Symond v Gadens Lawyers Sydney Pty Ltd (No 2)  [2013] NSWSC 1578 .

Supreme Court New South Wales

Medium Neutral Citation

Symond v Gadens Lawyers Sydney Pty Ltd (No 2)  [2013] NSWSC 1578

Hearing Dates

17 October 2013

Decision Date

31/10/2013

Jurisdiction

Common Law

Before

Beech-Jones J

Decision

(1) The notice of motion filed 2 August 2013 is dismissed.
(2) Judgment for the Plaintiff against the First Defendant in the sum of $4,979,800.00.

Catchwords

DAMAGES - calculation of economic loss - interest and earnings - calculating the offsetting value of the benefit of the restructure - termination date for calculating that benefit - whether dividend flow to third party beneficiaries the same amount or percentage in the hypothetical and real worlds - timing of tax payments.

PROCEDURE - re-opening after publication of reasons for judgment but before orders are made.

Legislation Cited

- Civil Procedure Act 2005
- Fringe Benefits Tax Assessment Act 1986 (Cth)
- Trade Practices Act 1974 (Cth)
- Uniform Civil Procedure Rules 2005

Cases Cited

- Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300

- Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513
- Fightvision Pty Ltd v Onisforou; Tszyu v Fightvision Pty Ltd [1999] NSWCA 323; 47 NSWLR 473
- Grljusich v Andrews [2003] WASCA 206
- New Cap Reinsurance Corporation Ltd v AE Grant & Ors, Lloyd's Syndicate No 991 [2009] NSWSC 950
- Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387; 78 NSWLR 190
- R v Ireland (1970) 126 CLR 321
- Symond v Gadens Lawyers Sydney Pty Ltd [2013] NSWSC 955
- Urban Transit Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

Category

Consequential orders

Parties

John Joseph Symond (Plaintiff)
Gadens Lawyers Sydney Pty Ltd (1st Defendant)

Representation

Solicitors:
Baker & McKenzie (Plaintiff)
DLA Piper Australia (First Defendant)

Counsel:
A.J. Payne SC, J.O. Hmelnitsky SC (Plaintiff)
S.R. Donaldson SC, B.L. Jones (First Defendant)

File Number(s)

2009/297612

Judgment

1On 19 July 2013 I published my principal judgment in these proceedings (Symond v Gadens Lawyers Sydney Pty Ltd [2013] NSWSC 955). I upheld Mr Symond's claim against Gadens Lawyers Sydney Pty Ltd ("Gadens").

2I found that, in proposing a certain ownership structure of the "Aussie Home Loans" business (the "Gadens Restructure") and advising as to the means by which Mr Symond could continue to withdraw funds from that business supposedly "tax free", Gadens was negligent, in breach of its retainer and engaged in conduct contrary to s 52 of the Trade Practices Act 1974 (Cth). I found that Gadens was obliged to advise Mr Symond not to proceed with the Gadens Restructure and instead should have advised him of three other ways to restructure his business so as to achieve his objective, with the preferred scenario being the option described as "Scenario 2" (principal judgment at [8] and [269]ff). I found that, had that advice been given, Mr Symond would have implemented Scenario 2.

3I also found that, had that advice been given, the imposition of certain taxes, penalties, interest charges and a deduction from the franking account of AHL Holdings Pty Ltd ("Holdings"), as well the payment of various professional fees, would have been avoided (principal judgment at [8]).

4In the principal judgment I addressed certain issues of varying complexity that had arisen in relation to the quantification of Mr Symond's loss. I was not able to quantify a verdict in his favour, but instead set out a methodology for its calculation which addressed, inter alia, the proceeds of a settlement that Mr Symond negotiated with another firm of solicitors, Abbott Tout (see principal judgment at [422] to [426] and [452] to [455]).

5The only order I made was to stand over the proceedings for further directions to enable the parties to calculate the quantum of Mr Symond's damages. In doing so, it became apparent to the parties that certain issues relevant to the calculation of the final figure needed to be resolved before a final figure could be determined. Further, Gadens decided that it would seek to revisit aspects of the principal judgment. To that end, it filed a notice of motion seeking an order pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 ("UCPR") or the inherent jurisdiction of the Court to the effect that the "judgment made by the Court on 19 July 2013 at [423] to [426] be varied so that interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) is to be calculated on the net amount of damages and not on the components in the calculation thereof".

6At the resumed hearing of the proceedings it was accepted that the orders sought in the notice of motion were misconceived. The reference to a "judgment" in UCPR r 36.16(3A) is a reference to an order or verdict of the Court, and not to the Court's published reasons (Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387; 78 NSWLR 190 at [50]; see also R v Ireland (1970) 126 CLR 321 at 330 per Barwick CJ, McTiernan, Windeyer, Owen and Walsh JJ agreeing). Gadens is not seeking to vary any order of the Court. Instead, in respect of certain issues Gadens is seeking leave to reopen after reasons for judgment have been delivered but before final orders have been entered.

7On this further aspect of the hearing and the application to reopen each party tendered additional reports from their respective financial experts, Mr Potter and Ms Jones (see principal judgment at [239]). Based on those reports and the parties' submissions, it became clear that there are five further issues outstanding. As I will explain, some of them involve a re-opening of aspects of the principal judgment.

Issue 1: Interest and earnings

8Gadens' fundamental complaint is that the methodology for quantifying Mr Symond's damages set out in the principal judgment contemplates the application of different rates of "interest" or "earnings" on two integers of the calculation of his claim for damages. Gadens contends that this discrepancy is unfair and results in Mr Symond being over-compensated. Mr Symond contends that this was a matter that was agitated at the hearing and resolved by the principal judgment, that no proper basis to reopen has been made out, and that it would be unfair to permit Gadens to do so. He further contends that when the two integers of the calculation of his loss are properly analysed the complaint of disparity causing overcompensation is unjustified. To address these submissions it is necessary to outline how each party put its respective case on damages and the approach that was adopted in the principal judgment.

