Commissioner of Taxes (Vic) v Currie

The Commissioner of Taxes (Victoria) appealed to the High Court of Australia from a decision of the Supreme Court of Victoria concerning the application of section 112 of the *Administration and Probate Act 1890* (Vic). The dispute arose from two settlements executed by Archibald Currie in Victoria in 1891 and 1892, which contained trusts to take effect after his death. The Commissioner sought to levy duty on the total value of the property comprised in these settlements at the time of the settlor's death, while the trustees argued that duty was only payable on property that would have been liable to probate duty in Victoria had it belonged to the settlor at that time.

The legal issues before the High Court were: first, the true scope and meaning of section 112 of the *Administration and Probate Act 1890*, as amended, particularly concerning what constitutes "property comprised in such settlement" for the purpose of duty assessment; and second, how this provision should be applied to the specific assets held under the settlements at the settlor's death, which included both Victorian and New South Wales real estate, as well as various investments. The court was required to determine whether the territorial limitations of Victorian legislation restricted the scope of the duty to property within Victoria.

The High Court, affirming the decision of the Supreme Court, held that duty under section 112 is payable only in respect of property comprised in the settlement at the date of the settlor's death that would have been liable to probate duty in Victoria had it belonged to the settlor at that time. The court reasoned that the *Administration and Probate Act 1890* operates within the territorial limits of Victoria, and therefore, its provisions, including those relating to settlements, must be construed as applying only to property over which the Victorian Parliament has legislative authority. The court drew an analogy with the principles established in *Blackwood v. The Queen*, which limited probate duty to property subject to Victorian legislative authority. The provision for the Supreme Court to order the sale of property to satisfy unpaid duty further supported this interpretation, as it implied jurisdiction only over property within Victoria.

Consequently, the appeal was dismissed. The court confirmed that the duty is assessed based on the value of property that has a sufficient connection to Victoria to be subject to its probate duty laws, irrespective of whether the property was originally settled or has been reinvested.