MIM Holdings Ltd v Commissioner of Stamp Duties - [1999] QCA 390

IN THE COURT OF APPEAL [1999] QCA 390
SUPREME COURT OF QUEENSLAND

Appeal No. 578 of 1999

Brisbane
[Commissioner of Stamp Duties v MIM Holdings Ltd]
BETWEEN:

THE COMMISSIONER OF STAMP DUTIES

(Respondent) Appellant

AND:

MIM HOLDINGS LTD ACN 009 814 019

(Applicant) Respondent

McMurdo P Derrington J Chesterman J

Judgment delivered 17 September 1999
Separate reasons for judgment of each member of the Court; each concurring as to the orders made
APPEAL AND CROSS-APPEAL DISMISSED WITH COSTS
CATCHWORDS: TAXES AND DUTIES - STAMP DUTIES - WHAT TRANSACTIONS OR INSTRUMENTS ARE LIABLE - GENERALLY - QUEENSLAND - interpretation of “prescribed provisions” of Stamp Act (s 56FA to s 56FO) - respondent acquired 51% of shares in “land-rich” company - respondent entitled to ordinary voting rights, to participate in declared dividends, but not to receive surplus in winding up - whether respondent acquired “majority interest in a corporation” as defined in s 56FN - whether respondent acquired an interest by “variation, abrogation or alteration of a right pertaining to any share” as defined in s 56FA - whether company was “corporation” to which “prescribed provisions” apply - whether contractual rights part of company’s realty or separate property - whether unpaid premiums on shares “property” for purposes of “prescribed provisions”
CORPORATIONS - CORPORATE FINANCE - SHARES - articles of association conferred on shareholder right to participate in winding-up of company upon payment of call - whether payment effected variation to rights conferred by respondent’s shares - whether uncalled premiums on shares “property”
INTEREST - RATE OF INTEREST - whether trial judge erred in exercise of discretion pursuant to s 30(1)(d) Judicial Review Act
Danubian Sugar Factories Ltd v Commissioners of Inland Revenue
[1901] 1 KB 245
EIE Ocean BV v Commissioner of Stamp Duties [1998] 1 Qd R 36
House of Fraser Plc v ACGE Investments Ltd [1987] AC 387
In Re Saltdean Estate Co [1968] 1 WLR 1844
In the Estate of McClure (1947) 48 SR NSW 93
McCaughey v Commissioner of Stamp Duties (1945) 46 SR NSW
192
National Provincial Bank Limited v Ainsworth [1965] AC 1175
Potter v Commissioners of Inland Revenue [1854] 156 ER 392
Re Vedelago [1993] 2 Qd R 110
Smith Kline and French Laboratories (Aust) Ltd v Secretary,
Department of Community Services and Health (1990) 22 FCR 73
Spencer v The Commonwealth (1907) 5 CLR 418
Thakral Fidelity Pty Ltd v The Commissioner of Stamp Duties
(CA 9180/97, 10 September 1999); [1999] QCA 367
Judicial Review Act 1991, s 30(1)(d)
Stamp Act 1894, s 22A, s 24, and s 56FA to s 56FO
Supreme Court Act 1995, s 47

Counsel: Mr R V Hanson QC and Mr P J Flanagan for the appellant
Mr D Jackson QC and Mr F L Harrison QC for the respondent
Solicitors: Crown Solicitor for the appellant
Blake Dawson Waldron for the respondent
Hearing Date: 9 August 1999

McMURDO P: I agree with the orders proposed by Chesterman J and with his reasons. Chesterman J and have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MIM Holdings Ltd v Commissioner of Stamp Duties

Details

AGLC: MIM Holdings Ltd v Commissioner of Stamp Duties [1999] QCA 390
Case: [1999] QCA 390
Decision Date: 17/09/1999

CaseChat Overview and Summary

This case involved an appeal against the decision of a trial judge in the Supreme Court of Queensland who set aside an assessment of stamp duty by the Commissioner of Stamp Duties. MIM Holdings Ltd had acquired 51% of shares in Ernest Henry Mining Pty Ltd (EHM), which owned valuable mining leases in Queensland. The Commissioner argued that the acquisition was subject to stamp duty under specific provisions of the Stamp Act 1894, which applied to "land-rich" companies. MIM Holdings Ltd challenged the assessment, and the trial judge ruled in its favour. The Commissioner appealed the decision, and MIM Holdings Ltd cross-appealed the amount of interest awarded. The Court of Appeal dismissed both the appeal and cross-appeal, upholding the trial judge's decision. The court held that MIM Holdings Ltd did not acquire a majority interest in EHM, as it did not have the right to participate in a distribution of the company's property upon winding up. Furthermore, the contractual rights related to the mining leases were not considered part of the company's realty and did not affect the landholder status of EHM. The Court of Appeal also found that the trial judge did not err in awarding interest on the duty paid under protest, as the statutory provision allowed for the exercise of discretion to achieve justice between the parties.

Orders