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High Court of Australia |
TOOHEYS LTD. v. COMMISSIONER OF STAMP DUTIES (N.S.W.) [1961] HCA 35; (1961) 105 CLR 602
Stamp Duties (N.S.W.)
High Court of Australia
Dixon C.J.(1), Kitto(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.
CATCHWORDS
Stamp Duties (N.S.W.) - Deed between company and trustees establishing pension scheme for its employees - Funds not transferred to trustees upon execution of deed - Employees entitled to be admitted to scheme by trustees upon nomination by board of company - "Declaration of Trust" - "Vested or to be vested" - "Mentioned" - Exemption from duty - "All instruments relating to the services of apprentices, clerks, and servants" - "Relating to" - Stamp Duties Act, 1920-1956 (N.S.W.), Pt III, Second Schedule, "Declaration of Trust" par. (2), General Exemptions from Stamp Duty under Pt III, par. (5).
HEARING
Sydney, 1960, November 23-25, 28; 1961, June 13. 13:6:1961DECISION
1961, June 13.2. The deed is a lengthy document. It consists of twenty clauses and a schedule of forty-nine rules of the fund. It was executed on 29th October 1958 and is expressed to be made between Tooheys Limited of the one part and six persons of the other part who are described as the directors and the general manager of that company. The company and these gentlemen are the appellants. The effect of the chief clauses of the deed is to "constitute" the pension fund, to provide that Tooheys Limited may admit subsidiary companies as associates for the purpose of the fund which will then become bound as original parties, to require that the fund shall be administered in accordance with the rules and to provide of what moneys the fund shall consist. It is to consist of an initial contribution of 50,000 pounds by Tooheys Limited "at the date hereof" for the purpose of establishing the fund, of all moneys thereafter paid to the fund by Tooheys Limited and the associated companies, of all other moneys or property paid or transferred to the fund, and of all investments and profits and income therefrom. A not unimportant clause provides that Tooheys Limited and every associated company admitted shall make such contributions as shall be determined in accordance with the rules. There is a proviso enabling Tooheys Limited to terminate or suspend the making of contributions and enabling associated companies to withdraw. When the clause speaks of determining the contributions in accordance with the rules, it refers to a rule which says that Tooheys Limited and each associated company, in such proportions as they shall determine, shall pay to the trustees such amount as shall be necessary to provide on an actuarial basis for the "anticipated entitlements of members or their dependants having regard to the respective years of service of members and such further amounts as shall be certified by the actuary from time to time as necessary for the proper maintenance of the fund." Another clause provides for the payment of the amounts by instalments and speaks of two initial instalments of 50,000 pounds each. The statement of facts before us tells nothing of the actual payments made but according to what was said at the Bar there was an interval of time after the execution of the deed before the first 50,000 pounds was in fact paid to the trustees. (at p609)
3. Power is given by a clause of the deed to Tooheys Limited to alter repeal or add to the rules but the alteration must not adversely affect the benefits to members as at the date thereof unless all members consent in writing. Who are members? The term "member" is defined by the rules to mean an employee of Tooheys Limited (or an associated company) duly admitted as a member of the fund in accordance with the rules. An "employee" means every person employed as a member of the permanent staff of Tooheys Limited or of an associated company including a managing or other executive director. An employee becomes a member of the fund upon admission by the trustees but the trustees must receive his nomination in writing by the board of Tooheys Limited and an application in a form prescribed by the rules by which he undertakes to be bound by the trust deed and the rules. He must be of full age and have completed two years' continuous service with his employer, requirements which the board has a discretion to waive. (at p610)
4. No member of the fund is to be under any obligation to contribute thereto. That is a provision of the deed itself. The benefits in pensions and retiring allowances are provided for by the rules. The member must have completed ten years' service with Tooheys Limited or an associated company and he must have retired from the service on reaching the retiring age, sixty-five for men or sixty for women, ages which may be extended in special circumstances but not to a greater age than seventy years. In default of such retirement the member must have died or his services must have been terminated for physical or mental incapacity or ill health. A proviso gives Tooheys Limited a special power to elect to treat an employee as in the same category as one retiring for ill health although he does not actually fall within it. The benefit payable to a member is first a pension during his lifetime at an annual rate that is specified and is calculated by reference to his years of service and his salary at the date of retirement; next a pension to his widow during widowhood at half that rate. There are certain qualifications as to separation and so on. Then in the third place there are certain discretionary payments to dependants. There are provisions as to the effect of breaks in the continuity of the service by reason of military service, illness and the like, and there are provisions for reduction or cancellation of the pension in certain events, including sentence for crime, disappearance, presumption of death and immoral or prejudicial conduct. The directors and general manager of Tooheys Limited from time to time are to be the trustees and the deed specifies their duties, and their powers, which are very wide. A clause in the deed provides that the trustees shall hold the fund upon the trusts of and with and subject to such powers and provisions as are contained in or are necessary ancillary or incidental to these presents and the said rules. (at p611)
5. The first question which must be answered is whether the foregoing instrument is a declaration of trust within the meaning of that expression in the second schedule. Section 4 of the Act among other things charges upon the several instruments described or mentioned in that schedule the several duties, and at the several rates, specified in the Act and schedules. The material part of the description of instrument under the heading of declaration of trust is par. (2) which is as follows: "Any instrument declaring that any property vested or to be vested in the person executing the same is or shall be held in trust for the person or persons or purpose or purposes mentioned therein notwithstanding that the beneficial owner or person entitled to appoint such property may not have joined therein or assented thereto." A very important phrase in the foregoing is "vested or to be vested". For it might well be said that when the "declaration" expressed in the deed now in question was made no property was vested. But the Commissioner replies that, be that as it may, the money intended to form the fund was "to be vested" within the meaning of the paragraph (at p611)
