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Bolink Holdings Ltd v Oriental Limited ATF The Direct Solutions Superannuation Fund [2021] WSSC 53 (13 October 2021)

THE SUPREME COURT OF SAMOA
Bolink Holdings Limited v Oriental Limited ATF The Director Solutions
Superannuation Fund [2021] WSSC 53

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BOLINK HOLDINGS LIMITED, a company incorporated in the British Virgin Islands

(First Plaintiff)

AND

CREATEX TECHNOLOGY LIMITED a company incorporated in Samoa

(Second Plaintiff)

AND

DIRECT SOLUTIONS LIMITED, a company incorporated in the British Virgin Island

(Third Plaintiff)

AND

GUMM, of N501/565 Moo7, Hin Lek Fai, Hua Hin Prachaup Khiri Khan, Thailand, Retired Marketing Consultant

( Fourth Plaintiff)

AND

ORIENTAL LIMITED ATF THE DIRECT SOLUTIONS SUPERANNUALTION FUND, an entity with a trustee company incorporated in the British Virgin Islands

(First Defendant)

AND

DIRECT SOLUTIONS PROJECTS LIMITED, a company incorporated int he United Kingdom

(Second Defendant)

Counsel:
T. H. J. Hyde-Page (via video-link) and R. Drake for the Plaintiffs
T Lamb for the First and Second Defendants
J. K. Kirk and T. J. Boyle (via video-link) and K Koria for the Third Defendant
Decision: 13 October 2021

DECISION OF JUSTICE VAAI

Introduction

1. This ruling is concerned with the notice of motion by the Third Defendant, the Commissioner of Taxation for the Australian Taxation Office to strike-out or stay permanently the statement of claim.

Background

2. The Fourth Plaintiff, Darryl Stuart Gumm (“Mr. Gumm”), an Australian citizen and multinational businessman settled a trust in Samoa in the year 2007 called the Direct Solutions Superannuation Fund (“DSSF”). He is the sole beneficiary of the fund.
3. At about the same time in 2007, Mr. Gumm also incorporated in the United Kingdom a company called Direct Solutions Projects Ltd (“UK Company”) the second defendants. The UK Company is the investment vehicle for DSSF. It holds about 23.5 million dollars in the UK banks.
4. Oriental Limited ATF The Direct Solutions Superannuation Fund, the First Defendant, is the current Trustee for DSSF. It was incorporated in January 2017 in the British Virgin Islands.
5. The first, second and third plaintiffs are as blatantly obvious from the pleadings, were incorporated in Samoa and the British Virgin Islands under the control of and for the benefit of
   Mr. Gumm.
6. Pursuant to the provisions of the Australian Income Tax Assessment Act 1936 and the Australian Tax Administration Act 1953, the third defendant, following an income tax audit in November 2018 issued an amended tax assessment for Mr. Gumm for the years 2009 to 2017.
7. Mr. Gumm has a right of review under the relevant legislation. There are two types of reviews:

(i) He can go back to the third defendant for a review. Mr. Gumm did object to the amended assessment. A formal review process is currently underway in Australia by the third defendant.

(ii) If the third defendant confirms or varies the assessment but Mr. Gumm is still not satisfied he has two choices:

(a) He can make a further objection to the Federal Court, or

(b) He can go to the Administrative Appeals Tribunal which is a merit review tribunal.

8. Mr. Gumm lodged his objection to the amended assessment in January 2019. The third defendant has yet to decide on the review application by Mr. Gumm under the provisions of the Tax Administration Act.
9. Mr. Gumm left Australia for Thailand in May 2019. He has not returned to Australia.
10. In June 2019 the third defendant obtained default judgment in the Supreme Court of New South Wales for $16,750,301.73. The judgment was based on the amendment assessment of tax and associated penalties determined to be owing by Mr. Gumm.
11. It is common ground that the default judgment does not give rise to res judicata or issue estoppel. The rights or wrongs of the assessment are not assessed by the Supreme Court if and when it gives judgment of the debt. If Mr. Gumm’s objection to the amended assessment is successful the judgment debt will be altered and reduced accordingly and any overpayment refunded.

