NG TUNG AND ANOTHER v. CHUNG HING TRANSPORTATION AND GODOWN CO LTD

HCA 2676/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2676 OF 2004

____________

____________

_______________

J U D G M E N T

_______________

1. This is an action by the Plaintiffs for specific performance of a pre-emption right in respect of the purchase of a property known as Unit 2, G/F, Wah Sing Industrial Building, Nos. 12-14 Wah Sing Street, Kwai Chung, New Territories (“the Property”).  In the alternative, the Plaintiff seeks damages against the Defendant (“Chung Hing”).  I should say at the outset that the claim for specific performance has now been abandoned due to the fact that the Property has already been sold.  By reason of the oversight on the Plaintiffs’ side to adduce expert valuation evidence, I ordered at the beginning of this trial, inter alia, that this trial is to determine the issue of liability only. 

2. The relevant facts of this case are quite simple.  In 2003, four people co-operated in starting a restaurant business in Central called Prince Fusion Restaurant  (“Prince Fusion”).  Prince Fusion was owned by a company called Central F&B Management Co Ltd (“Central F&B”).  These four people were the 1^st Plaintiff (“Ng”), Mr Chan Sui Chung (“Chan”), Ng’s brother (Mr Ng Yiu Man (“YM”)) and one Mr Cheung (“Cheung”).  Their shareholdings in Central F&B were, initially, as follows :

Ng	5,100 shares (51%)
Chan	3,000 shares (30%)
YM	1,000 shares (10%)
Cheung	900 shares ( 9%)

3.Prince Fusion was opened in June 2003.  Hong Kong was struck by SARS at the time.  Not long thereafter, disagreement surfaced between Chan and YM and as a result Chan purchased YM’s shares in Central F&B and became a 40% shareholder of that company. 

4.For reasons which are irrelevant (there is no argument on that), Ng and Chan later decided to split up also.  They entered into negotiations in February 2004 and by the 25^th February 2005 had come to an agreement to achieve an amicable parting.  The evidence on what was agreed is partly controversial.  I shall therefore proceed to set out the evidence in more detail.  One witness has been called by each of the parties, Ng for the Plaintiffs and Chan for Chung Hing.

5.Ng’s evidence is that on the 25^th February 2004, he had reached an agreement with Chan to swap Chan’s 40% shares in Central F&B for his fast food business in Kwai Chung called Wah Tak Canteen  (“Wah Tak”).  Wah Tak was a profitable business started by Ng in 1981 and it was occupying the Property.  In addition to the swap, Chan had agreed to “acknowledge the years of service” of Wah Tak’s staff and to be responsible for their long service payments.  There is a homemade agreement dated 25^th February 2004 (“the 25^th Agreement”) which was written by Ng and signed by him and Chan to evidence their agreement [E/146].  There are some unimportant details in the agreement which I shall not refer to in this Judgment. 

6.In addition to the above, Ng said he had also agreed with Chan that he would let the Property to him at a monthly rent of HK$26,000 for 10 years.  Chan disagreed that there was ever such an agreement.  His case is that on the 25^th February 2004 he had a more extensive agreement with Ng.  One of the most important constituents of the agreement is that Ng had agreed to sell the Property to his company, Chung Hing, at HK$950,000.  Ng was taxed in cross-examination as to why the agreement on the lease of the Property was not written in the 25^th Agreement.  In answer, Ng said that he had not received any money from Chan at that time and if Chan changed his mind about renting the Property, he would not suffer much loss.  I should add that when giving his evidence in-chief, Ng said that when he was drafting the 25^th Agreement he thought that the agreement to lease the Property should be contained in a separate tenancy agreement. 

7.Ng said that the 25^th Agreement was signed at about 6:00 pm at Prince Fusion.  About two hours later, Chan returned and asked him to sell the Property to him.  The reason given was that he was worried that Wah Tak would not be able to pay the rent.  Ng was unwilling to sell the Property, but he was later persuaded by Chan to agree to do so.  He described Chan as having “begged” him for a long time.  He said that before he agreed Chan assured him that he was not interested in property speculation and promised to resell the Property back to Ng in one or two years if Wah Tak’s business was not sustainable (“the Pre-emption Right”).  Ng was emphatic about the importance of the Pre-emption Right.  They agreed on the price of HK$1.1m which Ng described as “super low”.  Ng explained that the Property was purchased back in 1991 at HK$1.365m and maintained that the Property had increased in value since that time.  Chan’s version of how the Pre-emption Right came about is quite different.  In cross-examination, Ng explained that he was not keen to sell the Property, because at a monthly rent of HK$26,000, the agreed price of $1.1m was not much more than 3 years’ rental income.  Ng said he agreed to sell the Property based on the promise to resell to him and the fact that the workers at Wah Tak could keep their jobs. 

