Commissioner of Stamp Duties (NSW) v Brasch

The Commissioner of Stamp Duties (NSW) appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned the calculation of death duty payable on the estate of Reuben David Brasch, deceased. The executor of the estate sought a refund of death duty paid, arguing that an allowance should have been made for a liability arising from an onerous lease held by the deceased.

The legal issues before the High Court were whether the liability to pay future rent under the onerous lease constituted a "debt actually due and owing" at the time of the deceased's death, or a "contingent debt" as defined by the Stamp Duties Act 1920-1933 (NSW). The court also had to determine if the executor was entitled to a refund of death duty under section 107(3) of the Act, given that the contingent debt had become actually payable within three years of the deceased's death.

The High Court held that the liability to pay future rent under the onerous lease was a contingent debt, not a debt actually due and owing at the time of death. Therefore, no allowance could be made under section 107(1). However, because this contingent debt became actually payable within three years of the deceased's death, the executor was entitled to an allowance and a refund of excess death duty paid, pursuant to section 107(3). The court affirmed the decision of the Supreme Court, agreeing that the executor was entitled to a refund calculated on the net loss incurred in respect of the lease during the three years following the deceased's death.