Background

9There were and are effectively three components to Mr Symond's damages claim. First, he claimed recovery of the tax and associated penalties that he was required to pay as a result of the settlement he reached with the Commissioner of Taxation (the "Commissioner") in 2007 as well as the costs of the Commissioner's audit of his affairs (principal judgment at [154] to [156]). He contended that those expenses were incurred by him as a consequence of his adoption of the Gadens Restructure. In relation to those amounts Mr Symond claimed interest under s 100 of the Civil Procedure Act 2005 and at the rates identified in Practice Note SC Gen 16 (the "Court rates"). That claim and the calculation of interest were set out, inter alia, in the tables accompanying the reports put forward on his behalf by Mr Potter (and extracted in the principal judgment at [320]).

10Further, at the trial a detailed joint report was put forward by Mr Potter and Ms Jones (the "joint report"). In relation to so much of Mr Symond's claim that sought interest at Court rates on the tax and penalties paid following the settlement with the Commissioner, Ms Jones stated:

"Ms Jones understands statutory interest may be awarded to compensate [Mr Symond] for being deprived of the use of the money claimed to have been lost. Ms Jones considers the award of statutory interest to be a matter for the Court."

Gadens' submissions did not address this issue.

11In the principal judgment I resolved all the disputed questions concerning this aspect of the damages claim in Mr Symond's favour (principal judgment at [330] to [335]). I also found that interest was to be allowed on these expenses in the manner calculated by Mr Potter and updated to the time of entry of the judgment (principal judgment at [422]).

12The second component of Mr Symond's damages claim concerned the loss occasioned to Mr Symond, if any, from the deduction in Holdings' franking account of $5,014,286.00 that occurred as a result of the settlement with the Commissioner (principal judgment at [155]). I concluded that this deduction caused a compensable loss to Mr Symond. I quantified that loss, albeit at a lesser amount than that claimed by him (principal judgment at [414] and [426]). I allowed interest on that amount at Court rates from 1 January 2011 (id). Neither party sought to reagitate any aspect of that matter.

13The third component of the claim for damages was an offset which was described as the "Benefit of the Restructure", ie the Gadens Restructure (see principal judgment at [365] to [376]). This was an amount that represented the value of the "benefit" that Mr Symond received from adopting the Gadens Restructure compared with Scenario 2. This "benefit" arose because under Scenario 2, in order for Mr Symond to maintain the tax-free status of the amount he would have had to borrow from the AHLUT to build his house, Holdings would have had to declare (partially franked) dividends for the financial years 2005 and 2006 ("FY05" and "FY06" respectively). This would have resulted in the imposition of a taxation liability on him (see principal judgment at [279]). In contrast, by adopting the Gadens Restructure, Holdings was not obliged to and did not declare any dividends in respect of those years.

14At the trial Mr Symond said this "benefit" was only temporary. In the joint report, Mr Potter stated that "the total amount of tax that Mr Symond will ultimately be required to pay on the value generated by the Aussie Group is the same" and "[t]his is because the hypothetical scenarios [in this case Scenario 2] assume that [AHLUT/Holdings] earnings from which dividends are distributed will not differ materially to what was actually earned by [Holdings]". Mr Symond, via Mr Potter, contended that a "temporary benefit" flowed from the adoption of the Gadens Restructure in that under Scenario 2 Mr Symond would be required to pay tax earlier because of the necessity to declare dividends for FY05 and FY06. Mr Potter sought to quantify this temporary benefit by projecting the period over which the initial differences between the tax payments would even out, and applying Holdings' rate of earnings to the differences over time.

15Gadens, via Ms Jones, embraced the proposition that there was an offsetting benefit to Mr Symond from adopting the Gadens Restructure. However, it contended that it was a permanent benefit and not temporary. It submitted that there was no reason to believe that under Scenario 2 lesser dividends would be distributed in the years after FY05 and FY06 compared to the events that transpired because greater dividends had been distributed in those years. Neither Gadens nor Ms Jones specifically addressed Mr Potter's approach of quantifying the temporary benefit by applying Holdings' earnings rate to the funds that were retained by it in the events that transpired, as opposed to being paid out to meet Mr Symond's liability for dividend income in respect of FY05 and FY06 under Scenario 2. However, in the joint report Ms Jones appeared to accept the logic of that approach in that she described the benefit she considered was permanent in the following terms:

"Ms Jones agrees with Mr Potter that a benefit occurs because under the Restructure, AHL Holdings is able to retain earnings which are taxed at a corporate rate of 30% while these earnings are retained in the company." (emphasis added)

16Further, the joint report included the following statement which on its face appears to embrace and accept Mr Potter's methodology of quantifying the temporary benefit that he identified, even if not accepting the reasoning underlying the conclusion that the benefit was only temporary:

"Whilst Mr Potter and Ms Jones disagree as to the quantum of tax payable by [Holdings] and dividends that would be paid by [Holdings] and the resulting tax that would be paid by Mr Symond in the 'But for' cases, Mr Potter and Ms Jones have agreed [on] the mathematics and structure, and amounts of dividends, income tax and timing of payment of them included in the spreadsheet model worksheets labeled 'Benefit of Restructure - Scenario 1' and 'Benefit of Restructure - Scenario 2' so far as they apply to the position they have each adopted. That is, they agree [with] each other's calculations, subject to their disagreement as to which assumption as regards to the quantum of tax payable by [Holdings] and dividends that would be paid by [Holdings] and the resulting tax that would be paid by Mr Symond is appropriate within the 'But for' cases." (emphasis added)

17In her oral evidence on this application, Ms Jones was asked where in the joint report she set out her disagreement with Mr Potter on calculating the value of the benefit of the Gadens Restructure by reference to Holdings' rate of earnings on its funds. She responded:

"I didn't go beyond my opinion it was a permanent benefit. I didn't go on to then express views as to Mr Potter's time benefit. If I had actually turned my mind to that my calculation would not only have included $10.2 million [being the extra tax payable by reference to the dividends that would have to be declared under Scenario 2 for FY05 and FY06], it would have also included the benefit of $2.9 million of having had that benefit permanently in the business."

