Seneca Exploration Pty Ltd T/A DICKESON'S Amusements v Commissioner of State Taxation - [2007] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SENECA EXPLORATION PTY LTD T/A DICKESON'S AMUSEMENTS v COMMISSIONER OF STATE TAXATION
[2007] SASC 13
Judgment of The Honourable Justice Gray
19 January 2007
TAXES AND DUTIES - STAMP DUTIES - WHAT TRANSACTIONS OR INSTRUMENTS ARE LIABLE
Appeal against assessment of stamp duty - whether appellant is carrying on a rental business within the meaning of section 31D of Stamp Duties Act 1923 (SA) - consideration of construction of relevant sections of Stamp Duties Act - Seneca liable to pay duty at the prescribed rate on the amount received in respect of its dutiable rental business during the rental period - appeal dismissed.
Stamp Duties Act 1923 (SA) s 31D, s 31F(1), s 31B, s 31I, referred to.
SA Crate Pty Ltd v State of South Australia (1983) 35 SASR 92; Esanda Finance Corporation Ltd v Commissioner of Stamps (1992) 92 ATC 4418; Max Factor & Co Inc v Federal Commissioner of Taxation (1971) 124 CLR 353; Stewart v Commissioner of Taxation (1982) 46 ALR 210; McDowell v Baker (1979) 144 CLR 413; State Government Insurance Office v Rees (1979) 144 CLR 549; Cyclone Scaffolding Pty Ltd v Commissioner of Stamp Duties [1985] 2 Qd R 435; Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297, considered.

SENECA EXPLORATION PTY LTD T/A DICKESON'S AMUSEMENTS v COMMISSIONER OF STATE TAXATION
[2007] SASC 13
Civil
GRAY J

This is an appeal against an assessment of stamp duty.
On 25 July 2003, the Commissioner of State Taxation (“the Commissioner”) assessed stamp duty payable by Seneca Exploration Pty Ltd trading as Dickeson’s Amusements (“Seneca”). Seneca objected and sought a redetermination from the Treasurer of the State of South Australia. On 8 March 2006, the Treasurer confirmed the Commissioner’s assessment. Seneca has now appealed against the assessment.
At issue on this appeal is the legal characterisation of the commercial arrangements entered into between Seneca and the owners of various businesses for the placement of amusement machines at premises at which those businesses operated. More particularly, the question is whether in the circumstances, Seneca is carrying on a rental business within the meaning of section 31D of the Stamp Duties Act 1923 (SA).
The Statutory Scheme
Division 2 of Part 3 of the Stamp Duties Act imposes duty upon certain receipts of dutiable rental businesses. The broad scheme of the legislation is provided by section 31D(1) which provides:
A person who carries on rental business consisting of or involving dutiable rental business must be registered.
There is an obligation on such a person to lodge a monthly statement setting out the total amount received during the previous month in respect of the rental business. There is then an obligation to pay duty on that amount at a prescribed rate. Relevantly section 31F(1) provides:
A person who is, or ought to be, registered must, not later than the 21st day of each month—
(a)     lodge with the Commissioner a statement in the approved form setting out—
(i)the total amount received during the previous month in respect of dutiable rental business; and
(ii)the amount representing the component referable to equipment financing arrangements entered into before 1 October 2003 (the old equipment financing component); and
(iii)the amount representing the component referable to equipment financing arrangements entered into on or after 1 October 2003 (the new equipment financing component); and
(iv)the amount representing the component referable to other kinds of rental business (the general rental business component); and
Exception—
The statement need not include amounts received in respect of hire purchase agreements entered into before 1 January 2003.
(b)     pay to the Commissioner duty equivalent to the aggregate of—
(i)    1.8% of the old equipment financing component; and
(ii)    0.75% of the new equipment financing component; and
(iii)if the general rental business component exceeds $6 000—1.8% of the amount of the excess.
