Jurd v Commissioner of Stamp Duties

[1995] QSC 249

IN THE SUPREME COURT

OF QUEENSLAND

Application No. 487 of 1995

Brisbane

Before the Hon. Justice Williams

[Jurd v. Commissioner of Stamp Duties]

BETWEEN:

ALAN JEFFREY JURD

(Applicant)

AND:

COMMISSIONER OF STAMP DUTIES

(Respondent)

JUDGMENT - GN WILLIAMS J

Judgment delivered 09/10/1995

CATCHWORDS      JUDICIAL REVIEW - decisions of Commissioner of Stamp Duties - whether decision within power - case stated procedure not appropriate - application not summarily dismissed as having no reasonable basis.

Counsel:Gotterson QC and Alexander for applicant-respondent.

Clarke for respondent-applicant.

Solicitors:Crown Solicitor for applicant-respondent.

Cleary Hoare for respondent-applicant.

Hearing Date:   22 August 1995

IN THE SUPREME COURT

OF QUEENSLAND

Application No. 487 of 1995

BETWEEN:

ALAN JEFFREY JURD

(Applicant)

AND:

COMMISSIONER OF STAMP DUTIES

(Respondent)

DRAFT JUDGMENT - GN WILLIAMS J

Judgment delivered 09/10/1995

The applicant, Alan Jeffrey Jurd, seeks to have certain decisions of the Commissioner for Stamp Duties, the respondent, reviewed pursuant to the provisions of the Judicial Review Act 1991. Three separate decisions are specified in the application, namely:

1.The decision made on 11 October 1994 to mark a Deed of Variation of Trust dated 18 April 1994 with the notation "No Duty Payable";

2.A decision on 24 March 1995 to assess that Deed of Variation to stamp duty of $6,126.50 under the heading "Settlement Deed of Gift or Voluntary Conveyance" in the First Schedule to the Stamp Act;

3.A decision on 16 June 1995 to disallow the Notice of Objection lodged by the applicant dated 21 April 1995.

The motion now before me was brought by the respondent seeking to have the application dismissed pursuant to ss. 12(b), 13 or 48 of the Judicial Review Act.  The respondent also submitted that the application was out of time particularly in so far as it sought a review of the first and second decisions, and it was further contended that no extension of time was warranted.
           The circumstances in which the assessment of duty (the second decision) was made were somewhat unusual and in consequence it is necessary to refer to the background to the making of the three decisions in question.
           On 18 April 1994 the applicant executed a document entitled "Deed of Variation".  If one ignores cl. 5 thereof it is clearly arguable that that document varies in some significant respects a Deed of Settlement dated 28 February 1987 which created the AM Jurd Family Trust.  Cl. 5 of the Deed of 18 April 1994 was in these terms:

"It is a condition precedent to this Deed having any operation that it be stamped under the Stamp Act with the stamp "No Duty Payable" or equivalent notation so that, until it is so stamped, it has no effect.  In the event of it being stamped with any other notation other than "No Duty Payable", the Trustee may, by resolution, or, in the case of a Trustee being a company, by a resolution of its directors, determine whether that notation is an equivalent notation to "No Duty Payable".  Upon this Deed being stamped with the notation "No Duty Payable" or from a determination that it has been stamped with an equivalent notation, this Deed shall have full effect."

