Lend Lease Funds Management Ltd v Commissioner of State Revenue

Lend Lease Funds Management Ltd brought an action against the Commissioner of State Revenue, contesting the duty assessed on the transfer of land by a custodian to the respondent as a responsible entity and trustee of a unit trust. The case was heard and determined in the Supreme Court of Victoria. The central issue before the court was whether the transaction was exempt from duty under the provisions of the Duties Act 2000 (Vic), specifically sections 251(b), 33(3), and 33(5). The core of the dispute revolved around whether the trust in question constituted a “managed investment scheme” within the meaning of section 251(b) of the Duties Act, and whether there was a “change in trustees” as required by section 33(3) of the Act. Additionally, the court had to determine if the transfer involved only the bare legal estate in fee simple, which would impact the valuation of the dutiable property.

The court meticulously examined the statutory provisions and the factual context of the transaction. It concluded that the trust did not qualify as a “managed investment scheme” under section 251(b) of the Duties Act. The court reasoned that the trust lacked the necessary characteristics to be classified as such, primarily due to the absence of active management by a responsible entity. Furthermore, the court found that there had not been a “change in trustees” as contemplated by section 33(3) of the Duties Act, as the trustee in question remained the same throughout the transaction. Finally, the court held that the transfer involved more than just the bare legal estate, thereby impacting the valuation of the property for duty purposes.

The Supreme Court of Victoria ruled in favour of the Commissioner of State Revenue, affirming the duty assessment. The court's decision underscored the importance of accurately interpreting the statutory provisions and applying them to the specific facts of the case. As a result, the Commissioner's assessment of duty was upheld, and Lend Lease Funds Management Ltd's challenge was dismissed.