6. This reply the appellants contest as insufficient to cover the present case. It must be borne in mind that the only beneficiaries of the trusts declared are the members of the fund when and if they are admitted. At the time when the deed was executed and presented for the consideration of the Commissioner of Stamp Duties no property or money had been vested in the trustees, no members had been admitted and the trust deed, so it is argued, had nothing to operate upon and had in truth no force. If property had been vested in the trustees, there might, until members were admitted to the fund, have been a resulting trust in favour of the company. But as it was at the critical point of time there was neither beneficiary nor trust property and therefore no trust then operating. It was said for the appellants that the schedule, in defining the instrument called a declaration of trust, introduced the words "or to be vested" to cover cases where a presently operative declaration of trust applies to some property or rights existing in the trustees but nevertheless property remains to be vested in them. A further point was made that there were no "persons mentioned" in the deed as beneficiaries of the trust within the meaning of the paragraph. But that is better considered as an independent argument: what matters for the purposes of the argument now in hand is that when the instrument was presented for the determination of the Commissioner there were no members of the fund. In my opinion the argument unduly restricts the meaning and application of the paragraph. The words "any property vested or to be vested" seem to me to be directed simply to the two cases, namely the case of the declaration of a trust of property then vested in the person who declares the trust and the second case of a declaration of trust in advance of the vesting in the person who declares it of property which it is intended to make the subject of the trust. Here the first payment to be made is stated and quantified: no objection is possible on the ground that there is no property that can be identified or ascertained. The exclusion by s. 346 of the Companies Act, 1936-1957 (N.S.W.) of an instrument such as the present from the operation of the rule against perpetuities may perhaps be responsible for the possibility of a situation existing in which the argument may be used. But the argument does not appear to me to rest on a proper interpretation of the paragraph. The independent point also seems to me to fail. The point is put as a necessary consequence of the words "the person or persons or purpose or purposes mentioned therein". It is said, and no doubt correctly, that we may disregard the reference to "purpose or purposes" in the present case: the use of those words is to cover trusts for charitable purposes and the anomalous other cases where trusts have been upheld although they create no beneficial interest for human objects, born or unborn. The argument is that as there are no persons ascertained or ascertainable under the terms of the deed whether by name or description no person or persons are "mentioned" in the instrument as persons in whose favour the trusts are declared. This argument appears to me to limit too narrowly the meaning of the phrase in which the word "mentioned" occurs. It may be conceded that the word "mentioned", when applied to persons or objects, usually imports or implies some reference which identifies them by name or designation. It may further be conceded that in the present case there is simply a definition of a class of present and future persons any of whom may become members on the nomination of the company. But it is apparent from the subject matter of the paragraph with which we are concerned in the second schedule that there is no point in the manner of identifying describing or defining the objects of the trust declared and that the word "mentioned" is used in a sense as wide as "referred to" or "described". (at p612)
7. For the foregoing reasons I think that the deed falls within the category in the second schedule of instruments called "Declaration of Trust". This view makes it unnecessary to consider the question whether, with the aid of s. 65 it could be brought within the category "conveyance". (at p613)
8. It appears to me to follow that unless the instrument falls under a general exemption it is dutiable as a declaration of trust. I may dismiss at once s. 71 from consideration: for it seems to me to have no real bearing on any of the problems of the case. The decisive question is whether the deed falls within the description of the fifth exemption of the second schedule viz, whether it is an instrument relating to the services of apprentices, clerks, and servants. In support of the appellants' contention that the trust instrument is excluded by this exemption from liability to duty it is said that the purpose of establishing the fund is to make the service of the company including the service of subsidiary companies more beneficial to its employees and so make the service more attractive, to induce men to enter the service of the companies and to continue in the service, that by the terms of the instrument membership of the fund is open only to those who serve the companies or one of them, the benefits are calculated by reference to periods of service, the circumstances of the retirement determine or affect the quantum of benefit and the benefits of the widow or dependants are referable to the like considerations growing out of the service of the deceased member. Accordingly the instrument "relates" to the services of the clerks and servants of the companies. It is I think correct that the persons who may become members of the fund fall under the legal description of clerk or of servant. But the question is whether the declaration of trust really is an instrument relating to the services of such men, being clerks or servants. The question is within a small compass and may be said perhaps to be verbal. But in truth it depends on the substantial intention of the exemption. No one denies that the fund or, if you like, the declaration of trust touches the fact of employment as one which governs its effect and operation upon the individual or that an important part of the motive of the company in setting up the fund was to make service with the company more attractive, nor that in joining, and remaining in, the company's service men will be affected by the prospective benefits the fund holds out to them. But does that mean that the instrument is one "relating to the service of (the) clerks or servants" ? The subject matter with which the deed actually deals is the pensions and benefits which will be enjoyed by the clerk or servant when his service is over, when he is superannuated, and by his widow and dependants when he dies. That is what all its clauses are directed to. They do not regulate his service or services (if there be a difference in the plural word) or any incident of his service or services. (at p614)
