Gardiner v Chief Commissioner of State Revenue

[2003] NSWADT 80

Set aside by Appeal: Set aside by Appeal 15/8/2003 (Chief Commissioner of State Revenue v Gardiner [2003] NSWADTAP34)
Appeal Panel decision set aside by Appeal on 3 /3/04 (Gardiner v Chief Commissioner of State Revenue [2004] NSWSC 107)

CITATION:	Gardiner -v- Chief Commissioner of State Revenue [2003] NSWADT 80
DIVISION:	Revenue Division
PARTIES:	APPLICANT Cheryl Gardiner RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	026019
HEARING DATES:	20/03/2003
SUBMISSIONS CLOSED:	03/20/2003
DATE OF DECISION:	04/22/2003
BEFORE:	Block J - Judicial Member
APPLICATION:	Duties Act - reassessment of failed instrument
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Duties Act 1997 Real Property Act 1900 Taxation Administration Act 1996
CASES CITED:	Brunker v Perpetual Trustee Co (Ltd) (1934) 57 CLR 555 Corin v Patton (1989) 169 CLR 540 Costin v Costin (1997) 7 BPR 15167 Barry v Heider (1914) 19 CLR 580 Commissioner of Stamp Duties (Qld) v Hopkins (1945) 71 CLR 351 Ex parte Burrows (1906) 6 SR 606 George Wimpey & Co Ltd v Inland Revenue Commissioners (1974) 1 WLR 75 Commissioner of Taxes (Qld) v Camphin (1937) 57 CLR 127 Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 MSP Nominees Pty Ltd v Commissioner of Stamps (SA) 1999 HCA 51 Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Limited (2002) 192 ALR 5
REPRESENTATION:	APPLICANT S Reuben, barrister RESPONDENT I Mescher, barrister
ORDERS:	1. The decision under review is set aside and the application for a refund of duty in an amount of $56990 is granted.

1 The decision under review in this matter is the refusal, dated 13 December 2001, of an application by the Applicant for a reassessment and refund of duty paid by the Applicant in respect of a transfer (the “Transfer”) dated 19 August 1998 by Hugh Kirkpatrick Byers (who died subsequently to that date and is referred to as “the Father”) as transferor, to the Applicant as transferee, of Folio Identifiers 4/224441 and 5/224444 (collectively “the Property”). On one of the lots there was a residence and on the other a tennis court.

2 The Tribunal had before it the documents lodged pursuant to section 58 of the Administrative Decisions Tribunal Act1997, and including inter alia a caveat (“the caveat”) dated 24 August 1988 lodged by the Applicant in respect of the Property; in accordance with the caveat the Applicant claimed an equitable estate or interest in the Property as transferee. The application for a caveat was supported by a statutory declaration by the Applicant attested by Anthony Cordato, a solicitor, in which she declared that “To the best of my knowledge information and belief the Caveator has a good and valid claim to the Estate or Interest set out in Schedule 1”; the statutory declaration then went on to provide that “This Caveat does not require the …. endorsed consent of the registered proprietor”; Schedule 1 in turn refers to the claim to an “Equitable estate or interest as Transferee.”

3 I should at this early stage note that the application for review by the Applicant was out of time. It was lodged on 28 June 2002, 63 days after the relevant determination. The relevant statutory period is 60 days. With the consent of the Respondent, the Tribunal granted an order extending the statutory period in such manner that the application was treated as having been made within time.

4 The Respondent prepared a chronology of events entitled “Respondent’s Chronology”; it was accepted by the parties as correct and tendered as an “Agreed Exhibit”; it reads as follows:

“19.8.98 Transfer of Property executed in Lots 4 & 5 DP 224444 (“the property”) from Hugh Kirkpatrick Byers to Cheryl Gardiner for consideration of $1.00 - transfer never registered
26.8.98 Valuation of Property performed by Alcorn Lupton & Associates
27.8.98 Statutory Declaration lodged by Cheryl Gardiner in respect of value of property
28.8.98 Ad valorem stamp duty paid on transfer of $56 990.00 on basis of value of $1.3 million - transfer never registered
Cheryl Gardiner lodges caveat over property on the basis of equitable estate and interest as transferee
26.2.99 Hugh Kirkpatrick Byers executes last will and testament leaving the property to Cheryl Gardiner
7.6.99 Death of Hugh Kirkpatrick Byers
10.12.99 Probate of estate of Hugh Kirkpatrick Byers granted to Don Storey (No 118905 of 1999)
7.2.00 Nominal stamp duty of $10.00 paid on transmission application under s. 63 Act
14.2.00 Transmission Application registered in respect of property to Cheryl Gardiner
3.11.00 Transfer of part of property (Lot 5) registered from Cheryl Gardiner to David Upton
17.10.01 Application for Reassessment lodged by taxpayer
13.12.01 Decision to deny refund by Commissioner
8.2.02 Objection made by taxpayer to decision
26.4.02 Determination of objection by Commissioner by wholly disallowing it
28.6.02 Application for Review filed in ADT”

5 An affidavit by the Applicant dated 14 March 2003 was tendered as exhibit A1. Mr. Mescher did not require the Applicant for cross-examination and the content of the affidavit was accepted as evidence in these proceedings; that affidavit reads as follows:

1. I am the daughter of Hugh Kirkpatrick Byers, (“HKB”), who died on 7 June 1999. He was 68 at the date of his death.
2. On 19 August 1998 my father signed a Transfer of land at 4-6 Tambu Street St Ives (the “property”), from his name into my name.
3. In 1996 my Father married his second wife, Margaret. They separated in mid 1998.
4. In early August 1998 and prior to signing the transfer my father spoke to me at the property at St Ives where he lived, and said words to me to the following effect:
HKB: Margaret is acting unstable and I am scared she may attack me again. I want to make a new will leaving Margaret out, but I want to make sure that you will get my property at St Ives when I die. I will sign a transfer of the St Ives property over to you, which you can keep to protect you until my will comes into effect”.
5. My Father had the locks changed at the property to exclude Margaret. The Police were involved at this time.
6. The property was my childhood home. However I was not living in the property at the time nor did I live in the property after the above conversation.
7. My father continued to live in the property with the help of carers until he went to hospital when he was gravely ill prior to his death on 7 June 1999.
8. On 28 August 1998 upon the advice of my solicitor I had the Transfer stamped. My solicitor advised that in order to lodge a caveat to protect my interest over the property I had to stamp the Transfer.
9. On 28 August 1998 upon the advice of my solicitor, I had a Caveat lodged over the property to protect my interest.
10. On 26 February 1999 my father executed his last will and testament upon which probate was granted on 10 December 1999.
11. The property was transferred to me on 31 January 2000 by Transmission Application pursuant to the will of my Father.
12. It has always been my understanding that I would take the property under the will of my father and that the transfer signed by him was to protect the disposition under his will against any claim made by his estranged second wife, whom he had not divorced prior to his death.