8.There is no controversy that the resale price was agreed at $1.38m.  Ng said in cross-examination that the price contained an element of recoupment of the long service payments which Chan had agreed to assume.  Save for suggesting that the resale price came from him, there is no challenge to that part of Ng’s evidence.  There is a preliminary agreement dated 26^th February 2004 (“the Preliminary Agreement”) and signed by the Plaintiffs, being the owners of the Property, and Chan which evidenced the sale [E/153].  The Preliminary Agreement was drafted by an estate agent, Mr Wong (“Wong”).  Ng said that Wong was asked to incorporate the Pre-emption Right in the agreement, but Wong replied that he was unable to do so and a provision of that sort would have to be handled by a solicitor.  There is no dispute that the Preliminary Agreement was prepared on the 25^th February 2004, but it was only signed on the next day when an initial deposit of HK$50,000 was paid.

9.The purchase price stated on the Preliminary Agreement is HK$950,000.  Ng explained that it was Chan’s idea that the document should state that sum and he would pay Ng the balance of HK$150,000 separately.  Ng said that he did not know why Chan wanted to do that, but he was told that it was a matter of stamp duty.  Chan denied that he had ever suggested understating the purchase price.  It is common ground that on the 26^th February 2004, in addition to the initial deposit, Chan had given a cheque in the sum of HK$150,000 to Ng (Chan’s case is that he gave Ng three sums of money in total – see below).  Counsel before me have agreed that the stamp duty payable for a sale at HK$950,000 and one at HK$1.1m was respectively HK$100 and HK$8,250.   

10.For completeness, in addition to the swap of the Chan’s shares in Central F&B for Wah Tak and the purchase of the Property which have been mentioned above, Chan and Ng had also agreed at about that time that a debt owed by Ng to Chan in the sum of HK$153,000 would be set off against the transfer of a van from Ng to Chan [see E/150]. 

11.Back to Ng’s case, he said that he had another meeting with Chan on the 28^th February 2004, because he was worried about Chan changing his mind over the Pre-emption Right.  At that meeting, they signed a document in, roughly, the following terms :

“I, Chan Sui Chung, identification card number … , undertake that when I sell [the Property] I should sell it back to [Ng] at a price of not more than the original price of HK$1.38m.  Ordinary words cannot stand as proof, so this agreement is executed as proof.”.

12.Ng said that the document was also signed by an employee of Chan called Mr Mak Man Leung.   A copy of that document together with a copy of the Preliminary Agreement were sent by facsimile to his solicitor, Ms Deca Lin, on the 1^st March 2004.  However, that document can no longer be found by either Ng or Ms Lin.  Ng’s evidence of the 28^th February 2004 meeting is disputed. 

13. It can be seen from the documents that on the 3^rd March 2004, Chan’s solicitors wrote to Ms Lin and asked for a draft of the formal sale and purchase agreement (“the Formal Agreement”).  On the next day, Ms Lin replied and enclosed therewith a draft of the Formal Agreement.  It is common ground that the Formal Agreement was subsequently executed.  Clause 34 and Schedule 12 of the Formal Agreement are important and they are set out below :

Clause 34

“Notwithstanding any terms and conditions herein, the parties hereto expressly agree to the condition precedent set out in Schedule 12 which form(s) part of this Agreement and agree that the provisional agreement for sale and purchase and its attachment should be registered in the Land Registry by the Purchaser.

SCHEDULE 12

Condition precedent :-

After signing the provisional agreement for sale and purchase dated 26 February 2004 and its attachment, if the Purchaser shall sell the Property, the Vendor has priority to buy back the Property from the Purchaser at an agreed consideration of HK$1,380,000.00.”.

