B T & G Nominees Pty Ltd v Commissioner of Stamp Duties - [1990] TASSC 116

Serial No B39/1990
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: B T & G Nominees Pty Ltd v Commissioner of Stamp Duties [1990] TASSC 116; B39/1990

PARTIES:  B T & G NOMINEES PTY LTD
  v
  COMMISSIONER OF STAMP DUTIES

FILE NO/S:  M4/1990
DELIVERED ON:  18 July 1990
JUDGMENT OF:  Crawford J

Judgment Number: B39/1990
Number of paragraphs: 16

Serial No B39/1990
List "B"
File No M4/1990

B T & G NOMINEES PTY LTD
v COMMISSIONER OF STAMP DUTIES

REASONS FOR JUDGMENT CRAWFORD J

18 July 1990

The applicant seeks to have varied from $875 to $20 the assessment of duty made in respect of a deed dated 30 June 1989 between John Albert Taylor and others (the assignors) of the one part and the applicant (the assignee) of the other part. Its backing sheet describes the deed as a "Deed of Assignment".

The parties acknowledged in the deed that the assignors were the partners of a firm of legal practitioners and that the assignee was the trustee of a settlement, the beneficiaries of which were the spouse and children of a practitioner who was to become a partner of the firm "with effect from the commencement date". The "commencement date" was defined as meaning "the 1st day of July, 1989, or the date upon which the Council of the Law Society of Tasmania shall give its approval to the arrangements to be effected by this Deed which ever of those dates be the later in time". No doubt the requirement for the approval of the Council of the Law Society was inserted because rule 4 of the Rules of Practice 1977 prohibited the sharing of a practitioner's profit costs with a person who was not a practitioner unless such approval was obtained under subrule (4).

By clause 3 the assignors, for a consideration, did "hereby agree to assign, transfer and set over to the Assignee such part of their respective shares in the Partnership as shall be equal in total to 122nd thereof to hold the same unto the Assignee absolutely with effect from the commencement date."

Clause 4 provided:—

"The Assignment hereby effected is made subject to the provisions of Section 36 of the Partnership Act 1891...."

By clause 6 the applicant covenanted "not to assign any benefit hereby conferred on the Assignee" except with prior approval.

Clause 9 has a reference to "the determination of the assignment hereby effected".

The Stamp Duties Act 1931 s9(1) provides for the payment "in respect of the several instruments enumerated in Schedule 2 duty at the rates set forth in figures against the same respectively or otherwise specified in that Schedule." Subsection (2) provides for the calculation and assessment of such duty in accordance with the rules in Schedule 4 where they are applicable, but subject to the exemptions specified in Schedule 3. The question which arises on this application is whether the deed falls within the meaning of a "conveyance" in item 7 of Schedule 2, in which case the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading B T & G Nominees Pty Ltd v Commissioner of Stamp Duties

Details

AGLC: B T & G Nominees Pty Ltd v Commissioner of Stamp Duties [1990] TASSC 116
Case: [1990] TASSC 116
Decision Date: 18 July 1990

CaseChat Overview and Summary

The Supreme Court of Tasmania heard an appeal from B T & G Nominees Pty Ltd against the Commissioner of Stamp Duties. The appellant sought a reduction in the stamp duty assessment for a deed of assignment dated 30 June 1989, from $875 to $20. The deed involved the assignment of shares in a partnership of legal practitioners to the appellant, which was the trustee of a settlement. The dispute centred on whether the deed constituted a "conveyance" under the Stamp Duties Act 1931, which would result in a higher duty, or if it was an agreement to convey, warranting a lower duty.

The key legal issue was whether the deed should be interpreted as an effective conveyance or merely an executory agreement to convey shares in the partnership. The Commissioner argued that the deed, when read as a whole, constituted an effective assignment, while the appellant contended that the deed was an agreement to convey, with no actual transfer of property yet executed. The court needed to determine if the deed, by itself, was sufficient to effect the assignment without the need for another instrument.

Crawford J determined that the appeal should succeed. The court held that the burden was on the Commissioner to prove that the higher duty was correctly assessed. Since there was no evidence that the Law Society had approved the arrangements at the time of the deed's execution or since, it could not be concluded that a conveyance had taken place. Therefore, the deed did not constitute a conveyance, and the lower duty applied. Consequently, the court ordered that the stamp duty assessment be reduced from $875 to $20, with the Commissioner to repay the excess duty of $855 to the appellant.

Orders