Marley & Ormonde - [2020] FamCA 784

FAMILY COURT OF AUSTRALIA

MARLEY & ORMONDE AND ORS

[2020] FamCA 784

FAMILY LAW – EVIDENCE – Where the Second and Third Respondents seek to tender dutiable documents upon which stamp duty has not been paid – Where the Applicant opposes the tender of those documents – Whether the Duties Act 1997 (NSW) applies – Where the Second and Third Respondents proposed an undertaking to transmit the documents to the Chief Commissioner of State Revenue for assessment and payment of stamp duty – Where the original documents are not available – Documents admitted into evidence.

Duties Act 1997 (NSW) ss 299, 304
Evidence Act 1995 (Cth) ss 9(3)(b), 55, 56

Dixon (Trustee) v Citiline Developments Pty Limited [2018] FCA 1446
Metricon Homes Pty Ltd v Carbone [2017] NSWDC 256
Pitman v Johnson [2017] FCA 945

APPLICANT:

Ms Marley

FIRST RESPONDENT:

Mr Ormonde

SECOND RESPONDENT:

Ms Ormonde

THIRD RESPONDENT:

Mr B Ormonde

FILE NUMBER:

SYC

3012

2018

DATE DELIVERED:

18 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

18 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Guterres

SOLICITOR FOR THE APPLICANT:

MistryFallahi Lawyers & Business Advisors

SOLICITOR FOR THE FIRST RESPONDENT:

Mr Brown of Browns the Family Lawyers

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS:

Mr Kaufmann

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS:

Leigh Johnson Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marley & Ormonde has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3012 of 2018

