Arco Resources v Commissioner of Stamp Duties

[1994] QCA 552

IN THE COURT OF APPEAL	[1994] QCA 552
SUPREME COURT OF QUEENSLAND

Appeal No. 237 of 1993

Brisbane

[Arco Resources & Anor. v. Commissioner of Stamp Duties]

IN THE MATTER of The Stamp Act

1894

- and -

IN THE MATTER of an appeal by ARCO RESOURCES LIMITED and by PL MINING PTY. LTD. against an assessment of stamp duty by the Commissioner of Stamp Duties on a Sale Agreement dated 26 June 1985

BETWEEN:

ARCO RESOURCES LIMITED

First Appellant

AND:

PL MINING PTY. LTD.

Second Appellant

AND:

COMMISSIONER OF STAMP DUTIES

Respondent

____________________________________________________________

____

MACROSSAN C.J.
DAVIES J.A.
SHEPHERDSON J.

____________________________________________________________
_____

Judgment delivered 26/08/1994 Further order made 21/12/1994

ORDER OF THE COURT
____________________________________________________________

_____

APPLICATION FOR DECLARATION REFUSED. NO ORDER AS TO COSTS.
____________________________________________________________
_____

CATCHWORDS:	STAMP DUTIES - INTEREST - DECLARATION - Commissioner's claim for interest - Court in case stated said that Commissioner was entitled to interest claimed, although view expressed on construction of s.49C(4) Stamp Act (Qld) was that Commissioner was entitled to claim interest at higher rate - such claim disavowed during hearing - interest claimed in notice of assessment paid - whether declaration that Commissioner is entitled to interest at higher rate should be made
Counsel:	Mr. F. L. Harrison Q.C. for the appellants
Mr. R. W. Gotterson Q.C. and Mr. R. J. Douglas for the respondent
Solicitors:	Feez Ruthning for the appellants The Crown Solicitor for the respondent

Hearing Date: 24 May 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 237 of 1993

Brisbane

[Arco Resources & Anor. v. Commissioner of Stamp Duties]

IN THE MATTER of The Stamp Act

1894

- and -

IN THE MATTER of an appeal by ARCO RESOURCES LIMITED and by PL MINING PTY. LTD. against an assessment of stamp duty by the Commissioner of Stamp Duties on a Sale Agreement dated 26 June 1985

BETWEEN:

ARCO RESOURCES LIMITED

First Appellant

AND:

PL MINING PTY. LTD.

Second Appellant

AND:

COMMISSIONER OF STAMP DUTIES

Respondent

REASONS FOR FURTHER ORDER - THE COURT

Further order delivered the Twenty-first day of December
1994

In our judgment in this appeal we expressed our view upon the Commissioner's claim for interest, because it had been fully argued, although it was not part of the assessment; and we said that we would, if necessary, make an appropriate declaration. We gave leave to the parties to make further submissions on this question.

The Commissioner's claim for interest, to which we said he was entitled, was at the rate of 6% from 26 June 1985 (the date asserted in the case stated as the date of the agreement) to 9 April 1987 (the day prior to the date on which the rate in s.49C(4) of the Stamp Act was amended from 6% to 20%) and at the rate of 20% from 10 April 1987 to the date of payment. That was the claim made in the notice of assessment. It is true that in his written outline of submission the Commissioner argued that, upon the construction of s.49C(4), interest was payable at the higher rate from 26 June 1985. But in oral argument he disavowed any claim to interest on the higher rate before 10 April 1987. The assessment, together with the interest claimed, was paid by the appellant to the Commissioner on 27 October 1992. We were therefore disinclined to make a declaration as to the entitlement claimed and paid. Nothing which has been put in further submissions changes that disinclination.

The Commissioner does not now seek a declaration that he is entitled to the interest paid. He seeks one that he is entitled to interest at 20% from 26 June 1985 to the date of payment. This is because, in our judgment in the appeal, we expressed the view that, upon the construction of s.49C(4) the Commissioner would have been entitled to interest at that rate for the whole of that period. But it does not follow that the Commissioner is now, for the first time, entitled to a declaration to that effect; still less does it follow that he is entitled to that relief in these proceedings.

As to the first of these questions, even if it be correct that no estoppel could arise against the Commissioner's claim for interest (Stamp Act ss.4B(1), (3), 49C(4); Maritime Electric Co. Ltd. v. General Dairies Ltd. [1937] A.C. 610; North West County District Council v. J. I. Case (Australia) Pty. Ltd. [1974] 2 N.S.W.L.R. 511;

Commonwealth of Australia v. Hamilton [1992] 2 Qd.R. 257) it does not follow that the respondent is entitled to a declaration. Factual matters including the making of a claim for interest at a lower rate and the consequences of the making of that claim upon the appellant may be relevant to the exercise of the broad discretion to grant or refuse declaratory relief. None of these factual matters were explored in the appeal because the Commissioner did not make the claim in respect of which he now seeks a declaration.

As to the second, the court was prepared, in the appeal, to consider the Commissioner's entitlement to the interest which he claimed and was paid because that question, involving as it did only a question of statutory construction, was fully argued. It is inappropriate, in a proceeding upon a case stated, to deal with questions which may involve disputed matters of fact.

The application for a declaration is therefore refused.

The court does not propose to make any order for costs in

respect of this application.