14. Ng said that he signed the Formal Agreement on the 10^th March 2004 (it was dated 9^th March 2004).  On that day, Ng had also signed a document in Chinese headed “Additional Property Sale and Purchase Agreement” [E/195] (“the Additional Agreement”) which contained the following provision :

“Prerequisites : The Purchaser agrees that at any time after the signing of the property sale and purchase agreement, the Vendor shall have priority in buying the property at HK$1,380,000.00 if the Purchaser sells the property.”.

15. Ng said that the Additional Agreement had already been signed by Chan when he saw it and that he would not have signed the Formal Agreement without seeing the executed Additional Agreement.  He said he was told by Ms Lin that Chan’s solicitors insisted that the Additional Agreement be registered at the Lands Registry.  I can see no sign of such registration in the land search of the Property.  There are two copies of the Additional Agreement in the bundle [E/195 and 196], one of which [E/195] contains a date (“3/3/2004”).  I shall revisit the evidence concerning the Additional Agreement later. 

16. There is no controversy that the sale of the Property was completed on the 4^th April 2004.  On about the 30^th August 2004, without first offering the Property to the Plaintiffs, Chung Hing sold the Property at HK$950,000 to one Best Rise International Ltd.  It is quite clear that this sale was carried out to defeat the Pre-emption Right given its timing and the sale price. 

17. Turning to Chan’s evidence on the central dispute in this trial.  He said that the sale of the Property was agreed on the 25^th February 2004.  The price of HK$950,000 was agreed after some negotiations.  However, in addition to the purchase price, Ng demanded a payment of HK$200,000 to his wife (the 2^nd Plaintiff) as compensation for her “mental loss”, because she was unwilling to let go of Wan Tak.  Chan said that the cheque for HK$150,000 was part of the HK$200,000 payment, but he has forgotten how the balance of HK$50,000 was paid although he is sure that it was also paid on the 26^th February 2004.  He repeatedly denied that he had ever raised the issue of stamp duty.  In cross-examination, Chan said that he could not remember if the HK$50,000 was paid in cash or by cheque and he could find no record for the same. 

18. Giving evidence in-chief, and having had the question clarified and repeated to him, Chan said that the HK$150,000 paid to Ng’s wife was part of the purchase price for the Property.  He said that “[Ng] requested that payment be made in that way”.  In explanation, Chan said that “At the time, I was under his control and I did what he told me.  He said that this payment was to be made this way”. 

19. In respect of the Additional Agreement, Chan said that Ng saw him on the 3^rd March 2004 and brought along the Additional Agreement.  Ng said to him that he could back out of the sale of the Property by repaying the deposit and threatened that he would do so unless the Additional Agreement was signed by Chan.  Chan protested that Ng was being very unfair to impose such a condition when he had signed away his shares in Central F&B which were worth HK$1.4m; incurred liability in excess of HK$300,000 for the long service payments; and paid HK$200,000 to Ng’s wife.  Chan said that if the Property was not sold to him he stood to lose over HK$1m.  So he had no choice but to sign the Additional Agreement.  When asked in cross-examination whether he had considered suing Ng if he refused to proceed with the sale of the Property, Chan said that he thought that there would more trouble if he fell out with Ng.  In answer to questions from this court, Chan said that he instructed his solicitors on the 26^th February 2004.  On that day, he faxed a copy of the Preliminary Agreement to his solicitors.  Chan said that he was “not so clear” about the fact that the Preliminary Agreement contained no provision which would allow Ng to back out by repaying the deposit.  When Ng forced him to sign the Additional Agreement, he did not look at the Preliminary Agreement or consult his solicitors.  He did not consult his solicitors because at that time he had already transferred his shares, entered into employment contracts with Wah Tak’s employees and paid the HK$200,000, and even if Ng repaid him “there would be a long delay and might be little money”. 

20. It should be noted that Ng agreed in the course of cross-examination that when he asked Chan to sign the document which was similar to the Additional Agreement on the 28^th February 2004, he did say to Chan that he had not signed the sale and purchase agreement and the agreement to sell the Property could be voided. 

21. Chan sought to rely upon a document dated 5^th March 2004 [E/199] in support of his case.  It is headed “Share Transfer Agreement” and states that Chan’s 40% shares would be transferred to Ng’s wife.  The last sentence of that document referred to the sale of the Property and stated that the completion of the sale must take place (“必買必賣”).  That sentence was deleted.  Chan said that the document was prepared by him for Ng to sign because he was afraid that Ng might change his mind.  The deletion was made by Ng.  Ng agreed that the deletion was made by him.  He said in cross-examination that he did so because the purpose of the document was to enable Chan’s shares to be transferred to his wife and he did not understand why it referred to the purchase of the Property. 

