Case: Secretary, Department of Community Services and Health v Theologidis [1991] FCA 628 ; (1991) 33 FCR 186
Outcome: cited
The reasoning of the Tribunal appears in the following two paragraphs: The [Elliotts] say they do not fit within s 1207V(2)(d) because as beneficiaries under a discretionary trust they do not have any beneficial interest in the income or corpus of the trust. They referred to a number of authorities for this proposition, including Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 and Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 ; see also R &amp; I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59 at 79 per Owen J and Australian Securities Investments Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 6) [2006] FCA 814 at para 28 per French J. The [Secretary] say [s] the words of the section change whatever the position might be at general law. Mr Belcher argued use of the word aggregate 'requires consideration of what the combined beneficial interest of the beneficiaries would be as if they were collected or united into one'. The only persons who can benefit under the trust are the [Elliotts] , their daughter and other persons who, upon their birth, would be relatives of the [Elliotts] . The beneficiaries at any given time are therefore associates of each other. Between them, they account for the whole of the beneficial interest in the property. I agree with this approach. While the individual respondents do not hold any beneficial interest under the general law, the use of the word aggregate in the statute requires the decision-maker to recognise a kind of group right arising when the beneficiaries between them control the whole of the beneficial interest in the corpus of the trust: cf Gartside at 606 per Lord Reid. The use of the associate concept requires the 'group' interest to be attributed to the [Elliotts] because they are related to the other group members. It follows the [Elliotts] hold in excess of 50% of the beneficial interest in the corpus of the trust assets. They therefore satisfy the control test. Hence, the Tribunal held that the trust was a "controlled private trust" within the meaning of s 1207V of the Social Security Act and set aside the SSAT decision to the contrary. 54 As to the form of orders, subs 44(4) of the AAT Act empowers the Court to "hear and determine the appeal and make such orders as it thinks appropriate by reason of its decision". In appropriate circumstances, the court may make a decision in substitution for that under review: see, e.g., Harradine v Secretary, Department of Social Security [1989] FCA 200 ; (1989) 25 FCR 35 and Secretary, Department of Community Services and Health v Theologidis [1991] FCA 628 ; (1991) 33 FCR 186. Pursuant to subs 44(5) the power extends to the making of an order affirming or setting aside the decision of the Tribunal and an order remitting the case. By subs 43(1), the Tribunal itself is empowered to make a decision affirming, varying or setting aside the decision under review and, in the latter event, making a decision in substitution or remitting the case for reconsideration.