Ranieri v Janalyn Pty Ltd - [1999] WADC 15

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL

LOCATION: PERTH

CITATION: RANIERI & ANOR -v- JANALYN PTY LTD [1999] WADC 15

CORAM: LA JACKSON DCJ

HEARD: 22 APRIL 1999

DELIVERED : 30 JULY 1999

FILE NO/S: CIV 3103 of 1998

BETWEEN: ANTONIO RANIERI
ASSUNTA RANIERI
Plaintiffs
AND
JANALYN PTY LTD (ACN 073 294 318)
Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Stamp duty - Failure to stamp offer to lease.

Legislation:

Stamp Act 1921, ss27, 31B

Result:

Parts of statement of claim struck out.

Representation:

Counsel:

Plaintiffs: Mr R Griffiths
Defendant: Ms P Cahill

Solicitors:

Plaintiffs: Griffiths & Godecke
Defendant: Pullinger Stewart

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475
Buckinghamshire County Council v Moran (1989) 3 WLR 152
Field v Commissioner for Railways (NSW) (1957) 99 CLR 285
In Re Daintrey Ex Parte Holt [1893] 2 QB 116
Quad Consulting Pty Ltd v David R Bleakley & Assoc (1990-91) 98 ALR 659
Sangora holdings Pty Ltd v Dunstan (1996) 16 WAR 552
Trade Practices Commission v Arnotts Ltd & Ors (1989) 88 ALR 69