A dutiable rental business is defined to include a rental business conferring rights to the possession or use of goods under a contractual bailment as that term is defined. Section 31B provides:
In this Division, unless the contrary intention appears—
...
contractual bailment means a contract or agreement under which a person who owns, or is entitled to the possession of, goods confers on another a right to possession or use of the goods, and includes a hire-purchase agreement, but does not include a contract or agreement conferring a right to the possession or use of goods, or providing for the sale of goods, incidentally to a lease of, or licence to occupy, or the sale of, land;
...
dutiable rental business means rental business consisting of one or more of the following—
(a)     conferring rights to the possession or use of goods under a contractual bailment to which this Division applies;
(b)     guaranteeing the obligations of the bailee under a contractual bailment to which this Division applies;
(c)     acquiring the rights of the bailor under a contractual bailment to which this Division applies;
(d)     providing financial accommodation under a bailment plan where the trading stock is situated in South Australia;
(e)     guaranteeing the obligations of the bailee under a bailment plan where the trading stock is situated in South Australia;
...
registered means registered under section 31E;
...
rental business means—
(a)     `the business of conferring rights to the possession or use of goods under a contractual bailment; or
(b)     the business of acquiring the rights of the bailor under a contractual bailment; or
(c)     the business of providing financial accommodation under a bailment plan; or
(d)     the business of guaranteeing the obligations of a bailee under a contractual bailment or a bailment plan,
but does not include business of a class exempted by regulation from the ambit of this definition.
The Factual Background
The facts against which the assessment has been made are not in dispute. At all material times Seneca owned amusement machines and carried on two businesses. The first and relevant business involved Seneca placing amusement machines for use by the public in premises owned and occupied by others (eg hotels) where the owner or occupier (“the proprietor”) allows Seneca for a fee to place the machines in the premises. Members of the public insert coins in the machines in order for an amusement to be played on the machine.
The standard form of written agreement provides:
LOCATION AGREEMENT
This AGREEMENT is made the ....................... day of ..................... 199.............
between SENECA EXPLORATION PTY. LTD. (trading as DICKESONS AMUSEMENTS).
A.C.N. 007 783 075 (herein called the “Licensee”) on the one part
AND .......................................................................................................................
.................................................................................................................................
.................................................................................................................................
(hereinafter called the “Licensor”) of the other part
SCHEDULE
Description of Machines No. of Machines Profit Share

Location of Premises....................................................................................................
Contact....................................................................... Phone No. ...............................
The Licensor by its duly authorised representative acknowledges that the information contained in this Schedule and the terms detailed in the conditions overleaf incorporate all of the terms and conditions of the agreement between the Licensor and the Licensee and the execution of this Schedule constitutes acceptance of all of the Terms and Conditions by the parties.
Signed for and on behalf of the Licensor by a duly authorised person........................
Position .......................................................................................................................
In the presence of ........................................................................................................
Signed by the Licensee ...............................................................................................
in the presence of ........................................................................................................
CONDITIONS
IT IS AGREED AS FOLLOWS:
1.     The Licensor agrees to grant to the Licensee the right to operate amusement machines referred to in the Schedule (“the Machines”) on the Licensor’s premises referred to in the Schedule (“the Premises”).
TERM
2.     The Licensee shall operate the Machines on the Premises for an initial period of thirty six (36) months from the date of this agreement, and thereafter for recurring periods of twelve months each unless the Licensor or the Licensee give notice at least one calendar month prior to the end of the initial period or any recurring period of their intention to terminate this agreement.
CASH COLLECTION/COMMISSION
3.     The Licensee shall collect the cash takings from the Machines every fourteen days, or such other period as may be agreed between the parties, and in consideration of the licence granted pay the Licensor the rate of profit share set out in the Schedule.
MINIMUM INCOME
4.     In the event that the takings from any one machine shall at any time during any period of collection fall below a minimum of an average of ONE HUNDRED DOLLARS ($100.00) per week, the Licensee may, upon giving the Licensor seven days notice, remove any or all of the Machines from the Premises and this agreement shall terminate with respect to the Machines removed.
OWNERSHIP/TITLE
5.     The Licensor acknowledges that the Machines remain the sole property of the Licensee.
EXCHANGE MACHINES
6.     The Licensee may from time to time, and in its sole discretion, exchange the Machines for ones of a similar nature without notice to the Licensor.
PROMOTION
7.     The Licensee shall make every reasonable effort to promote the operation of the Machines, and shall make the Machines available for use of the general public during the Licensor’s normal trading hours.
STATUTORY REQUIREMENTS
8.     The Licensor and Licensee each warrant to comply at all times with the requirements of any duly designated governmental authority and with the requirement of any Act of Parliament for the time being then in force.
