Davidson v Armytage - [1906] HCA 63

4 CLR 205

The present case is said, no doubt, to be of a very substantial character; but in the opinion of their Lordships that is not a sufficient ground to induce them to recommend His Majesty to give leave to appeal from the decision of the High Court of Australia. They will, therefore, humbly advise His Majesty that the petition ought to be dismissed. The petitioners must pay the costs of the petition.

[HIGH COURT OF AUSTRALIA.]

DAVIDSON (COLLECTOR OF IMPOSTS) ARMYTAGE

ON APPEAL FROM THE SUPREME COURT OF Stamps Act 1892 (Vict.) (No. 1274), secs. 4, 28, Schedule, Part VIII.-Stamp duty

" Deed of settlement" -Deed executing special power of appointment.

A deed exercising a special power of appointment created by a settlement, which was executed at a time when no ad valorem duty was payable thereon, MELBOURNE,

a deed of settlement" within the meaning of Part VIII. of the Schedule to the Stamps Act 1892.

Moffat v. Collector of Imposts, 22 V.L.R., 164; 18 A. L.T., 144, approved. The value of the actual interest dealt with in such deed is the basis on which the duty is to be assessed.

Decision of Full Court (Armytage v. Collector of Imposts, (1906) V.L.R., 504; 28 A.L.T., 9), reversed.

APPEAL from the Supreme Court of Victoria.

A special case was stated by the Comptroller of Stamps for Victoria under sec. 71 of the Stamps Act 1890 (Vict.), which set out the following facts: On 1st March 1886 a disentailing assur- ance and re-settlement was made between Frederick W. Armytage,

4 CLR 206

Mary S. Armytage, his wife, and trustees, by which certain

station lands were vested in the trustees to the use of Frederick W. Armytage for life, and thereafter to the use of his wife for life, and, after the death of the survivor of them, to the use of the trustees, in trust for all or such one or more of three named sons, Harry, Frank, and Bertram Armytage in such shares, and sub- ject to such provisions and limitations over, and in such manner as the said Frederick W. Armytage, should by deed or will appoint, and in default of appointment in trust for the three sons equally, with gifts over upon death under 21 years. Ad valorem duty was not then payable on such deed. All the sons attained 21 years.

By deed poll, executed on 24th January 1895 Frederick W. Armytage irrevocably appointed one undivided third part of the lands (subject to the life estates) upon trust for Bertram Armytage.

By deed poll, executed on 7th June 1904 Frederick W. Army- tage recited a previous appointment of the remaining two-thirds, subject to a power of revocation therein reserved, and he revoked that previous appointment and irrevocably appointed one- fifteenth part of the lands upon trust for Bertram Armytage, and the remaining nine-fifteenths upon trust for Frank Armytage. Both the instruments recited the disentailing assurance of 1st March 1886.

On 2nd August 1904 the two instruments…

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.

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Details

Case: [1906] HCA 63
Decision Date: 15 October 1906

CaseChat Overview and Summary

The case of *Davidson v Armytage* involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria concerning stamp duty payable under the *Stamps Act 1892* (Vic.). The dispute concerned two deeds poll executed by Frederick W. Armytage, which exercised a special power of appointment created by an earlier deed of settlement. The Collector of Imposts assessed stamp duty on these deeds, arguing they constituted "settlements" or "deeds of gift" under the Act. The Supreme Court had found that the deeds were not chargeable with duty, leading to the Collector's appeal to the High Court.

The primary legal issue before the High Court was whether the deeds poll, which exercised a special power of appointment over property previously settled, qualified as "settlements" or "deeds of gift" within the meaning of the *Stamps Act 1892*, thereby attracting ad valorem stamp duty. A secondary issue was, if they were dutiable, on what value should the duty be assessed – the entire property subject to the original settlement or only the value of the specific interests appointed by the deeds.

The High Court, in allowing the appeal, reasoned that the deeds exercising the special power of appointment were indeed "settlements" under the Act. The Court relied on previous decisions, including *Moffut v. Collector of Imposts*, which established that an instrument could be a settlement even if it did not create a succession of interests or involve a restriction on disposition, provided it created a beneficial interest in someone who did not previously possess it. The Court found that the interests appointed by the deeds were new interests, distinguishing the case from situations where the original settlement had already paid ad valorem duty, as contemplated by section 28 of the Act. However, the Court held that the duty should be assessed not on the entire value of the property subject to the original settlement, but on the value of the actual expectant estates in remainder dealt with by the respective deeds of appointment.

Orders