Under cover of a letter dated 3 May 1994 the solicitors for the applicant lodged that Deed of 18 April 1994 with the respondent "for your assessment".  The letter requested that the respondent contact the solicitors prior to rendering any assessment other than "No Duty Payable".
           There followed a deal of correspondence over the ensuing months, but it is not necessary to refer to it in any great detail.  By letter dated 30 June 1994 the Commissioner asserted that the Deed was assessable to ad valorem duty but that opinion was challenged by the solicitors for the applicant in subsequent correspondence (for example, letter 12 July 1994).
           In fact on 11 October 1994 the respondent marked the Deed of 18 April 1994 "No Duty Payable", but that decision was not communicated to the solicitors for the applicant.  Correspondence between the applicant's solicitor and the respondent continued after 11 October 1994 as if there had been no decision made by the respondent at all with respect to the stamping of the document.  By letter of 2 November 1994, consistent with the opinion expressed in the letter 30 June 1994, the respondent demanded that the applicant's solicitors "furnish a statement of the assets and liabilities of the Trust supported by independent evidence of value of all assets (including goodwill) as at 18 April 1994."  Though they protested, the applicant's solicitors ultimately furnished that material.
           Then the decision was made by the respondent on 24 March 1995 to assess ad valorem duty on the Deed of 18 April 1994 in the sum of $6,126.50.  That decision was forwarded to the applicant's solicitors, but the material communicated did not disclose the marking "No Duty Payable" made on the document on 11 October 1994.
           In accordance with provisions of the Stamp Act the applicant lodged on 21 April 1995 a Notice of Objection to that assessment.  The respondent's decision with respect to that Objection was reduced to writing in the form of a letter to the applicant's solicitors dated 16 June 1995.  In the reasons for disallowing the objection the respondent disclosed for the first time that on 11 October 1994 the Deed of Variation had been marked "No Duty Payable".
           The application pursuant to the Judicial Review Act was filed on 17 July 1995. The decision (including reasons) to disallow the objection was set out in the letter dated 16 July 1995, a Friday. In the ordinary course of post that would have been received by the solicitors for the applicant the following Monday. The applicant had, pursuant to s. 26 of the Judicial Review Act, twenty-eight days from that Monday to bring his application for judicial review. The twenty-eight days were up on Sunday, 16 July, and in accordance with the provisions of s. 38 of the Acts Interpretation Act 1954 the relevant time did not expire until Monday, 17 July with respect to a review of the decision disallowing the objection. It follows that in so far as the application seeks a review of the third decision of the respondent, that of 16 June 1995 disallowing the Objection, it is within time.
           But strictly the application is out of time with respect to the first and second decisions, those made on 11 October 1994 and 24 March 1995.  The failure of the respondent to communicate the decision of 11 October 1994 to the applicant prior to forwarding the reasons for disallowing the Objection prevented the applicant from seeking a review of that decision within time, and effectively prevented the applicant and his solicitors from understanding the basis on which the assessment of 24 March 1995 had been made.
In those circumstances time for the making of an application to review the decisions of 11 October 1994 and 24 March 1995 should be extended pursuant to s. 26 of the Judicial Review Act to 17 July 1995, thereby making the application within time with respect to each of the three decisions referred to therein.
           The applicant in broad terms seeks to have this Court review the decisions on the grounds that there was a breach of natural justice (particularly in failing to communicate the decision of 11 October 1994 before proceeding to make the assessment of 24 March 1995) and that with respect to each of the three decisions there was an improper exercise of power involved.  The latter point would raise for consideration by the Court the issue whether the respondent was empowered by law to place the marking "No Duty Payable" on the Deed so as to satisfy the condition contained in cl. 5 and thereby render the document liable to ad valorem duty.
I should mention that in the letter of 23 June 1994 the solicitors for the applicant referred to previous occasions when the respondent had retained a document pursuant to s. 28 of the Stamp Act where it contained a similar condition precedent, and that the retention had been without issuing an assessment. Clearly it is arguable on the correspondence that the applicant's solicitors were contending that the respondent should retain the document pursuant to s. 28 if it considered that it was assessable, thereby giving the applicant, as Trustee, the opportunity of deciding whether or not to proceed with the proposed variation.
           The matters relied on by the respondent in support of the motion for summary dismissal are essentially twofold; firstly, there is adequate provision for review under specific provisions of the Stamp Act (essentially s. 24), and secondly, there is no reasonable basis for challenging the legality and correctness of the decisions in question.
Ultimately I am not persuaded by those arguments. At least one of the issues appears to be whether or not the respondent had the power to mark the document "No Duty Payable" so as to fulfil the condition in cl. 5. As noted above, it is the contention of the applicant that the condition could not be satisfied by the unilateral act of the Commissioner not communicated to the applicant. That is clearly a matter which could not, or could not conveniently, be raised upon a case stated pursuant to s. 24 of the Stamp Act.  Further, there may be an argument as to the nature of the decision made by the respondent on 11 October 1994.  It may well be that, whilst the Deed was subject to the condition contained in cl. 5, it was not dutiable, being merely an escrow, but the marking on 11 October 1994 by the respondent was arguably intended by the respondent to be more than a mere acknowledgment of that fact.  A question may well arise as to whether the decision then made by the respondent, and the conduct in placing the marking on the document, was a decision which in the circumstances the respondent was empowered by the Act to make.  It is at least arguable that the marking was placed on the document on 11 October 1994 not as evidencing a decision that no duty was payable thereon, but as a means of ensuring that without further decision by the applicant the condition in cl. 5 was fulfilled so that thereafter the document clearly attracted duty.  If that is the case then the applicant is, in my view, entitled to ask the Court to rule upon whether or not the conduct of the respondent was within power.
As already noted the issues sought to be raised by the application cannot conveniently be raised on a case stated pursuant to s. 24 of the Stamp Act.  The application raises disputes with respect to the decision making process such that it is in the interest of justice that each of the decisions be reviewed pursuant to the provisions of the Judicial Review Act. Given the issues which I have defined in these reasons it cannot be said, in my view, that there is no reasonable basis for the application as postulated by s. 48 of the Judicial Review Act.
           I do not make any comment on the ultimate merits of the application; nothing I have said herein should be taken as indicating an expression of opinion as to the likely outcome of the review.  All that is necessary for present purposes is to say that the application raises substantial matters which ought be reviewed by the Court in exercise of the jurisdiction conferred by the Judicial Review Act.
I would therefore order that the time for making an application to review the decisions of the respondent of 11 October 1994 and 24 March 1995 be extended pursuant to s. 26 of the Judicial Review Act to 17 July 1995.  I would further order that otherwise the notice of motion of the respondent of 2 August 1995 be dismissed with costs.