Georgopoulos v Chief Commissioner of State Revenue

[2010] NSWADT 97

CITATION:	Georgopoulos v Chief Commissioner of State Revenue [2010] NSWADT 97
DIVISION:	Revenue Division
PARTIES:	APPLICANT Victoria Georgopoulos RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	096082
HEARING DATES:	2 November 2009
SUBMISSIONS CLOSED:	2 November 2009
DATE OF DECISION:	19 April 2010
BEFORE:	Hole M - Judicial Member
CATCHWORDS:	Dutiable value of dutiable property, transfer of property to oneself
LEGISLATION CITED:	The Duties Act 1997 (NSW) Conveyancing Act 1919 Property Law Act 1974 (Qld)
CASES CITED:	Stewart v Hawkins (1958) 60 SR (NSW) 104 Leonard v Federal Commissioner of Taxation (1919) 26 CLR 175 Browne & Jeon v Commissioner of State Revenue [2002] QCA 388
REPRESENTATION:	APPLICANT Victoria Georgopoulos RESPONDENT Chief Commissioner of State Revenue
ORDERS:	1.The decision of the Chief Commissioner of State Revenue under review is confirmed.

REASONS FOR DECISION

1 The applicant seeks a review of the decision of the respondent dated 15 January 2009 to assess duty under The Duties Act 1997 (NSW) (“the Duties Act”). That decision was to charge the applicant as a purchaser full ad valorem stamp duty on a value of $1,650,000.00 (sale of land) and $149,000.00 (sale of business) pursuant to section 21 of the Duties Act.

Facts

2 Prior to 23 September 2008 the applicant was a registered proprietor of part of a parcel of land as a tenant in common with Philip Sclavos. Lauriston & Marsden Pty Limited (“the company”) was the registered proprietor of the other part of the parcel of land. The applicant was the holder of half of the shares in the company and Philip Sclavos the holder of the other half of the shares. A business (“the business”) was operated on the parcel of land, and that business was an asset of an informal partnership between the applicant and Philip Sclavos. The business was operated by Arristo Pty Ltd, of which the applicant was an equal shareholder with Philip Sclavos.

3 The applicant, prior to an order of the Supreme Court of New South Wales dated 23 September 2008, was therefore entitled to one half of the parcel of land subject to any encumbrances or loans by her and Philip Sclavos or the company. The applicant was also entitled to one half of the company and one half of the business operated by the informal partnership.

4 On 23 September 2008 Short Minutes of Order were made in the Supreme Court of New South Wales appointing a Receiver and Manager to a partnership referred to as “The Partnership Business” in the Short Minutes of Order, and to the property of the Partnership/Joint Venture. The property referred to in the Short Minutes of Order includes the land subject of the contract for sale dated 19 December 2008.

5 The Short Minutes of Order referred to in the previous paragraph included an order that the Receiver and Manager was authorised to sell or otherwise dispose of the property of the Partnership Business (including all real estate) by private treaty, private tender or auction upon terms and conditions including:

(a) the sale be under the control and at the direction of the Receiver and Manager; and
(b) liberty to any party to bid at the auction (if any).

An order was also included that following sale of any of the property of the Partnership Business any settlement monies were required to be disposed of in a particular way and that the net proceeds of sale of the partnership property were to be paid into Court and to be invested in any mode of investment permitted by law for the investment of trust monies pending determination of the balance of the proceedings.

6 A contract for sale dated 19 December 2008 was entered into by the applicant as purchaser in respect of property comprised in a certificate of title wherein various parties were shown as the registered proprietors in the following shareholdings:

“Victoria Georgopoulos
Philip Sclavos
as tenants in common in equal shares of the part formerly in 202/854300
Lauriston & Marsden Pty Limited of the part formerly in 20/7/775”

7 The dispute between the applicant and Philip Sclavos resulted in Supreme Court litigation over some years and consequently the Short Minutes of Order dated 23 September 2008 were made in respect of the dispute.