18I describe below the approach that Ms Jones now states is the correct one. At this point I indicate that I accept her evidence that she simply did not turn her mind to this question. However, that is not what is suggested by the materials that were presented at trial. Unless otherwise stated the parties are expected to conduct their case at trial on the basis that they will identify all of the matters upon which they join issue, including questions of quantification that will only arise if their primary case or principal contention on an issue is not accepted.

19Thus, at trial, Mr Symond clearly put forward a case which involved the application of Court rates of interest to the tax, penalties and costs that he paid and the calculation of the value of the temporary benefit that he identified by utilising Holdings' rate of earnings on its own funds. Nothing was said either by Gadens, or Ms Jones, in opposition to those aspects of his case. To the contrary, paragraph 13 of the joint report suggested that the use of Holdings' rate of earnings at least was agreed.

20In its written submissions in support of its notice of motion, Gadens contended that Mr Potter's approach to the calculation of pre-judgment interest "had been adopted without argument by the Court". The reference to absence of argument can only be to an absence of argument from Gadens. Being argumentative is not the Court's function and it is not generally desirable that it act or be described as acting in that way. The absence of argument on these questions was a circumstance that arose from a choice by Gadens.

21In the principal judgment I partially accepted Mr Symond's case concerning the benefit of the Gadens Restructure. I found that the benefit of the Gadens Restructure, compared with Scenario 2, was the lower cost (ie tax) to Mr Symond of extracting the same level of net dividends out of Holdings (see principal judgment at [373]). However, I also concluded that Mr Potter's methodology had departed from the rationale said to support it. I found that, in the events that happened, various circumstances meant that the Gadens Restructure was able to lock in a permanent benefit in favour of Mr Symond. These circumstances were the reduction in his marginal tax rate over time, the fact that under Scenario 2 Mr Symond would be obliged to receive partially unfranked dividends in respect of FY05 and FY06 when he did not have to under the Gadens Restructure and the sale of one-third of his shareholding in Holdings to the Commonwealth Bank of Australia in the latter part of 2008 (principal judgment at [364] to [370]).

22I determined that the value of the benefit of the Gadens Restructure should be calculated by comparing the (tax) cost of distributing the net dividends that were in fact distributed over the period up to 30 June 2011 by Holdings under the Gadens Restructure and Scenario 2. I described how this calculation was to be performed as follows:

"374 It follows that there will need to be a recalculation of the reduction in Mr Symond's taxation liability under Scenario 2 that would have resulted from the distribution of $30,555,367.00 less in net dividends than was in fact distributed in the period [from 30 June 2007] up to and including 30 June 2011. This recalculation, including the differences in timing of payments of tax (and earnings as per Mr Potter's analysis), will yield a figure which is to be deducted from the extra tax payable under Scenario 2. It will diminish the amount referable to the benefit of the Restructure noted in Ms Jones' table, but increase the amount shown in Mr Potter's table. The resulting figure for the benefit of the Restructure will represent those aspects of the benefit of the Restructure which are permanent, namely the timing differences and the matters I have described at [364] and [370].

375 The recalculation of this amount should first accommodate a proportionate reduction in the dividends distributed on 30 June 2007 and 30 June 2008 equivalent to yielding the amount of the settlement sum paid to the ATO in Mr Symond's hands (because under Scenario 2 Mr Symond would not have to pay that amount), and then a proportional reduction of the remaining net dividends in those years and for the period after the sale to the CBA up to 30 June 2011. They are all to be treated as though they were fully franked. These calculations will need to accommodate Mr Symond's 100% shareholding up to October 2008 and his two thirds shareholding thereafter, as well as any changes in his marginal rate over that period."

23The figure of $30,555,367.00 referred to in [374] was a reference to the dividends that would have been distributed by Holdings referable to the financial years FY05 and FY06 under Scenario 2 (principal judgment at [279]). The "extra tax payable under Scenario 2" referred to in [374] is the tax payable on those dividends, namely $10,212,979.00. The reference to "earnings as per Mr Potter's analysis" was to Mr Potter's approach of applying Holdings' rate of earnings to amounts that, in the events that transpired, Holdings did not pay but would have had to pay under Scenario 2 (see principal judgment at [352]).

24After the principal judgment was published, Mr Potter undertook the analysis contemplated by [374] and [375] of the principal judgment. He concluded that the benefit of the Gadens Restructure was $6,033,725.00, $4,339,268.00 being the difference attributable to the three features that I have identified, and $1,694,456.00 being the amount attributable to the difference in the timing of the payments under the Gadens Restructure as compared with Scenario 2. This was calculated by reference to Holdings' rate of earnings on its own funds.

25In the principal judgment I discussed what was to occur with these figures. I stated:

"422 It follows that the calculation of the loss and damage occasioned to Mr Symond as a result of Gadens' actionable conduct is to be determined in the following manner.

423 First, by totalling the items listed in the first four rows of the table in [320], being the tax, penalties and GIC imposed by reason of the settlement reached with the Commissioner and the professional fees incurred, and updating the interest calculation on those amounts.

424 Second, by deducting an amount for the cost of the extra advice concerning the FBTAA that I have referred to at [317] ($25,000.00) and the amount allowed for the possibility that further scrutiny beyond the 2005 review might have been necessary in relation to Mr Symond's FBT exposure ($75,000.00) (see [330]).