6 Exhibit A2 consists of a bundle of documents tendered by the Applicant. Item 3 is a copy of the grant of probate in the estate of the Father granted to Donald William Storey as executor (“the Executor”); in accordance with clause 4 of the Father’s will dated 26 February 1999, the Property was bequeathed to the Applicant; other real property was bequeathed to Gary Hugh Byers, the Applicant’s brother, and the residue devolved upon the Applicant. Exhibit A2 included a copy of the Transfer from which it is relevant to note that it was executed in its terms as a transfer of the fee simple. Exhibit A2 also included as Item 13 the Applicant’s Submissions; clauses 5 to 21 of those submissions are included in these reasons, as follows:

5. Section 41 of the Real Property Act provides that the instrument i.e. dealings are not effectual until recorded in the Register. The section is in the following terms:
“41(1) No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be, the land shall become liable as security in manner and subject to the covenants, conditions and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature.” ( emphasis added )
6. Section 42 of the Real Property Act provides for the estate or interest of the registered proprietor to be held subject only to such other estates and interests, if any, as are recorded in the folio of the Register relating to the land, “but absolutely free from all other estates and interests that are not so recorded ” except to the exclusions referred to in the Section.
7. A caveat is not one of the exceptions referred to in Section 42.
8. The Real Property Act permits a person to lodge (not register) a claim for an interest in the land ( Real Property Act Section 74F(1)).
9. Section 36 of the Real Property Act provides for lodgement and registration of documents, distinguishing a dealing from a memorandum or caveat presented for lodgement. It provides in Section 36(11) that “ upon registration a dealing shall have the effect of a deed duly executed by the parties who signed it” . However, it only has that effect upon registration .
10. It follows from the foregoing that the instrument referred to in paragraph 1 can have no effect as a transfer or conveyance or as a deed until such time as it is registered under and pursuant to the terms of the Real Property Act 1900 .
11. Hugh Kirkpatrick Byers died on 7 June 1999 as noted in the Application for Reassessment of Failed Instruments filed by Cheryl Gardiner and supported by a statutory declaration of her of 9 October 2001. In that statutory declaration it is stated:
“…the property fell into the estate in respect of which Probate was granted by the Supreme Court of New South Wales as No. 118905/1999 and the property the subject of the instrument was devised pursuant to the Probate. The transfer instrument can no longer be registered as the property has been transferred out of the name of Hugh Kirkpatrick Byers by means of the probate.”
12. Following the death of Hugh Kirkpatrick Byers on 7 June 1999 his estate was liable to be dealt with by his executor, Donald Williams Storey. A Transmission Application was lodged by Cheryl Ann Gardiner in respect of the subject property consented to by the executor, Donald Williams Storey, at the Land Titles Office forming Dealing 6562411, by which Cheryl Ann Gardiner became the registered proprietor of the subject properties.
13. New South Wales duty was assessed and paid on the Transmission Application at $10.00 on 7 February 2000 pursuant to Section 63 of the Duties Act 1997 (which commenced on 1 July 1998).
14. Section 8 of the Duties Act 1997 provides for Chapter 2 charges of duty on a transfer of dutiable property and notes that such a transfer or transaction is a dutiable transaction for the purposes of this Act. A transfer is not comprehensively defined and is said to include “an assignment, an exchange and a buy back of shares in accordance with Division 2 … of the Corporations Act 2001 of the Commonwealth”.
15. Given that Section 8 of the Duties Act makes a transfer or transaction a dutiable transaction and Section 10 makes it immaterial whether a dutiable transaction is affected by a written instrument, the question which is now posed by Section 293 as to whether an instrument fails in its intended operation and becomes useless, is determined by whether it is capable of being a transaction pursuant to the instrument; i.e. whether it is capable of giving effect to a transfer in law.
16. Section 293 is concerned with the giving of a refund of duty on an instrument which fails in its intended operation and so becomes useless. It postulates that, if useful, the instrument would have been liable to duty but that that liability ceased so that the failed instrument becomes not chargeable to duty and in the result a refund becomes payable, subject to the time limits and other conditions in the section – Hill, Duties Legislation , page 6607.
17. There has been no transaction which could be described as a transfer in the circumstances that have arisen nor could there be a transfer pursuant to the instrument. In Coles Myer Limited v Commissioner of State Revenue Victoria (1998) 98 ATC 4537, an instrument in the form of a transfer from a shareholder to the company in which the shareholder held shares in that company as a result of a share buyback was held not to be a transfer of shares because no interest in the shares ever vested in the company before the shares were, pursuant to the buyback arrangement, extinguished. Ormiston JA, with whose judgment Winneke P agreed, discussed the concept of “transfer” at 4538 as one where the transferor disposes of his rights in the transferred property to the transferee who receives it. For an instrument properly to be characterised as a transfer “one must be able to find that the property has passed from transferor to transferee so that the property is vested in a transferee who for all practical purposes is then capable of exercising the same rights as were capable of being exercised by the transferor before the transfer was executed”.
18. In the present case, the transfer never took effect and the instrument of transfer can never take effect as the transferor is now no longer the registered proprietor of the property and it is impossible to secure registration of that instrument.
19. The property did not pass by that instrument and can now never pass by that instrument.
20. By reason of the foregoing ie: the instrument of transfer did not ever take effect as a duly executed deed; and never took effect and can never take effect as an instrument of transfer, it cannot be said that the instrument was immediately operative in any way or that it took effect in any way; see Bell Resources Holdings Pty Limited v Commissioner for ACT Revenue Collections (1990) 90 ATC 4327; BTR Nylex v Comptroller of Stamps (unreported) Supreme Court Victoria 16 February 1990.
21. The instrument of transfer has failed in its intended operation and has become useless and accordingly there should be a refund of Duty pursuant to s293 of the Duties Act.

