Collector of Imposts (Vic) v Peers

The High Court of Australia heard an appeal from the Supreme Court of Victoria concerning the assessment of stamp duty on a transfer of land. The dispute arose when the Collector of Imposts assessed duty on a deed of gift, while the transferor argued it was not subject to duty. The transfer was made by a husband to his wife after their marriage, in accordance with an antenuptial agreement where the husband promised to transfer the land and also covenanted to pay off a mortgage on the property.

The primary legal issue before the High Court was whether the transfer constituted a "deed of gift" or "settlement" within the meaning of clause IX of the Third Schedule to the *Stamps Act 1915* (Vic). A secondary issue concerned the deductibility of the mortgage debt from the property's value for duty assessment purposes, particularly given the husband's covenant to pay the mortgage.

The High Court, in allowing the appeal, held that the transfer was a deed of gift within the meaning of the Act. The Court reasoned that the definition in clause IX. (1) was intended to broaden the scope of what constitutes a deed of gift, including instruments that might otherwise be excluded due to the presence of consideration, provided that consideration was not a bona fide adequate pecuniary one, or the instrument was not made before and in consideration of marriage. Although the transfer was made in consideration of marriage, it was executed after the marriage, thus falling outside the exclusion. The Court also determined that, pursuant to section 82 of the Act, the mortgage debt should be deducted from the value of the land for duty assessment, as the transfer was expressly made subject to the mortgage. Consequently, the High Court declared the transfer chargeable with duty, but at a reduced amount of £9 16s.