9. That he serves or has served is a prior assumption of the deed and that he does so or has done so, and for what period, form conditions upon which certain clauses depend. But the period of time with which the instrument is concerned is that which follows his retirement or death. It is concerned with the benefits which ensue and with the proprietary or quasi proprietary rights that accrue and with their administration and regulation. When the exemption clause speaks of an instrument relating to the services of apprentices, clerks, and servants, I understand it as meaning primarily an instrument dealing with the relationship of master and apprentice, master and clerk or master and servant. It may affect one term or all the terms of the relationship. It may govern or regulate the relationship or it may affect it less directly perhaps and still relate to it. But it is that with which it must deal. A trust deed devoted to the establishment and administration of a fund and to rights in relation to the fund of the man who is superannuated and operating when his services have ceased seems to me another thing, whatever motives may have led to its establishment and whatever motives the existence of the fund and the prospect of its benefits may inspire in those who give their services. The question is one of the manner in which the words, and so the purpose, of the exemption is understood. An exemption is not of course to be construed more widely than a fair reading of its words appears to require, and perhaps that cautionary principle may have its weight. The history of the provision, of the sources whence its chief terms have been collected and the varying purposes to which they have been put from time to time appear to me to tell one little of what they came to mean in the exemption as it was placed in the Stamp Duties Act, 1898 (N.S.W.) and finally in the Act of 1920-1956. Little or no assistance can be obtained from this history. It seems to me to give no complexion to the meaning of the provision as it stands, but as it stands I think that it is the subject with which the contents of the instrument actually deal, the legal operation which the instrument has, that will determine its character for the purpose of the exemption, not the motives or policy upon which the deed rests nor the connexions, by way of condition or contingency or dependence, with the employment which clauses may exhibit. In my opinion the deed is not exempt. (at p614)
10. There remains the question of the rate at which duty is chargeable. The second schedule contains three columns: under the first the nature of the instrument is described, under the second the amount of duty is presented and under the third the persons primarily liable for the duty are defined. Opposite "Declaration of Trust" (second paragraph) in the first column, the second column states "The same duty as if the instrument was a conveyance of the property comprised therein." This necessarily carries one back to what the second column of the schedule says under the head "Conveyance". The amount of duty under that head differs widely when, for example, the conveyance is a conveyance on sale for a consideration not less than the unencumbered value of the property conveyed and when the conveyance is without consideration. The same rate is applied by s. 66 (3B) of the Act to a conveyance for full consideration although not a conveyance on sale. When the conveyance is without consideration the duty is calculated at the rate in the sixth schedule. It is charged (in effect and so far as material) on the value of the property conveyed. There are other categories, but in the Supreme Court it was decided that "conveyance without consideration" afforded the appropriate method, and the Commissioner had rightly adopted it. The question is whether this view is correct. It is evident enough that in applying the rates appropriate to a conveyance to a declaration of trust, you are required to treat the person declaring the trust as imparting property to the objects or purposes of the trust and to consider whether in that capacity treating it as analogous to conveying property the party declaring the trust obtained full consideration. This statement is subject to a qualification. The third column in the second schedule states the person declaring the trust or the person directing such declaration. The inference from this may be and probably is that the person directing the declaration of trust may as an alternative be a person who may obtain the full consideration. Accordingly it seems right to qualify the statement that the person declaring the trust is the person by whom the consideration for the trust declared is to be obtained by including as an alternative the person directing the declaration. The appellants' argument is that the trustees obtained the sum of 50,000 pounds as full consideration for the trusts they declared of that sum. It is clear enough that what the material clauses in the second schedule contemplate is the use of a declaration of trust to impart an equitable interest instead of a conveyance of a corresponding legal interest or for that matter of a corresponding equitable interest. A consideration in money or money's worth must be furnished, perhaps it does not matter whence or by whom, but it must be furnished for the declaration of trust in the sense of the creation of the trust which gives the equitable interest. If it is a trust for purposes - charitable purposes - it would not of course be right to speak of the equitable interest being taken by the charitable purpose. But the parallel is there and consideration must come from some source for the creation of this trust if the transaction, if not otherwise exempted, is to escape the rate given by the sixth schedule. Once it is seen that the question is whether any consideration in money or money's worth was obtained for the creation of the trust of the 50,000 pounds, it seems to me that the question almost answers itself. The company as the party directing the creation of the trust and the trustees as the parties creating the trust by the declaration of the trust obtained no consideration in money or money's worth. The placing of the trust fund in the trustees' hands was no consideration for the present or future equitable interests created. (at p616)
11. In my opinion the appeal should be dismissed. (at p616)
