Campbells Hardware & Timber v Commissioner of Stamp Duties

IN THE SUPREME COURT

OF QUEENSLAND

No. 0400 of 1995
Brisbane

Before Justice Byrne

[Campbells Hardware & Timber v. Commissioner of Stamp Duties]

BETWEEN:

CAMPBELLS HARDWARE & TIMBER PTY LTD
Applicant

AND:
COMMISSIONER OF STAMP DUTIES

Respondent
REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered : 22/04/1996

CATCHWORDS: STAMP DUTIES - sale of business - whether stock appertaining to the business was "agreed to be acquired" within s.54A Stamp Act 1894 - whether permissible to alter a Form S(a) after assessment and reassess it - ss.22A, 80(2) Stamp Act 1894 - words and phrases "acquire".

Counsel:F.L. Harrison Q.C. for applicant
P.R. Dutney Q.C. and H.L. Alexander for respondent

Solicitors:Kinneally Mahoney for applicant
Crown Solicitor for respondent

Hearing Dates: 19 and 21 March, 1996

IN THE SUPREME COURT

OF QUEENSLAND

No. 0400 of 1995
Brisbane

Before Justice Byrne

[Campbells Hardware & Timber v. Commissioner of Stamp Duties]

BETWEEN:

CAMPBELLS HARDWARE & TIMBER PTY LTD
Applicant

AND:
COMMISSIONER OF STAMP DUTIES

Respondent
REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered : 22/04/1996
By this application for a statutory order of review, the applicant challenges an amended assessment of stamp duty and the respondent's rejection of the objection to that assessment. The original assessment was made in respect of a Form S(a) lodged in August 1993. After the assessment was paid, the respondent amended the Form S(a) and reassessed the duty at an additional $765,557.54. An objection to the amended assessment has been disallowed.
The contest arises out of the acquisition of retail hardware shop businesses formerly conducted by subsidiaries of James McEwan Limited (Receiver and Manager appointed). By a "Sale of Business Agreement" dated 21 September 1992, the applicant purchased the goodwill of the businesses, specified plant and equipment, and other assets associated with the businesses. The Form S(a) disclosed the value of the assets acquired at $4,091,839. Of this, $2,700,000 was attributed to freehold properties, $1,300,000 to plant and chattels, and the balance to sundry debtors. The form provided space to insert the value of the stock in trade acquired. Here "Nil" was typed in. The amendment of this entry accounts for the reassessment. The respondent changed it to $20,471,207.
The application raises three issues, whether (i) the amendment of the Form S(a) accords with the effect of the contracts for the acquisition of the businesses and their assets; in other words, whether the trading stock was "agreed to be acquired from the owner" of the businesses within the meaning of s.54A of the Stamp Act 1894 ("the Act"); (ii) section 81 of the Act sustains the amended assessment; and (iii) ss.22A(2) and 80(2) authorise the reassessment of the amended Form S(a).
Basis of Liability to Duty
Section 54A(2) of the Act requires a person who acquires, or agrees to acquire, a business in Queensland to deliver to the respondent "a statement ... in the prescribed form ... showing the prescribed information". By s.54A(5), that statement is "charged with duty ... as if it were a conveyance…

CaseChat Overview and Summary

In this case, Campbells Hardware & Timber Pty Ltd challenged the reassessment of stamp duty by the Commissioner of Stamp Duties. The reassessment followed an amended Form S(a) submitted after the original assessment was paid. The applicant argued that the reassessment did not reflect the true nature of the transaction, particularly concerning the acquisition of trading stock. The court was required to decide whether the amendment of the Form S(a) complied with the contracts for the acquisition, whether section 81 of the Stamp Act 1894 supported the reassessment, and whether sections 22A(2) and 80(2) of the Act authorised the reassessment.

The court found that the amendment accurately reflected the contracts' effect, which indicated that the applicant agreed to acquire the stock as its own, despite the contracts' terminology suggesting agency. The court noted that the applicant had the power to deal with the stock in its own name, bore the risk of accidental loss, and had the right to sell indefinitely without any control by the vendors. The court concluded that the applicant intended to acquire the stock as its own property, free of any residual rights in the vendors.

Regarding the reassessment, the court held that sections 22A(2) and 80(2) of the Act permitted the alteration and reassessment of the Form S(a) even after the initial assessment. The court found that restricting the alteration to before assessment would lead to unintended consequences, such as the inability to reassess a wrongly lodged Form S(a) if the error was discovered post-assessment. The court deemed it more consistent with contemporary statutory interpretation to allow alterations both before and after assessment.

The court dismissed the application, upholding the reassessment and the Commissioner's authority to amend the Form S(a) after the initial assessment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established