the provision of, or procuring the provision of, services in connection with the relevant goods; and
• (c) the relevant goods were sold -
  • (i) in a case where the relevant consideration has been so given, in whole or in part, for, or in connection with, any of, or any 2 or more of, any acts referred to in sub-paragraphs (b)(i) to (v) (inclusive) - after 20 September 1978; or
  • (ii) if sub-paragraph (i) does not apply but the relevant consideration has been given for, or in connection with, any acts referred to in sub-paragraph (b)(vi) - after 16 November 1978,

the sale value of the relevant goods shall, for the purposes of this Act, be determined in accordance with the provisions of this section and not in accordance with the provisions of sub-section 18(1), (1B), (1C), (3A) or (4).''

The Tribunal held this subsection applies in this case. The applicant challenges that holding. But it does so by putting factual arguments. That course is not open to it. An appeal lies to this Court from a Tribunal decision only in relation to a question of law: see s. 44(1) of the Administrative Appeals Tribunal Act 1975. The question whether there is evidence to support a finding of fact is, of course, a question of law. In this case there is ample evidence.

The more significant s. 18A point concerns the application of subs. (4). That subsection reads:

``(4) Subject to subsections (5) and (6), for the purposes of this Act, the sale value of goods the sale value of which is required to be determined in accordance with this section is the amount for which the goods could reasonably be expected to have been sold by the manufacturer by wholesale if no agreement of a kind referred to in paragraph (1)(b) had been entered into in relation to the sale of the goods.''

Subsection (5) and (6) are not relevant. The effect of s. 18A(4) is that the Tribunal, standing in the shoes of the Commissioner in the review proceedings, had to determine ``the amount for which the goods could reasonably be expected to have been sold [ by Revlon] by wholesale'', if the separate delivery agreement had not been made.

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Mr McMahon addressed this task by considering the costs incurred by Revlon's associated companies in effecting delivery. He concluded that:

``the Commissioner was justified in fixing the sale value in the way he did namely, by taking the gross amount paid by retail purchasers and reducing that by the amount paid by or on behalf of Services Pty Limited to the freight contractors.''

Counsel for the applicant say this was an incorrect approach; the Tribunal was obliged to consider for itself the matter of sale value. They say it was not enough to determine whether the Commissioner was justified in what he did; particularly because the Commissioner did not address the matter of sale value, but merely made deductions from the total prices paid by purchasers.

Counsel for the respondent defend the Tribunal's approach, saying that only one element of the Commissioner's calculation was challenged and ``his finding on that matter was well open''.

I agree with Beaumont J that the Tribunal's approach was not correct. In terms of end result, it may often come to the same thing. However, the Tribunal's task was not to determine whether the Commissioner was justified in taking the course he did, but to make its own judgment as to the appropriate hypothetical sale price. This was made clear, in relation to an analogous situation under a different sales tax statute, in Copperart Pty Ltd v FC of T 94 ATC 4259; (1994) 50 FCR 345. At ATC 4265; FCR 352 Davies J, with whom Gummow and French JJ agreed, said:

``... I take the opportunity to express my agreement with an observation of his Honour [ at 93 ATC 4795] that: -

`It is not for the taxpayer first to show some error before the Commissioner in the exercise of the discretion before the Tribunal commences itself to exercise that discretion afresh.'

His Honour also said: -

`The Tribunal must consider all the facts before it...'

It is the duty of the Tribunal, as it is of the Court when an objection decision is on appeal, to consider the facts for itself, to make findings of fact and to come to its own conclusions on the issues before it. As Walsh J said in Krew v FC of T 71 ATC 4213 at 4216; (1971) 45 ALJR 324 at 326:

`I have a duty to reach my own conclusions on the questions of fact which have to be decided and to give effect to those conclusions.... I must make my own decisions as to the facts.'''

As the Tribunal misdirected itself as to the test to be applied, its decision cannot stand. If for no other reason, the case will need to be returned to the Tribunal for further hearing and the making of a fresh determination.

Additional tax

The notice of assessment claimed ``Additional Tax Under Section 46 of Sales Tax Assessment Act (No. 1)''. Section 46 speaks of ``penalty tax'', not ``additional tax''; the latter being dealt with by ss. 45 and 47. More importantly, s. 46 applies only where ``under subsection 25(2), the Commissioner has made an assessment in relation to a person in consequence of an alteration made under subsection 18(3A)''. As is conceded, that subsection does not apply. So s. 46 has no application.