8 The Short Minutes of Order included the following:

“1 An order that the Partnership conducted by the plaintiff, first defendant, second defendant and third defendant comprised in the acquisition of and the conduct of a business known as Lauriston House (“The Partnership Business”) be declared to be dissolved as and form (sic) the date of filing this Summons the property of that Partnership/Joint Venture comprising:

i.146 Marsden Road, Dundas (being the land contained in Lot 1, DP1125573):
iiPart of 148 Marsden Road, Dundas (being the lands contained in Lot 1, DP1125573);
iii.67 Bellview Street, Blacktown (being the lands contained in Lot 126, DP28393);
iv.The business known as Lauriston House Function Centre, being a business the subject of an oral licence to Arristo Pty Limited being conducted from the lands identified in (i) and (ii) above;
All other assets of the Partnership.

2An order that the Partnership Business be wound up under direction of this Court.
3An order that David Anthony Hurst of Armstrong Wily, Chartered Accountants of Level 5, 75 Castlereagh Street, Sydney, NSW, 2000 be appointed without security the Receiver & Manager of the said Partnership without the security (“the Receiver & Manager”);
4An order that the plaintiff, first, second and third defendants deliver all assets of the Partnership Joint Venture or individually in his, her or their custody, possession control or power to the Receiver and Manager within seven (7) days of making this order,
5An order that the Receiver and Manager be authorised, in addition to the powers which the Receiver and Manager may have apart from this order, to:
i.Take possession of, collect and get in the stock, book debts and other assets of the Partnership Business;
ii.Sell or otherwise dispose of the property of the Partnership Business (including all real estate) by private treaty, private tender or auction upon the following terms and conditions:
a.The sale be under the control and at the direction of the Receiver and Manager; and
b.Liberty to any party to bid at the auction (if any).

iii.To demand and call up one or more or all of the debts of the Partnership; and
iv.To make debtors bankrupt and to wind up companies and do all things in connection with any Bankruptcy or winding up and to take proceedings in any court or other tribunal or forum in the name of the Partnership for the purpose of enforcing payment of any of the debts.

6 An order, upon sale of the property of the Partnership, the Receiver and Manager pay from any settlement moneys:
i.Amounts required to discharge and charge or liability in respect to the Partnership Business/Joint Venture;
ii.The costs, expenses, commission of any agent or agents acting on the sale;
iii.Legal costs associated with the sale of the said assets;
iv.The costs fees and disbursements of the Receiver and Manager in respect to implementation of these orders as determined by the Court;
v.The costs fees and disbursements of the solicitor or solicitors if any retained by the Receiver and Manager to implement these orders;
vi.Any other expenses reasonably incurred by the Receiver and Manager in the discharge of his duties pursuant to these orders.

7An order that the Receiver and Manager pay the net proceeds of sale of the Partnership property paid into Court and to be invested in any mode of investment permitted by law for the investment of trust moneys pending determination of the balance of the proceedings.
8 …

9 …

10 …

11 An order that the Receiver and Manager be authorised, in addition to the powers with the Receiver and Manager may have apart from this order to:
i. Take possession of, collect and get in any stock and book debts of the second and third defendants;
ii. Sell or otherwise dispose of the property and assets of the second and third defendants by private treaty, private tender or auction upon the following terms and conditions:
a. The sale under the control and direction of the Receiver and Manager; and
b. Liberty to any party to bid at the auction (if any).
iii. To demand and call upon one or more of the debts of the second and third defendants; and
iv. To make debtors bankrupt to wind up companies and do all things in connection with bankruptcy or winding up and to take possession in any court or other tribunal or forum in the name of the second and third defendants for the purpose of enforcing payment of any of the debts.
… ”

9 The Receiver and Manager took possession of all assets of the partnership and the two companies and advertised those assets for sale by way of a competitive tender process. The applicant was the successful tenderer which led to the exchange of contracts for the sale of land and of the business assets sale agreement on 19 December 2008. The applicant contends that as she was a tenant in common in equal shares of the land subject of the contract for sale and a 50% shareholder of each of the companies that she was already the owner in 50% of the subject matter of the contract and the business sale agreement therefore she would only be required to pay duty on 50% of the consideration so that ad valorem duty was payable only on $825,000.00 in respect of the agreement for sale and $74,750.00 in respect of the business asset sale agreement.