KITTO J. I agree that the instrument in question in this appeal is liable to be stamped with the duty which the Commissioner has assessed, unless it falls within par. (5) of the general exemptions appearing at the end of the second schedule to the Stamp Duties Act, 1920-1956 (N.S.W.). The paragraph, by force of s. 4, exempts "All instruments relating to the services of apprentices, clerks, and servants". In the Act of 1898 which was the precursor of the present Act, the corresponding paragraph was expressed as exempting "any instrument relating to the service of an apprentice, clerk or servant". For some reason the draftsman chose to express the new paragraph in the plural; but it seems clear enough that the change from "the service" to "the services" was not due to any change of idea or of policy. Each word appears to mean "the employment"; so that an instrument which answers the description of "relating to" the employment of a servant or servants is exempt from duty. How far the class extends is a question depending upon the ambit of the expression "relating to". It is an expression not synonymous with "for", as is recognized by the paragraph of special exemption under the heading "Agreement or Memorandum of an Agreement" in the body of the second schedule, where the words used are "any agreement or memorandum under hand - (a) made for or relating to the sale of any goods, wares, or merchandise . . . ". This form of words survives from early Stamp Acts in the United Kingdom, and a line of cases decided on those Acts demonstrates that the inclusion of the words "or relating to" greatly widens the exempt class of instruments. (at p617)
2. Of course not every instrument which in any way refers to the employment of servants can be supposed to fall within the intendment of the words "relating to the services of . . . servants". How close or substantial must the connexion be, if the description is to apply? The answer is to be sought, I think, by observance of the considerations which Blackburn J. explained in Rein v. Lane (1867) LR 2 QB 144 . The question in that case was whether a guarantee for the due performance of a charterparty was liable to stamp duty as a "memorandum, letter, or other writing . . . for or relating to the freight or conveyance of any money, goods, or effects, on board of (a) ship or vessel". After pointing out that if the words were taken in their most literal and extended sense every letter in which a ship's captain mentioned anything about the freight would be dutiable as relating in one sense to the freight, his Lordship held that the intention expressed by the material words when used in such a statute for such a purpose, was only to require a stamp for documents in the nature of a charterparty, or relating to contracts of carriage, or relating to the carriage of goods, in the sense of being used as equivalent to or for the purpose of producing the same effect as a charterparty. This was to construe the expression "relating to" in a narrow sense, but one dictated by the evident purpose of the provision. By way of contrast, his Lordship turned to cases such as Smith v. Cator (1819) 2 B & Ald 778 (106 ER 549) , in which it had been held that a guarantee of the price of goods sold was an agreement "relating to" the sale of goods within the meaning of an exemption such as I have mentioned above, and he used words which I find so much to the point here that I must quote them. "No doubt the cases, in one sense, are similar ; and if the words were applicable to the same subject, they ought to have the same construction. But then, in the one case, the words are used in a statute imposing a duty for the purpose of raising a revenue, and the object in imposing that duty was to catch all things that were really in substance charterparties. In the other case the words are used for exempting and saving from duty all agreements that were made for the purpose of effecting sales. The object of the one statute was to promote commerce, and it said, therefore, that agreements for the sale of goods should not be fettered or hampered by the imposition of any duty of this kind. Consequently the construction put upon it from the very earliest cases was, that whereever an agreement has for its primary object to produce or cause sales . . . where, but for the agreement or guarantee, the contract of sale would not be entered into, it should not require to be stamped ; because the effect of that would be to check commerce and prevent the sale. In the one case, therefore, the exemption should be liberally construed, and being liberally construed the guarantee was brought within the meaning of the exemption. The legislature meant to free from stamp such documents as tended to produce contracts of sale which were considered meritorious, and good, and advantageous. If their object had been to impose clogs and burdens upon everything that would tend to produce a charterparty, on the ground that they were tainted with a nuisance, the same extended construction might be put upon the words. But the object of the legislature was quite the reverse. It is, I apprehend, in accordance with the general rule of construction in every case, that you are not only to look at the words, but you are to look at the context, the collocation, and the object of such words relating to such a matter, and interpret the meaning according to what would appear to be the meaning intended to be conveyed by the use of the words under such circumstances. The same words might mean a very different thing, when put in to impose a tax, from what they would mean when exempting from a tax" (1867) LR 2 QB, at pp 150, 151 . (at p618)
3. In the present case, as in the sale of goods cases, the words to be construed are in an exempting provision, and an exempting provision the policy of which is not difficult to perceive. To regulate or affect by means of written instruments the terms or conditions of service of apprentices, or of clerks (meaning, I suppose, articled clerks, who though they serve for the purpose of learning have been held for some purposes not to be apprentices), or of servants generally, was to engage in an activity for which the Legislature had special solicitude. Are the words "relating to", as used in such an Act and for such an exempting purpose, to be so narrowly construed as to leave outside the exemption an instrument which annexes an incident to the service of designated servants? The exempting provision ought to receive a liberal construction, according to Blackburn J.'s principle: see also per Platt B. in Sadler v. Johnson [1847] EngR 413; (1847) 16 M & W 775, at p 777 [1847] EngR 413; (153 ER 1403, at p 1404) (in a passage which Starke J. approved in North Shore Gas Co. Ltd. v. Commissioner of Stamp Duties (N.S.W.) [1940] HCA 7; (1940) 63 CLR 52, at p 63 ), and per Lord Ellenborough C.J. in Warrington v. Furbor (1807) 8 East 242, at p 245 (103 ER 334, at p 336) . Surely if an instrument operates upon a man's service, so that in his capacity of servant, and by his serving, he produces, for himself upon retirement or for his dependants on his death, benefits which in general character are familiar appurtenances of service, the object of that instrument is of the kind which the exemption intends to foster. Its "primary object" (to use the test applied in such cases as Smith v. Cator (1819) 2 B & Ald 778 (106 ER 549) , Southgate v. Bohn [1846] EngR 1143; (1846) 16 M & W 34 (153 ER 1087) , and Sadler v. Johnson [1847] EngR 413; (1847) 16 M & W 775 (153 ER 1403) ), is to make the relevant service more attractive, more advantageous, to those who enter it and continue in it, by adding to its immediate emoluments a provision for payments upon retirement or death. True, payments under it will not begin until the service has ended; but the payments are only the fruition of the benefits which the instrument attaches to the service during its subsistence. They are, in truth, earned by the service, as was said by Brereton J. in Watson v. Ramsay (1960) 78 WN (NSW) 64 , and by Windeyer J. in National Insurance Co. of New Zealand Ltd. v. Espagne [1961] HCA 15; (1961) 105 CLR 569 . (at p619)