The DSSF

12. The deed which established DSSF as an international trust in 2007 per section 2, International Trust Act 1987 (Samoa), was made between a Hong Kong Company (as principal employer) and IRSS Nominees (as trustee), a company incorporated in Samoa. The deed provides that all references to legislations are references to the laws of Australia unless stated to the contrary. In item 8 under the heading “Witnesses” the deed also states:

“The Fund shall be registered as an International Trust under the Western Samoa International Trust Act 1987 and shall be governed by the laws of Western Samoa applicable to an International Trust.”

13. On 09^th November 2007 the first and second plaintiffs transferred their shares in the third plaintiffs to IRSS Nominees. On the same date IRSS Nominees executed a declaration of trust providing it held 1,000,000 shares in the third plaintiff on the trust for the DSSF. The Register of Members and share ledger for the third plaintiff records that IRSS Nominees as having paid $2 for its 1,000,000 shares.
14. The first plaintiff was struck off the British Virgin Islands companies register on the 01^st May 2012. The second plaintiff was struck off of the Samoa Companies register in February2009.
15. As will be noted later, both plaintiffs were restored to the company register in their respective jurisdictions in 2019; the first plaintiff in April and the second plaintiff in June.
16. IRSS retired as trustee of the DSSF on the 05^th December 2013 and Samoa Trust Ltd was appointed trustee. In June 2019 Samoa Trust Ltd retired as trustee and the first defendant was appointed trustee.
17. The deed contemplates that a member of the fund will be an employee who has made application for and been accepted for membership of the fund.
18. Mr. Gumm applied. He was the sole member of the fund.

The DSSF and Tax Assessments

19. In determining the amended assessment of tax the third defendant was of the view that DSSF does not satisfy the definition of superannuation fund in the relevant Income Tax Administration legislations because Mr. Gumm was not an employee of the Hong Kong company (referred to in paragraph 12 above) and DSSF did not have as its sole purpose the provision of benefits to participating employees upon their reaching a prescribed age.
20. DSSF pursuant to the relevant tax legislation was treated and regarded as a resident trust estate in each of the 2009 to 2017 financial years because the central management and control of DSSF was exercised by Mr. Gumm and an associate from Australia regularly and exclusively since its establishment.
21. The third defendant did not consider the doctrine of sham.
22. It was also determined, inter alia, that the trustee of DSSF held the trust property on bare trust for Mr. Gumm and Mr. Gumm was personally entitled to the income of DSSF in each of the 2009 to 2019 income years. The third defendant noted that this determination is consistent with the view of the then Administrative Appeals Tribunal (referred to in paragraph 7(ii)(b) above) on similar facts in LLUN v Commissioner of Taxation.^[1]

Statement of claim

23. While the review by the third defendant of Mr. Gumm’s objection is ongoing, the plaintiffs commenced proceeding in Samoa on the 02^nd September 2020 seeking relief at paragraph [92] of the statement of claim:

(i) A declaration that the DSSF was validly constituted as a trust in June 2007 with Mr. Gumm as the sole beneficiary of the trust.

(ii) A declaration that the first defendant, has been and remains subject to the trusts set out in the instrument styled as the Deed, Rules and Schedules of the DSSF.

(iii) A declaration that the second defendant has at all times held its assets on bare trust for the trustee of DSSF.

(iv) A declaration that the income earned by the trustee of DSSF during each of the years 2007-2019 did not vest and has not bested in Mr. Gumm and accordingly is not property of Mr. Gumm that can be taken by the third defendant in execution of the judgment debt owed by Mr. Gumm.

(v) A declaration that Mr. Gumm, did not acquire and does not presently have a fully vested and exercisable right to the corpus of DSSF and accordingly that corpus cannot be taken by the third defendant in execution of the judgment debt of Mr. Gumm.