425 Third, by deducting an amount for the benefit of the Restructure calculated in accordance with [374] to [375].

426 Fourth, by adding $1,291,178.50 together with interest from 1 January 2011, being the loss occasioned to Mr Symond by the deduction of $5,014,286.00 from Holdings' franking account."

26I also indicated how the amount of the settlement from Abbot Tout was to be accommodated in the ultimate determination of Mr Symond's loss (principal judgment at [452] to [455]) in a manner that I need not now outline.

27The methodology outlined in the principal judgment at [374] to [375] and at [422] to [426] reflected the manner in which Mr Symond put his case, namely the claim for interest on the extra tax, penalties and costs at Court rates and a calculation of the benefit of the Gadens Restructure which quantified differences in the timing of payments by using Holdings' rate of earnings on its own funds. I have already noted the position taken by Gadens and Ms Jones in respect of that. Further, to the extent that the analysis in the principal judgment in relation to the calculation of the benefit of the Gadens Restructure involved a non-acceptance of part of the case put forward by Mr Symond and proffered a different approach, that difference was not material to the present matter which concerns the application of different rates to these two components of Mr Symond's damages claim.

Consideration

28In oral argument Senior Counsel for Gadens, Mr Donaldson SC, stated that his client's primary submission was that Holdings' rate of earnings should be applied to both the first and third components described in [9] and [13] above but, failing that, the Court rates should be applied to both. During oral argument there was some debate about whether the adoption of either or both of those approaches would involve an application to reopen or was a fresh matter that arose out of the Court's findings as to the manner of calculating Mr Symond's loss. It follows from the above that both submissions involve an application to reopen the published reasons for judgment in respect of a matter that Gadens had the opportunity to address at the trial but did not.

29The parties were in disagreement as to the appropriate principles governing an application to reopen in circumstances where reasons had been published but no orders giving effect to those reasons had been made, much less entered. Mr Symond contended that such an application was governed by the principles stated in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 which only contemplate a reopening in circumstances where a party has, through no fault of their own, not been heard (at 309 per Brennnan J and 317 per Dawson J) or the Court has "proceeded according to some misapprehension of the facts or relevant law and ... this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing" (at 303 per Mason CJ). Autodesk precludes a matter being reopened in respect of an issue that was raised at the hearing and decided (Autodesk at 309 per Brennan J). If that principle were applicable in the circumstances of this matter then it would follow that Gadens' application would have to be refused.

30In Wentworth v Wentworth [1999] NSWSC 638 at [13] to [18] Santow J referred to the principles in Autodesk and discussed their application and modification to the reopening or varying of a judgment at first instance. In New Cap Reinsurance Corporation Ltd v AE Grant & Ors, Lloyd's Syndicate No 991 [2009] NSWSC 950 Barrett J applied Santow J's analysis to these circumstances, namely where reasons have been delivered but substantive orders have not yet been made (at [1] to [2]). His Honour concluded (at [20]) that an application to reopen in such circumstances should be allowed "where it is obvious ... that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court". His Honour's subsequent citation of the passage from the judgment of Rix LJ in Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513 makes it clear that this only extends to obvious errors and does not involve the judge hearing the application to be treated to "an exposition such as would be presented to a court of appeal".

31In Autodesk the application to reopen the appeal was made after orders dismissing the appeal had been pronounced but before they had been perfected by the taking out of formal orders (at 302). As stated, in this case no substantive orders have yet been made. Gadens submitted that this was a relevant point of distinction between this application and Autodesk. They contended that the Court had a discretion to reopen the principal judgment which was at large, although presumably they would accept that it was governed by s 56 of the Civil Procedure Act. It submits that an application to reopen in these circumstances is in substance no different to an application to reopen after a hearing has concluded and judgment has been reserved, and is therefore governed by the dictates of the "interests of justice" (Fightvision Pty Ltd v Onisforou; Tszyu v Fightvision Pty Ltd [1999] NSWCA 323; 47 NSWLR 473 at [154], and Grljusich v Andrews [2003] WASCA 206 at [109], applying Urban Transit Authority of New South Wales v Nweiser (1992) 28 NSWLR 471).

32I doubt that Gadens' position is correct. It seems to me that the publication of reasons for a judgment is a matter that engages the principles of finality discussed in Autodesk which do not apply to the same extent, if at all, before such time. On this basis I could consider the matter raised by Gadens to determine whether it raises an "obvious error" as referred to by Barrett J in New Cap. Nevertheless I will address the substance of Gadens' contentions on this issue against the contingency that a broader approach to reopening the principal judgment on this issue is appropriate as it contends.

33As noted, the essence of Gadens' complaint is that a consistent rate should be adopted in assessing the value of "benefits and detriments". It submitted that there was no logical justification for applying different rates. Gadens submitted that the proper approach was one that involved the use of a "running net balance" which included the costs and expenses incurred by Mr Symond in the events that transpired and recorded a credit for the extra tax expense that was not incurred in the events that happened (but that would have been incurred under Scenario 2). It submitted that either Holdings' earnings rate or the Court rates should be applied to that running balance.

34In her further report Ms Jones pointed out that there were differences between the Holdings rate of earnings on its own funds and the statutory Court rates, with the former being lower than the latter. In commenting on Mr Potter's approach (which reflects the principal judgment) she stated:

"30 Mr Potter's methodology implicitly assumes that as a consequence of the advice [Holdings]/Mr Symond was provided, [Holdings/Mr Symond] has suffered a cash outflow from say when the professional costs were paid to 8 August 2013.

