Chief Commissioner of State Revenue v Benidorm Pty Ltd

The Chief Commissioner of State Revenue appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court concerning stamp duty. The dispute centred on whether a document styled "Declaration of Trust by Nominee" constituted a dutiable transaction under the *Duties Act 1997* (NSW). The Commissioner contended that the document was a dutiable transaction, while Benidorm Pty Ltd argued it was merely an acknowledgement of an existing state of affairs.

The Court of Appeal was required to determine whether the "Declaration of Trust by Nominee" was a dutiable transaction for the purposes of the *Duties Act 1997* (NSW). Specifically, the court had to consider whether the document, executed after the grant of probate and resealing of that grant in New South Wales, merely acknowledged the existing legal position or created a new dutiable transaction. The court also had to consider the nature of the trust and the obligations of the trustee in light of the beneficiary's will appointing the executor as the sole beneficiary of his estate, and whether the estate had been fully administered.

The Court of Appeal reasoned that the *Duties Act 1997* (NSW) imposes tax on transactions, not merely on instruments. It found that the document in question did not effect a change in beneficial ownership or create any new legal rights or obligations. Instead, it merely acknowledged the existing position of the trustee holding property on trust for the executor, who was also the sole beneficiary of the deceased estate. The court held that the grant of probate and its resealing did not, in themselves, alter the underlying trust relationship or constitute a dutiable transaction. The court applied principles of trust law and statutory interpretation to conclude that the document was a mere acknowledgement of an existing state of affairs.

The appeal was dismissed, and the Chief Commissioner of State Revenue was ordered to pay the costs of the appeal.