Legislation

10 The applicable legislation is Sections 8, 11 and 21 of the Duties Act:

“8 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,

11 What is “dutiable property”?
(1) “Dutiable property” is any of the following:
(a) land in New South Wales,

(g) a “business asset”, being, at any relevant time:
(i) the goodwill of a business, if the business has supplied goods in New South Wales, or provided services in New South Wales, to a customer of the business during the previous 12 months, or

...

21 What is the “dutiable value” of dutiable property?
(1) The dutiable value of dutiable property that is subject to a dutiable transaction is the greater of:
(a) the consideration (if any) for the dutiable transaction (being the amount of a monetary consideration or the value of a non-monetary consideration), and
(b) the unencumbered value of the dutiable property.”

11 Section 72 Conveyancing Act 1919 (“Conveyancing Act”) is also applicable:

“72 Covenants etc by a person with himself or herself and another, or others
(1) A covenant, whether express, or implied under this or any other Act, or an agreement made by a person with himself or herself and another or others shall be construed and be capable of being enforced in like manner as if the covenant or agreement had been made with the other or others.
(2) This section applies to covenants or agreements made or implied before or after the commencement of this Act.”

Applicant’s submissions

12 The representative of the applicant submitted that as the applicant was already a half share owner of part of the title subject of the contract for sale and was the owner of half of the shares of the company which was the owner of the remainder of the land subject of the contract for sale that, as she was that owner, then she was not required to pay duty on the share of the consideration related to that ownership. That the respondent ought to have determined the stamp duty payable on the basis that excluded the fraction held by the applicant and on the interests that she had as the owner of 50% of the shares. In relation to the business asset sale that the company was only a vehicle for the partnership and the two partners to that partnership, one being the applicant and as the applicant was the owner of 50% of the shares in that vehicle, then the applicant should not be required to pay duty on the shareholding that the applicant already held.

13 As the applicant was the beneficial owner of 50% of the land and the assets subject of the contract and agreement that the appointment of the Receiver and Manager did not defeat the beneficial ownership of the applicant and the other partner.

14 Attention was drawn to Orders 5 and 6 which authorised the Receiver and Manager to undertake the sale and then to hold the monies and then to pay any debts and costs etc of the monies following which pursuant to Order 7 the monies were to be held by the Receiver and Manager awaiting determination of the balance of the proceedings in the Supreme Court.

15 That if the sale had been to a stranger other than the applicant then the assessment by the respondent would have been correct. That the Receiver and Manager was similar to being a trustee and that the trustee could not be considered to be the beneficial owner.

16 The representative of the applicant submitted that in accordance with Section 8(1)(a) duty is charged on a transfer of dutiable property and that Section 11 defines what is dutiable property.

17 It was submitted that there was no change of ownership in respect of the land nor the owner of the shares and that therefore the ownership stayed where it was prior to the Receiver and Manager selling pursuant to the order of the Supreme Court. The applicant’s interest in the half share remained parallel to the interest that was conveyed to the applicant of the other half share pursuant to the applicant being the successful tenderer.

18 It was submitted that the consideration paid on the purchase of the property sold by the Receiver and Manager was placed into the Receiver and Manager’s hands to permit the change of the other owners interests to the applicant’s ownership and thus only causing a change of those other owners’ interest to the applicant. The applicant’s interest was a continuing interest and had not been terminated by the order of Court. That therefore the dutiable value in respect of the interest that the applicant held prior to the transfer executed by the Receiver and Manager in relation to the share that the applicant continued to have the interest in was zero. That the asset that did not change hands, that is the asset of the applicant being a one half share, needed to be excluded from the dutiable property.