31 This is not correct, as based on the Court's determination, as a consequence of the advice provided, [Mr Symond] enjoyed a Permanent Benefit of the Restructure. This benefit occurred during the time when the professional costs were paid. This benefit is significantly greater than the cash outflow suffered from the payment of professional fees." (emphasis added)

35As per Gadens' submissions, Ms Jones suggested that interest should be calculated "on the cumulative net position" of Mr Symond to which a consistent rate should be applied, being either the Court rates or Holdings' earnings rate. As an illustration, the first five entries in her running balance were as follows:

All amounts	Transaction	Subtotal	From	To	Days	Rate	Interest
AT Lawyers P/L (Solicitors)	22,572	22,572	21-May-07	21-May-07	1	0.0281%	6
Price Waterhouse Coopers	192,500	215,072	22-May-07	27-Jun-07	37	0.0281%	2,235
Price Waterhouse Coopers	134,189	349,261	28-Jun-07	28-Jun-07	1	0.0281%	98
AT Lawyers & PWC	215,731	564,992	29-Jun-07	30-Jun-07	2	0.0281%	317
Hypothetical Tax Payment	(3,133,269)	(2,568,277)	01-Jul-07	20-Jul-07	20	0.0281%	(14,425)

(emphasis added)

36In oral argument Mr Donaldson SC accepted that the application of differential rates of interest or earnings to different components or integers of a loss assessment was not objectionable per se, but depended on the circumstances. In this case the running balance approach suggested by Gadens involves a misconception about the two integers that are sought to be combined, namely the extra tax and expenses paid by Mr Symond represented by the first four items on this table and what is said to be the Benefit of the Restructure. The fifth item in the above table does not represent the benefit of the Gadens Restructure and it is not correct to state, as Ms Jones did, that the benefit occurred during the period when the payments were made.

37The analysis of the Benefit of Restructure in the principal judgment involved a quantification of the (offsetting) value to Mr Symond of the adoption of the Gadens Restructure. I determined that that value should be measured by calculating the lower tax cost paid on the distribution of those net dividends distributed by Holdings in the period up to 30 June 2011 under the Gadens Restructure, compared with what would have been paid had the same amount of dividends been distributed by Holdings under Scenario 2. Thus at [373] of the principal judgment I noted that "[w]hat is ultimately being measured is the cost to the shareholder [ie Mr Symond] of that distribution". This approach was arrived at after an evaluative assessment of a number of matters, including the time over which the comparison should be undertaken (principal judgment at [371]ff) and an assessment of the pattern of distributions under Scenario 2 in the period FY07 to FY11 (principal judgment at [375]). It also adopted Mr Potter's method of quantifying the timing differences in such payments between the Gadens Restructure and Scenario 2. This was so because, in the events that transpired, Holdings did not declare dividends for FY05 or FY06 and those funds remained within Holdings for longer than they did under Scenario 2.

38Thus the error in the approach suggested by Gadens and Ms Jones is to treat the Benefit of the Restructure as simply involving the net effect of a series of payments made (or not made) by Mr Symond from time to time which can be included on a ledger with other payments that he did make. It was not of that character. Instead, as I have said, its measurement involved a composite assessment of the offsetting "value" represented by the adoption of the Gadens Restructure, as compared with Scenario 2, to the circumstances prevailing at Holdings. It had a number of integers and one of those integers cannot simply be plucked out of the assessment and inserted into the quite different analysis required for payments that were in fact made by Mr Symond from his own funds (even if those funds were sourced from the net proceeds of a dividend distribution from Holdings).

39One matter that was raised during the hearing, including by me, was whether it was appropriate to apply Court rates to the payments made by Mr Symond to the Commissioner for Taxation and penalties (as well as professional costs) in circumstances where they were in fact funded by the net proceeds of a dividend distribution which under Scenario 2 would not have been required. If it had not been required then, so the argument went, the funds distributed would have stayed within Holdings and accrued earnings at that company's rate.

40Having considered this point I do not accept it. In comparing the Gadens Restructure with Scenario 2, the Holdings earnings rate should be applied to the monies otherwise payable to meet the tax referable to the receipt by Mr Symond's of dividends because those funds are either paid directly to the Commissioner or retained by Holdings (and in neither case received personally by Mr Symond). However the payment to the Commissioner (and the professionals) in 2007 to 2008 was made out of the net proceeds of a dividend distribution and discharged liabilities unrelated to that distribution. Like the other net proceeds of dividend distributions, they were monies receivable and received into Mr Symond's hands. It is appropriate to apply Court rates to compensate him for his loss of their use.

41This conclusion is illustrated by a proposition that was put to Mr Potter during his cross examination, namely that he had "treated tax that would have been paid under [Scenario 2] as being funded by [Holdings] and ... treated tax that was paid by Mr Symond, at least insofar as it related to penalties in the actual world as being funded by him". Mr Potter disagreed and he was right to do so. Under both the Gadens Restructure and Scenario 2 tax that was payable in respect of the distribution of dividends by Holdings was treated as though it was funded by Holdings, as it was. This tax was only payable as a result, or as a consequence, of the distribution of the dividends. It was either payable to the Commissioner (or the professionals) or to be retained by Holdings. Thus, in the scenario where it was not paid, it is appropriate that it accrue earnings at the rate that Holdings earned on its funds.

42However the tax (and fees) paid by Mr Symond in 2007 and 2008 represented a completely different set of liabilities to that incurred as a consequence of a dividend distribution. The tax and penalties paid by Mr Symond to the Commissioner (and the fees) were payable as a consequence of the Gadens Restructure but they were not payable in respect of or as a consequence of any dividend distribution by Holdings. Instead, they were a consequence of the non-tax compliant method of funding the construction of Mr Symond's house that the Gadens Restructure gave effect to.

43Further, the net proceeds of the dividend distributions are, for present purposes, very different to the tax payable by Mr Symonds on dividend distributions. When distributed they were monies that Mr Symond received personally. As was noted by Mr Potter in his evidence, under both the Gadens Restructure and Scenario 2, $67 million in net dividends was distributed. At this point of the analysis the only relevant difference between them is that under the Gadens Restructure Mr Symond lost the opportunity to enjoy the use of the funds paid to the Commissioner (and professionals) when it was otherwise payable to him. It follows that his loss of use of those funds should be compensated for by applying Court rates. In contrast, the tax payments considered in assessing the Benefit of the Restructure were amounts to be paid either to the Commissioner or were otherwise retained by Holdings but were never to be received by Mr Symond. It follows that the calculation of the Benefit of the Restructure should apply Holdings' rate of earnings.

