Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue

Alcan (NT) Alumina Pty Ltd (Alcan) appealed to the High Court of Australia against a decision of the Supreme Court of the Northern Territory, which had affirmed a decision of the Commissioner of Territory Revenue. The dispute concerned the assessment of stamp duty on a deed of covenant entered into between Alcan and the Northern Territory of Australia. Alcan argued that the deed was not subject to stamp duty, or alternatively, that the duty assessed was excessive.

The primary legal issue before the High Court was whether the deed of covenant constituted a dutiable instrument under the *Stamp Duty Act 1978* (NT). Specifically, the court had to determine if the deed was a "conveyance" or "transfer" of dutiable property, or if it fell within another category of dutiable instrument. A related issue was whether the Commissioner had correctly assessed the ad valorem duty payable on the deed.

The High Court, comprising Hayne and Crennan JJ, reasoned that the deed of covenant did not effect a conveyance or transfer of property in the ordinary sense. Instead, it created a personal obligation on Alcan to pay a sum of money to the Territory in certain circumstances. Their Honours applied the principle that stamp duty is levied on instruments that transfer or create proprietary rights or interests, or that record transactions of a specific nature. As the deed did not transfer property, nor did it fit the definition of other dutiable instruments, it was not subject to ad valorem stamp duty.

The High Court allowed the appeal, setting aside the orders of the Supreme Court of the Northern Territory and remitting the matter to the Commissioner of Territory Revenue to reassess the stamp duty payable in accordance with the judgment.