Bond Media Ltd v Commissioner of Stamp Duties

[1992] QCA 166

IN THE COURT OF APPEAL	[1992] QCA 166
SUPREME COURT OF QUEENSLAND	No. 58 of 1992 No. 59 of 1992

IN THE MATTER of the Stamp

Act 1894-1991

- and -

IN THE MATTER of an appeal
by BOND MEDIA LIMITED
against an assessment of
stamp duty by the
COMMISSIONER OF STAMP
DUTIES on a deed of charge

dated 13 April 1990

BETWEEN:

BOND MEDIA LIMITED Appellant

AND:

THE COMMISSIONER OF STAMP DUTIES Respondent

REASONS FOR JUDGMENT OF THE COURT

Delivered the 25th day of June 1992

These are two cases stated by the Commissioner of Stamp Duties pursuant to s. 24 of The Stamp Act, 1894. Each concerns the application of s. 70, in materially identical circumstances, to deeds in materially identical terms.

Each deed was a deed of charge, both fixed and floating, over property in all Australian States, the Northern Territory and the Australian Capital Territory as well as property in the United Kingdom and the United States of America. Stamp duty had been or will be paid in both New South Wales and Victoria on each deed. It is not necessary to discuss the amount of that duty or whether any duty is exigible on either deed in any other State or Territory. It is common ground that there are only two possible results in this case. Either the appellant is entitled to a credit against duty otherwise payable pursuant to s. 70(1) or it is entitled to a greater credit pursuant to sub-s. (4). The parties have agreed that if, as the Commissioner contends, a credit is allowable under sub-s. (1) only, the assessment in each case is correct; and they have agreed upon the amount of credit to which the appellant is entitled in each case if entitled to credit pursuant to sub-s. (4).

Section 70 provides as follows:-

"70(1) [Money to be paid or repaid secured both on property in Queensland and on property in another State or Territory] Where the money to be paid or repaid under an instrument chargeable with duty under the heading 'MORTGAGE, BOND, DEBENTURE, and COVENANT' in the First Schedule is secured both on property in Queensland and on property in another State or a Territory, and the Commissioner is satisfied that ad valorem duty under a corresponding provision relating to mortgages or other securities has been paid or will be paid to that other State or Territory in respect of the same money he shall allow a credit against the duty that would otherwise be payable of an amount equal to the lesser of -

(a)  the same proportion of the duty otherwise payable in Queensland as the full unencumbered value of the property situated in that other State or Territory bears to the aggregate full unencumbered value of all property upon which the money to be paid or repaid is secured;

and

(b)  the amount of duty paid or to be paid to that other State or Territory.

70(2) [Money to be paid or repaid secured wholly on property within another State or Territory] Where the money to be paid or repaid under an instrument chargeable with duty under the heading 'MORTGAGE, BOND, DEBENTURE, and COVENANT' in the First Schedule is secured wholly on property within another State or a Territory, and the Commissioner is satisfied that ad valorem duty under a corresponding provision relating to mortgages or other securities has been or will be paid to that other State or Territory, he shall allow a credit against the duty that would otherwise be payable of an amount equal to the lesser of -

(a)  the duty otherwise payable in Queensland; and

(b)  the amount of duty paid or to be paid to that other State or Territory.

70(3) [Money lent has been or is to be applied in Queensland] Where an instrument secures money to be paid or repaid and the money lent has been or is to be applied, wholly or partly in Queensland, the instrument shall be deemed to relate to a matter or thing done or to be done in Queensland.

70(4) [Money paid or to be repaid under security instrument has been or will be partly applied in another State or Territory] Where the Commissioner is satisfied that ad valorem duty under provisions corresponding with the provisions under the heading 'MORTGAGE, BOND, DEBENTURE, and COVENANT' in the First Schedule has been or will be paid on an instrument which secures the payment or repayment of money to another State or a Territory -

(a) in which the property, on which the money is
secured, is located;
or

(b)  in which that money has been or will be partly applied,

he shall allow a credit, against the duty that
would otherwise be payable, of an amount equal to
-

(c)  in the case of an instrument chargeable with duty in that other State or Territory only because the money paid or to be repaid under the instrument has been or is to be applied in that other State or Territory - the amount which is the lesser of -

(i) the same proportion of the duty otherwise payable in Queensland as the amount of money which has been or is to be applied in that other State or Territory bears to the total amount of money to be paid or repaid,

and

(ii) the amount of duty paid or to be paid to

that other State or Territory;

or

(d)  in any other case - the amount of the duty paid or to be paid to that other State or Territory."

The section was introduced in 1988 to replace paragraph (4) under the heading "MORTGAGE, BOND, DEBENTURE and COVENANT" in the First Schedule to the Stamp Act. The purpose of the section was said, in the second reading speech of the Minister who introduced it, to be "to ensure that security duty concessions provided in the First Schedule which provide for the duty not to apply to the extent that a security relates to property, etc. in another State or Territory are only allowed where relevant duty is paid in that other State or Territory". Before us the Commissioner relied upon this statement in support of his argument that the section did not intend any departure in principle from paragraph (4) under the above heading except to the extent that it required, as a condition of the credit, payment of duty in another State or Territory. He then took us to the provisions of paragraph (4) which he said showed that the first two paragraphs, corresponding with sub-ss. (1) and (2) of s. 70, were intended to be exhaustive of the situation where the whole or part of the property upon which payment is secured is out of Queensland.

This argument has considerable difficulties, not the least of which is that s. 70(4)(a), unlike its predecessor, contains an additional provision dealing with credit where property is located in another State or Territory. In our view neither the above statement contained in the Minister's second reading speech nor the former provisions of paragraph (4) are of any assistance in the construction of s. 70.

