Chief Commissioner of State Revenue v Benidorm Pty Ltd

The Chief Commissioner of State Revenue (the applicant) sought special leave to appeal a decision of the Court of Appeal of the Supreme Court of New South Wales concerning the interpretation of the *Duties Act*. The dispute centred on whether a "declaration of trust" under section 8(3) of the Act was dutiable even if it did not result in a change in equitable rights, provided the statutory definition was otherwise met. Benidorm Pty Ltd was the respondent.

The legal issue before the High Court was whether the definition of "declaration of trust" in section 8(3) of the *Duties Act* was satisfied and thus attracted duty, irrespective of whether there was a change in equitable rights, where the other criteria of the statutory definition were met. The applicant argued that the word "transaction" in section 8 of the Act was merely a classificatory device for the enumerated transactions that followed, and that the specific definition of "declaration of trust" in section 8(3) did not require a change in legal or equitable rights. The applicant contended that the Court of Appeal had erred by first determining what constituted a "transaction" in the ordinary sense and then applying that to the definition of "declaration of trust", rather than construing the definition of "declaration of trust" first, given that the Act itself stated this definition was broader than the ordinary legal meaning.

The High Court refused special leave to appeal. Their Honours noted that the application did not identify a question of principle and found no reason to doubt the correctness of the conclusion reached by the Court of Appeal. The Court implicitly accepted the Court of Appeal's reasoning that the *Duties Act* imposed duties on transactions, which generally involved a disposition of beneficial ownership, and that the definition of "declaration of trust" within this context should align with this fundamental character of the Act. The Court's refusal indicated that the applicant's argument regarding the interpretation of section 8(3) and its interaction with the concept of a "transaction" did not present a sufficient basis for granting special leave.