FINANCIAL STATUS
9.     If an order shall be made for the sequestration of the Licensor’s estate, or if the Licensor shall enter into any composition or arrangement with the Licensor’s creditors, or if the Licensor (being a Limited company) shall enter into compulsory or voluntary liquidation, scheme of arrangement, voluntary administration or shall fail to observe and perform the terms and conditions of this agreement the Licensee may determine this agreement forthwith without notice and immediately take possession of the Machines and recover from the Licensor any moneys due to the Licensee under this agreement together with damages for breaches of this Agreement.
ACCESS
10.     The Licensor warrants and undertakes that the Licensee shall have access to the Premises during normal business hours for the purpose of giving effect to this agreement including but without limitation thereto and without relieving the Licensor of its obligation under clause 12 to inspect the Machines and ensure that they are in good repair at all times.
DAMAGE RESPONSIBILITY
11.     The Licensor shall use all reasonable care to ensure that no damage is effected to the Machines by either the Licensor or any third party.
REPAIRS
12.     All repairs to the Machines will be done by the Licensee or his agent. The Licensor warrants to notify the Licensee when repairs appear necessary but will under no circumstances attempt any such repairs except with authority from the Licensee.
ASSIGNMENT
13.     The Licensee may assign the licence granted under this agreement to a third party with the consent of the Licensor in which event the word “Licensee” shall be construed to include that transferee or assignee as the case may be.
14.     The Licensor warrants to ensure that the licence granted under this agreement is made an integral part of any agreement to sell or dispose of the Licensor’s business which operates from the Premises and in the event of the sale of the business the Licensor shall arrange for an assignment of this agreement to the new proprietor on the same terms and conditions as set out herein.
SOLE RIGHTS
15.     In consideration of the Licensee supplying the Machines the Licensor agrees that the licence under this agreement is an exclusive one and gives the Licensee the sole right to supply Machines to the Premises and the Licensee agrees that it will not install or operate on the Premises any other machines without the written consent of the Licensee.
WHOLE AGREEMENT
16.     The contents of this agreement shall represent the total agreement between the Licensor and the Licensee and representations made prior to and subsequent to the execution of this agreement shall not be a part of this agreement. This agreement is made at Adelaide, South Australia.
INDEMNITY
17.     The Licensor agrees to indemnify and keep indemnified and to hold harmless the Licensee, its servants and agents and each of them from and against all actions, costs, claims, charges, expenses and damage whatsoever which may be brought or made or claimed against them or any of them arising out of or in relation to the granting of this License to the Licensee.

Seneca collected money from the machines and remitted a fee to the proprietor of the premises or alternatively the proprietor collected the money, retained the amount of the fee, and forwarded the balance to Seneca (“the relevant business”).
The second business involved Seneca hiring machines for a hiring fee to individuals for use at parties conducted by the individuals (“the party hire business”).
Following discussions between the Commissioner and Seneca, the Commissioner claimed that the carrying on of the relevant business and the party hire business required Seneca to register with the Commissioner and to pay duty in accordance with the provisions of Section 31I of the Stamp Duties Act.
Seneca acknowledged that it was obliged to register in respect of the party hire business and to pay duty but denied that it was obliged to register and pay duty with respect to the relevant business.
The Commissioner assessed Seneca for duty in respect of the party hire business for the period from 1 July 2001 to 31 March 2003. This duty has been paid.
The Commissioner assessed Seneca for duty in respect of the relevant business for the period from 1 July 2001 to 31 March 2003 in the sum of $18,748.43. That amount has been paid. Seneca claims to be entitled to a refund of that sum. This is at issue on this appeal.
The Respective Contentions
Counsel for Seneca drew attention to the relevant statutory provisions including the earlier referred to definitions of the words “rental business” and “contractual bailment”. Counsel then submitted that the contract between a proprietor and Seneca did not give the proprietor any rights to possession or use of the machines. It was said that the position was the reverse - the proprietor granted Seneca a licence to place each machine in the premises for use by the public. Therefore, it was contended that in carrying on the relevant business Seneca was not carrying on a rental business. Registration was not required.
Alternatively, it was contended that the contract between the proprietor and Seneca was no more than a licence to occupy land and in the event that the view was taken that the contract did give a right to possession or use of goods, then the right was conferred incidentally to a licence to occupy land. As a result it was contended that the contract was not a contractual bailment as that term is defined.
Counsel for the Commissioner submitted that Seneca was liable to pay duty. It was said that an agreement entered into between Seneca and the proprietor of premises for the purpose of Seneca’s business constituted a “contractual bailment”. It was then argued that it followed that Seneca was carrying on a “dutiable rental business” during the period, was required to be registered in respect of that business, and to lodge monthly statements during the period setting out the total amount received during the previous month in respect of the dutiable rental business. It was then submitted that Seneca received “amounts” during the period “in respect of” the dutiable rental business and was liable to pay duty at the prescribed rate on the amounts received.