Statement of Defences by the first and second defendants

24. Not surprisingly the first and second defendants admitted that DSSF was validly constituted with Mr. Gumm as the sole beneficiary of the trust.
25. They also admit that the UK Company, the second defendant, held its assets on bare trust for DSSF.
26. So there is really no dispute between the plaintiffs and the first and second defendants, which leads the first and second defendants to concede that the plaintiffs are entitled to the declarations sought.
27. As to the vesting of the income and of the assets the two defendants say they take no stand and submit to the jurisdiction of the Court.
28. Counsel for the plaintiffs conceded in his oral submissions that the parties other than third defendant are connected to Mr. Gumm. But it is also the case that the first and second defendants have their own rights and obligations and under the circumstances it is appropriate that those two defendants are joined as parties.
29. Counsel also conceded that the two defendants do not propose to disagree with the primary relief sought, which is a declaration that DSSF is valid. But if that primary relief is not granted then there is a difference in the interests between the plaintiffs and defendants as to what should happen to the assets of the trust. Under those circumstances they should either be the property of the entities which contributed or someone else. In that respect the plaintiffs and the two defendants have inconsistent interests.

The strike out motion

30. The third defendant, without prejudice to his entitlement to assert foreign state immunity moved for orders that the plaintiffs statement of claim and notice of motion for declaratory orders be struck out and/or permanently stayed in respect of the third defendant pursuant to:

(i) Rule 70 Supreme Court (Civil Procedure) Rules 1980; and/or

(ii) The inherent jurisdiction of the Court to strike out on the basis of frivolous, vexatious and abuse of process; and/or

(iii) The common law principle of foreign statute immunity.

It is also contended that the doctrine of forum non-conveniens applies in the present proceedings. Costs are sought.

Foreign State Immunity

31. It is not disputed that the third defendant is covered by the doctrine of foreign state immunity. As the head of the Australian Tax Office (“ATO”), a statutory agency, the third defendant is responsible for the general administration of the Income Tax Legislations in Australia.
32. What is in dispute is whether in this proceeding the doctrine applies in the circumstances alleged by the plaintiffs. Specifically whether requiring the third defendant to respond to the plaintiffs claim would be to put into question acts of sovereign immunity or cases referred to as jure imperii, or merely relate to acts of private or commercial which is referred to as jure gestionis.
33. The third defendants contend that the crux of the plaintiffs claim and complaint is the activity which the third defendant undertook in Australia. The character of the tax assessment by the third defendant when he determined the tax obligations of Mr. Gumm is the subject of the litigation pursued in Samoa.
34. At the centre of Mr. Gumm’s complaint is the determination by the third defendant that DSSF was not validly constituted. But the conduct and activity of the third defendant, it is contended, took place entirely in Australia during the assessment of the tax, when he performed his statutory duties and obligations of administering tax laws of Australia.
35. More importantly it was submitted that the discharge of tax functions was something which a private person is incapable of doing and did not have any private law content or character to bring the activity under the heading of jure gestionis.
36. It was submitted that the primary motive of pursuing this proceeding in Samoa is to obtain a different result from that reached in Australia; an attempt to seek relief which if obtained would interfere in and pre-empt the tax assessment process in Australia which is still ongoing.
37. In response to the contention by the plaintiffs that the third defendant having obtained a default judgment in the Supreme Court of New South Wales against Mr. Gumm can proceed to enforce that judgment in Samoa which is an activity a private person can entertain, the third defendant says the enforcement is not yet an activity. It may never be enforced. DSSF shares are held by a British Virgin Islands Company, and monies are held by the UK Company.
    
38. Counsel for Mr. Gumm argued that there are several reasons why state immunity does not apply in this proceeding.
39. The first is that this proceeding does not involve property of the Australian Government, or property being put to use in a Government activity. It concerns money and assets that are either owned by DSSF, or by Mr. Gumm. The rights under DSSF is a question of private law. It is contended that this Court can determine the property rights in DSSF outside Australia without impugning in any way the legal validity of the process undertaken by the Australian Tax Office.
40. Secondly it is contended that the relevant activity by the third defendant was obtaining a judgment debt in Australia which is a matter of private law. Although the purpose of the judgment debt is to recover tax liability and collect tax, the legal authorities say that the purpose is not important and if the Government performs a private act for the purpose of collecting tax it is still a private sector act.
41. It is also contended that foreign state immunity cease to have its significance outside the territory of the Government asserting immunity. As this proceeding is concerned with Samoan assets and the Samoan legal relationship and in particular the validity of a Samoan trust and the consequences which follow from thereon, the doctrine of foreign state immunity is not relevant.