22. Finally, Chan’s evidence is that he executed the Formal Agreement (which embraced the Pre-emption Right) under the same pressure, i.e., he did not want to fall out with Ng and lose over HK$1m.  He accepted that he was represented by solicitors at the time and the document was explained to him before execution. 

The Issues

23. Mr Vaughan, who appears for Chung Hing, has advanced four arguments on its behalf.  In the order in which I shall deal with them, they are (i) construction of contract; (ii) uncertainty; (iii) economic duress; and (iv) public policy.  However, the consideration of these arguments should be preceded by the findings of fact in this case.

Findings of Fact

24. I prefer the evidence of Ng to that of Chan.  The main reason is that Ng’s evidence is consistent with the documents and common sense.  He also impressed me as a truthful witness.  He was forthcoming, forthright and spontaneous in answering questions. 

25. In contrast, I am unable to accept Chan’s evidence.  On the important matters, his evidence is difficult to believe.  To begin with, his explanation that the HK$150,000 was part of the purchase price (see para. 18 above) is unbelievable.  There is no reason to think that he was in a lesser bargaining position, let alone under Ng’s control.  His explanation for the balance of HK$50,000 which he said he had paid to Ng’s wife (para. 17 above) is equally incredible.  It is not a small sum and it is difficult to accept that there is no paper trail of that payment.  I believe that, more likely than not, he did propose to Ng to understate the purchase price to save on stamp duty (although the saving was not huge), and that is the reason for the HK$150,000 payment.  The suggestion that it was part of a payment to Ng’s wife is just a concoction.  In light of the documentary evidence, there is no reason why the payment of a significant sum would not be set out in a document, unless of course it was intended to be an “under the table” payment. 

26. Further, Chan’s evidence that he was pressured into signing the Additional Agreement and the Formal Agreement simply does not sit with how normal businessmen would behave.  I am wholly unconvinced that he simply caved in to Ng’s unreasonable demand when they had already signed the Preliminary Agreement and Chan had the benefit of legal advice at his disposal.  In respect of the fact that Ng uttered to Chan on the 28^th February 2004 words to the effect that he would back out of the sale of the Property if the document was not signed (see para. 20 above), I believe that such words constituted no real pressure on Chan.  It must be remembered that they had already agreed on the Pre-emption Right on the 25^th February 2004 and had Wong felt comfortable to do so he would have incorporated a clause to that effect in the Preliminary Agreement.  

27. I do not believe that the document at E/199 advances Chan’s case.  Insofar as Chan’s demeanour as a witness is concerned, I am not impressed by it. 

28. For completeness, I believe that the date on which the Additional Agreement was signed by the parties is not a critical fact.  It is undisputed that they both signed it before the execution of the Formal Agreement.  I note that the Formal Agreement referred to the provisional agreement “and its attachment”.  In his evidence, Chan said that he faxed a copy of the Additional Agreement to his solicitors on the 4^th March 2004.  It appears to me that, more likely than not, the reference to “its attachment” is a reference to the Additional Agreement. 

Construction of Contract

29. In this case, the Pre-emption Right is embodied in the Formal Agreement by way of Schedule 12 (see para. 13 above) (“the Pre-emption Clause”).  I cannot say that Clause 34 or Schedule 12 is perfectly drafted.  To begin with, it is puzzling as to why the Pre-emption Right is referred to as a condition precedent.  On the other hand, the Formal Agreement was drafted by lawyers and I believe that the terms set out in Schedule 12 are reasonably clear as to what they mean.

30. Mr Vaughan submits that on a proper construction of the Pre-emption Clause “the duty to give priority to the Plaintiffs to buy back the Property ends at the time of completion”.  With respect, I am unable to see anything in the point.  There is nothing in the Pre-emption Clause which restricts the time for exercising the right to buy back.  Such a restriction would have been extremely important and it is inconceivable that the lawyers on both sides would have omitted an express reference to the restriction in the Formal Agreement.  Further, it appears to me that the express provision in Clause 34 for the registration of the Preliminary Agreement and its attachment suggests that the Pre-emption Right was meant to have a longer life extending beyond completion.