Consideration of Issues Arising
The feature of a rental business to be considered in the present case, having regard to the statutory definitions, is whether the business gives the right to possess or use goods under a “contractual bailment”. The statutory definition of “contractual bailment” is set out above.
Seneca’s business consisted inter alia of the placement and operation of amusement machines in premises owned and occupied by others. Seneca owned the machines. It was accepted by Seneca that the machines constituted “goods”.
The rights of Seneca and the proprietor of the premises in which the machines may be placed were regulated by a form of written agreement in the terms earlier set out. It is to be acknowledged that the agreement is in the form of a licence by which the proprietor grants to Seneca an exclusive licence to operate amusement machines on the premises.
As earlier observed, Seneca’s primary contention is that the agreement is not a contractual bailment because, it is said, it does not grant the proprietor any right to possession or use of the machines.
This contention should be rejected. The definition of a “contractual bailment” is broad. It readily encompasses commercial arrangements which fall outside of a typical rental agreement between a retail store and its customer. The question of whether or not a transaction can be characterised as a contractual bailment is not answered by the terminology employed by the parties. Rather, it requires an analysis of the substance of an agreement over its form.
In SA Crate Pty Ltd v State of South Australia,[1] with respect to a progenitor section of the Stamp Duties Act, Walters J observed:[2]
It is my view that in enacting s 31f(1)(x), Parliament was not limiting the word "rent" to its strict signification, and that the sense in which the word is employed in relation to a credit and rental business has an expanded connotation. It is what the parties have done, and not the way in which they have described the transaction in their agreement, which must be the determining consideration, and it is for the court to decide on the effect of the agreement and what payments made in pursuance of it can be said to constitute "rent". In other words, the court is not concerned with what the parties have chosen to call the payments. Its concern is with the nature of the payments and whether they are "rent" within the meaning of s 31f(1)(x). In my opinion, a mere label, such as "initial fee", or "fill charge", is not sufficient to deny the quality of "rent" to payments received by a registered person in respect of his business of "letting, bailing or otherwise giving rights to use goods" (s 31b(1)). Whatever may be the words used, they must bear the same construction in a taxing case as in any other. In Earl Fitzwilliam's Colleries Co. v. Phillips, Lord Wright said: "The Crown's right to tax cannot be affected by the mere words which the parties have chosen to use.”
[1] SA Crate Pty Ltd v State of South Australia (1983) 35 SASR 92.
[2] SA Crate Pty Ltd v State of South Australia (1983) 35 SASR 92 at 97-98.

In Esanda Finance Corporation Ltd v Commissioner of Stamps,[3] Perry J observed:[4]
However, if under the agreements the possession of the goods by the bailee clearly entitled the bailee to deal with the goods in a manner which involved a use of the goods within the meaning of the section, it would not avail the parties to attempt to avoid a proper characterisation of the dealing with the goods as a “use” of the goods, by the insertion of contractual provisions of the kind to be found in Clauses 7 and 10. It is the substance rather than the form of the transaction which is all important (see S.A. Crate Pty. Ltd. v The State of South Australia 83 ATC 4587 at pages 4592-4593; (1983) 35 SASR 92 per Walters J at page 99).
[3] Esanda Finance Corporation Ltd v Commissioner of Stamps (1992) 92 ATC 4418.
[4] Esanda Finance Corporation Ltd v Commissioner of Stamps (1992) 92 ATC 4418 at 4423.
It is necessary to determine whether or not the agreement, as a matter of substance, confers a right of “possession” or “use” in respect of the relevant goods.
The word “use” in Division 2 of Part 3 of the Stamp Duties Act is of wide import and makes no distinction between “active” and “passive” use. As observed by Perry J in Esanda Finance Corporation:[5]
The word “use” is a word of wide import. In one sense dealers in ordinary parlance are “using” a vehicle for display if it is put in their showroom. A museum may pay a rent or fee for the right to place a particular vehicle on display. A film company may hire a luxury car from a car rental firm, simply as a static backdrop to a film. I see no reason why such arrangements, if otherwise within the statutory provisions, might not be within the Act. Those illustrations demonstrate that what [counsel] described as a distinction between “active” and “passive” use, is not a distinction which is of any assistance to apply in determining whether a particular activity is within the definition of “rental business” in the Act.