4. If a contract of service were itself to contain a provision for a pension on retirement, surely no-one speaking the language of the exemption we are considering would regard that provision as not "relating to" the very topic to which the rest of the document related. Nor, I imagine, would anyone speaking that language hesitate to describe the Superannuation Act 1922-1959 (Cth) as an Act "relating to" the public service. Some point was made during the argument of the fact that the instrument before us forms no part of the contract of service between an employing company and those of its employees who are admitted to membership of the Fund; but it is, no less than a contractual provision of a similar nature would be, the chosen means for providing pension rights to be acquired by servants in and by their service, and so enhancing employment on the staffs of the employing companies. In that purpose lies the close connexion with the service of the members which, in my judgment, makes it an instrument "relating to" that service. (at p619)
5. In the foregoing I have spoken on the footing that the instrument provides for pensions in respect of employees only. By means of a definition of "employee" the class is made to include every person, including a managing or other executive director, employed by Tooheys Limited or an associated company as a member of the permanent staff. A suggestion has been made that the class as so constituted is wider than that which the exempting provision of the Stamp Duties Act describes as "servants". I do not think that it is. Notwithstanding what Kekewich J. said in Normandy v. Ind. Coope & Co. (1908) 1 Ch 84, at p 104 , and what Eve J. said in In re Lee, Behrens & Co. (1932) 2 Ch 46, at p 53 , a director of a company may be a servant as well as being a director: H. Holdsworth Ltd. v. Caddies (1955) 1 All ER 725, at p 729 ; and when he is employed as a managing or other executive director on the company's permanent staff, (which he must be if he is to be a member of the Fund under the instrument before us), there is no ground for denying that he is a servant of the company within the purview of such an Act as we are considering; cf. Reg. v. Stuart (1894) 1 QB 310 , Anderson v. James Sutherland (Peterhead) Ltd. (1941) SC 203 and Trussed Steel Concrete Co. Ltd. v. Green (1946) Ch 115 . (at p620)
6. In my opinion the exemption applies in this case and the appeal should be allowed. (at p620)
TAYLOR J. The questions raised by the stated case were, in my opinion, answered correctly by the Full Court and if there had been no disagreement in this Court I would have been content simply to express my concurrence with the reasons given below. In the circumstances, however, I wish to make a few observations concerning the question whether the deed of 29th October 1958 can properly be characterized as an instrument "relating to the services of apprentices, clerks, and servants". (at p620)
2. There can be no doubt that the expression "relating to" is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used. With this in mind it may be said with some certainty that an examination of the language of the exempting provision shows that it does not admit of its application to an instrument merely because it makes a reference to the existence of a relationship of master and servant between the parties to it, or still less, because it refers to the existence of a master and servant relationship between persons who are not parties to it. It is, I think, not open to argument that "relating to", in the context in which it appears, is equivalent to "referring to" and the "relationship" must be based upon some more substantial ground. It is, in my opinion, equally clear that the relationship must appear upon an examination of the instrument itself for it is the character of the instrument which is the material question and this cannot be resolved by an examination of extraneous matters in order to determine the purpose of the parties. In other words the condition for the operation of the exempting provision is that the instrument must "relate" and not merely that a relationship of some kind can be made to appear by a consideration of the motive or purpose which has brought it into existence. A number of cases such as Smith v. Cator (1819) 2 B & Ald 778 (106 ER 549) ; Southgate v. Bohn [1846] EngR 1143; (1846) 16 M & W 34 (153 ER 1087) ; and Sadler v. Johnson [1847] EngR 413; (1847) 16 M & W 775 (153 ER 1403) were cited to us and the suggestion was made that they furnished some authority for the contrary of this proposition. These cases were concerned with a statutory provision which exempted from duty any memorandum letter or agreement made for or relating to the sale of any goods, wares, or merchandise. Quite clearly the exempting provision was not confined to agreements for the sale of goods, wares and merchandise; it applied also to instruments "relating to" any such sales. In the second of these cases it was held that the exemption applied with respect to a memorandum of advance handed to an auctioneer together with goods entrusted to him expressly for immediate sale and in the third case the same conclusion was reached where a guarantee was given for the price of goods in consideration of their consignment for sale to a third person. The contrary conclusion was reached in the first of the cases referred to where the Court was concerned with a letter forwarded to a factor with enclosed bills for acceptance against which an undertaking was given to provide funds to retire the bills should certain quantities of oats to be forwarded to the factor remain unsold at the time when the bills fell due. These cases, it was suggested, provide some authority for the proposition that the expression "relating to" ought to receive the widest interpretation. But when they are examined it is seen that the line of cases of which those mentioned form part did not even give literal effect to the expression "relating to" for it will be seen that they did not regard an instrument as qualifying for exemption merely because it "related to" a