19 That pursuant to section 21(1)(b) of the Duties Act the first consideration is what is the dutiable property. The dutiable property is the property described in the contract subject to the change in ownership for monetary consideration or otherwise. The representative of the applicant submitted that as there was no change of ownership of the share held by the applicant then there was no consideration payable in respect to that share as the applicant remained the owner of what was there prior to the date of the contract.

20 That the interest of the applicant was parallel with the other interests conveyed to her being the other half share and the 50% interest in the companies. The half share that she held prior to the contract and the half share in the companies that she held prior to the contract remained vested in her and that the consideration received by the Receiver and Manager was only received for the purpose of causing the change of the other half share which was not already hers. That the applicant had a continuing interest in the share which was described in her name and the shareholding in her name.

21 When considering section 21 of the Duties Act careful consideration has to be had of the term “dutiable transaction”. In this instance the asset that was previously vested in the applicant did not change hands and therefore the value of that share should be excluded from the dutiable value of the property.

22 The representative of the applicant provided a reference to an extract from Meagher, Gummow and Lehane, Equity – Doctrines and Remedies 4th Edition (2002) at paragraph 28 – 155. This is a reference to the “Position of receiver appointed by the court: effect of his appointment.

“Unquestionably a receiver is an officer of the Court, because appointed by the Court”: McMeckan v Aitken (1895) 21 VLR 65 at 69 per Holroyd J. From that undoubted proposition a number of consequences follow, all of which place a receiver appointed by the court in a substantially different position from that of most receivers appointed out of court (as to which see [28-190] ff).”

23 Further at paragraph 28-165 that:

“(b) A receiver appointed by the court does not – at least until the rights of the parties are finally established – hold or deal with the property primarily for the benefit of any one party or as agent for any party …A receiver is not an agent for any other person, and a receiver is not a trustee. “The receiver is appointed by the order of the Court and is responsible to the Court, and cannot obey the directions of the parties in the action, and in no sense does he stand in the position of agent to the parties who are interested at the suit of whom or one of whom he has been appointed”: (Corp of Bacup v Smith (1890) 44 Ch D 395 at 398 per Chitty J.”

Applicant’s further submissions in response

24 In response to the respondent’s submissions concerning the ability to transfer property to oneself the applicant’s representative submitted that the reference in Stewart v Hawkins (1958) 60 SR (NSW) 104 (“Stewart”) at page 106 where Owen and Ferguson JJ commented:

“...
For the defendant it is contended that the section has application only where the covenant or agreement is made by one person alone with himself and another or others and is inapplicable to the case where the covenant or agreement is made by a person jointly with another or others with himself and another or others. It is true that the section in terms refers to a covenant or agreement made by one person with himself and another or others;
…”

Means that Section 72 only treats an agreement by one person jointly with another to that person and others. It is not a legal fiction that there is an agreement between the person and that person on their own. The Full Court was not addressing the situation as if the applicant was in the same position as described at page 107 by Owen and Ferguson JJ as included in:

“…
“shall be construed and be capable of being enforced in like manner” are validating words and we think that the proper interpretation of the section is that a covenant or agreement made by a person with himself and another or others shall be as valid as if it had been made with the other or others excluding himself, and may be enforced accordingly. …”

The applicant owned the half share in her name and also beneficially pursuant to the operation of the orders of the Supreme Court.

25 In response to the submissions made by the respondent in relation to Leonard v Federal Commissioner of Taxation (1919) 26 CLR 175 (“Leonard”) at 175 the applicant submitted that this case as referred to was not in relation to stamp duty and not concerning a transfer between parties and that in any event the reference to Section 25 was obiter and is not binding in respect of this matter.