Notwithstanding this error, counsel for the Commissioner support the claim for payment of additional tax. They say it is erroneous to require a valid assessment of additional tax; s. 45 imposes an obligation to pay additional tax under certain circumstances without the necessity for an assessment by the Commissioner. They cite
Re Dymond (1959) 12 ATD 1 ; (1959) 101 CLR 11 . In that case the High Court considered the constitutional validity of certain provisions in the Sales Tax Assessment Act (No. 2) 1930. In a judgment which attracted the concurrence of Dixon CJ, Kitto J, (relevantly) Taylor J and Windeyer J, Fullagar J dealt with the nature of additional tax. He said at ATD 4; CLR 22:

``The words `by way of additional tax' mean, I think, no more than that the amount of the penalty (to the extent to which it is not remitted) is to be notified, like the tax itself, by a notice of assessment, so that the quantified penalty and the quantified tax are, subject to the right of objection and appeal, made actually payable by the same machinery. The liability is imposed by the Act not as a consequence of a sale of goods

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but as a consequence of an attempt to evade payment of a tax on a sale of goods. The exaction is directly punitive, and only indirectly fiscal. It is imposed for the protection of the revenue, but as a sanction and not for the sake of revenue as such.''

Section 45 of the Sales Tax Assessment Act (No. 1) uses language similar to, though not identical with, that discussed by Fullagar J. The presently relevant provision is s. 45(2) which reads:

``Where -

• (a) a taxpayer -
  • (i) makes a statement to a taxation officer, or to a person other than a taxation officer for a purpose in connection with the operation of a relevant sales tax law, that is false or misleading in a material particular; or
  • (ii) omits from a statement made to a taxation officer, or to a person other than a taxation officer for a purpose in connection with the operation of a relevant sales tax law, any matter or thing without which the statement is misleading in a material particular; and
• (b) the tax properly payable by the taxpayer exceeds the tax that would have been payable by the taxpayer if it were assessed or determined on the basis that the statement were not false or misleading, as the case may be,

the taxpayer is liable to pay, by way of penalty, additional tax equal to double the amount of the excess.''

The Commissioner's contention is that the relevant false or misleading statement was the statement in the monthly sales tax returns of the applicant ``that the sale value of the goods sold by it was less than the amount which was, by reason of sec. 17 and sec. 18A(4) of the Act, the true sale value''. They say there is no question of opinion, on the part of valuers or otherwise; it is a question of what was by law the sale value. Citing
FC of T v Turner 84 ATC 4161 at 4164 and
Reliance Finance Corporation Pty Limited v FC of T 87 ATC 4146 at 4149 , they say that, if the return was wrong, the statement was ``false''; regardless of the company's knowledge of falsity.

In response to these submissions, counsel for the applicant refer to
Murphy v Farmer (1988) 165 CLR 19 , a case concerning s. 229(1)(i) of the Customs Act 1901. That paragraph provided that ``All goods in respect of which any entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been made or produced'' should be forfeited to the Crown. By majority, the High Court held that ``false'' meant purposely, deliberately or intentionally untrue. The majority, Deane, Dawson and Gaudron JJ, referred at 26 to the latent ambiguity in the word ``false''. They noted various arguments, based on the terms of the Customs Act , for and against reading ``false'' in s. 229(1) as meaning wilfully false. The most significant of these, it seems, was the potential disproportion between the person's conduct and its consequence. They said at 28:

``The effect of the penalty of automatic forfeiture under s. 229(1)(i) can be devastating and quite disproportionate in that it applies regardless of the value of the goods or the importance or effect of the wrong statement which was made. The circumstances in which a wrong statement of the type referred to in s. 229(1)(i) can be made and the possible innocent explanations of such a wrong statement (e.g., language difficulties or misunderstandings in construing a government form; a lowered awareness of detail at the end of a long journey) are manifold. It may not be permissible to read into a forfeiture provision, such as s. 229(1)(i), a word such as `knowingly' or a requirement of mens rea if the words which the Parliament has used are not of themselves capable of conveying such a meaning or such a requirement... It is however, in our view, proper to approach the construction of the actual words of the Act on the basis that it is to be presumed that clear words would have been used if it were intended to impose automatic forfeiture as the penalty for `any' wrong `answer' regardless of whether it was knowingly or innocently given. Such a prima facie presumption supports reading the word `false' in s. 229(1)(i) as meaning purposely or intentionally untrue.''

Notwithstanding this, their Honours did not conclude that the word ``false'' was intended to mean ``purposely untrue''. They thought the arguments ``fairly evenly balanced'' and decided the case on the basis that the legislation

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was penal in character, so any ambiguity should be resolved in favour of a defendant.

The New South Wales Court of Appeal took a similar approach in construing the word ``false'' in s. 26 of the Farm Produce Act 1983 (NSW): see
Battaglini v Interfren Pty Ltd (1989) 16 NSWLR 378 .