sale but only when, being so related, the primary object of the instrument was the carrying out of the sale. As Abbott C.J. said in Smith v. Cator (1819) 2 B & Ald 778 (106 ER 549) : "We think that description is confined to instruments whereof the sale of goods is the primary object, and it appears to us that the primary object of this letter was the obtaining of money upon a pledge of goods expected to arrive in England, and intended to be placed in the hands of the plaintiffs upon their arrival" (1819) 2 B & Ald, at pp 781, 782 (106 ER, at p 551) . It was true that the letter also related to a contemplated sale "but this was a secondary or collateral object" and accordingly it could not be characterized as a letter "relating to" the sale of goods, wares, or merchandise. In Southgate v. Bohn [1846] EngR 1143; (1846) 16 M & W 34 (153 ER 1087) Pollock C.B. pointed out that in Smith v. Cator (1819) 2 B & Ald 778 (106 ER 549) "the sale of the oats was merely a collateral object of the instrument; whereas here the memorandum is of an advance on books sent in for immediate sale" (1846) 16 M & W, at p 35 (153 ER, at p 1088) . According to Parke B. the relevant agreement under consideration in Southgate v. Bohn [1846] EngR 1143; (1846) 16 M & W 34 (153 ER 1087) was one whereby the plaintiff should repay himself for his advance to the defendant by an immediate sale of the goods and accordingly it "related to the sale of goods" (1846) 16 M & W, at p 35 (153 ER, at p 1088) . Similarly, the primary object of the instrument in question in Sadler v. Johnson [1847] EngR 413; (1847) 16 M & W 775 (153 ER 1403) was "that the goods should be sold through the agency of the defendant's friends at Calcutta" (1847) 16 M & W, at p 777 (153 ER, at p 1404) and, accordingly, it was held to be an agreement which related to the sale of goods. In my view this line of authority does not support the appellant's argument. Indeed, it is opposed to it for it provides authority for the proposition that the vital question is whether the instrument "relates" and not whether it may be "related" by an examination of extraneous circumstances. (at p622)
3. If then the relationship is to be sought in an examination of the instrument itself and not of the purpose of the parties, and if a mere reference to the existence of a master and servant relationship is not sufficient to bring the instrument within the exempting provision, what test should be applied to determine whether an instrument ought to be characterized as an instrument "relating to the services of apprentices, clerks, and servants". In the present case, it should be noticed, we are not concerned with a provision dealing with instruments "relating to" a transaction such as a sale of goods; what we are concerned with is a provision which deals with instruments relating to the services of apprentices, clerks, and servants. To my mind this distinction places the question of relationship on a somewhat different footing. We are not concerned with instruments the object of which is to facilitate or otherwise assist in the completion of a sale of goods. We are concerned, I think, with instruments which in some way operate to define or modify or otherwise affect some incident or incidents of the services of the specified class. Such instruments truly "relate to" the services of employees. As was pointed out by the Full Court the deed in question does not affect any incident of the services of the appellants' employees either by way of reward or otherwise; the deed is one which - as par. (1) of the stated case naturally describes it - "relates to a Pension Fund for Employees of the said Company and others". Its object is to establish a fund to be administered by specified trustees in accordance with defined rules. But it in no way touches the master and servant relationship existing between the appellant company and its associated companies on the one hand and their employees on the other and the fact that the company's purpose in inaugurating the scheme was to attract employees and to secure their services for a long time is, in my view, beside the point. The existence of the scheme may, of course, tend to attract suitable employees and the advantages of membership, secured by eligible employees by application and acceptance, may well provide an inducement for them to remain in the service of the company. But the deed itself secures no advantage to any employee and in no way operates to vary or modify any condition of his employment; it is but a prelude to agreements which may have an operation of that character. In the result I am of the opinion that the instrument cannot be characterized as an instrument "relating to" their services and, accordingly, that the appeal should be dismissed. (at p623)
MENZIES J. Except for one matter I agree with the reasons for judgment given by Walsh J. for the Full Court but as to that one matter, i.e. the application of the fifth general exemption (viz. "All instruments relating to the services of apprentices, clerks, and servants"), I find myself in agreement with the judgment which Kitto J. has already delivered. To what his Honour has said I would for myself add but a few words to indicate a difficulty that has troubled me. The exception as phrased is obviously a clumsy way of exempting instruments relating to the services of all employees, including apprentices and clerks, if that is what is intended. For the collocation of words used there is, however, an historical explanation. The words "apprentices, clerks, and servants" were taken from English legislation which had its source in 55 Geo. III c. 184 and in that statute there was no room for doubt but that "clerks" meant articled clerks and "servants" only covered such servants as were not apprentices or articled clerks but were nevertheless put to a master to learn "any profession trade or employment". When the words were adopted in New South Wales, however, they were adopted without the context that in the English legislation confined "clerks" to articled clerks and "servants" to such servants as were learners, and this is how they still stand. Notwithstanding the hesitation to which the words used and their order give rise, I am not able to regard the mere fact that in the source from which the words came they were used with a limited meaning as sufficient to attribute to them that meaning in a different context. Were there in the New South Wales Act sufficient to confine the words "clerks" to articled clerks I would be disposed to read the word "servants" as ejusdem generis with the preceding category, but as it is I cannot do more than regard the words used as an equivalent, unsatisfactory as it is, for the phrase "servants including apprentices and clerks". Having reached this position I agree with Kitto J. about the words "relating to". (at p624)
2. I consider, therefore, that this appeal should be allowed. (at p624)