44Finally, I note that Gadens submitted that "the benefits associated with following [Gadens advice], that is, the avoidance of tax payments that would have been paid at a higher rate on larger dividends than in fact occurred (being the amounts of tax payable had [Scenario 2 been adopted]), pre-dated the detriment associated with following that Advice, in whole or in part" and that "[t]o accrue interest on that detriment without adjustment for the pre-existing benefit amounts to accruing interest on a detriment that has not been sustained". Although it is not clear this submission also appears to be contending that, in calculating the Benefit of the Restructure, nothing is accrued on the amount of tax payable under Scenario 2 in respect of the dividend declared for FY05 ($3,133,269.00) and FY06 ($7,079,710.00) prior to the payment of the settlement to the Commissioner in September 2008. If that is what is contended then it is incorrect. The spreadsheets attached to Mr Potter's further report reveal that he commenced accruing earnings on those amounts by reference to the Holdings earnings rate prior to Mr Symond's payment to the Commissioner. Otherwise, if this is really only a restatement of the complaint about the application of different rates, it has already been addressed.

45Accordingly, I reject Gadens' application to modify the process of calculating Mr Symond's damages specified in the principal judgment at [374] to [375] and [422] to [426] to the extent that it allowed interest on the amount paid to the Commissioner in tax and penalties (and associated professional costs) at Court rates and included in the Benefit of the Restructure a component to be calculated by using an earnings rate equal to that achieved by Holdings on its own funds.

46I note that in reaching this conclusion it has not been necessary to address Mr Symond's further contention that had Gadens disputed these matters at the trial then he "would have led different lay and expert evidence".

Issue 2: Termination date for calculating the benefit of the restructure

47In calculating the Benefit of the Restructure the period specified in the principal judgment for conducting the exercise of comparing the cost of distributing the same amount of net dividends concluded on 30 June 2011. The parties were in dispute as to what should occur with the figure that was determined as representing the Benefit of the Restructure from that time up to the date of judgment. Mr Potter continued to accrue the running value of the benefit as at 30 June 2011 at Holdings' rate of earnings up to the time that Mr Symond paid tax on the dividends he received in respect of the dividends payable for the year ended 30 June 2011, namely 21 July 2012. However he ceased to accrue any interest or earnings from that time. Consistent with her approach to the first issue Ms Jones accrued interest at Court rates until the anticipated date for judgment.

48This was not a matter that was agitated at the hearing. As noted Mr Potter contended that the Benefit of the Restructure was temporary and would smooth out over time leaving only a difference in the timing of payments. He adopted mid-2013 as the point by which the smoothing out would be complete. On his approach it was not necessary to consider the present question because there was no permanent benefit and there was no "gap" period beyond the end of his calculations. It is only the departure of the principal judgment from this aspect which raises this as an issue. Thus, even if some aspect of the principal judgment covers this point (such as [425]), then the principles extracted from Autodesk at [29] above enable Gadens to raise it.

49Mr Symond points to those parts of the principal judgment which identify 30 June 2011 as the end point for the calculation of the Benefit of the Restructure (at [372]). However, consistent with [37] to [38] this date was just another component of the calculation of the offsetting value of a benefit. It was simply the end of the last financial year during which dividends, which form part of the comparison of the cost of exacting the same amount of net dividends under Scenario 2 when compared with the Gadens Restructure, are taken to be declared. It had no greater significance and did not signify some point at which the value of the offsetting benefit is fixed forever into the future. As explained above, what was yielded from the calculation described at [374] to [375] was a value for the benefit. Mr Potter's analysis shows that that value crystallises at 21 July 2012. From that point the value of the benefit should accrue interest at Court rates. Paragraph 425 of the principal judgment should operate as though the words "(with interest accruing on that amount at statutory rates) from 21 July 2012" were added to the end.

Issue 3: Third party beneficiaries

50One matter that was overlooked in formulating the methodology set out in the principal judgment at [422] to [426] and [374] to [375] was that Mr Symond did not ultimately receive the entirety of the dividends that were distributed by Holdings. In the principal judgment at [14] it was noted that, prior to corporatisation, Mr Symond only controlled the units in the AHLUT "through various entities, which relevantly included the Dawnraptor Trust and the Symond Investment Trust". It appears that he also utilised those entities to own his shares in Holdings. In the years ended 30 June 2007 to 30 June 2011 the overwhelming bulk of the dividends distributed by Holdings flowed to Mr Symond via those two trusts, but it does appear that their trustees distributed a relatively small percentage of dividends to other entities (the "other beneficiaries").

51This circumstance affects the performance of the calculation contemplated by the principal judgment at [374] to [375]. Mr Potter and Ms Jones adopted two different approaches. Mr Potter calculated the reduced tax payable from the reduced dividend flow by assuming that those trusts distributed the same dollar amount to those so-called "other beneficiaries". However, Ms Jones calculated that amount by assuming that the ratio of dividends that were distributed by those trusts to the other beneficiaries to those that were distributed to Mr Symond was the same under Scenario 2 as in the events that transpired. Ms Jones' approach meant that a greater dollar amount is to be taken to be distributed to Mr Symond under Scenario 2 than that calculated by Mr Potter. Her approach means that the tax paid by Mr Symond under Scenario 2 is higher than that calculated by Mr Potter, and thus the value of the Benefit of the Restructure is also higher.