It seems to me that these decisions provide little assistance in construing s. 45(2) of the Sales Tax Assessment Act (No. 1). Under that sub-section, there is no problem about disproportionality. Section 45(2) limits the additional tax to double the amount of the excess.

Turner and Reliance Finance both seem to assume that the operation of s. 45(2) is not limited to cases of intentional falsity. The word ``wilfully'' does not appear in in the subsection. To read it in, would seriously undermine the effectiveness of the provision as a ``protection of the revenue'', to use Fullagar J's phrase. It would often, perhaps usually, be impossible for the Commissioner to demonstrate that a particular false statement was wilfully false. Moreover, to read ``false'' as ``wilfully false'' would lead to the strange result that the Commissioner bore a greater evidentiary burden in collecting additional tax than in prosecuting for an offence. Part III of the Taxation Administration Act 1953 relates to prosecutions and offences in relation to a ``taxation offence''. The term ``taxation offence'' is defined by s. 8A of that Act as including ``an offence against a taxation law''; and ``taxation law'' is defined by s. 2 as including the Taxation Administration Act itself. Section 8K(1) of that Act makes it an offence to make a statement to a taxation officer - this includes a statement in a taxation return: see s. 8J(2) - ``that is false or misleading in a material particular''. Section 8K(2) deals with onus of proof:

``8K(2) In a prosecution of a person for an offence against subsection (1), it is a defence if the person proves that the person:

• (a) did not know; and
• (b) could not reasonably be expected to have known;

that the statement to which the prosecution relates was false or misleading.''

I conclude that it was not necessary for the Commissioner to demonstrate to the Tribunal that Revlon knew that the values for sales tax returned by it were false. Once it is established that they were wrong by virtue of s. 18A(4), additional tax is payable by force of s. 45(2). The Commissioner was entitled to remit all or part of the additional tax: see s. 47(3). The Tribunal had power to review his exercise of that discretion, but only if the amount left payable after remission exceeded 20% per annum: see s. 14ZZ of the Taxation Administration Act , noting that the definition of ``reviewable objection decision'' in s. 14ZQ excludes an ``ineligible sales tax remission decision'' and the description of this term in s. 14ZT(1)(b). As the Tribunal stated, the additional taxation claimed in this case amounted to 40% of the sales tax claimed; but it covered an assessment period of more than eight years. Plainly, the additional tax did not exceed 20% per year. Accordingly, the Commissioner's remittal decision was excluded from review.

The Tribunal did not err in the way it dealt with the question of additional tax.

Requirement of payment

The Commissioner challenges the Tribunal's conclusion about the application of s. 12B(1) of the Sales Tax Procedure Act 1934. That sub- section provides:

``(1) Where tax (not being tax paid prior to the commencement of this section) in respect of any transaction, act or operation, effected or done in relation to any goods has not been paid at the expiration of a period of three years from -

• (a) where the tax is payable in respect of the importation of those goods - the date of the entry of those goods for home consumption; or
• (b) in any other case - the close of the month in which the transaction, act or operation was effected or done,

the Commissioner may remit that tax unless he -

• (c) has required payment of the tax prior to the expiration of that period; or
• (d) is satisfied that the payment of the tax was avoided by fraud or evasion.''

Notwithstanding the use of the word ``may'', at first instance in Copperart Pty Ltd v FC of T 93 ATC 4779 at 4792, Hill J held that ``Parliament intended s. 12B to be mandatory and to operate as a release of a taxpayer once

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the three years had elapsed, unless the circumstances are such as to come within the exclusion to the section''. This view was not challenged on the appeal to the Full Court. Davies J commented, at 94 ATC 4264; (50 FCR) 350 that it ``accords with my own impression of the subsection''.

The first of the circumstances referred to in s. 12B(1) is that described in para. (c): (the Commissioner) ``has required payment of the tax prior to the expiration of that period''. Section 12B(3) deals with that subject. It provides:

``(3) For the purposes of this section the Commissioner shall be deemed to have required payment of tax if he, or an officer acting on his behalf, has served upon any person a notice in writing specifying that an amount of tax is payable by that person in respect of -

• (a) the transaction, act or operation specified in sub-section (1) of this section; or
• (b) any transactions, acts or operations which include the transaction, act or operation specified in that sub-section.''

As Beaumont J recounts, in this case two letters were sent, dated 6 March 1987 and 19 December 1990 respectively. His Honour quotes the later letter. The Tribunal held that neither letter satisfied s. 12B(3) because ``it was not until the Commissioner determined... sales values in accordance with the provisions of s. 18A(4) that a different sale value... became known. It was not possible from the terms of the letter of 19 December 1990, or its predecessor, for the applicant to work out what the Commissioner would assess as the sale value''.