Discussion of foreign state immunity

42. It is common ground that the leading expression of the principles governing state immunity is the speech of Lord Wilberforce in Playa Larga v Congreso del Partido^[2] at 267:

“The conclusion which emerges is that in considering under the restrictive theory whether state immunity should be granted or not, the Court must consider the whole ‘context’ in which the claim against the state is made, with a view of deciding whether the relevant act(s) upon which the claim is based, should in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character, in which the state has chosen to engage, or whether the relevant act(s) outside that area, and within the sphere of Governmental or sovereign activity.”

43. A foreign state will not be impleaded in the Courts of another country against its will and without its consent; the exercise of jurisdiction is seen as incompatible with the dignity and independence of foreign state.^[3]
44. The distinction between sovereign and non-sovereign state activities although at times may be clear, there are occasions in which it is difficult to draw the line. Distinction may be subtle and delicate. It was emphasised by Lord Clyde in Holland v Lampen-Wolfe^[4] that:

“The solution in any particular case where the question of state immunity arises at common law has to be one of analysis of the particular facts against the whole context in which they have occurred.” ... “It is the nature and character of the activity on which the claim is based which has to be studied rather than the motive or purpose of it. The solution will turn upon the assessment of the particular facts.”

45. It is critical and important to analyse the facts against the context. The context here is very important as Lord Hope determined in Holland v Lampen-Wolfe.^[5] The overall context was that of the assessment by the third defendant of taxes owing by Mr. Gumm. A Samoan trust, DSSF, was considered invalid and the trustee of DSSF therefore held trust property on base trust for Mr. Gumm who objected and set in motion the review and appeal process in Australia. Before the review and appeal process was exhausted, Mr. Gumm left Australia. He then filed this proceeding seeking results different from those by the third defendant in Australia. The third defendant has no propriety interest in the assets of DSSF. He has clearly flagged an opinion during tax assessment in Australia about ownership of the assets. That opinion is being challenged in Australia.
46. It is true a judgment debt against Mr. Gumm was obtained in New South Wales Supreme Court and can be enforced in Samoa. The third respondent has taken no steps to enforce the judgment in Samoa. Neither has he taken steps in the British Virgin Islands and the United Kingdom where the monies and shares for DSSF are held. It remains a fact that the third defendant is not involved in any activity in Samoa.
47. Counsels did not discuss the general common law principle that the courts of one country will not enforce the penal and revenue laws of another country. The rationale underpinning this principle as explained by Lord Keith in the House of Lords in Government of India v Taylor^[6] is that enforcement of a revenue law amounts to an extension of the sovereign power which imposed the taxes, and that an assertion of sovereign authority by one of the states within the territory of another is contrary to the concept of independent sovereignties.
48. Despite the absence of submissions from counsels it is the courts view, that pursuant to the common law principle that the courts will not collect taxes of a foreign state for the benefit of the foreign state, the judgment debt imposed by the New South Wales Supreme Court cannot be enforced in Samoa. Samoa’s Reciprocal Enforcement of Judgment Act 1970 permits the enforcement in Samoa of Superior Court judgments given in Australia for facilitating the enforcement of those judgments. But those judgments in civil proceedings are for the payment of monies in respect of compensation or damages to an injured party, “ and includes an award in proceedings on an arbitration [not being a foreign award within the meaning of Part 11 of the Arbitration (Protocol) and the Arbitration (Foreign Awards Act 1933 (New Zealand)] if the award has, in pursuance of the law, in force in the place where it was made, become enforceable in the same manner as a Judgment given by a court in that place”.
49. Section 8 of the 1933 New Zealand Act (now repealed) referred to in 48 above specifically provides that an award shall not be deemed final if any proceedings for the purposes of contesting the validity of the award are pending in the country in which it was made.
50. The conduct of the third respondent in ruling against the validity of DSSF took place entirely in Australia in compliance with Australian tax legislations to comply with the third respondent’s statutory obligations which cannot be classified as private or commercial.
51. The third defendant is accordingly entitled to assert foreign state immunity.