52During the trial no attention was paid to either the identity of the other beneficiaries or the circumstances in which they were paid because, on the respective (absolutist) positions of the parties, it was apparently irrelevant. It seems that the need to address this matter only became relevant as a consequence of the methodology outlined in the principal judgment. For that reason, after hearing submissions on 17 October 2013, I allowed the parties a brief opportunity to file further submissions and evidence as they considered appropriate concerning these payments.

53Mr Symond provided submissions which attached certain redacted copies of the minutes of the trustees recording resolutions distributing the proceeds of the receipt of dividends from Holdings in the years 2007 to 2011. I have admitted those redacted minutes (and had them marked as exhibit 7). Those minutes record that over the period FY07 to FY11 certain amounts were distributed to three family members in fixed amounts. Mr Symond is recorded as receiving the balance of the distribution (which totalled between 94.61% and 98.18%). There were twelve distributions made to the three other family members, four made to "family member 1", five made to "family member 2" and three to "family member 3". The nine distributions to family members 1 and 2 were in round figures as was one of the distributions to family member 3. The remaining two distributions to family member 3 were made in FY10 and FY11 respectively. The distributions in round figures represented just under 56% of the total amount distributed to the third parties in the period FY07 to FY11.

54Mr Symond submits that this material suggests that the distributions to "other beneficiaries" represented "some fixed requirement, need or want of the relevant third party beneficiary" with the balance being distributed to Mr Symond. Thus he contends that in considering the hypothetical dividend flow under scenario 2, the dollar amount (and not percentages) of the proceeds of dividends distributed to those other beneficiaries would have been the same.

55Gadens contended that just because fixed amounts were distributed does not mean that they do not represent a predetermined percentage of trust income. They pointed to the two distributions to family member 3 which were not in round figures and suggested that the amounts indicated that they represented a proportion of the amount distributed. Gadens also submitted that the reason for these distributions was within Mr Symond's knowledge yet he only produced a minimal amount of evidence on this issue.

56Although there is some force in Gadens' submissions, I accept the submissions made on behalf of Mr Symond. As stated, the bulk of the number of distributions and the majority of the dollar amount were fixed round numbers that were most unlikely to have been arrived at via the application of some percentage approach. Bearing in mind that neither party contended for some blending of the two approaches I consider that Mr Potter's assumption that the dollar amounts would have remained best accords with the evidence as to what was in fact distributed to the "other beneficiaries".

Issue 4: Timing of tax payments

57To calculate the Benefit of the Restructure in the manner provided for in the principal judgment at [374] to [375], it was necessary to determine the dates on which Mr Symond would have paid tax on the (hypothetical) dividend stream envisaged by Scenario 2 (as modified by the principal judgment at [375]). The question of the timing of tax payable by Mr Symond under Scenario 2 appeared to have been addressed in paragraph 13 of the joint report of Mr Potter and Ms Jones noted above at [16].

58The various spreadsheets attached to the joint report referred to in that extract included one which was entitled "Restructure Benefit - SC2 - Potter" and another entitled "Restructure Benefit - SC2 - Jones". Both spreadsheets addressed, inter alia, the amount and timing of the tax payable by Mr Symond under Scenario 2. In particular, for the tax payable by Mr Symond in respect of dividends declared by Holdings under Scenario 2 for FY05 (and paid during FY06) and dividends declared by Holdings for the financial year FY06 (and paid during FY07), both of these spreadsheets adopted the common payment dates of 11 September 2007 and 2 July 2008 respectively. Both spreadsheets included a note stating that "dates tax is payable are based on the actual dates that tax was paid by Mr Symond", which in turn refers to another note stating that "Mr Symond is assumed to pay tax on the dates at which Mr Symond received a Notice of Assessment from the ATO".

59In his further report Mr Potter adopted the same approach to the timing of these (hypothetical) payments as was used in the joint report in calculating the value of the Benefit of the Restructure in accordance with [374] and [375] of the principal judgment. That is, he assumed that the two sets of dividends I have referred to were paid on 11 September 2007 and 2 July 2008 respectively. For certain dividends that were declared in FY07 and received in that year, he also adopted the date of 2 July 2008.

60However, Ms Jones adopted a different approach which she explained as follows:

"Paragraph 374 [of the principal judgment] indicates to me that the recalculation to be performed makes allowance for a change in the timing of tax payments in respect [of] the dividends the Court concludes would have been paid under the Hypothetical Scenario [ie Scenario 2] in respect of FY05 and FY06. For this reason under the Hypothetical Scenario I have assumed:

a) In respect of the 2006 financial year, Mr Symond would have been required to lodge his 2006 tax return on 15 May 2007, and pay his tax on that dividend 6 weeks later on 1 July 2007; and

b) Following lodgement of his 2006 tax return, Mr Symond would have been placed on a quarterly tax instalment payment system requiring him to pay quarterly tax instalments on 21 July 2007, 21 October 2007, 21 January 2008 and 21 April 2008. I have adopted Mr Potter's assumption that the quarterly tax instalments are calculated as tax payable in respect [of] the tax year divided by 4 instalments."

61In her oral evidence Ms Jones explained that she understood that [374] of the principal judgment contemplated that there could be a reconsideration of the timing of the tax payments identified in the joint report. (She also accepted that the dates in sub-paragraph (a) above were incorrect in that quarterly tax instalments are usually payable on the 28th day of July, October, January and April, not the 21st.)

62Mr Symond resisted any suggestion that this matter be revisited. Further, assuming that this matter was able to be reconsidered, Mr Potter identified what he contended were two difficulties with Ms Jones' approach. He noted that Ms Jones used a figure for the PAYG instalments payable during FY08 based on distributions received by Mr Symond during FY07. However, ordinarily the earliest date one would expect Mr Symond to lodge his return declaring receipt of dividends for FY07 would be April 2008, so that any PAYG instalments that reflected an assumption of an ongoing receipt of that level of dividends would not be paid in FY08 but in the following financial year.

