Commissioner of Stamp Duties v Pendal Nominees Pty Limited

The Commissioner of Stamp Duties applied for special leave to appeal to the High Court of Australia from a decision of the Court of Appeal of New South Wales. The dispute concerned the amount of stamp duty payable on a share sale deed executed on 28 June 1983. The deed evidenced an agreement for the sale of shares in a company by RDC Holdings Limited to BT Australia Limited (BTA), which was acting as trustee of a fund. Pendal Nominees Pty Limited, a wholly owned subsidiary of BTA, was also a party to the deed and was to hold the shares as nominee for BTA.

The legal issues before the High Court were whether the share sale deed constituted both an agreement for the sale of shares and a declaration of trust in respect of those shares, thereby attracting stamp duty under both heads of charge. Specifically, the Commissioner assessed ad valorem stamp duty on the deed as an agreement for the sale of shares and also under the head of charge "Declaration of Trust" in the Second Schedule to the Stamp Duties Act. The Commissioner contended that a provision within the deed, requiring RDC to deliver transfers of shares in favour of Pendal Nominees Pty Limited, who would hold them as nominee for BTA, rendered the deed a declaration of trust.

The Commissioner's argument was that the deed, by stipulating that Pendal Nominees Pty Limited would hold the Seven Hills Shares as nominee for BTA, effectively created a declaration of trust over those shares. This was based on the wording of the deed and a related deed of trust, which included provisions for the trustee to cause assets to be vested in a nominee to be held upon trust. The Commissioner relied on paragraph 2(a) of the "Declaration of Trust" head of charge in the Second Schedule to the Stamp Duties Act, asserting that the share sale deed made Pendal Nominees Pty Limited a trustee of the Seven Hills Shares for BTA. The Court was required to determine if this arrangement, as evidenced by the deed, met the criteria for a declaration of trust for stamp duty purposes.