[5] Esanda Finance Corporation Ltd v Commissioner of Stamps (1992) 92 ATC 4418 at 4423.
The word “use” generally has a wide meaning. It is defined by the Macquarie Dictionary to include the following:
to employ for some purpose; to put into service; turn to account
to avail oneself of; apply to one’s own purposes
the act of employing or using, or putting into service
a way of being employed or used; a purpose for which something is used
The word “use” is not confined to physical use. It extends to and includes a “purpose, or object or end, especially of a useful or advantageous nature”. As observed by Gibbs J in Max Factor & Co Inc v Federal Commissioner of Taxation:[6]
The meaning of the noun “use” is not confined to physical consumption; its ordinary meanings, according to the Shorter Oxford English Dictionary, include: “Purpose served. A purpose, object or end, especially of a useful or advantageous nature.” Of course the sense in which a word is used may be effected by the context in which it appears but I can see nothing in the context of s.17(1) to restrict the meaning of the word “use” in the manner suggested by the appellant.
[6] Max Factor & Co Inc v Federal Commissioner of Taxation (1971) 124 CLR 353 at 361-362.
“Use”, unlike possession, does not require exclusivity and does not preclude simultaneous use by others. The physical use of goods by one person does not preclude the conferral of use upon another.
Goods may be applied to a person’s use by making them available to that person’s customers.
In Stewart v Commissioner of Taxation,[7] the Court was concerned with sales tax with respect to lottery ticket dispensing machines:[8]
It is necessary to consider the meaning of the phrase “goods for use by”. In DC of T v Lincoln Industrial Cleaners Pty Ltd (1975) 7 ALR 118, Sheppard J, in the Supreme Court of New South Wales, held in considering exemptive item No 139 which defines the exemption by reference to the use and not the user, that the words “for use” denote the intrinsic character of the article and not the use to which it is to be put. Whether this is correct or not in relation to exemptions defined in that way, it cannot be the meaning of the words when used to define an exemption by reference to the user and not the use. It is difficult to imagine an article whose intrinsic character would make it an article “for use by” a public benevolent institution. The words are, in my view, purposive (FC of T v Hamersley Iron Pty Ltd (1981) 37 ALR 595 at 605; 81 ATC 4582, per Lush and Kaye JJ at 4590), and, at least in the context of an exemption defined by reference to the user, refer to the purpose of the transaction which gives rise to the prima facie liability to tax. If the purpose of the transaction which attracts liability to tax is that the goods are to be used by the public benevolent institution, they are “goods for use by” that institution and are exempt.
The learned judge in the Local Court of Adelaide held that the exemption did not apply because the words “goods for use” “contemplate a passing of property in the goods to the public benevolent institution”. I can see nothing in the statutes to justify that view. Counsel for the respondent before us contended that the words connoted exclusivity of use by the institution and that the use by the appellants was inconsistent with the machines being “goods for use by” the institutions. The thinking underlying the argument possesses plausibility and, if enacted into law, would be an intelligible legislative policy. In the end, however, I have come to the conclusion that the words which the legislature has used cannot bear such a construction. Use does not of itself mean exclusive use. In certain other exempting items in the schedule the word “use” is qualified by “exclusively” or “primarily” or “principally” (see for examples Items 13(1), 74(d), 77). It is not so qualified in the exemption under consideration. In my opinion, use by the institution means no more than use by the institution “to a significant degree”: See FC of T v Hamersley Iron Pty Ltd, supra, (ALR at 605; ATC at 4590).
[7] Stewart v Commissioner of Taxation (1982) 46 ALR 210.
[8] Stewart v Commissioner of Taxation (1982) 46 ALR 210 at 213-214.
The agreements entered into by Seneca relevantly confer use of amusement machines upon the proprietor. The “use” so conferred is the right to utilise the machines for the purpose of generating revenue for the proprietor’s business. The conclusion that a proprietor will “use” the machines to generate income for their business is supported by the fact that the proprietor is entitled to up to 40% of the takings of the machines, with the arrangement being described as a “profit share” in the agreement. The use granted to the proprietor by Seneca is exercised contemporaneously with Seneca’s own “use” of the machines for income generation purposes. It is irrelevant that the machines are not the core (or even a substantial part) of a proprietor’s business.