7 The Respondent also furnished the Tribunal with written submissions; clauses 7 to 18 of the Respondent’s submissions are included in these reasons as follows:

7. Section 293 requires the satisfaction of two cumulative criteria - (1) the instrument failing in its intended operation; (2) the instrument becoming useless. The Respondent submits that, for the reasons referred to below, neither of these criteria have been met by the transfer the subject of these proceedings.
Intended Operation of Transfer dated 28.8.98
8. The intended operation of the transfer was give an interest in the property to the Applicant. The transfer was not for valuable consideration as it was expressed to be for a sum of $1.00. It was a voluntary transfer of the property by way of a gift from the transferor (donor) to the Applicant (donee). For the reasons referred to below, this gift was complete and valid in equity. It granted to the Applicant (donee) an equitable interest in the property stated in the caveat lodged by the Applicant’s solicitors ten (10) days after execution of the transfer - i.e. on 28 August 1998.
No failure of Above Intended Operation
9. The above intended operation of the transfer never failed. The gift was not an imperfect gift. It was a complete gift in equity as the donor has put the donee in a position to obtain the legal title without further recourse to the donee and the donee could effect registration without any liability to interference or restraint on the part of the donor: Brunker v Perpetual Trustee Co (Ltd) (1934) 57 CLR 555 (“Brunker”) at 587 per Latham CJ; at 602 per Dixon J; Norman v Federal Commissioner of Taxation (1963) 109 CLR at 28-29 per Windeyer J.
10. To ensure that the gift is complete in equity, there needs to be (1) a transfer in the approved form; (2) the transfer needs to be executed by both parties, relevantly witnessed and dated; (3) the transfer needs to be duly stamped; (4) the donee needs to be able to produce the certificate of title to the property and the transfer by either having it in her possession or being able to have access to it for the purpose of lodging it with the transfer. It is submitted that the cumulative effect of these requirements being met is that the donor has done everything which it is necessary for him to have done to effect a transfer a legal title: Brunker at 601-602, 603, 605, 609 per Dixon J; Corin v Patton (1989) 169 CLR 540 at 560 per Mason CJ and McHugh J; at 566-567 per Brennan J; at 583 per Dean J; at 590-591 per Toohey J; Costin v Costin (1997) 7 BPR 15,167 (“Costin”).
11. Firstly, the transfer is clearly in the approved Torrens Title form. Secondly, it likewise has been clearly signed by the transferor and the transferee, witnessed by Lisa Byers and dated 19 August 1998. Thirdly, it was stamped on 28 August 1998 for the sum of $56 990.00 as it bears a stamp to that effect.
12. Fourthly, it can reasonably be inferred from the documentary evidence that the certificate of title and transfer was either in the Applicant’s possession or she had access to it for the purpose of registering the transfer. The transfer was in the Applicant’s actual or constructive possession when it was stamped on 28 August 1998. In relation to the certificate of title, the property was, at all material times, unencumbered: see Historical Title searches for the property. Accordingly, the difficulties in relation to the production and possession of the certificate of title encountered by the High Court in Brunker and Corin do not apply in this matter. Similarly, there is no evidence of any change of mind by the donor/transferor in this case as in Costin where the donor initially authorised his solicitors to produce the certificate of title for registration and then changed his mind. Given that the Applicant was the daughter of the transferor; the transfer was witnessed by a relative - Lisa Byers; only six months later, the transferor saw fit to bequeath the property to the Applicant and the certificate of title could not have been in the possession or control of anyone other than the transferor, it can reasonably be inferred that the certificate of title was, at the very least, accessible to the Applicant for the purpose of lodging it together with the transfer at the Registrar-General’s office. The burden rests on the Applicant to show that the gift was not complete in equity: s. 100(3) Taxation Administration Act 1996 (NSW).
13. Accordingly, all the above requirements have been satisfied in this case on the basis of the documentary evidence before the Tribunal and the gift is complete in equity.
14. As all the above requirements have been met, it is now clear, from the state of the law, that the Applicant as at 19 August 1998 had vested in her an equitable interest or equity in the land by reason of the voluntary transfer executed on that day: Corin v Patton (1989) 169 CLR 540 at 558, 559, 560 per Mason CJ and McHugh J; 582 per Deane J; Costin per Brownie AJA; Motor Auction Pty Limited v John Joyce Wholesale Cars Pty Limited (1997) 23 ACSR 647 at 655-658; Meagher, Gummow & Lehane, Equity Doctrines & Remedies , Fourth Edition, Butterworths, 2002, at para [6-155]. The Applicant and her solicitors accepted this fact as, ten (10) days after execution of the transfer, a caveat was lodged by the Applicant on the property claiming an “Equitable estate or interest as Transferee”.

Transfer Never Became Useless
15. Even if the transfer failed in its intended operation (which is denied), the transfer never became useless. Subsequent to the death of the transferor and the granting of probate of the will of the transferor, the weight of authority supports the view that the transfer could still have become registered in lieu of the transmission application - Corin at 555-556 per Mason CJ and McHugh J, at 566 per Brennan J; Brunker at 585 per Latham CJ. If the Applicant elects unilaterally to register the transmission application rather than the transfer and then on-sell the property to a third party then that is her choice. It does not deprive the transfer of a relevant use so as not to come within the provisions of s. 293(1) Act. The corollary of the Applicant’s submissions in this regard is that all transfers of property eventually become useless and attract s. 293(1) when the relevant transferee on-sells the property to third parties.
Reply to Applicant’s Submissions
16. In reply to paragraphs 5, 6, 9 and 10 of the Applicant’s submissions dated 26 November 2002, it is incorrect that the transfer has no effect until such time as it is registered under the Real Property Act 1900 (NSW). Since Barry v Heider (1914) 19 CLR 580, equity has recognized the existence of interests in Torrens land even if the relevant instrument is unregistered. This has been affirmed in many subsequent decisions: eg Brunker at 580-581 per Latham CJ; Corin at 552 per Mason CJ and McHugh J, at 563 per Brennan J, at 572 per Deane J, at 587-588 per Toohey J. As the gift is complete in equity, it has effect in equity as a voluntary transfer.
17. In reply to paragraph 15, the question posed by s. 293 is not simply whether the transaction “is capable of giving effect to a transfer in law” (emphasis added) but rather had any effect as a transfer in law or equity . It had effect as a voluntary transfer in equity and thereby does not attract s. 293.
18. In reply to paragraphs 17-20 of the Applicant’s submissions, the transfer took effect in equity and was operative in equity. The fact that the transferor is not currently the registered proprietor of the property is irrelevant. The Applicant is also no longer the registered proprietor. These facts cannot be used as a reason to attract the provisions of s. 293(1) Act.