26 In response to the submissions made on behalf of the respondent in relation to the decision in Browne & Jeon v Commissioner of State Revenue [2002] QCA 388 (“Browne & Jeon”) de Jersey CJ commented that:

“… [3] Clause 3.1(b) purported to deal with the redistribution of interests in the following terms:
“The parties acknowledge that John Joseph Albina Savina and J & P Savina Pty Ltd are named as Vendors and Purchasers with the intent that the interest transferred beneficially under this Agreement to Mark Douglas Browne and Paul Eunseong Jeon as Pharmacy Purchasers and Health Information Resources Pty Ltd and Jonghae Jeon as Equipment Purchasers is 43.333% in the Pharmacies and the Equipment respectively.”

…”

The applicant’s representative submitted that this quote to be properly read should show the words “and also” immediately before the word “Purchasers” and the effect of this would be that duty in that particular matter would only have been payable on the lesser percentage.

That the agreement being considered was a redistribution of property rights and that Clause 3.1(b) of the agreement being considered, being a distribution of interests, disclosed that not all of the property was changing hands thus without the inclusion of that clause some interests would not be changing hands.

27 The applicant’s representative submitted that the reasoning set out below at paragraph 31 being a comment by de Jersey CJ in Browne & Jeon was internally inconsistent and noted that the comment, if Clause 3.1(b) was inconsistent with the analysis, is erroneous and not determinative.

Respondent’s submissions

28 The representative of the respondent submitted that section 21 of the Duties Act applies and drew attention to Browne & Jeon on the basis that that case involved similar facts to this matter wherein de Jersey CJ commented at [9]:

“[9] The principal contention for the appellants is that, with the agreement properly construed, its legal effect is to transfer, not all of the interest in the property defined as “Property Sold” – that is, the pharmacy businesses, equipment and the other business and stock in trade, but only 43.33% of that property, so that duty was chargeable on $1.3 million, not the $3 million consideration. The appellants point to clause 3.1(b), and the legal oddity of one’s transferring a portion of one’s own property to oneself (cf. Rose v Federal Commissioner of Taxation (1951) 84 CLR 180, 123-4; Glennon v Federal Commissioner of Taxation (1972) 127 CLR 503, 511. The appellants contend that the agreement amounts to no more than an agreement to vest in the appellants (together with Jonghae Jeon and Health Information Resources) a 43.33% interest in the property previously owned by Mr Savina and J & P Savina Pty Ltd: “an agreement to convert single ownership into joint ownership”, so that the agreement should be stamped only with respect to the conveying of a 43.33% interest.”

29 And further at [10]:

“[10] If one may lawfully transfer one’s property to oneself and another or others jointly, then that is what has effectually occurred here and the Commissioner was correct in levying duty on the overall consideration.”

30 The decision in Browne & Jeon referred to section 50 of the Property Law Act 1974 (Qld) which is similar to section 72 of the Conveyancing Act. The comment was made that this section authorises transfer of property by an owner to that owner and another which validates the transaction which would be doubtful in the absence of that legislation.

31 De Jersey CJ further commented in Browne & Jeon at [13]:

“[13] The result of the appeal is to be determined by reference to the content of the agreement for sale (cf. Commissioner of Stamp Duties (Q) v Hopkins (1945) 71 CLR 351, 360: Mt Newman Mining Co Pty Ltd v Commissioner of State Taxation (1994) 11 WAR 413, 418; DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1981-2) 149 CLR 431, 449). The agreement provided, in terms, for the outright sale of all the property for $3 million. The property purchased by the purchasers, in their respective capacities, became partnership property of the respective partnerships on transfer to the respective purchasers. As to the legal interest, the partners took as joint tenants (s 35(3) Property Law Act 1974). The agreement, otherwise insupportable at common law, was validated by s 50 of the Property Law Act. It is then to be construed literally for what it apparently provides, in this case thereby exposing its “legal effect”. Insofar as the acknowledgement in cl 3.1(b) in inconsistent with the above analysis, it erroneously states the effect of the transaction and is therefore not determinative.”