For the above reasons, the conclusion should be reached that Seneca is conducting a rental business and as a result has an obligation to be registered.
Counsel for the Commissioner did not seek to contend that the alternative of “possession” had been made out.
The next question to be resolved is whether the incidental exception within the definition of contractual bailment has application. As earlier observed, Seneca submitted that if the agreement confers a right to use the machines, that is a right that is conferred incidentally to a licence to occupy land. It was contended that the agreement falls within the exception to the definition of a “contractual bailment” in section 31B.
The evident purpose of the exception is to exclude from duty those transactions where a person grants a lease or a licence over land, or sells land, and incidentally also grants rights to possess or use goods. The intent of the exception is that the same person be the grantee of the rights over land and the rights over goods. The exception does not apply where - as here - the person who is granted rights over land is different from the person who is granted rights over the goods. This contention should be rejected.
Further, the right to “use” the amusement machines is not incidental to any licence. Rather, the right to use is integral to the agreement, in the sense that it “goes to the heart” of the agreement.
As a result, the conclusion should be reached that Seneca is required to lodge statements during the relevant period setting out the total amount received during the previous month in respect to the dutiable rental business.
The remaining issue to be resolved is whether the income derived from the use of the goods constituted “amounts” received by Seneca in respect of a dutiable rental business.
Seneca did not dispute that it received income from the use of the amusement machines during the relevant period. It has not taken issue with the factual basis on which the Commissioner proceeded. Rather, Seneca says that its agreement with the proprietors did not constitute a contractual bailment as a matter of law.
The income derived from the use of the machines by patrons of the proprietors’ premises constitute “amounts” received by Seneca during the relevant period “in respect of” the dutiable rental business.
It is irrelevant that the income may not be paid to Seneca by the proprietors. The words “in respect of” generally have a wide meaning, probably the widest of any expression intended to convey a connection or relation between two subject matters. [9] When used in section 31F(1)(a) of the Stamp Duties Act the words are both unambiguous and of the widest import. They will be satisfied as long as there is “some connection or relation” between the “amount” that is received and the “dutiable rental business”. As observed by Walters J in SA Crate Pty Ltd v South Australia:[10]
Further, it is to be observed that the phrase “in respect of”, as it is used in sub-paragraph (d) of s.31g is an expression of wide application. To adopt the words of Mann CJ in Trustees Executors and Agencies Co. Limited v Reilly, “they [the words ‘in respect of’] have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer”. In the present case, I have no doubt that there was a connection or relation between amounts received, by way of the “initial fee” and the “fill charge”, and the right to use the crates supplied by the company to a grower.
[9] McDowell v Baker (1979) 144 CLR 413 at 419, per Gibbs J; State Government Insurance Office v Rees (1979) 144 CLR 549 at 561 (Mason J); Cyclone Scaffolding Pty Ltd v Commissioner of Stamp Duties [1985] 2 Qd R 435 at 438 (Campbell CJ), at 445-446 (McPherson J).
[10] SA Crate Pty Ltd v South Australia (1983) 35 SASR 92 at 98-99.
There is no express requirement that the “amount” received by a bailor must be paid by the person on whom use has been conferred. Nor, in the absence of any ambiguity, is there any warrant for implying such a requirement.[11] The receipt of income from the use of the machines is integral to the agreement between Seneca and the proprietor. It is the commercial objective of the transaction. Without the prospect of financial proceeds there would have been no agreement.[12]
[11] A taxing statute is not to be construed any differently from any other statute: SA Crate Pty Ltd v State of SA (1983) 35 SASR 92 at 99 (Walters J); Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 323; Pearce & Geddes, Statutory Interpretation in Australia (5th ed) at [9.30]-[[9.32].
[12] Prior to the commencement of the Stamp Duties (Assessments and Forms) Amendment Act 1991 on 12 December 1991, s 31F(1)(a) required a monthly statement setting out “the total amount received” by the bailor “as rent during the preceding month in respect of his rental business” (emphasis added). The removal of any requirement that the “total amount received” answer the description of a “rent” must have broadened the reach of the legislation.
Seneca is liable to pay duty at the prescribed rate on the amount received in respect of its dutiable rental business during the relevant period.
Alternative Contentions
These contentions proceeded on assumptions that are inconsistent with the earlier findings and conclusions set out in these reasons. In these circumstances they give rise to hypothetical considerations. Accordingly, it is inappropriate and unnecessary to express any view as to those contentions.
Conclusion
This appeal is dismissed.