Dalla Vecchia v Commissioner of Stamp Duties

[1997] QCA 62

IN THE COURT OF APPEAL	[1997] QCA 062
SUPREME COURT OF QUEENSLAND

Appeal No. 6468 of 1996

Brisbane

[Dalla Vecchia v. Commissioner of Stamp Duties]

BETWEEN:

CHARLES BASIL DALLA VECCHIA as Trustee of the DALLA VECCHIA FAMILY TRUST

Appellant

AND:

COMMISSIONER OF STAMP DUTIES

Respondent

Fitzgerald P.
Davies J.A.

McPherson J.A.

Judgment delivered 4 April 1997

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

THE QUESTIONS IN PARAGRAPH 14 OF THE STATED CASE ARE ANSWERED AS
FOLLOWS:

(a) THE DEED OF VARIATION WAS UPON ITS EXECUTION NOT CHARGEABLE

WITH DUTY UNDER THE STAMP ACT, WHETHER AS A “SETTLEMENT DEED OF
GIFT OR VOLUNTARY CONVEYANCE” OR OTHERWISE.

(f) THE COSTS OF AND INCIDENTAL TO STATING THIS CASE AND OF THE

APPEAL SHOULD BE BORNE AND PAID BY THE RESPONDENT.
IT IS UNNECESSARY TO ANSWER THE OTHER QUESTIONS IN PARAGRAPH 14 OF
THE STATED CASE.

CATCHWORDS:	STAMP DUTIES - case stated - trust deed empowered trustee to vary trust provided did not acquire beneficial interest in trust fund - trustee executed document described as Deed of Variation - whether Deed of Variation assessable to duty as settlement.
Counsel:	Mr P.E. Hack for the appellant. Mr R.W. Gotterson Q.C. with him Mr P.J. Flanagan for the respondent.
Solicitors:	Michael Sing & Associates for the appellant. Crown Solicitor for the respondent.
Hearing Date:	11 March 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6468 of 1996

Brisbane

Before Fitzgerald P.
Davies J.A.
McPherson J.A.

[Dalla Vecchia v. Commissioner of Stamp Duties]

BETWEEN:

CHARLES BASIL DALLA VECCHIA as Trustee of the DALLA VECCHIA FAMILY TRUST

Appellant

AND:

COMMISSIONER OF STAMP DUTIES

Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 4 April 1997

This is an appeal by way of case stated from an assessment of stamp duty by the respondent

Commissioner of Stamp Duties. The assessment relates to a document, described as a “Deed of

Variation”, dated 21 April 1994, which was assessed with ad valorem duty as a settlement pursuant to

s. 4 and the First Schedule Heading “Settlement, Deed of Gift or Voluntary Conveyance” of the Stamp

Act 1894. By sub-s. 2(1) of the Act, unless the contrary intention appears, “ ‘settlement’ means any

contract, deed or agreement (whether voluntary or upon good or valuable consideration other than a

bona fide pecuniary consideration) whereby property, real or personal, is settled or agreed to be settled
in any manner whatsoever”.

It was common ground between the parties that the Commissioner’s assessment proceeded on the basis

that the Deed of Variation added Charles Basil Dalla Vecchia as a beneficiary under a Deed of

Settlement which had been made on 24 February 1987 between Mr Dalla Vecchia and Robert Lloyd

Thomas as settlor. Mr Dalla Vecchia was appointed trustee by the Deed of Settlement, and, according

to the appellant, was also named as a beneficiary. The Commissioner’s argument started from the

premise that Mr Dalla Vecchia was not a beneficiary under the Deed of Settlement, and it is convenient

to assume, without deciding, that the Commissioner was correct on that point.

It is also convenient to assume in favour of the Commissioner that the “Deed of Variation”, which was

executed only by Mr Dalla Vecchia, purported to add him as a beneficiary under the Deed of

Settlement. There was a power to amend the Deed of Settlement in cl. 9.2, which provided that the

trustee might “by Deed revoke, add to, release, delete or vary all or any of the trusts or powers

hereinbefore declared ...”, subject to a proviso that the trustee did not “have any power to revoke, add

to, release, delete or vary any of the trusts or powers hereof so that ... the Trustee ... may acquire a

beneficial interest in the Trust Fund or any part thereof ...”. That clause did not empower Mr Dalla

Vecchia to add himself as a beneficiary under the Deed of Settlement, and it was not suggested that he

had power to do so from any other source.

It follows that Mr Dalla Vecchia did not add himself as a beneficiary under the Deed of Settlement by

the Deed of Variation, and, on the assumptions made in favour of the Commissioner, the Deed of

Variation did not operate as a resettlement of the property the subject of the Deed of Settlement.
Numerous questions asked by the Commissioner were not made the subject of argument, and others

do not arise. For example, no suggestion was made that the Deed of Variation was assessable to duty

on any basis other than as a settlement.

The Deed of Variation was not assessable to duty, and the Commissioner should pay the appellant’s

taxed costs of and incidental to stating the case and the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6468 of 1996

Brisbane

Before Fitzgerald P.
Davies J.A.
McPherson J.A.

[Dalla Vecchia v. Comm. Stamp Duties]

BETWEEN:

CHARLES BASIL DALLA VECCHIA
as trustee of the
DALLA VECCHIA FAMILY TRUST

Appellant

AND:

COMMISSIONER OF STAMP DUTIES

Respondent

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 4 April 1997

I have read the reasons for judgment of the President and McPherson J.A. and agree with both

of them. I also agree that the questions in the Case Stated should be answered in the way indicated in

the reasons of McPherson J.A.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6468 of 1996

Brisbane

Before Fitzgerald P.
Davies J.A.
McPherson J.A.

[Dalla Vecchia v. Commissioner of Stamp Duties]

BETWEEN:

CHARLES BASIL DALLA VECCHIA
as Trustee of the DALLA VECCHIA FAMILY TRUST

Appellant

AND:

COMMISSIONER OF STAMP DUTIES

Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 4 April 1997

I agree with the reasons for judgment of Fitzgerald P. Under cl.9.1 of the trust deed it was

within the power of Mr Dalla Vecchia to vary the deed but not if he might thereby acquire a beneficial

interest in the trust fund. If he were to acquire such an interest by exercising the power, then the

variation was beyond power and, for that reason, ineffective. If on the other hand, he acquired no

beneficial interest on varying the trust deed, then there was no settlement or resettlement capable of

being assessed to duty.

There is now a body of authority to the effect that if, through defect or invalidity, an instrument

is void or fails to operate at all, it is incapable of being assessed to duty as if it were an effective

instrument of the kind sought to be charged. See Kent v. Commissioner of Stamps [1927] St.R.Qd.,

407-408, which was applied in O’Donohue v. Comptroller of Stamps [1969] V.R. 431, 443-444,

and in Kern Konstruction (Townsville) Pty. Ltd. v. Commissioner of Stamp Duties (1981) 12

A.T.R. 250, 253. See also Glennon v. Federal Commissioner of Taxation (1972) 127 C.L.R. 502,

which involved a similar question but on an appeal against an assessment for gift duty.

In my opinion the questions in para. 14 of the Stated Case should be answered as follows:

(a) The Deed of Variation was upon its execution not chargeable with duty under the Stamp Act,

whether as a “Settlement Deed of Gift or Voluntary Conveyance” or otherwise.

(f) The costs of and incidental to stating this case and of the appeal should be borne and paid by

the respondent.

It is unnecessary to answer the other questions in para. 14 of the Stated Case.