8 Mr Reuben provided the Tribunal with a body of material and including copies of a number of case reports (some of which were not in the event referred to, or referred to in passing), an extract from the Duties Act 1997 (“the Act”) and in addition an extract from the Hill commentary which sets out, in respect of section 293 of the Act, the matter postulated in clause 16 of the Applicant’s submissions. The Respondent in his written submissions contended that there are two cumulative criteria and being firstly that the instrument fails in its intended operation and secondly that the instrument becomes useless. The Hill commentary would tend to suggest (having regard to the words “and so”) that there is in fact only one criterion.

9 The Applicant’s application was made in accordance with section 293 of the Act, which reads as follows:

293. (1) An instrument that fails in its intended operation and becomes useless is not chargeable with duty under this Act.
(2) The Chief Commissioner must make a reassessment of duty in respect of such an instrument if an application for a reassessment is made within:
(a) 5 years after the initial assessment, or
(b) 12 months after the instrument has failed,
whichever is the later.
(3) The instrument in respect of which the application is made must be produced to the Chief Commissioner unless the Chief Commissioner dispenses with its production.
(4) This section does not apply in respect of an instrument that effects a transfer of dutiable property.
Note: Section 50A sets out the circumstances in which duty may be refunded on a cancelled transfer of dutiable property.

10 It is perhaps of some relevance that section 293 (4) of the Act was not applicable at the date of the Transfer. That subsection was, together with section 50A of the Act, introduced by Act 108 of 2002. Section 50A of the Act provides:

50A (1) A transfer of dutiable property that is effected by a written instrument is not liable to duty under this Chapter if the Chief Commissioner is satisfied that:
(a) the transfer instrument has been cancelled and the dutiable property has not been transferred to the transferee, and
(b) the transfer was not cancelled to give effect to a subsale, and
(c) the transferee has not claimed any equitable interest in the dutiable property the subject of the transfer (such as, in the case of land, by lodging a caveat on the title to the property).
(2) If duty has been paid on a transfer of dutiable property that is not liable to duty under this Chapter because of this section, the Chief Commissioner must reassess and refund the duty if an application for a refund is made within 5 years of the initial assessment.
(3) The transfer instrument in respect of which the application is made must be surrendered to the Chief Commissioner unless the Chief Commissioner dispenses with that requirement.
(4) In this section, "cancelled" includes abandoned.

11 The second reading speech in respect of the legislation which brought in these amendments, contained as the third paragraph on page 2, the following reason for the amendments to Chapter 2 of the Act, as follows:

“Where no contract is entered into duty is payable within three months of the transfer. Where an agreement for the sale or transfer of dutiable property is cancelled the purchaser under the agreement is entitled to a refund of duty, subject to certain limitations… However in cases where there is no contract the Act currently does not contain any such provision for reassessment and refund of duty where a transfer instrument has been cancelled and the dutiable property has not been transferred.”
It is to be noted then that the legislature considered that the amendments were necessary to cater for a refund where an instrument of transfer has been cancelled and the property has not been transferred and where there was (as is the case here) no contract. Mr Mescher did not press any argument to this effect.

12 Three cases were referred to at great length during argument. They are the judgments of the High Court in Brunker v Perpetual Trustee Co (Ltd) (1934) 57 CLR 555 (“Brunker”) and in Corin v Patton (1989) 169 CLR 540(“Corin”) and of the Court of Appeal of New South Wales in Costin v Costin (1997) 7 BPR 15167 (“Costin”). Each of the parties referred me to passages from the judgments and especially those of the High Court in Bunker and Corin. That there are matters of law which are complex is indicated by the fact that in Corin (the later High Court judgment) there were four separate judgments, by Mason CJ and McHugh J, and by each of Brennan J, Dean J, and Toohey J.

13 I deal in the first instance with Brunker as referred to in clauses 19 to 21 of the judgment of Mason CJ and McHugh J in Corin in the following terms:

