Commissioner of Taxation v Nischu Pty Ltd

The Commissioner of Taxation (applicant) sought special leave to appeal to the High Court of Australia concerning a dispute with Nischu Pty Ltd (respondent) regarding stamp duty. The core of the dispute involved the valuation of property for the purposes of section 76AI(2) of the Stamp Act of Western Australia, which imposes differential stamp duty rates on conveyances of land compared to marketable securities. This differential creates an incentive for land-owning corporations to transfer control by conveying shares rather than the land itself, thereby potentially reducing stamp duty.

The legal issues before the High Court were primarily twofold. Firstly, the Court was required to determine the correct method for valuing property for the purposes of section 76AI(2) of the Stamp Act, specifically when "mining information" was a relevant factor. Secondly, the Court needed to consider whether such "mining information" constituted property in itself, a question that had been disclaimed at first instance and in the Full Court based on established authority.

The applicant argued that the valuation for section 76AI(2) should accommodate the influence of mining information, while carefully avoiding any implication that this intangible advantage itself held proprietary rights. The applicant relied on a line of well-known authorities, including *United Aircraft Corporation*, *Crows Nest v Commissioner of Stamp Duties (N.S.W.)*, and *Victoria Park Racing & Recreation Ground Ltd v Taylor*, to support the proposition that mining information is not property. These cases illustrate that intangible advantages, such as the ability to broadcast information, do not confer a proprietary interest.