Ms Marley

Applicant

And

Mr Ormonde

First Respondent

And

Ms Ormonde

Second Respondent

And

Mr B Ormonde

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter is before me for hearing in respect of a discrete issue concerning whether Ms Ormonde (“the Second Respondent”) and Mr B Ormonde (“the Third Respondent”) have an interest in the property located at E Street, Suburb F (“the Suburb F property”). The Suburb F property is included in the property pool in the substantive proceedings concerning an Application for property adjustment between Ms Marley (“the Applicant wife”) and Mr Ormonde (“the First Respondent husband”). The parties are also in dispute as to whether any funds advanced to the First Respondent husband, in respect of the Suburb F property, by the Second and Third Respondents, require repayment.
In this matter, the Second and Third Respondents have given notice that they seek to tender the following documents:
(1)Deed of Agreement dated 20 July 2012 between Mr Ormonde and Mr B Ormonde;
(2)Deed of Agreement dated 1 September 2012 between Mr Ormonde and Ms Ormonde;
(3)Limited Recourse Loan Agreement dated 1 May 2016 between Ms Ormonde and Mr Ormonde; and
(4)Call Option Agreement dated 1 May 2016 between Mr Ormonde and Ms Ormonde.
In that respect, it is accepted that those documents are all, or may be, dutiable documents pursuant to the Duties Act 1997 (NSW) (“the Duties Act”). It is accepted that no duty has been paid on those documents pursuant to the provisions of the Duties Act.
Section 304 of the Duties Act relevantly provides:
(1) An instrument that effects a dutiable transaction or is chargeable with duty under this Act is not available for use in law or equity for any purpose and may not be presented in evidence in a court or tribunal exercising civil jurisdiction unless—
(a) it is duly stamped, or
(b) it is stamped by the Chief Commissioner or in a manner approved by the Chief Commissioner.
(2) A court or tribunal may admit in evidence an instrument that effects a dutiable transaction, or is chargeable with duty in accordance with the provisions of this Act, and that does not comply with subsection (1)—
(a) if the instrument is after its admission transmitted to the Chief Commissioner in accordance with arrangements approved by the court or tribunal, or
(b) if (where the person who produces the instrument is not the person liable to pay the duty) the name and address of the person so liable is forwarded, together with the instrument, to the Chief Commissioner in accordance with arrangements approved by the court or tribunal.
…
Section 9(3)(b) of the Evidence Act 1995 (Cth) (“the Evidence Act”), specifically allows for the application of State law in respect of whether the admissibility of a document is to depend on the payment of stamp duty or lack thereof. In those circumstances, I accept that s 304 of the Duties Act applies to these proceedings.
The Second and Third Respondents, supported by the First Respondent husband, have proposed an undertaking that they will forthwith transmit, to the Chief Commissioner of State Revenue, each of the deeds and agreements referred to in the Affidavits of the Second and Third Respondents in accordance with s 304(2) of the Duties Act. In that respect, it is the role of the Court, pursuant to s 304(2) of the Duties Act, to set in place an arrangement approved by the Court for the relevant documents to be so transmitted. The approval of that arrangement, if warranted, overcomes the impediment to the admissibility of the documents that would otherwise occur pursuant to s 304 of the Duties Act.
In reply, counsel for the Applicant wife contended that, firstly, the documents are not able to be stamped because they are copies rather than original documents. However, in respect of that argument, I respectfully agree with the submission by counsel for the Second and Third Respondents, supported by the solicitor for the First Respondent husband, that the issue is resolved by having regard to s 299 of the Duties Act, which states:
(1) A copy of an original instrument is chargeable with duty as if it had been executed in the same way as the original instrument and had been first executed at the same time as the original instrument unless the Chief Commissioner is satisfied—
(a) that the original instrument has been duly stamped, or
(b) that a copy of the original instrument has been duly stamped in accordance with this section.
Subsequently, counsel for the Second and Third Respondents contended that, in circumstances where there is a reference to the documents themselves being stamped, in considering whether to exercise its discretion under s 304(2) of the Duties Act, the Court would have regard to the fact that several years have passed since the documents were executed. It is, therefore, proposed that, without an explanation as to why that delay has occurred, the Court would not exercise its discretion to accommodate an arrangement for those documents to be submitted to the Chief Commissioner of State Revenue.
The third argument advanced is that there is an issue as to whether the documents were enforceable at a time prior to those documents being stamped. In my view, that argument is one that remains live, irrespective of whether the documents are admitted into evidence. The sole issue I am determining at this stage is whether the impediment that, otherwise, would have existed pursuant to s 304 of the Duties Act is overcome by my approving an arrangement in accordance with the undertaking offered by the Second and Third Respondents. In that respect, I note that, in the decision of Metricon Homes Pty Ltd v Carbone [2017] NSWDC 256 at [45], Dicker DCJ stated that, in determining the admissibility of the documents, the Court is not concerned with what duty may or may not be payable but rather the Court’s consideration is whether it approves an arrangement for the transmission of documents to the Chief Commissioner of State Revenue. Specifically, at [45], his Honour said:
…I agree with the submissions of counsel for the plaintiff that the applicability of the exemption claimed by it to duty is not a matter which this Court can deal with on the evidence, but is a matter for the relevant stamp duty officers…
Applying that reasoning, the question as to whether duty is or is not payable, and in what amount, is a matter between the parties who will submit the documents to the Chief Commissioner of State Revenue and the relevant stamp duty officers. As I have noted, my role, at this point in time, is to determine whether there will be an arrangement for the transmission of documents to the Chief Commissioner. I am satisfied that the undertaking offered and provided to the Court by the Second and Third Respondents initiates an appropriate arrangement for those documents to be transmitted to the Chief Commissioner of State Revenue. Further, I note that the Second and Third Respondents provided an undertaking to the Court that duty will be paid in accordance with that which is determined by the Chief Commissioner, subject, of course, to any review or appeal rights that the parties might have in respect of the determination of that amount of duty.
Accordingly, in those circumstances, I will accept the tender of those four (4) instruments to which I have referred into evidence.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 18 August 2020.

Associate:

Date: 21 September 2020