19. In Brunker v. Perpetual Trustee Co. (Ltd.) (1937) 57 CLR 555 the donor executed in favour of his housekeeper a voluntary transfer of an estate in remainder expectant on his death of Torrens system land. He handed the executed transfer to a Mr Fuller who was a friend of both the donor and the housekeeper. The trial judge found that Mr Fuller had held the transfer as the donor’s agent at the time of the donor's death. The transfer made no mention of a mortgage to which the land was subject, since the donor apparently wished his housekeeper to take the property free from the mortgage. After the death of the donor, Mr Fuller handed the transfer to the donee's solicitors who inserted particulars of the mortgage and sought to register the transfer. The mortgagee at all times held the certificate of title. The Court, Latham C.J. dissenting, held that there had been no gift of any interest in the land and that the transfer was void and of no effect.
20. Latham C.J., after noting that the Torrens system did not prevent the creation and recognition of equitable interests in land, found that the donee was not prevented by the absence of the certificate of title or the alteration of the transfer from presenting the transfer for registration. His Honour rejected (at p 589) the trial judge's finding that Mr Fuller had held the transfer as the donor's agent at the time of the donor's death. In a passage in his judgment which is somewhat difficult to follow (at pp 588-590), he found that Mr Fuller had been acting in accordance with the donor's wishes when he handed the transfer to the donee's solicitors after the donor's death and, that being so, also found that the donor had placed the donee in a position to obtain a legal title by the donee's own action without further action by the donor. Since the donee was in a position to seek registration, the assistance of the Court was not required to enforce the gift. The Chief Justice distinguished the statement by Isaacs J. in Anning v. Anning (at p1069) on that basis and clearly preferred the approach of Griffith C.J., without acknowledging that the approach of Isaacs J. differed from that of Griffith C.J. He finally found that the alteration to the transfer did not affect the validity of the instrument and that the absence of the certificate of title did not necessarily prevent the donee from obtaining registration.
21. Dixon J. (with whom Rich J. agreed) found that the alteration to the transfer had not been authorized and that the donor gave no authority for into be handed to the donee's solicitors or presented for registration. However, his Honour also considered the rights of the donee in terms not dissimilar to the language used by Latham C.J. After stating that the donor had manifested no intention to create a trust and that an intended donee cannot obtain equitable remedies compelling the donor to give legal effect to his intention to give, Dixon J. said (at pp 599-600): "But, under the system of the Real Property Act, a transferee may be in a position by registering an instrument to obtain a legal estate, although prior to registration neither the legal nor any equitable estate was vested in him. If that system allows a volunteer to acquire an indefeasible right to the registration of an instrument in his favour, then, although it would remain true hat before registration he had neither a legal nor an equitable estate in the land, yet he would be entitled to a right of a new description arising under the statute, and by its exercise he could vest the legal estate in himself . There is no a priori reason why statutory provisions making title depend upon registration should not confer upon a person in whose favour a registrable instrument has been made, a right to procure its registration, notwithstanding that it is voluntary, and no reason why it should not leave the transferor powerless to countermand his instrument. Such a right would not depend upon the doctrines or remedies of a court of equity, and, pending actual registration, the transferee could not be considered entitled to an equitable interest any more than to a legal interest in the land.” After referring to Milroy v. Lord, his Honour gave his own view of the appropriate question (at p 602): "(The question) is not whether the intending donor has divested himself of his estate or interest in the land, or has done all that lies in his legal power to do so. For obviously it was within his legal power himself to cause the immediate registration of the transfer. The question is whether by his acts he has placed the intended donee in such a position that under the statute the latter has a right to have the transfer registered, a right which the donor, or his executors, cannot defeat or impair.” On this view of the matter it was necessary to determine whether property in the actual instrument of transfer had passed to the donee. If a registrable instrument had been delivered to the donee, then the donee had a right to have it registered, as against the donor. The absence of the certificate of title did not necessarily defeat the donee, because the Registrar-General could dispense with its production. In fact, however, the transfer was not given tithe donee or to Mr Fuller as bailee for her "and, therefore, never became her property and was not placed by the deceased in her possession or control" (at p 605). Accordingly, the property in it had not passed to the donee.
(Emphasis added by the Tribunal) The Tribunal notes in particular in relation to Brunker that Dixon J considered that although the donee did not acquire a legal or equitable right a right of a new description was acquired. Latham C.J considered that the fact that the certificate of title was not furnished was not fatal.

14 Clauses 39 to 41 of the same judgment (by Mason C J and McHugh J) in Corin read as follows:

39. The course of reasoning pursued by Evershed M.R. and Jenkins L.J. within the framework of the statement of principle by Turner L.J. in Milroy v. Lord bears a marked similarity to the reasoning of Dixon J. in Brunker which was, of course, directed to establishing the conditions on which a statutory right might be exercised. However, if we accept that In re Rose correctly states the consequences of the approach taken by Griffith C.J. in Anning v. Anning , there remains the problem of accommodating that approach to the injunction contained in of the to the effect that, until registration, an instrument of transfer shall be ineffectual to pass an estate or interest in the land. Although that injunction applies to equitable as well as legal estates, it "does not touch whatever rights are behind" the instrument, as Isaacs J. pointed out in Barry v. Heider , at p 216; see also Chan v. Cresdon Pty. Ltd . (1989) 64 ALJR 111, at p 117; 89 ALR 522, at pp531-532. Where a donor, with the intention of making a gift, delivers to the donee an instrument of transfer in registrable form with the certificate of title so as to enable him to obtain registration, an equity arises, not from the transfer itself, but from the execution and delivery of the transfer and the delivery of the certificate of title in such circumstances as will enable the donee to procure the vesting of the legal title in himself. Accordingly, s.41 does not prevent the passing of an equitable estate to the donee under a completed transaction.
40. The question is then whether Mrs Patton did all that it was necessary for her to do in order to effect a transfer. Two obstacles are suggested to completion of the gift. First, the certificate of title remained throughout with the mortgagee and Mrs Patton took no steps to arrange for its production for the purposes of registration. Secondly, it is not clear whether or not Mr.Smallwood held the executed transfer on Mrs Patton's instructions or those of Mr Corin.
41. Whether or not it is correct to say that the production of a certificate of title is "necessary" to achieve registration of a transfer of Torrens system land, it is apparent that a gift of such land cannot be regarded as complete in equity while the donor retains possession or control of the certificate of title: Dixon J. in Brunker, at pp 600-605; Scoones v. Galvin and the Public Trustee (1934) NZLR 1004. That is because it can scarcely be said that the donor has done everything necessary to be done by him if he has retained the certificate of title, by virtue of the possession of which the gift might well be thwarted. (Emphasis added by the Tribunal)

15 The judgment of Mason CJ and McHugh J can be compared with the judgment of Brennan J in Corin; I include clauses 8, 10 and 12 and in the case of clauses 10 and 12 in part only.:

8. Even so, it is doubtful whether Mrs Patton, by mere delivery of a registrable transfer, had done all that was necessary on her part to effect a transfer of an estate or interest in the land to Mr Corin. She took no step to secure the production of the relevant certificate of title either by requesting the bank to produce the certificate of title or by authorizing Mr.Corin to apply to the bank to produce it. The appellants submit that it was not necessary for her to take any step to secure production of the relevant certificate of title because Mr Corin was himself entitled as mortgagor under s.96 of the Conveyancing Act 1919 (N.S.W.) to have the certificate of title lodged to allow registration of the transfer. For the reasons given by the Chief Justice and McHugh J., I agree that s.96 is of no assistance to the appellants. However, it may be that, without production of the relevant certificate of title, Mr Corin could have prevailed upon the Registrar-General to dispense with its production and to proceed to register the transfer: see s.36 (6)(b)(ii) and s.38 of the Real Property Act and the discussion of earlier provisions by Dixon J. in Brunker, at pp 601-604. Or it may be that Mr Corin, merely as proposed transferee, could have prevailed upon the bank to produce the relevant certificate of title to allow registration of the transfer. But speculation as to the likelihood of Mr Corin's obtaining of a favourable exercise of discretion by either the Registrar-General or the bank is relevant to the question whether Mrs Patton had done all that was necessary on her part to complete the gift, and this case can be resolved without finally determining the answer to that question. It is sufficient to note that it is doubtful whether Mrs Patton had done all that was necessary on her part to allow Mr Corin to be registered as proprietor of the interest intended to be given. But we are not concerned with Mr Corin's right to secure registration nor with Mrs Patton's right to prevent registration; we are concerned with testate of title to the interest intended to be given at the time of Mrs.Patton's death. At that time, clearly enough, no favourable exercise of discretion had been obtained and, without the production of the relevant certificate of title, the transfer could not then have been registered.
10. ……………… It involved at least that the memorandum of transfer should be delivered to the appellants by or on behalf of the testator with the intention on his part of there and then parting with it and with the property in it so that the appellants should be entitled as against him to cause the instrument to be registered. It probably involved also that the appellants should be enabled to produce or require the production of the certificate of title to the Registrar-General to have a memorial of the transfer entered upon it.” See, to the same effect, Taylor J. at pp 12-13 and Taylor v. Deputy Federal Commissioner of Taxation, at pp 213-214. Thus, at the forefront of the steps necessary to be taken by an intending donor of land under the Property Act stands the delivery of an instrument of transfer to the intending donee with the intention of there and then parting with it and the property in it. The reason why such a delivery is necessary is that the intending donor then” has no legal title to recall it or prevent its use by the donee for any purpose allowed by law including registration and no equity upon which an injunction or any other relief administered by the Court of Chancery would be granted": per Dixon J. in Brunker, at pp 604-605. Delivery of the memorandum of transfer with the requisite intent by the donor to the intended donee, coupled with the donee's ability to produce or to require the production of the certificate of title, puts the intended gift beyond recall by the donor and enables the donee to obtain title to the estate or interest transferred.
12.Upon this analysis, a right to registration, the effective exercise of which is essential to the vesting of title to the gifted land, is a statutory right dependent (at least) on delivery of a registrable transfer. That statutory right is confined by s.41 and, unlike a purchaser's contractual right, gives rise to no equitable estate or proprietary interest. As I read the cases, the only passages which might be construed as acknowledging inequitable estate or interest between the time of delivery of a registrable transfer and its registration which depends solely on delivery of the transfer are to be found in the judgments of Windeyer J. in Norman v. Federal Commissioner of Taxation (1963) 109 CLR 9 , at pp 28-29, and in Olsson v.Dyson, at pp 386-387. ……………(Emphasis again added).

16 In Costin the Appeal Court of New South Wales overturned the judgment at first instance, and where the judge found inter alia that steps taken by the donor had the effect of perfecting the gift. In that case a donor who was one of two joint tenants executed a transfer in favour of the respondent, Nicholas Costin, and in addition issued a direction to solicitors to produce the certificate of title for registration. The solicitors took the view that they could not produce the certificate without the authority of both joint tenants. The donor changed his mind. The court held that the gift was not perfected; Brownie AJA said:

“In my view the result of this case is governed by the principles discussed in these statements. Thus the intended gift by Eric Costin to the respondent was complete in the sense that the donor had done all that was required to be done by him alone to transfer the legal title; if his solicitors had acted as he had directed the legal title would have passed; but the donor had not done all that was necessary to render the gift binding on himself, or to arm or equip the donee with the means of securing registration of the transfer or of putting the transfer beyond the donor’s recall or intervention. As the events that occurred demonstrated the donor effectively allowed the appellant rather than the respondent to become the owner at law of the donor’s interest in the property.”

17 In quoting from the three cases above referred to I have deliberately underlined certain passages. When one considers the relevant judgments in detail, it is apparent that similar conclusions were reached but through differing routes. There are statements which would indicate that to perfect a gift of real property the delivery of the certificate if title is not a prerequisite; there are also statements to the contrary. There are statements which would suggest that it is sufficient if the certificate of title is available. Brennan J in Corin following Dixon J in Brunker thought that a different right is created. This is not currently the preferred view.

18 It is clear then that for a gift to be complete in equity the donor must have done everything necessary to enable the transferee to effect registration of the transfer and obtain legal ownership. Since Barry v Heider (1914) 19 CLR 580 equity has recognized the existence of an interest in Torrens title land prior to registration of the transfer. I should note also that I accept, having regard to the judgment of Latham C.J in Brunker (at page 585), that the Applicant could have registered the Transfer even after the death of the Father and without the assistance of the Executor; I refer in this context to the passage reading as follows” The practice of the profession, I understand has never been based upon the view that whenever a man signs a transfer and dies before it is registered it is necessary to secure re-execution of the transfer by his personal representatives”: This view was confirmed by Brennan J in Corin.

19 I have dealt with the cases referred to in the preceding clauses in some detail because they were referred to at such length and indeed took up much of the time of the hearing. Having regard to the conclusion to which I have come, much of that argument was of limited relevance.

20 Mr. Reuben contended that section 293 of the Act has a temporal element. It is necessary to consider the instrument at the time the refund application is made in order to determine whether is has become useless. He said also that the transfer takes effect as a deed upon registration and has no effect until then. He contended that the caveat was lodged only to protect against a challenge by the Father’s estranged wife, Margaret (“Margaret”). He argued that the caveat confers no interest and does not elevate the nature of an interest where there is none. He went on to contend the caveat was a “red herring” and that it could have been lodged for reasons other than those stated, and moreover that it could not have been lodged until the Transfer had been stamped. In his view the cases support the proposition that there is no equitable interest. He said moreover that there is a common thread running through the cases, which renders it necessary to look to the intention of the transferor/donor. Mr. Reuben conceded that the caveat was against his case; I understood to him to say that it might have been taken mistakenly.