32 Further that McMurdo P commented in Browne & Jeon at [22]:

“[22] Section 50 Property Law Act 1974 (QLD) is a validating provision allowing the enforcement of a sale from one entity to a partnership of that entity and others which would otherwise be unenforceable at common law; it validates agreements such as this Agreement for Sale, which may then be enforced according to their terms. See Stewart v Hawkins (1958) 60 SR (NSW) 104, 107. Under this agreement, the consideration was $3 million not 43.33 per cent of $3 million. Stamp duty was therefore chargeable on $3 million.”

33 The representative of the respondent drew attention to Stewart particularly at page 107 where Owen and Ferguson JJ commented that:

“… But we do not think any such difficulties are to be apprehended. The section validates the agreement that has been entered into, it does not convert in into some other agreement.

…”

This is a reference to Section 72 of Conveyancing Act.

34 Further Sugerman J commented in Stewart at page 109:

“…Nor, with respect to the learned author, would the terms of the section appear to support Professor Glanville Williams’ suggestion as to the corresponding English enactment (s. 82 of the Law of Property Act 1925) that it provides in effect that B shall drop our and the contract shall operate as one between A and C (joint Obligations, pp. 47. 48. 90).

It seems clear that, as applied to the simple case of a covenant or agreement by B with B and C, the purpose of the section is to confer an effective remedy upon C for the enforcement of B’s covenant or agreement and that the appropriate action would be one between C as plaintiff and B as defendant.

… ”

Therefore Section 72 treats the contract as valid and it is irrelevant that one party is on both sides, this does not turn it into a different agreement and there is no reduction in the consideration accordingly.

Sugarman J commented further in Stewart at page 109:

“The section does not appear to give rise to any questions of contribution such as could not arise where there is no common party; it is concerned only with the question of enforcement as between the parties and leaves any question of account as between the common party and his co-covenantee or co-promisee with respect to the proceeds of a successful action to be worked out independently by reference to the relationship otherwise existing between them. …”

35 The High Court of Australia considered a similar issue in Leonard wherein the taxpayer had received all of the dividends officially and was required to pay tax on it. The following comment was made:

“…If, for instance, the firm of Leonard & Cameron had borrowed the £22,000 from another firm, consisting of (say) Leonard and Smith, it would be perfectly clear that Leonard & Smith as a single entity would have received the £1,100 from Leonard & Cameron, and that Leonard as a member of the firm of Leonard & Smith would then have been taxable for it in respect of the income of Leonard & Smith. But it would be indisputable that that income would have been received by the firm of Leonard & Smith quite independently of Leonard’s interest in the firm of Leonard & Cameron. Leonard received the £1,100 as an individual, and he received it in the same way; it does not affect the principle at all. …”

36 The applicant had paid the full consideration to the vendor and it was received by the vendor quite independently of the applicant as purchaser.

Decision

37 Pursuant to the Short Minutes of Order dated 23 September 2008 made in the Supreme Court an order was made that a Receiver and Manager be appointed and a further order that the Receiver and Manager attend to the sale of the property of the partnership business (including all real estate) which included the property the subject of the assessment to duty and the business subject of the sale of the business.

38 The orders required the Receiver and Manager to sell and then to pay the net proceeds of sale into the Supreme Court to be invested pending the determination of the balance of the proceedings.

39 Prior to the order of the Supreme Court referred to the applicant was the registered proprietor of half of the property included in the contract for the sale of land and half of the business included in the sale of business.

40 The Receiver and Manager as and from the date of the orders of Supreme Court referred to was the only party that could deal with the whole of the property included in the contract for sale of land and the contract for the sale of business. Notwithstanding that the ownership remained as shown in the applicant together with Philip Sclavos and in the company which was owned by both the applicant and Philip Sclavos; and notwithstanding that the business was operated by Arristo Pty Ltd of which the applicant was an equal shareholder with Philip Sclavos and that this business was subject to the sale of business. The order of Court did not vest the property in the Receiver and Manager rather the orders required that the Receiver and Manager take possession and dispose of the property and then hold the monies subject to further orders of the Court. The orders did not provide that the monies received on sale of the property and the business were to be equally divided between the applicant and Philip Sclavos. The Receiver and Manager as and from the date of the orders held the property subject to the authorisation to sell and to then account to the Supreme Court for the balance of monies held.

