Campbells Hardware and Timber Pty Ltd v Commissioner of Stamp Duties

[1998] QCA 16

IN THE COURT OF APPEAL	[1998] QCA 016
SUPREME COURT OF QUEENSLAND

Appeal No. 4060 of 1996

Brisbane

[Campbells Hardware & Timber P/L v. CSD]

BETWEEN:

CAMPBELLS HARDWARE & TIMBER PTY LIMITED

ACN 056 937 636 (Applicant) Appellant

AND:

COMMISSIONER OF STAMP DUTIES

(Respondent) Respondent

Fitzgerald P
Davies JA

Fryberg J

Judgment delivered 27 February 1998

Separate reasons for judgment of each member of the Court; Fryberg J dissenting as to the terms of the order.

DECLARATION THAT IF S. 54A OF THE STAMP ACT 1894 IS VALID, THE DECISION APPEALED FROM IS CORRECT AND THE APPEAL SHOULD BE DISMISSED WITH COSTS.

CATCHWORDS:	STAMP DUTY - Sale of a business - ‘Agency agreement’ in relation to trading stock - Whether purchaser of business also acquired trading stock - Powers of Commissoner of Stamp Duties to amend forms and reassess duty payable - Stamp Act 1894 (Q.), ss. 22A, 80, 54A.
Counsel:	Mr D.F. Jackson Q.C. with him Mr L. Harrison Q.C. for the appellant Mr P. Dutney Q.C. with him Mr H. Alexander for the respondent
Solicitors:	Kinneally Mahoney for the appellant Crown Solicitor for the respondent
Hearing Date:	20 February 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4060 of 1996

Brisbane

Before Fitzgerald P
Davies JA
Fryberg J

[Campbells Hardware & Timber P/L v. CSD]

BETWEEN:

CAMPBELLS HARDWARE & TIMBER PTY LIMITED

ACN 056 937 636 (Applicant) Appellant

AND:

COMMISSIONER OF STAMP DUTIES

(Respondent) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 27 February 1998

This is an appeal from a judgment in the Trial Division dismissing an application for judicial review

pursuant to the Judicial Review Act 1991. The appellant has challenged decisions by the respondent

Commissioner of Stamp Duties requiring the appellant to pay additional stamp duty in respect of a

transaction the subject of two inter-dependent agreements dated 21 December 1992. The

Commissioner issued an amended assessment on the basis that the appellant acquired or agreed to

acquire trading stock valued at $20,471,207 in the transaction. The trial judge held that, in “substance”

although not in “form”, the appellant agreed to acquire such trading stock in the transaction, and upheld

the Commissioner’s assessment of conveyance duty on the value of that trading stock pursuant to s.

54A of the Stamp Act 1894.
Under one of the agreements, the “Sale of Business Agreement”, the appellant purchased the goodwill,

specified plant and equipment and other assets associated with retail hardware shop businesses formerly

conducted by subsidiaries of James McEwan Limited (Receiver & Manager Appointed). It was not

disputed by the appellant that the Sale of Business Agreement was an “acquisition of a business” or an

“agreement to acquire a business” for the purposes of s. 54A, and the prescribed Form S(a) was

delivered to the Commissioner. Clause 7 of the Sale of Business Agreement contained an

acknowledgment by the appellant that the trading stock remained the property of the vendors “and is