21 It is relevant to note that Cordato Partners prepared the Transfer; they were also involved in the preparation and registration of the caveat and the supporting statutory declaration to which I have referred, and which a member of that firm attested. In the absence of any evidence as to a mistake I must accept that all of the events surrounding the Transfer were deliberate. I refer in this context to the preparation and execution of the Transfer, the payment of duty a short time after execution of the Transfer (and notwithstanding the fact that it could have been stamped at any time within 3 months after the date of the Transfer) and the execution and registration of the caveat. Mr Mescher disputed the statement that duty must be paid on the Transfer before the caveat could be lodged. Mr. Reuben said that there was this requirement in the case of a chargee of an unregistered charge.

22 The affidavit exhibit A1 was, as I have said, accepted without requiring the Applicant for cross-examination. In considering the documentation and evidence before me for the purpose of preparing this decision, it seemed to me that there were a number of question, which could have been more satisfactorily clarified or resolved.

23 Clause 4 of exhibit A1 refers to the fear of an attack by Margaret. An attack might have occurred at any time and before or after the death of the Father; see in this context clause 12 of exhibit A1. It might if made before his death, have been brought under the Family Law Act (and clause 7 of exhibit A1 indicates that the Property might have been the home in which the Father and Margaret resided before their estrangement.) In such event, and assuming that this hypothesis is correct, a claim might have been made during the life-time of the Father in respect of a share of the Property itself. A claim after the Father’s death might have been brought under legislation providing for dependents of the deceased, but in such event it is likely that such a claim would have been brought against the estate as a whole rather than in relation to any specific asset, and in particular the Property. There may perhaps be other possibilities. Clause 4 of exhibit A1 which purports to be a paraphrase of what the Father said, was designed to protect the Property for the Applicant after his death; in that event what purpose did the Transfer serve as against a claim by Margaret against the estate as a dependent? Read as a whole exhibit A1 leads me to infer firstly that the Father and the Applicant were united in the desire to ensure that the Applicant obtained the Property and in the second place that it is likely that, in the event of the apprehended attack occurring during the Father’s lifetime, it would have been available to the Applicant to enable her to register the Transfer. I should note though that there was nothing before me in the affidavit or elsewhere as to where the certificate of title was at that time or thereafter. The Property was not mortgaged; it might have been with the Applicant or with the Father or in safe custody and available to as needed. Exhibit A1 is silent as to this aspect. Mr. Reuben said that the Father had the certificate, but what Mr. Reuben said in argument is not evidence. Exhibit A1 indicates that the whole arrangement involved legal advice (and see clauses 8 and 9). It might have been instructive to know what precise purpose the arrangement as a whole was intended and designed to serve.

24 The wording of clause 4 as to a new will disinheriting Margaret implies that there was an existing will under which Margaret was a named beneficiary. The Applicant too would (presumably) have been a beneficiary given that her relationship with the Father was so close. Mr. Reuben contended that the fact that the new will was dated after the Transfer was somehow significant; it is not clear to em that this is so. What was contained in the existing will?

25 I do not accept that the Transfer conferred no rights on the Applicant. I also do not accept that the caveat was a “red herring”. In accordance with its terms the Applicant claimed that she owned the equitable estate in the Property; she swore a statutory declaration to this effect. Solicitors who represented her in this hearing advised her.

26 Mr. Reuben contended that the gift was not complete. He also contended that the Transfer was not effective and thus had no value. He contended moreover that although the Applicant did not obtain an equitable estate in the Property (despite her own contention to the contrary) she obtained what he described as a “contingent equitable interest”. As to whether that description is apt in this context is not altogether clear, but it does indicate that she had at the very least an interest in the Property.

27 At a later stage and after the death of the Father the Property was transferred into her (the Applicant’s) name through a Transmission Application and in which the Executor was involved. It is likely on the balance of probabilities that this was so because the Applicant preferred this method; the Executor would presumably not have been concerned as to the method employed. The certificate of title was presumably made available for the Transmission Application; there is no reason to suppose that it would not have been available for the registration of the Transfer. As I have noted the authorities establish that the Transfer could have been registered even after the death of the Father; she chose not to register it. I note also in this context that the fact that the Father was no longer the registered owner of the Property is not relevant; equally the Applicant no longer owns the Property, both parcels having been subsequently sold.

28 Having regard to the cases to which I have referred, it seems that a gift of real property requires in addition to a duly executed transfer, that the certificate of title be furnished or be available to the donee. In this case and if it was not furnished to her it is likely on the balance of probabilities and having regard to the close relationship between the Father and the Applicant that it was available to her. In accordance with the caveat and acting on legal advice claimed an equitable title to the Property. In my view she has not discharged the onus of establishing that the gift was not perfected. Even if the Applicant did not, notwithstanding the caveat, have an equitable estate in the Property she did have an equitable interest, which was more than a mere equity. The Transfer could have been registered; the Applicant chose instead to obtain registration in accordance with the Transmission Application.

29 I turn in conclusion to consider section 293 of the Act. I should note by way of preface that much of the content of the succeeding clauses was not raised in argument before me. (I refer in this context to the written submissions from which I have quoted). It is relevant however when one considers the provisions of the Act in context. What follows are matters of law. The fact that matters of law were not debated before me would not in my view, breach the rules of natural justice.

30 The Stamp Duties Act 1920 (“SDA”) imposed a duty on documents (and in some cases transactions) whereas the Act imposes a duty on dutiable transactions.

31 There was a dilemma even under SDA as to first execution. In Commissioner of Stamp Duties (Qld) v Hopkins (1945) 71 CLR 351, the High Court concluded that in the case of a settlement of property execution by the trustee prior to execution by the settlor or the vesting of property was “first execution”. That decision overruled Ex parte Burrows (1906) 6 SR 606 which had held that an assignment was first executed when executed by the party whose execution made it effective. Hopkins in effect, it may be said, assumed due execution. It may be noted that section 26 of SDA provided for the case where an instrument was ineffective because of the failure of a party to execute it. This necessarily presupposed that an instrument would be stampable even though not executed by all of the parties to it.