63Mr Potter was also critical of an assumption or assertion of Ms Jones that the first PAYG payment in respect of dividend income would be payable in July 2007. He contended that the earliest date that a quarterly instalment would be required to be paid by Mr Symond under Scenario 2 would be 28 October 2007 rather than 21 (or 28) July 2007.

64The starting point is that [374] of the principal judgment did not contemplate that there would a revisitation of the question of when tax would be payable by Mr Symond under Scenario 2. The joint report had appeared to present an agreed position on that issue. It follows that I will only treat the agitation by Gadens of this issue as, in effect, an application to reopen which is governed by the same principles noted above at [29] to [32].

65The oral evidence of Mr Potter confirms that the question of exactly when such payments might have been required to be made involves an inquiry into the interplay between the requirements of the relevant tax legislation, the practices of tax agents and the speed of the administrative responses of the Australian Taxation Office. Thus, in explaining why he maintained the view that the first date for payment of any amount in respect of dividends received from Holdings would have been September 2007, Mr Potter explained:

"September 2007 is the actual date Mr Symond lodged his tax return and paid the tax. In the actual world I couldn't see why it would be any different in the hypothetical world. I agree with Ms Jones, it's a relatively complex area for tax agents, because my understanding of when tax returns had to be lodged, tax agents had their own programmes for lodgement and it's not altogether clear, to me, anyway, precisely when parties must lodge their returns when they're part of a tax agent's lodgement programme. When I looked at the September '07 lodgement there didn't seem to be any penalties for late lodgement of the return or anything so I took the view it would be better to rely on what actually occurred as a starting point."

66Further, in explaining why he would otherwise have expected the PAYG payments to commence in October 2007, Mr Potter stated:

"It's also my experience and my understanding that quarterly PAYG payments for a particular year commence - the first quarter is normally October. There wouldn't normally be an instalment in July. I'm not aware of why there wouldn't be, it is certainly my personal experience. Given the return was lodged in September, I'm not so sure the tax office would be so quick to make the first quarterly payment in October. I don't know how quick they would react to the return."

67These answers reveal that for the Court to now allow a departure from what was stated in the joint report would involve a far more detailed factual enquiry than that which was attempted before me. It would appear to at least involve an inquiry into (i) how or why it was that Mr Symond lodged his return when he did; (ii) why he ended up with an assessment requiring payment in September 2007; (iii) what were the applicable requirements for the lodgement of tax returns for a person in Mr Symond's position; (iv) when the tax office would likely have placed Mr Symond on a PAYG schedule; and (v) what amounts they would in fact have required him to pay.

68Further, at best the most likely alteration favourable to Gadens that would result from such an inquiry would appear to be one which involved Mr Symond commencing paying some quarterly payments from October 2007, and then only quarterly amounts reflecting the level of investment income received by him in FY06. Thus, I seriously doubt whether the level of enquiry that would be necessitated if I was to allow a departure from the approach in the joint report would be likely to yield any substantially different result. In circumstances where the parties were content to adopt the approach that they did in the joint report, I do not consider that the "interests of justice" warrant any departure from that approach at this point, assuming that to be the correct test, which I doubt (see [32]).

69Accordingly, I reject this aspect of Gadens' application. In assessing the value of the Benefit of the Restructure the tax payments on dividends under Scenario 2 should be taken to be made on the dates adopted by Mr Potter in his further report.

Issue 5: Additional professional fees

70In [317] of the principal judgment I indicated that, had Scenario 2 been pursued, I expected that Mr Symond would have sought further professional advice concerning his exposure to fringe benefits tax. I assessed the cost of that advice at "$25,000.00 having regard to the level of fees charged during the ATO audit".

71Furthermore, in the principal judgment at [330] I found that an allowance of $75,000.00 should be made in respect of the possibility of incurring professional fees because there might have been further scrutiny of Mr Symond's taxation affairs beyond the 2005 high earners review had Scenario 2 been adopted.

72The second step noted in the calculation of the quantum in the principal judgment at [424] required the deduction of these two amounts from the amount calculated in accordance with the principal judgment at [423]. Gadens queried whether that was an oversight and submitted that the two amounts totalling $100,000.00 should be offset against the fees that were incurred in 2006 and 2007 and interest accrued on that net figure. However it was not an oversight. Those figures represented an assessment of the present day costs of those fees and the value of that contingency. This was reflected in the principal judgment at [424].

Conclusion

73After judgment was reserved on this application I requested that the parties provide figures for the quantum of the judgment as at 31 October 2012 in accordance with Mr Potter's figures subject to variations to allow for the outcome of my consideration on the second and third issues noted above.

74Consistent with the high degree of professionalism displayed by both sets of legal representatives throughout this matter, they were both able to provide revised calculations within a short period. The material provided on behalf of Mr Symond yields a figure of $4,979,791.00 as the amount of the judgment to be entered in his favour by utilising the basis set out in the principal judgment (at [422] to [426] and [452] to [455]) supplemented by the resolution of the outstanding issues as set out in this judgment. Gadens stated that they agreed with Mr Symond's "mathematics" (or arithmetic) but they disagreed with his methodology because it involved the application of Holdings' rate of return up to 21 July 2012 and Court rates thereafter. It follows from the analysis set out above in relation to issues (1) and (2) that I consider that is the appropriate methodology. Otherwise I will round Mr Symond's figure to the nearest $100.00.

75The remaining issues of quantum having now been resolved, the Court is in a position to enter a judgment in favour of Mr Symond for a specified amount. Gadens' notice of motion will be dismissed. After publication of this judgment and orders I will hear the parties briefly on the question of costs.

76Accordingly the Court orders that:

(1)The notice of motion filed 2 August 2013 is dismissed.

(2)Judgment for the Plaintiff against the First Defendant in the sum of $4,979,800.00.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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Last updated 31 October 2013