WINDEYER J. I have come to the conclusion that, substantially for the reasons given by Walsh J. in the Supreme Court, the instrument in question is within the description in par. (2) under the heading "Declaration of Trust" in the second schedule to the Stamp Duties Act, 1920-1956 (N.S.W.). (at p624)
2. I also agree with Walsh J., that it cannot be said to have been made "for money or moneys worth" passing from those who may become entitled to benefits under it. It is, of course, true that the relationship of master and servant to-day often involves much more than an obligation to pay wages on the one hand and to render services on the other. The right or the opportunity to participate in benefits provided by an employer, such as superannuation schemes, is something that a servant gains by working for that employer. It is part of the reward of his labours. It is not the produce of pure philanthropy on the part of the employer. But that does not, I think, mean that in cases such as this the advantage that the servant gets from such schemes is for the purposes of the Stamp Duties Act purchased by him for money's worth. (at p624)
3. The aspect of the case that has troubled me is the effect of the paragraph in the General Exemptions from Stamp Duty that reads: "All instruments relating to the services of apprentices, clerks and servants". This description, because of the elastic character of the phrase "relating to", might be stretched to cover a great variety of instruments. It could be contended for instance that, literally, it would cover insurance policies taken out by an employer against liability for acts done by his servants, or an agreement for a lease of a house to a servant to be used in conjunction with his services, or a variety of contracts that an employer might make with third parties to provide amenities for his servants. Some limits must, however, be put to it in the Stamp Duties Act. Without seeking to define those limits precisely, I think that the present deed is outside them. It sets up a pension fund and scheme: the servants of the company are not parties to the deed, although they may become entitled to benefits under it, if individually they choose to do so and the company agrees: it does not in any way control or regulate the services that any apprentice, clerk or other servant is to perform: and the benefits that an employee who enters the scheme can get from it are only to be enjoyed by him when his services to the company have come to an end. Whatever might be the consequence of each of these circumstances standing alone, I consider that cumulatively they place the deed outside the description of an exempt instrument. (at p625)
4. Both sides claimed that the history of this exemption clause supported them. But when fully traced, it does not, I think, yield anything in any way decisive. Nevertheless "the services of apprentices, clerks and servants" is so odd and old-fashioned a phrase that, of itself, it puts one on an inquiry as to its origin, in the hope of thereby getting some light on its meaning. When its derivation has been traced through some curious transformations and transmigrations in stamp duty legislation, the result is, I think, considerable caution in invoking any assumption as to policy or purpose to aid its interpretation to-day. The words "clerks or servants" are, in themselves, clumsy; for clerks in general are servants. But, the phrase "servant or clerk" has been well known in the law since the statute 39 Geo. III, c. 85, entitled "An Act to protect Masters and others against Embezzlement by their Clerks or Servants". That Act was passed in consequence of the decision in R. v. Bazeley (1799) 2 Leach 835 (168 ER 517) . Bazeley was a bank clerk, the principal teller in Esdaile's Bank; and this perhaps explains the words that Parliament used. The collocation of words "apprentices, clerks or servants" in the Stamp Duties Act has, however, a different history. For that it is necessary to go some way back in the English statute book. (at p625)
5. Stamp duties on instruments were first imposed in England by 5 Wm. & Mary, c. 21. Several of the early Stamp Acts - which may be found conveniently tabulated in Tilsley on The Stamp Acts 9th ed. (1865) pp. 336-338 - expressly excepted indentures for binding poor children as apprentices from the duties on indentures generally: for examples, 9 & 10 Wm. III, c. 25 s. 30 ("poor parish children") and 12 Anne Stat. 2, c. 9 s. 21 ("poor parish or charity children"). The Act 5 Geo. III, c. 12, by which it was sought in 1765 to levy stamp duties in the American Colonies, and which was so much the cause of their loss by Britain, imposed, among other duties, a duty of two shillings and sixpence upon indentures (including articles of apprenticeship and clerkship), and a further sum calculated by reference to the amount of any premium or fee payable to the master; but it expressly excepted instruments for the hire of servants who were not apprentices. The principle that the duty on the indentures of apprentices and articled clerks should vary according to the amount of any premium or fee payable to the master was adopted by the Stamp Act of 1815, 55 Geo. III, c. 184. In that Act the duties on various kinds of instruments were, for the first time, set out in a schedule, a practice generally followed thereafter. One heading in the schedule was: "Apprenticeship or Clerkship - Indenture or other instrument or writing containing the Covenants, Articles or Agreements, for or relating to the Service of any Apprentice, Clerk or Servant who shall be put or placed to or with any Master or Mistress to learn any Profession, Trade or Employment whatsoever; except articles of Clerkship to Attornies and others hereinafter specifically charged". (at p626)
6. There followed a scale graduated according to the consideration moving to the master - that is the premium paid or payable. Here is the first appearance of the phrase "relating to the service of any apprentice, clerk or servant". It is, it will be noticed, in a charging provision, not in an exempting provision: and the only servants that it referred to were persons who, like apprentices to trades and articled clerks were indentured as learners. There was in the same Act - under the heading "Agreements" in the Schedule - an exemption in the following terms: "Memorandum or Agreement for the Hire of any Labourer, Artificer, Manufacturer or Menial Servant". This and another exemption that accompanied it - "Memorandum Letter or Agreement made for or relating to the sale of any Goods Wares or Merchandize" - were to have a long history. (at p626)