32 Under the Act and in contrast with SDA, duty is imposed on dutiable transactions as defined. Section 8 of the Act provides:

DUTIES ACT 1997 - SECT 8
Imposition of duty on certain transactions concerning dutiable property
Imposition of duty on certain transactions concerning dutiable property
(1) This Chapter charges duty on:
(a) a transfer of dutiable property, and
(b) the following transactions:
(i) an agreement for the sale or transfer of dutiable property,
(ii) a declaration of trust over dutiable property,
(iii) a surrender of an interest in land in New South Wales,
(iv) a foreclosure of a mortgage over dutiable property,
(v) a vesting of dutiable property by or as a consequence of a court order,
(vi) the enlargement of a term in land into a fee simple under section 134 of the Conveyancing Act 1919.
(2) Such a transfer or transaction is a "dutiable transaction" for the purposes of this Act.
(3) In this Chapter:
"declaration of trust" means any declaration (other than by a will or testamentary instrument) that any identified property vested or to be vested in the person making the declaration is or is to be held in trust for the person or persons, or the purpose or purposes, mentioned in the declaration although the beneficial owner of the property, or the person entitled to appoint the property, may not have joined in or assented to the declaration.
"transfer" includes an assignment, an exchange and a buy-back of shares in accordance with Division 2 of Part 2J.1 of the Corporations Act 2001 of the Commonwealth.
What then was the dutiable transaction which was relevant in this case?. Mr Reuben argued that the intention of the transferor is important, and even vital, without specifying whether he intended to refer to intention in a subjective or in an objective sense. In this case the Transfer was in its terms referable to a transfer of the fee simple and in other words the whole legal estate. The definition of “transfer” in the Act may be contrasted with the concept of a “conveyance” under SDA.

33 There are two aspects of the law which are in my view altogether relevant .In the first instance the Act is concerned with a transfer and not a conveyance. The term “transfer” is defined on an inclusive basis. Coles Myer, cited by the Applicant is authority for the proposition that a transfer at general law encompasses a transfer of property from A to B; it does not include the creation of a new estate. See Hill page 404 and the cases there cited and in particular George Wimpey & Co Ltd v Inland Revenue Commissioners (1974) 1 WLR 75 and Commissioner of Taxes (Qld) v Camphin (1937) 57 CLR 127. In Coles Myer, Ormiston JA said “For an instrument to be characterized as a transfer one must be able to find that the property has passed from transferor to transferee…” A transfer is not apt to encompass something which is created albeit through the instrument itself. When a person owns real property he owns both the legal and the equitable estate in one whole and not in parts. (Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12). He cannot transfer the equitable estate only. So it is that a lease granted to a lessee is not a transfer. (Hill page 404). Thus it is that the Transfer in its terms was referable to a transaction involving the fee simple and nothing else. The fact that the Applicant may have acquired an equitable estate when she sought to protect herself through the caveat is not to the point.

34 I do not know why duty was paid soon after execution of the Transfer when it could have been paid within 3 months thereafter. Such a course of action would have been logical given the evidence that the Applicant was seeking to protect the Property for herself. The Transfer could not, I might add, be characterized as a declaration of trust. Nor would it be apt, in my view, to characterize the Applicant’s failure to register the Transfer as a surrender of it. Clause 12 of the Applicant’s submissions makes it clear that the Applicant lodged the Transmission Application. The caveat may have been withdrawn at or about the same time. There is a more difficult question (which I am not called upon to decide) as to whether either or both of those actions could be characterized as a “surrender”, and thus a separately dutiable transaction. (MSP Nominees Pty Ltd v Commissioner of Stamps (SA) 1999 HCA 51.)

35 The clear legislative intent which underlies the Act is that duty is payable only in respect of a dutiable transaction and in the absence of a dutiable transaction duty should not be attracted.

36 As I have noted Mr Mescher contends that there are two components in section 293. The Hill Commentary suggests, but only in passing, that they are linked. Mr. Mescher contended that even if the first element was satisfied the second was not. The Transfer did not become useless because it created an equitable estate or some lesser equitable interest, but not a mere equity. If that argument is correct the Applicant must fail. Hill in his commentary on section 293 poses an example which might suggest that linkage is appropriate.

37 The Act (as was the case with SDA) provides for stamping on first execution. Arguably it is necessary to construe the section on the basis that if the underlying transaction contemplated by the instrument does not occur then the legislative intent is that duty paid on first execution should be refunded. The concept contained in the preceding clause could also be expressed thus; it is necessary in order to achieve the legislative intent that there be symmetry between the dutiable transaction and the instrument and so that the instrument fails where the dutiable transaction fails.

38 There is no doubt that a contract of sale of land brings about equitable interests which may vary at different stages and commencing with the contract and the payment of the deposit and then completion and the payment of the balance of the price. The intention in respect of the Transfer appears on its face and that was the transfer of the fee simple. On this basis questions of intention (as to objectivity or subjectivity) become irrelevant. There was no intention ex facie the instrument to create an equitable estate.

39 It is in my view desirable and in line with a common sense approach to endeavour to reconcile the two strands in the Act, and which might conveniently be termed the “transaction strand” and the “document strand” respectively. Duty was paid on the Transfer on first execution; the only way in which symmetry can be achieved is to grant a refund if the dutiable transaction becomes ineffective. As to why it became ineffective is not relevant. The fact that it may have done so in consequence of an election by the Applicant is not to the point.

40 On the basis that symmetry is desirable how does one guard against asymmetry? The answer if simple if the question is analysed in the manner indicated. Duty was paid on first execution as the Act requires. The Transfer became ineffective and the duty should be refunded. Such an outcome is in accord with the legislative intention to levy duty on dutiable transactions only. And to do so requires reconciliation of the two strands. As indicated earlier it is important to remember that under the Act duty is payable on transactions and not on instruments. (Cf Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Limited (2002) 192 ALR 56 at para 34 and page 64). This then in my view is the correct and preferable decision. Accordingly the decision under review is set aside and the Applicant should receive a refund of the duty paid.