There is no doubt that each deed was secured both on property in Queensland and on property in other States and Territories or that the Commissioner was satisfied that ad valorem duty under a corresponding provision relating to mortgages or other securities has been or will be paid to another State in respect of the same money. Indeed, the appellant conceded that the facts in the present case bring each deed within sub-s. (1). However, it contends that the facts also bring such deed within sub-s. (4)(a) and that consequently it is entitled to a greater credit pursuant to sub-s. (4)(d).

Sub-sections (1) and (2) appear to exhaust entitlement to credit where the instrument is secured on property in another State or Territory; sub-s. (1) dealing with the case where it is secured on property partly in Queensland and partly in another State or Territory and sub-s. (2) dealing with the case where it is secured wholly on property within another State or Territory. Sub-section (4)(a) which, together with paragraph (d), grants credit where "the property on which the money is secured is located" in another State or a Territory, on its face, duplicates the factual requirements of sub-s. (1) but with a different result or duplicates those of sub-s. (2) with possibly the same result or duplicates both. The Commissioner submits that it duplicates those of sub-s. (2). The appellant says that it duplicates both. Of course, the appellant to succeed must establish that sub-s. (4)(a) applies notwithstanding that part of the property on which the money is secured is located in Queensland.

In our view, the more likely meaning of the phrase "the property" in the context of sub-s. (4)(a), having regard in particular to the use of the definite article, is the whole of the property. In other words, that clause applies only where the whole of the property on which the money is secured is located in another State or Territory or possibly in other States or Territories (Acts Interpretation Act, 1954 s. 32C). No assistance is gained on this question of construction by looking at sub-ss. (1) or (2). It is true that the latter uses the phrase "secured wholly on property within another State or Territory", which the appellant would contrast with the phrase in s. (4)(a); but sub-s. (1) contains the phrase "secured both on property in Queensland and on property in another State or Territory" which the Commissioner would contrast with the phrase in s. (4)(a).

It is unnecessary for present purposes to resolve the question whether there is an inconsistency between sub-s. (2) and sub-s. (4)(a). It is not immediately obvious that there would be any since both subsections, being designed to allow credits against Queensland duty will, notwithstanding some difference in wording, effectively each allow credit of the amount of duty paid or payable ex Queensland. If both sub-s. (1) and sub-s. (4)(a) applied together in any instance there could be inconsistency in the credit provided for and it would be surprising if the carefully constructed system for calculating credit adopted under sub-s. (1) were intended to be overridden because sub-s. (4)(a) also applied. Because the latter applies only where the whole of the property is located in another State or Territory (or other States or Territories), there is no inconsistency between that provision and sub-s. (1). Sub-section (4)(a) can have no application to the present case because part of the property on which the money is secured is in each case located in Queensland.

In our opinion, therefore, both appeals must fail. We would answer question 14(a) in each case stated in the affirmative and we would order the appellant to pay the Commissioner's costs of and incidental to the stating of this case and of the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 58 of 1992 No. 59 of 1992
Before the Court of Appeal
The Chief Justice Mr Justice Davies Mr Justice Demack

IN THE MATTER of the Stamp

Act 1894-1991

- and -

IN THE MATTER of an appeal by BOND MEDIA LIMITED against an assessment of stamp duty by the COMMISSIONER OF STAMP DUTIES on a deed of charge dated 13 April 1990

BETWEEN:

BOND MEDIA LIMITED Appellant

AND:

THE COMMISSIONER OF STAMP DUTIES Respondent

REASONS FOR JUDGMENT OF THE COURT

Delivered the 25th day of June 1992

MINUTE OF ORDER:	Appeals dismissed. In each case stated, question 14(a) answered in the affirmative. Appellant to pay the costs of the Commissioner of Stamp Duties of the stating of this case and of the appeal.
CATCHWORDS:	STAMP DUTIES - ASSESSMENT - Appeal against respondent's calculation of credit for duty paid outside Queensland on charge securing property within and outside Queensland - whether s. 70(4) applies where property partly outside Queensland - whether appellant entitled to credit under s. 70(4) rather than lesser credit under s. 70(1) - STAMP ACT 1894-1991 s.24, s. 70(1), s. 70(4) - ACTS INTERPRETATION ACT 1954 s. 32C
STATUTES - INTERPRETATION - Sections 70(1) and 70(4) of Stamp Act both provided for credit if duty paid outside Queensland on charge securing property outside Queensland - whether s. 70(4) applied if Queensland property also secured - whether second reading speech or former provisions of assistance in construction
Counsel:	D.F. Jackson Q.C., with him A.J.H. Morris for the Appellant K. Dorney Q.C., with him P. Flanagan for the Respondent
Solicitors:	Sly and Weigall Cannan and Peterson for the Appellant Director of Prosecutions for the Respondent
Hearing Date(s):	16 June 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND No. 58 of 1992 No. 59 of 1992

IN THE MATTER of the Stamp

Act 1894-1991

- and -

IN THE MATTER of an appeal by BOND MEDIA LIMITED against an assessment of stamp duty by the COMMISSIONER OF STAMP DUTIES on a deed of charge dated 13 April 1990

BETWEEN:

BOND MEDIA LIMITED Appellant

AND:

THE COMMISSIONER OF STAMP DUTIES Respondent

__________________________________________________

__

THE CHIEF JUSTICE
DAVIES JA
DEMACK J
__________________________________________________

__

Reasons for Judgment of the Court delivered the

25th day of June 1992

__________________________________________________
__

"APPEALS DISMISSED. IN EACH CASE STATED, QUESTION 14(a) ANSWERED IN THE AFFIRMATIVE. APPELLANT PAY THE COSTS OF THE COMMISSIONER OF STAMP DUTIES OF THE STATING OF THIS CASE AND OF THE APPEAL."