7. Next among relevant English enactments is one referring to New South Wales. Incongruously, it is in the Act 4 Geo. IV, c. 96, the Act under which the Legislative Council of New South Wales was constituted and by which the Charter of Justice was authorized. A possible explanation of the heterogeneous character of these provisions appears in a letter by Forbes C.J. printed in the Historical Records of Australia, Series IV vol. 1, p. 746. However that may be, s. 41 provided that it should be lawful for any artificer, handicraftsman, mechanic, gardener, servant in husbandry or other labourer, not being under the age of eighteen years, by indenture duly executed and without a stamp, to contract with anyone in New South Wales, or who was about to proceed there, to serve him in New South Wales for any term up to seven years. This was re-enacted by 9 Geo. IV, c. 83, s. 35, with the addition of the words "clerk" and "domestic servant" to the list of those who might so contract. These enactments thus anticipated for New South Wales a general exemption that appeared later, in 17 & 18 Vict. c. 83, in the words "indentures of apprenticeship, bonds, contracts and agreements for and relating to the service in any of the colonies or possessions of Her Majesty abroad, of any person as an artificer, clerk, domestic servant, handicraftsman, mechanic, gardener, servant in husbandry, or labourer". The English stamp laws were consolidated in 1891 by 54 & 55 Vict. c. 39. By it instruments of apprenticeship were chargeable only with half a crown, instead of according to the premium : and it was provided that "every writing relating to the service or tuition of any apprentice, clerk or servant placed with any master to learn any profession or employment (except articles of clerkship to a solicitor or law agent or writer signet) is to be deemed an instrument of apprenticeship" (s. 25). The Act contained the old exemptions of the indentures of parish and charity apprentices, also the exemptions of agreements for the hire of labourers and others, and agreements relating to services in the colonies. The Finance Act, 1949, s. 35, repealed the duty of half a crown on indentures of apprenticeship in England. But in the meantime the words "instrument relating to the services of apprentices, clerks or servants" had entered upon a career in the law of New South Wales ; and to that I now turn. (at p627)
8. Stamp duties were first granted in New South Wales by the Stamp Duties Act, 1865. The schedule provided for a duty of one pound on deeds or instruments of any kind not otherwise granted. Following this certain special exemptions were set out. One was : "Apprenticeship and Clerkship - All instruments relating to the services of apprentices, clerks, or servants". (at p627)
9. This would seem to have been an attempt to deal with instruments of the same sort as were dealt with by the corresponding provisions in the English statutes (55 Geo. III, c. 184 and 16 & 17 Vict., c. 59). In New South Wales the clause was an exempting provision, in England a charging provision. The aim seems to have been to exempt from duty in New South Wales instruments of the kind that were subject to duty in England. The colonial draftsman, however, by economizing in words left room for uncertainty ; for it was only the prefatory phrase "Apprenticeship and Clerkship" that could confine the word "servants" in the New South Wales enactment to servants who served to learn a trade, as it was confined in the English Acts. It is to be noted too that the New South Wales Act spoke of "all instruments relating to the services of apprentices, clerks or servants" - each word being in the plural, whereas the original English model was "indenture or other instrument . . . containing the covenants etc. for or relating to the service of any apprentice, clerk or servant". The Act of 1865, after being amended and continued by various Acts, expired on 31st December 1874. Thenceforth there was no stamp duty in New South Wales until 1st July 1880, when the Stamp Duties Act, 1880 came into force. In it duties were again set out in schedules, followed this time by a list of thirty exemptions. These included : "Any agreement or memorandum for the hire of any labourer artificer manufacturer or menial servant" and "Any agreement or memorandum made for or relating to the sale of any goods wares or merchandize". These were derived in terms from England. But the one that is important for present purposes read simply : "Any instrument relating to the services of an apprentice clerk or servant". This time it will be noticed it is couched in the singular. Symmetry required this, for each of the thirty paragraphs under the heading "Exemptions" started with the word "Any". But the striking thing is that this symmetry was attained by leaving out the prefatory words "Apprenticeship and Clerkship" that in 1865 had probably kept the operation of the colonial provision limited, as its English parent clearly was, to the indentures and articles of those who served to learn a calling. So that now there was nothing to confine the scope of the word "servants", except perhaps a recollection of the ancestry of the phrase and the co-existence of the exemption of agreements and memoranda for the hire of laboureres, artificers etc., which would have been superfluous if every instrument relating in any way to any kind of servant was exempt. The Act of 1898 was a consolidating statute, part of the general consolidation of the New South Wales statutes made by Judge C. G. Heydon. As there had been no amendments of the thirty exemptions in the 1880 Act, they are simply re-enacted in the 1898 Act. We do not have to decide what the effect of these provisions, for the capacity of New South Wales draftsmen for departing from models and for laconics had not been exhausted in 1865 and 1880. A further step was taken in the Stamp Duties Act, 1920, where many changes are introduced into the table of exemptions. All attempt at verbal symmetry is abandoned. The exemption of agreements for or relating to the sale of any goods, wares or merchandize remains ; but it is transferred from the general exemptions to a place under "Agreements" in the body of the second schedule : the exemption of agreements for the hire of labourers, artificers etc. entirely disappears : the exemption with which we are concerned takes its present form. It is again couched in the plural ; but now it is "all instruments relating to the services of apprentices clerks and servants", instead of "or servants" as in all its earlier forms. We must interpret it and apply it as we find it. But I take it that it is still to be read as if it said "or servants". I agree with Menzies J. in thinking that, despite the obvious antiquity of its language, it cannot, in its present form and setting, be limited to servants who are ejusdem generis with apprentices and articled clerks. And the exemption of agreements for the hire of labourers, artificers etc. having disappeared, there is, I think, every reason for regarding it as applicable now to all forms of service agreements made between employers and servants of any kind. But beyond that I think one cannot with any assurance go. I certainly find nothing in the history that I think would justify us in giving any large meaning to the words "relating to" on any view that this would accord with the policy of the Act. (at p629)
10. I consider the appeal should be dismissed. (at p629)
ORDER
Appeal dismissed with costs.
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