Fineglow Pty Ltd v Anastasopoulos - [2002] NSWSC 1181

Reported Decision:
(2003) 57 NSWLR 39

New South Wales

Supreme Court

CITATION: Fineglow Pty Ltd v Anastasopoulos and Ors [2002] NSWSC 1181

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4781/02

HEARING DATE(S): 20 and 21 November, 2002

JUDGMENT DATE: 11 December 2002

PARTIES :

Fineglow Pty Ltd - Plaintiff
Georgina Anastasopoulos - First Defendant
Patricia Mary Souleles - Second Defendant
Olga Voukidis - Third Defendant

JUDGMENT OF: Palmer J

COUNSEL : S.D. Rares SC, T.M. Faulkner - Plaintiff
D.A. Smallbone - Defendants

SOLICITORS: Southern Cross Lawyers - Plaintiff
R.S. Davis & Davis - Defendants

CATCHWORDS: VENDOR AND PURCHASER - STAMP DUTY - EVIDENCE - SPECIFIC PERFORMANCE - Plaintiff sued for specific performance of contract for sale of land - contract evidenced by two instruments - only one instrument stamped with duty - duty assessed on purchase price in arm's length transaction - Chief Commissioner of State Revenue provided letter stating that no further duty was payable - Defendants contended that contract inadmissible and unenforceable because not "duly stamped" under s.304(1) Duties Act as duty had been assessed on purchase price rather than true value of the land - Defendant tendered valuation evidence to prove that value of land exceeded purchase price. HELD: Determination by Commissioner that no further duty payable was a "notice of assessment" for the purpose of Taxation Administration Act - a notice of assessment is conclusive evidence of the validity of the assessment and cannot be challenged other than in review proceedings as between the taxpayer and the Commissioner - valuation evidence rejected.

LEGISLATION CITED: - Duties Act 1997 (NSW) - s.5, s.8, s.18, s.19, s.21, s.297, s.304,
- Stamp Duties Act 1920 (NSW) - s.4, Part 3
- Supreme Court Rules - Pt 36 r.10B
- Taxation Administration Act 1996 (NSW) - s.4, s.7, s.8, s.14, s.16, s.67, s.118, s.119

CASES CITED: - Huddleston v Briscoe (1805) 11 Ves 583 [32 ER 1215]
- Reliance Financial Services Pty Ltd v Baddock [2002] NSWSC 857
- Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
- Weston & Cussen as liquidators of Karl Suleman Enterprises Pty Ltd v Metro Apartments Pty Ltd and Anor [2002] NSWSC 682

DECISION: The stamped contract was "duly stamped" within the meaning of s.304(1) Duties Act and was admissible; the other unstamped instrument was not a "dutiable instrument" and was not affected by s.304(1); both instruments admitted into evidence; specific performance granted.

1 By a Deed of Option dated 5 October 2000 the Defendants granted to the Plaintiff an option to purchase five properties in Audley Street, Petersham (“the Properties”) for a price of $1,470,000. In 2001 the Plaintiff purported to exercise the option but the Defendants disputed that the exercise was valid. The Plaintiff commenced proceedings No.3360 of 2001 in the Equity Division (“the Prior Proceedings”) against the Defendants seeking specific performance of the Option Deed and of the Contract for Sale said to have arisen therefrom. Other parties were joined as Defendants and relief was…

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: [2002] NSWSC 1181
Decision Date: 11 December 2002

CaseChat Overview and Summary

Fineglow Pty Ltd, the plaintiff, initiated legal action against Anastasopoulos, the defendant, seeking specific performance of a contract for the sale of land. The dispute centred on the issue of stamp duty, as only one of the two instruments evidencing the contract was stamped. The duty was assessed on the purchase price in an arm's length transaction. The Chief Commissioner of State Revenue had issued a letter confirming that no further duty was payable. The defendants argued that the contract was inadmissible and unenforceable because it was not "duly stamped" as per section 304(1) of the Duties Act. They attempted to prove that the true value of the land exceeded the purchase price by tendering valuation evidence.

The court was required to determine whether the contract was enforceable despite the incomplete stamping and whether the defendants could challenge the stamp duty assessment. The central legal issue was whether the Commissioner's determination that no further duty was payable constituted a "notice of assessment" under the Taxation Administration Act, and if so, whether such a notice was conclusive evidence of the validity of the assessment. Additionally, the court needed to decide whether the defendants' valuation evidence could be considered in light of the conclusive nature of the notice of assessment.

The court held that the determination by the Commissioner that no further duty was payable constituted a "notice of assessment" under the Taxation Administration Act. Such a notice was deemed to be conclusive evidence of the validity of the assessment and could only be challenged in review proceedings between the taxpayer and the Commissioner. Consequently, the court rejected the defendants' valuation evidence, finding it inadmissible in light of the conclusive nature of the notice of assessment. The court concluded that the contract was enforceable despite the incomplete stamping and ordered specific performance in favour of the plaintiff.

Orders