LA JACKSON DCJ: This is an application by the defendant to strike out parts of the plaintiffs' statement of claim.
Briefly, the circumstances giving rise to this action are, as best I can at this early stage ascertain them, are as follows.
The plaintiffs are the owners of commercial premises in Osborne Park which were leased to the defendant carrying on the business of Mediterranean Ceramics. It appears the defendant had leased the premises at least since 5 June 1996. There was a written lease agreement of that date. In August 1997 there was some discussion between the parties as to an extension of the lease and it was agreed that the lease would be extended. The defendant agreed that the plaintiffs' solicitors should prepare a lease at the defendant's cost. Early in December 1997 the plaintiffs' solicitors prepared a lease which was sent to the defendant. The defendant sealed the lease and returned it to the plaintiffs' solicitors. The plaintiffs amended the lease by excluding some area of the land and some part of a building from the demised premises and signed it. By letter from the plaintiffs' solicitors to the defendant dated 11 February 1998 the altered lease was returned to the defendant who refused to execute the alterations. The defendant remained in possession until about the end of September 1998. The claim by the plaintiff is for damages for breach of the lease and for wrongful rescission.
The issue on the strikeout application concerns two parts of the statement of claim.
Firstly, the defendant seeks to strike out any reference to the lease document on the grounds that it has not been stamped in accordance with the Stamp Act 1921. Section 27 provides:
"27(1)Except as otherwise provided by this Act no instrument chargeable with duty and executed in Western Australia, or relating, wheresoever executed, to any property situate or deemed to be situate or to any matter or thing done or to be done in Western Australia, shall, except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful, or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed.
(2)Any document executed in Western Australia, or relating, wheresoever executed, to any property situate or to any matter or thing done or to be done in Western Australia, which ‑
(a)affords any evidence of a transaction to which section 31B(1)(a) or (aa) applies or contains ‑
(i)an offer;
(ii)an acceptance of an offer;
(iii)an application; or
(iv)an approval of an application,
referred to in section 31B(1)(b) or (c); and
(b)is a document ‑
(i)relating to a transaction for which a statement is required to be prepared and lodged under section 31B; but
(ii)which is not itself chargeable with duty,
shall not, except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful, or available in law or equity, unless a statement has been prepared and lodged under section 31B (1) in respect of the transaction to which that document relates and the duty with which the statement is chargeable has been paid.
(3)Sections 29 and 30 and this section do not apply to an instrument or a document relating to a transaction for which a statement is required to be prepared and lodged under section 31B tendered as evidence in any court on behalf of a party (not being a person who is liable to pay the duty in respect of the instrument or statement, as the case requires) if the court is satisfied that the party ‑
(a)has informed, or will in accordance with arrangements approved by the court, inform the Commissioner of the name of the person liable to pay the duty in respect of the instrument or statement; and
(b)has lodged, or will in accordance with arrangements approved by the court, lodge ‑
(i)the instrument or a copy of the instrument; or
(ii)the document or a copy of the document,
as the case requires, with the Commissioner."
A lease or agreement for a lease is stampable pursuant to the Second Schedule of the Stamp Act and the lessee is liable for the duty. In this case it is the lessee who has taken the point but, as I understand it, a lessor can avoid the consequences of non‑stamping in accordance with s27(3). No such action has been taken by the plaintiff.
In my opinion there is no lease document capable of attracting stamp duty in this case. The parties simply have not agreed upon a fundamental issue, namely, the demised property.
Section 31B provides:
"31B(1) Subject to this section, a person who becomes a party to a transaction ‑
(a)which causes a change in the beneficial ownership of an estate or interest in ‑
(i)freehold land, whether or not registered under the Transfer of Land Act 1893;
(ii)a Crown lease registered under the Transfer of Land Act 1893; or
(iii)a mining tenement registered under the Mining Act 1978,
or any buildings on, or fixtures annexed to, or to buildings on, any such land, Crown lease or mining tenement, which freehold land, Crown lease or mining tenement is situated in the State;
(aa)which causes a change in the beneficial ownership of a marketable security or a right in respect of shares;
(b)by which land situated in the State, or buildings thereon, or fixtures annexed thereto or to buildings thereon, is leased or agreed to be leased, and in respect of which there exists a written offer to lease, or a written acceptance of an offer to lease, that land or those buildings or fixtures;
(c)by which moneys ‑
(i)are lent, or agreed to be lent, in, or for the purpose of being used in, the State;
(ii)having been lent, are to be repaid in the State; or
(iii)are lent to a person resident in the State,
and in respect of which there exists a written offer, or a written acceptance of an offer, to lend moneys, a written offer to borrow, or a written acceptance of an offer to borrow, moneys, a written application for, or a written approval of an application for, moneys to be lent
(d)by which goodwill is acquired; or
(e)to which section 73F applies and which relates to a business licence of a prescribed kind.
but which transaction is not effected or evidenced by any instrument chargeable with ad valorem duty, shall, if he would have been liable to pay duty in respect of that transaction had such an instrument been executed, within a period of 3 months after entering into that transaction, prepare and lodge with the Commissioner a statement in the prescribed form in respect of that transaction.
(2)Each party to a transaction referred to in subsection (1) (other than the person required by that subsection to prepare and lodge a statement in respect of that transaction) shall within a period of 3 months after entering into that transaction notify the Commissioner in the prescribed form that that transaction has been entered into.
(3)The Governor may make regulations under section 120(1) exempting from the operation of subsections (1) and (2) any transactions ‑
(a)referred to in paragraph (b) or (c) of subsection (1); and
(b)belonging to a class specified in those regulations.
(4)A statement prepared under subsection (1) shall, subject to section 31A, be deemed to be an instrument effecting or evidencing the transaction to which it relates and is chargeable with duty accordingly, which duty is payable by the party to that transaction who is the person in that behalf specified in the Second Schedule in respect of that instrument.
(5)If stamp duty has been or, in the opinion of the Commissioner, will be paid under the law of another State or of a Territory in respect of a transaction to which subsection (1)(c) applies, the amount of duty payable in respect of the statement referred to in subsection (1) is reduced by the amount of stamp duty that has been, or in the opinion of the Commissioner will be, so paid.
(5a)Nothing in this section applies to the making or effecting of a disposition of a marketable security or right in respect of shares to which Part IVAB applies by a person to whom that Part applies.
(6)Nothing in this section prevents the joint making of a notification under subsection (2) in respect of a transaction by any 2 or more parties to the transaction who are required to make the notification.
(7)A person who ‑
(a)contravenes subsection (1) or (2); or
(b)lodges or makes under subsection (1) or (2) a statement or notification, as the case requires, which is false in a material particular,
commits an offence against this Act.
(8)In subsection (1)©, a reference, however expressed, to the lending of moneys includes a reference to ‑
(a)the advancing of moneys;
(b)the paying of moneys for or on account of or on behalf of or at the request of a person;
(c)the forbearing to require payment of moneys owing on any account whatsoever; and
(d)the effecting of a transaction (whatever its terms or form) which in substance effects a loan of moneys.
(9)In subsection (1) ‑
"business licence" has the same meaning as in section 73F;
"instrument chargeable with ad valorem duty" means ‑
(a)in the case of a transaction which causes the change referred to in subsection (1)(a) an instrument chargeable with such duty at the rate which would be applicable to an instrument of conveyance of the beneficial ownershhip of an estate or interest in the property to which the change relates;
(b)in the case of a transaction which causes the change referred to in subsection (1)(aa) an instrument chargeable with such duty at the rate which would be applicable to an instrument of transfer of the beneficial ownership of a marketable security or right in respect of shares;
(c)in the case of any other transaction, an instrument chargeable with such duty at the rate applicable to an instrument effecting or evidencing that transaction.
In the factual circumstances of this case, in my view, the defendant by returning the sealed lease to the plaintiff can properly be categorised as making a written offer to lease. The plaintiffs by returning an altered document can also be characterised as making a written offer to lease. Either document therefore comes within s31B requiring either party to lodge a statement with the Commissioner in accordance with s31B(1). That has not been done and accordingly pursuant to s27(2) neither such document is capable of being pleaded and accordingly reference to them should be struck out. I will hear the parties as to the parts of the statement of claim to be struck out.
Secondly the defendant seeks to strike out a reference to correspondence in para D(iv) of the statement of claim. The application was in wider terms but in argument the correspondence was the main issue.
I have perused that correspondence. It all consists of letters from the defendant or the defendant's solicitors to the plaintiffs' solicitors and none of it in my view creates a lease or is capable of so doing. In my view none of the correspondence can properly be pleaded as being the basis of the lease of the premises. It may be that some or all of the correspondence will be admissible at trial as evidence of an existing contract or it may be that it is not, but none of that makes it appropriate that it should be pleaded.
Accordingly in my view para D(iv) of the statement of claim should be struck out.