Uncertainty

31.  Mr Vaughan’s submission is that the Pre-emption Clause is uncertain as to the duration of the Pre-emption Right.  Rightly, Mr Vaughan accepts that if this court should hold that there is no time restriction on such right then the submission under this head cannot be maintained.  Given the wording of the Pre-emption Clause, I am firmly of the view that the exercise of the Pre-emption Right is not restricted by time and I reject this submission.

32. For completeness, Mr Vaughan has carefully taken me through the details in the evidence of both Ng and Chan in respect of what they understood or intended to be the duration of the Pre-emption Right.  It is highly doubtful whether such evidence is admissible for the purpose of giving a meaning to the Pre-emption Clause [see Chitty on Contracts, 29^th ed., vol.1, para.12-119].  Further, I do not find such evidence to be of assistance in any case given the clarity of the Pre-emption Clause.  There is nothing in the factual matrix which casts doubt on the natural meaning of the wording of that Clause. 

Economic Duress

33. Chung Hing’s case is that Chan’s agreement to grant the Pre-emption Right was obtained by economic duress.  It is common ground that there are three basic requirements for establishing economic duress, namely, (a) that illegitimate pressure amounting to compulsion was applied; (b) that the illegitimate pressure applied was a significant cause of the victim’s actions; and (c) that the illegitimate pressure applied did not give the innocent party any real choice [see Esquire (Electronics) Ltd v Hong Kong and Shanghai Bank Corp Ltd [2005] 3 HKLRD 358].

34. With respect, I am unable to see any factual basis on which this argument can stand.  As set out in para. 26 above, I reject Chan’s evidence that he was under pressure to sign either the Additional Agreement or the Formal Agreement.  Moreover, given my finding that Chan had an agreement with Ng on the Pre-emption Right on the 25^th February 2004, Ng’s demand that he should sign a document to acknowledge that right can hardly be regarded as “illegitimate pressure”.  I reject also this part of Chung Hing’s case.

Public Policy

35. Mr Vaughan has an interesting point under this head.  He submits that a pre-emptive right to purchase the Property at a fixed price in the indefinite future should Chung Hing decide to sell it amounts to a restraint on alienation and is against public policy.  A contractual provision which is against public policy is void. 

36. Mr Vaughan has diligently researched this area of the law and taken me to a number of authorities[1].  He informs me that no Hong Kong authorities on this area can be found, a point confirmed by Ms Gwilt who appears for the Plaintiffs.  I hope that I am doing no injustice to Mr Vaughan’s diligent research by setting out my understanding of the law in question. 

37. In any grant of an interest in land, common law prohibits any conditions attached to the grant which are repugnant to the interest being granted.  One of the most important prohibitions is that against a condition designed to disallow alienation of the interest.  I believe that the law is accurately encapsulated in Elements of Land Law, 4^th ed., p.433 as follows :

“For centuries courts have invalidated any condition attached to an estate which wholly or substantially prohibits alienation of the estate by the grantee.  Any absolute restriction on the alienation of land held in fee simple is therefore, in the words of Littleton, ‘against reason’, being wholly repugnant to the essence of ownership in fee.  The courts have accordingly struck down conditions subsequent which prohibit any form of alienation of the estate by the grantee or which allow alienation only to a named person.  By contrast, the courts have normally been prepared to uphold clauses which prohibit alienation to a specific named person or which permit alienation only to a member or members of an identifiable class or group of persons.  Some sort of compromise has therefore been struck between the policy concern to promote the commerciablility of land and the countervailing impulse to permit personal control over discretionary distributions of privately held assets.”.

38. The authorities cited to me by Mr Vaughan are mostly concerned with disposition of properties under private arrangements.  None of them is concerned with a commercial transaction like the case before this court.  Most importantly, I am unable to distil any principle from the authorities to identify the circumstances where some restriction on alienation is allowed by the law (It will be seen from the analysis below that this is not a case of absolute prohibition on alienation – a point accepted by Mr Vaughan.).  I respectfully echo the comment made in Cheshire and Burn’s Modern Law of Real Property, 16^th ed., p.368 :

“The difficulty, indeed, is to ascertain the principle upon which such restraints have been permitted, for they would seem to be just as repugnant to ownership as a total restraint.  Perhaps the truth is that the courts, losing sight of the fundamental doctrine of repugnancy, have, unintentionally and unwittingly, allowed the necessities of public policy to engraft certain exceptions on the main rule.”.

