Commissioner of Stamp Duties v Westpac Banking Corporation; Commissioner of Stamp Duties v The Commonwealth of Australia - [1993] HCATrans 9

..

• 1 JA

IN THE

HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B39 of 1992
B e t w e e n -

COMMISSIONER OF STAMP DUTIES

Applicant

and
WESTPAC BANKING CORPORATION

Respondent

Office of the Registry

Brisbane No B42 of 1992
B e t w e e n -

COMMISSIONER OF STAMP DUTIES

Applicant

and
THE COMMONWEALTH OF AUSTRALIA

Respondent

Applications for special leave
to appeal

Westpac

5/2/93

MASON CJ

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 FEBRUARY 1993, AT 10.20 AM

MR G.J. GIBSON, QC:

May it please the Court, I appear for

the applicant in both applications with my learned
friend, MR S.L. DOYLE. (instructed by the Crown
Solicitor for the State of Queensland)

MR R.J. ELLICOTT, QC:

May it please the Court, I appear for

the respondent in the case of application No B39
with my learned friend, MR J.D. McGILL. (instructed
by Allen Allen & Hemsley)

MR R.W. GOTTERSON, QC:

May it please the Court, I appear

for the respondent in the case of application
No B42 with my learned friend, MR G.H. BRANDIS.
(instructed by the Australian Government Solicitor)

MASON CJ: Yes.

MR GIBSON: There is one preliminary matter which I should

draw to the Court's attention, that is, that there
is an application for leave to extend the time
within which to apply for special leave in the case
of application No B42.

MASON CJ: Yes.

MR GIBSON:

An affidavit of Donald Jeffrey Franzen has been

filed, deposing to the relevant circumstances.
Your Honours, I have been informed by counsel for
the Commonwealth that the Commonwealth consents to
an order that time within which to apply for
special leave be extended.

MASON CJ: Well you can proceed on the footing there is no

difficulty about time.

MR GIBSON:

Thank you, Your Honour.

There are two issues on

which the applicant relies in support of the

application. They are identified at paragraph 1 of
the outline of submissions. With respect to the

first such issue, namely as to the meaning of the
opening words of section 54(1) of the Stamp Act, it
is a provision of fundamental importance to the
scheme of that Act, a like provision exists in
stamp duties legislation in most States and the
scope of its application is, in our submission, a
matter of public importance which should be ruled
upon by this Court.

MASON CJ:

I think the difficulty that faces you is in

demonstrating that you have an arguable case on
section 54(1), in so far as you say there is an
agreement for sale.

MR GIBSON:

Thank you, Your Honour.

The principle in issue

is whether the opening words of that section apply
to an agreement which has, as its object, the
acquisition of property by one of the parties to

Westpac

5/2/93

the agreement, the purchaser, and which also
contains the following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Commissioner of Stamp Duties v Westpac Banking Corporation;...

Details

AGLC: Commissioner of Stamp Duties v Westpac Banking Corporation; Commissioner of Stamp Duties v The Commonwealth of Australia [1993] HCATrans 9
Case: [1993] HCATrans 9
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard applications for special leave to appeal concerning stamp duty assessments. The applicants were the Commissioner of Stamp Duties (in relation to Westpac Banking Corporation) and the Commissioner of Stamp Duties (in relation to the Commonwealth of Australia). The core of the dispute revolved around the interpretation of section 54(1) of the Stamp Act and its application to certain agreements.

The legal issues before the Court were primarily concerned with the meaning and scope of the opening words of section 54(1) of the Stamp Act. Specifically, the Court was asked to determine whether this provision applied to an agreement where the object was the acquisition of property by one party (the purchaser), and the agreement included a promise by the other party to facilitate the transfer of that property from a third party to the purchaser, contingent on certain steps being successful. Furthermore, the Court had to consider whether the provision applied when the purchaser promised to pay a sum representing the value of the property to the other party in consideration for this acquisition.

The Court was informed that the agreements between the Commonwealth and Westpac involved a mechanism whereby the Commonwealth would introduce legislation into Parliament to transfer property owned by the Defence Service Homes Corporation to Westpac. The Commissioner contended that this arrangement fell within the ambit of section 54(1) of the Stamp Act, arguing for a broad interpretation of the provision's opening words. The applicants sought to demonstrate that they had an arguable case on this point, highlighting its fundamental importance to the scheme of the Act and its widespread application across similar legislation in other states.

Orders