In Copperart Hill J held, at 4793, that it was not necessary for a s. 12B(3) notice to specify a money sum. He said:

``To require the Commissioner to stipulate the precise figure of sales tax payable when that information may well be known only to the taxpayer and not disclosed to the Commissioner by the taxpayer, imposes in my view an unreasonable burden upon the Commissioner.''

On the appeal this view was neither endorsed nor overruled. The Full Court held that the letter relied on by the Commissioner in that case could not answer s. 12B(3) because, at that time, no amount of tax was payable. Liability for further tax did not arise until the Commissioner exercised a particular discretion and this had not occurred at the date of the letter: see Davies J at 94 ATC 4264 and Gummow J at 4268; (50 FCR) 351 and Gummow J at 356.

In the present case, counsel for the applicant suggest that Hill J was wrong; that the word ``amount'' requires that the claim be quantified. Counsel for the Commissioner put the opposite contention. Moreover, they suggest that the Tribunal was wrong in saying, as it did, that the letters sent to Revlon by the Commissioner on 6 March 1987 and 19 December 1990 were incapable of answering the requirements of s. 12B(3). They say:

``Given that the taxpayer knew what issue the demand related to, and was the sole possessor of the information necessary to calculate the sale value, the demand was adequate to draw to the attention of the Applicant its liability to the tax in issue and that such payment was required.''

For the purpose of these proceedings, it is not, I think, necessary to reach a concluded view as to whether, in Copperart , Hill J correctly interpreted s. 12B(3). I am respectfully inclined to think that he did, but the question is not free from difficulty. On the one hand, there is the interpretation of the word ``amount'' (where used in s. 18(1) of the Sales Tax Assessment Act (No. 1)) stated by Windeyer J in EMI (Australia) Limited v FC of T 71 ATC 4112 at 4118; (1971) 45 ALJR 349 at 353 that is quoted by Beaumont J. In the context `` the amount for which these goods were sold'', it seems clear that the word ``amount'' requires the specification of a money sum. On the other hand, s. 12B(3) of the Sales Tax Procedure Act refers to `` an amount of tax''. Moreover, there is an important difference in the function of the two provisions. Section 18(1) of the Assessment Act is concerned with the imposition of a liability, so it is logical that this be for a specific sum. Section 12B(3) of the Procedure Act is a mechanical provision facilitating satisfaction by the Commissioner with the condition stated in s. 12B(1)(c). Section 12B(1) is a limitation provision under which tax becomes irrecoverable (is automatically remitted) after three years unless one of two conditions applies: the Commissioner has ``required

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payment of the tax'' before that date or is satisfied there has been fraud or evasion. If the rationale of the first condition is that it is not unfair to keep alive liability where the Commissioner has put the taxpayer on notice that there is a live claim for the payment of sales tax, it might be thought sufficient that he inform the taxpayer that ``an amount of tax'' is payable in connection with a particular transaction, act or operation, without having to specify a money sum. And it cannot be doubted that, even though there was an active dispute about unpaid sales tax, if the Commissioner had to specify an exact money sum, he would often experience difficulty in satisfying s. 12B(1)(c).

The reason why it is not necessary to reach a concluded view about Hill J's approach is that I agree with Mr McMahon that neither of the letters sent to Revlon satisfied s. 12B(3); although not for the reason stated by him. My reason is that neither letter specified ``that an amount of tax is payable'' in respect of any particular transaction, act or operation or transactions, acts or operations that included a particular transaction, act or operation. The letters were notably uninformative and unspecific. Each letter alleged ``an underpayment of sales tax'', but neither provided any information (even in general terms) about the transaction, act or operation in connection with which the allegation was made. They merely required Revlon ``to furnish further or fuller returns and pay tax upon the sale value of cosmetics'' manufactured, purchased and imported during a specified three year period. Given that the description would have embraced all the cosmetics that passed through Revlon's hands during the three year period, and that it had previously filed monthly returns in respect of them, the letters gave no information as to the nature of the Commissioner's claim. It is one thing to say that a s. 12B(3) notice need not specify an exact money sum by way of unpaid tax; it is another thing to say that the subsection is satisfied by a notice that provides no information at all about the claim.

In my opinion s. 12B of the Sales Tax Procedure Act requires the remission of all tax falling due before 4 September 1989.

Orders

Although only one of three points taken by Revlon in support of its appeal succeeds, that point requires us to allow the appeal and set aside the decision of the Tribunal. The matter should be remitted to the Tribunal for further hearing and determination. The cross-appeal should be dismissed. I agree with Beaumont J that, having regard to the parties' mixed fortunes in this Court, there ought to be no order in respect of either appeal or cross-appeal.