41 The effect of the order of the Supreme Court did not provide (and could not) that a purchaser, no matter who that might be, would be relieved from payment of stamp duty in the event that a purchaser had prior to the order of Court been a legal and/or equitable owner of the property or the business.

42 The applicant submitted that the beneficial interest of the applicant remained in the property and the business until such time as the property was sold by the Receiver and Manager. As and from the date of the order of the Supreme Court the beneficial ownership in the property and the business was subject to the duties of the Receiver and Manager pursuant to the order of the Supreme Court to sell (etc) and then to hold the net proceeds of sale to be paid into Court subject to determination of the proceedings.

43 Section 72 of the Conveyancing Act is a facilitating provision only. In the circumstances of this matter the Receiver and Manager was under a duty to attend to the sale as set out in the order of Court. In order that the Receiver and Manager be able to transfer title to a purchaser, no matter who that purchaser was, it was necessary for the transfer of the property to be drawn as from the applicant and Philip Sclavos together with the company to the applicant in relation to the contract for sale. This section permitted the transfer to be entered into where the applicant was shown as one of the transferors and appeared to be transferring part of the property to herself. The transfer was executed by the Receiver and Manager pursuant to the orders of the Court.

44 The property which the Receiver and Manager could sell was for a value of $1,650,000.00 and the sale of business was for $149,000.00. The order of Court provided that the Receiver and Manager was to sell the property pursuant to the orders of Court which that Receiver and Manager did. The applicant purchased the whole of the property that the Receiver and Manager was required to sell pursuant to the order of Court. The applicant did not receive the proceeds of sale pursuant to the sale, the applicant may have received some of those monies or more than those monies on determination of the balance of the Supreme Court proceedings. This did not affect the transactions being an agreement for sale of land and the agreement for sale of business.

45 The facts of this matter are similar to those as set out in Browne & Jeon. The property subject of the agreement for sale of land and of the sale of business was sold in their entirety to the applicant for the consideration stated in those two agreements and being 100% of the interest in that land and in the business. 100% of the interest in the property and the business was required to be sold by the Receiver and Manager and that Receiver and Manager did not receive the monies on behalf of the applicant as to 50% or if at all. The Receiver and Manager was required to pay the monies into the Supreme Court pending determination of the proceedings.

46 The contract and subsequent transfer of the subject land and the agreement and subsequent settlement of the purchase of the business being shown as between the applicant and another and then the applicant as purchaser is validated by the provisions of section 72 of the Conveyancing Act . The Receiver and Manager was authorised by the order of the Supreme Court to undertake the sale and disposal of the land subject of the contract for sale and the business. The operation of section 72 does not change the agreements to something other than shown in the agreements and accordingly there is no reduction in the consideration paid by the purchaser on those agreements.

47 Duty is imposed on the transactions in accordance with section 8 of the Duties Act. The land subject of the contract for sale is dutiable property and the business is an asset which is dutiable property pursuant to section 11 of the Duties Act.

48 The dutiable value of the dutiable property is the consideration shown in the contract for sale of the land and the contract for the sale of business pursuant to the provisions of section 21 of the Duties Act.

49 The Receiver and Manager was required to receive the total amount of the consideration shown in both contracts and to then pay that amount into Court after deduction of the sums as set out in number 6 of the orders of the Supreme Court.

50 The applicant was not entitled to divide the consideration payable and only pay 50% of the consideration to the Receiver and Manager.

Orders

1. The decision of the Chief Commissioner of State Revenue under review is confirmed.