39. I believe that the resolution of this submission of Chung Hing rests on a proper understanding of the transaction in question (including the Pre-emption Right) and the application of common sense.  First and foremost, the sale of the Property was part and parcel of a commercial transaction to achieve an amicable parting between two business associates where certain shares in one business were swapped for a fast food business.  The Property was occupied by that fast food business and the agreement encompassed the sale of it.  It is of considerable importance that Ng’s evidence that the Property was sold at a favourable price is not disputed.  It is plain that the low price reflected the Pre-emption Right and the assumption of responsibilities by Chan over the workers of Wah Tak.  Equally important, the Pre-emption Right was granted at a resale price which was over 25% above the selling price.  In simple economic terms, the Plaintiffs was selling the Property at below market price and buying it back, should they exercise the Pre-emption Right, at a premium of some 25% above the selling price. 

40. Next, I have to consider the restraint placed upon alienation by the Pre-emption Right.  The twin pillars of Mr Vaughan’s submission are (a) there is no time limit on the exercise of the Pre-emption Right and (b) landed properties generally appreciate in value with time.  Given these premises, Chung Hing would be “effectively prohibited from selling as there would be no point in selling at a significant loss”.  In fairness to the argument, I should point out that a condition which imposes a low resale price can constitute a restraint on alienation [see In Re Rosher [1884] 26 Ch D 801]. 

41. It is readily apparent that the restraint in question only bites in a rising market wherein the margin of 25% has been exceeded, in other words, where the market price of the Property has exceeded HK$1.38m.  I certainly accept that with land being one of the most precious resources in Hong Kong and is highly marketable, it is generally the case that landed properties increase in value with time.  Indeed, Ng has given evidence to that effect in respect of the Property.  Nevertheless, there would be no restraint on alienation in the case where the market falls (this is certainly not an unknown phenomenon in Hong Kong) or remains stagnant.  Indeed, in those scenarios, Chung Hing may benefit from the Pre-emption Right in the sense that it may be able to take advantage of the Plaintiffs’ attachment to the Property and resell it at a higher than market price to them because of the agreed price. 

42. Mr Vaughan submits that this court should pay no regard to those scenarios.  With the lack of time limitation, this court should look into the indefinite future.  Mr Vaughan suggests that if, for instance, Chung Hing decides to sell the Property in 10 years’ time the Plaintiffs would end up with a windfall because of the likely increase in the value of the Property.  The law is strict and I should simply apply it.  I find it illogical to have such a blinkered view of the Pre-emption Right and I am unable to discern any rule of law which bars such a right. 

43. In my view, looking at the transaction in question and the Pre-emption Right, it would be asking the law to assist in defrauding the Plaintiffs if the Pre-emption Right is to be ignored.  The Pre-emption was something the Plaintiffs bargained and paid for.  If it is ignored, Chung Hing would end up with a wholly unjustified windfall – it had obtained the Property at an undervalued price; it enjoyed a hedge against a falling or stagnant market given the agreed resale price; and it could benefit from any appreciation in value of the Property.  It would be quite wrong for the law to be applied in this way.  I see nothing against public policy in this case and I reject Chung Hing’s case under this head. 

Conclusions

44. Having rejected all the arguments advanced by Chung Hing, I give judgment in favour of the Plaintiffs for damages to be assessed.  To simplify the conduct of the assessment, it is agreed between the parties that the Plaintiffs are entitled to the difference between the market price of the Property as of the 30^th August 2004 (the date of sale to Best Rise International Ltd) and HK$1.38m. 

45. As for the costs of this action, I award such costs to the Plaintiffs to be taxed if not agreed.  However, it is again agreed by the parties that should the damages to be awarded herein fall within the District Court jurisdiction such costs are to be taxed in accordance with the District Court scale.  For that reason, the taxation of costs will have to wait for the outcome of the assessment and I so order.

46. Finally, this court has found that there is a case where the payment of stamp duty has possibly been unlawfully evaded.  I direct that a copy of this Judgment be sent to the Commissioner of Inland Revenue for her consideration.