Section 64 Judiciary Act 1903 (Australia)

52. The plaintiffs contend that if this Court determines the third defendant is entitled to assert foreign state immunity, this Court should conclude the third defendants immunity is overridden by section 64 Judicature Act (Australia).
53. It is common ground that:

(i) Section 64 only causes the Australian Government to be treated as a private person in respect of the procedural aspects of litigation; and

(ii) The only litigation where section 64 causes the Australian Government to be treated as a private person is litigation involving the exercise of federal jurisdiction.

54. The plaintiffs submit that when the third defendant sued Mr. Gumm in the New South Wales Supreme Court for tax that Court was exercising federal jurisdiction when it determined and resolved the dispute. The proceeding concerned a federal tax liability created by federal tax legislation, so it was a matter of federal jurisdiction.
55. It follows, the plaintiffs contend that as the third defendant is a judgment creditor in the proceedings in New South Wales, the right to enforce that judgment is a procedural right in litigation and section 64 will apply to the procedural right. The consequence is that the relevant activity of the third defendant which is that of a judgment creditor with a debt to execute against the judgment debtor, is an activity where the third defendant is in the position of a private litigant.
56. Federal jurisdiction is obviously something that only arises in Australia, as correctly pointed out by counsel for the third defendant. It is also true that the New South Wales Supreme Court was exercising federal jurisdiction when it imposed the judgment debt. But as pointed out above the third defendant should not have been joined as a party to the Samoan proceedings and the third defendant is not seeking to enforce the judgment debt in Samoa.
57. Section 64 is no answer to foreign state immunity. It is directed to the Australian judicial process.
58. It follows that the third defendant is entitled to assert foreign state immunity from legal process in Samoa so that the statement of claim and notice of motion is struck out in respect of the third defendant.

Abuse of process

59. The third defendant contends that this proceeding is an abuse of process because it attempts to
    pre-empt the tax assessment process undertaken in Australia. Mr. Gumm has in fact availed himself to that process. He has objected to the amended income tax assessment which the third defendant issued pursuant to his duties and obligations under the Australian tax legislations. This proceeding the third defendant contends is carried out for an improper purpose.
60. On the other hand the plaintiffs submit that there is a real dispute as to the ownership of the assets in DSSF, and the third defendant has flagged an opinion about ownership which is inconsistent with that of the plaintiffs. There is also an interest in the finality of litigation and it would not be in the interest of justice for the plaintiffs, as well as the first and second defendants to argue the issues in Samoa and then for the third defendant to re-litigate the same issues when and if the third defendant executes the judgment debt in Samoa.

Discussion of abuse of process

61. Counsel for the plaintiffs concede that this proceeding covers the same issues that are live in tax assessments in Australia. He then submits that these are not things that according to any recognisable principle of law are reasons to strike out a proceeding as an abuse of process. This submission is not supported by the observations of Simon LJ in Michael Wilson & Partners Ltd v Sinclair & Anor^[7] at paragraph 39:

(i) In cases where there is no res judicata or issue estoppel, the power to strike out a claim for abuse of process is founded on two interests: the private interest of a party not to be vexed twice for the same reason, and the public interest of the state in not having issues repeatedly litigated ... These interests reflect unfairness to a party on the one hand, and the risk of the administration of public justice being brought into disrepute on the other.

(ii) An abuse may occur where it is sought to bring new proceedings in relation to issues that have been decided in prior proceedings. However, there is no prima facie assumption that such proceedings amount to an abuse ... and the Court’s power is only used where justice and public policy demand it.

(iii) To determine whether proceedings are abusive the Court must engage in a close 'merits based' analysis of the facts. This will take into account the private and public interests involved, and will focus on the crucial question whether in all the circumstances a party is abusing or misusing the court's process.

