Asciano Services Pty Ltd v Chief Commissioner of State Revenue (NSW)

This matter concerned an appeal to the High Court of Australia by Asciano Services Pty Ltd against the Chief Commissioner of State Revenue (NSW). The dispute centred on whether a rail access agreement entered into by Asciano, granting it rights to use rail lines and infrastructure, constituted a dutiable lease instrument under the *Duties Act 1997* (NSW). The Chief Commissioner assessed duty on the agreement, arguing it conferred a right to use land.

The High Court was required to determine two primary legal issues. Firstly, whether the rail access agreement was an agreement "by which" a right to use land was conferred on or acquired by Asciano, as contemplated by the definition of a lease instrument in the *Duties Act 1997* (NSW). Secondly, the Court considered whether the rail lines and infrastructure themselves constituted "land" in which Asciano acquired rights, and the interrelationship between the statute conferring access rights and the specific terms of the access agreement.

The High Court reasoned that the statutory provisions vesting rail infrastructure and the land on which it sat in different bodies did not preclude the grantor of the access agreement from granting rights to access that land. Crucially, the Court found that the statutory provisions did not, in themselves, create an enforceable right to use the land. Instead, such a right arose only when a party, like Asciano, entered into an access agreement and was granted permission to use the rail infrastructure facilities. Therefore, it was the agreement itself, and the permission granted under it, that was the source by which Asciano acquired the right to use the land. The Court concluded that the agreement was dutiable as it was the instrument by which the right was acquired.

The High Court dismissed the appeal, upholding the decision of the Court of Appeal. Asciano Services Pty Ltd was ordered to pay the costs of the appeal.