Francis v Commissioner of Stamp Duties (NSW)

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning the assessment of death duty. The dispute arose between the Commissioner of Stamp Duties (NSW) and the executor of the estate of Frank David Muller, deceased. The executor had initially included shares in "The Astor" Pty. Ltd. in the deceased's estate at a value of £3,600. The Commissioner, relying on a Valuer-General's valuation of £4,750, made an initial assessment of death duty, which was paid. Subsequently, the shares were sold at auction for £12,100, prompting the Commissioner to make a further assessment of additional death duty under section 128 of the Stamp Duties Act 1920-1949 (NSW).

The legal issues before the High Court were whether the Commissioner was authorised by section 128 of the Stamp Duties Act to make a further assessment after the initial assessment and payment of duty, and if so, what was the correct value of the deceased's shares in "The Astor" Pty. Ltd. at the date of death for the purpose of calculating the additional duty. The Supreme Court had previously held, by majority, that the Commissioner was authorised to make a further assessment but that the amount of that assessment was not conclusive, directing that the question of the additional duty payable be subject to further inquiry if the parties could not agree.

The High Court, by majority, affirmed the Supreme Court's decision in substance but varied the order. The majority held that the word "discovered" in section 128(1) required only that the Commissioner had formed a bona fide conclusion, based on available materials, that the duty payable had not been fully assessed and paid. However, the Court varied the Supreme Court's order to direct that an issue be tried before a judge without a jury to determine the value of the deceased's shares in "The Astor" Pty. Ltd. at the date of death.