62. After Mr. Gumm lodged objections to the amended tax assessments and before the plaintiffs commenced this proceeding, the first and second plaintiffs were restored to the British Virgin Islands company register and Samoa Company register respectively. The resurrection of both entities from the corporate graveyard was obviously an attempt to influence the assessment process in Australia and assist in the commencement of this proceeding.
63. Mr. Gumm has availed himself to the legal process provided by Australian authorities for tax assessments in Australia. He has formally objected to the amended tax assessments. Before receiving a response he initiated the commencement of this proceeding in which he seeks several declarations. None of the declarations are of any benefit to the first three plaintiffs. All declarations are for the benefit of Mr. Gumm and seek a result different from that reached in Australia.
64. In reality the parties in this proceeding fall into two camps. The third defendant is alone in his camp while the plaintiffs and the rest of the defendants are in the other camp.
65. This proceeding is plainly and clearly to seek to pre-empt and interfere with the result of the ongoing tax assessment in Australia. It is an abuse of process.

Forum Non Conveniens

66. Parties agree that the test for Forum Non Conveniens is stated by Lord Goff in Spiliada Maritime Corporation v Cansulex Limited.^[8]
67. Five jurisdictions are linked to this proceeding:

(i) Australia: where the third defendant is located or resides; where the tax was assessed on Mr. Gumm, and where judgment against Mr. Gumm was imposed.

(ii) Samoa: where the second plaintiff was incorporated and where DSSF trust was constituted.

(iii) British Virgin Islands: where the first plaintiff, third plaintiff and first defendant are incorporated

(iv) United Kingdom: where the UK company is incorporated.

(v) Thailand: where Mr. Gumm is currently residing.

68. The declarations sought are really directed to the construction, validity and effect of two
    express trusts:

(i) the DSSF trust; and

(ii) the agreement of 27 June 2007 by which the UK company came to hold assets on trust for the benefit of the DSSF.

69. The third defendant contends that the proper forum is Australia. Samoa is contended by the plaintiffs as the appropriate forum. Both counsels have addressed the principles to be applied.
70. The Court has determined that this proceeding was commenced with an improper motive to undermine and frustrate the objectives and operations of the Australian taxation laws which at the relevant time was administered in relation to Mr. Gumm’s offshore activities and tax obligations in Australia.
71. Mr. Gumm obviously did not wish to litigate against the third defendant in Australia. Through the first plaintiff, Mr. Gumm informed the third defendant by letter after objection to the amended assessment was lodged that a challenge will probably be lodged in the Supreme Court of the Eastern Caribbean.
72. Mr. Gumm has two options if he did await the result of his objections and is still not satisfied. As referred to in paragraph 7 above he can either challenge the results in the Federal Court of Australia or at the Administrative Appeals Tribunal.
73. Due to the doctrine of foreign state immunity as well as abuse of process he cannot proceed against the third defendant in Samoa. It will therefore be an academic exercise to determine the doctrine of forum conveniens.
74. Accordingly, the Court, without being disrespectful to counsels, will not discuss the doctrine of forum non conveniens due to the conclusions it has reached on the issues of abuse of process and foreign state immunity.

Result

(i) The statement of claim and notice of motion are both struck out in respect of the third defendant.

(ii) Counsels to file submissions as to costs within fourteen days if not agreed upon.

JUSTICE VAAI

^[1] LLUN v Commissioner of Taxation [2017] AATA 3058.
^[2] Owners of Cargo Lately Laden on Board the Playa Larga v Owners of the I Congreso del Partido [1983] 1 AC 244.
^[3] Governor of Pitcairn and Associated Islands v Sutton [1995] 1 NZLR 426.
^[4] Holland v Lampen-Wolfe [2000] UKHL 40; [2000] 1 WLR 1573 at 1580.
^[5] Ibid.,1577.
^[6] Government of India v Taylor [1955] AC 491.
^[7] Michael Wilson & Partners Ltd v Sinclair & Anor [2017] 1WLR 2646.
^[8] Spiliada Maritime Corporation v Cansulex Limited [1987] AC 40.