Stamp Duties-Transactions or instruments liable-Conveyance or transfer on sale
Agreement for sale-Purchaser acting as agent for company to be formed Formation of company-Transfer to company executed-Duty paid-Rescission SYDNEY,
-Novation-Conveyance by direction-Refund of ad valorem duty-Stamp Duties Act 1920-1949 (N.S.W.) No. 47 of 1920-No. 37 of 1949), S. 41 (4) (a), (7).* MELBOURNE,
V. sued W., the Commissioner of Stamp Duties (N.S.W.), to recover money paid as stamp duty on a contract executed by him for the purchase of a station property. At the time when the contract was made v. purported to act as agent for a company which had not then been incorporated and which did not come into existence until two months later. After the formation of the company, the instruments of transfer to effect the conveyance of the land to the company were duly executed and the balance of purchase money was paid by the company. W. claimed that ad valorem duty was payable upon the transfers as well as upon the original contract and a sum of money was paid as duty. v. then claimed under S. 41 (7) of the Stamp Duties Act 1920- 1949 (N.S.W.), a return of the stamp duty paid upon the contract on the *Section 41 (7) of the Stamp Duties
within three months of the agreement Act 1920-1949 provides that (a) In
being rescinded or annulled. case the agreement is afterwards re-
(c) This subsection shall not apply scinded or annulled the ad valorem
where the purchaser or any person duty paid thereon shall be refunded by
claiming under him has entered into the Commissioner to the party to the
possession of or has attorned tenant agreement by whom or on whose behalf
of the property, nor unless the Commis- the duty was paid, or to his executors,
sioner is satisfied that the contract has administrators, or assigns. Applica-
not been rescinded or annulled only to tion for the refund shall be made in
avoid the stamp duty upon a subsale or to the effect of the prescribed form
ground that, after the payment of duty and before completion by conveyance, the contract entered into by him had been rescinded. W. refused to return 1951-1952. the duty.
Held, that the evidence did not establish a rescission of the original contract and, consequently, v. was not entitled to recover the amount claimed under S. 41 (7) of the Stamp Duties Act 1920-1949 (N.S.W.).
Lake Victoria Ltd. v. Commissioner of Stamp Duties (1949) 49 S.R. (N.S.W.) 262; 66 W.N. 119, referred to.
Decision of the Full Court of the Supreme Court of New South Wales: Vickery v. Commissioner of Stamp Duties, (1950) 51 S.R. (N.S.W.) 79; 68 W.N. 66, affirmed.
APPEAL from the Supreme Court of New South Wales.
An action was brought in the Supreme Court of New South Wales by Arthur Vickery against Edward Thomas Woods, Com- missioner of Stamp Duties for New South Wales and the nominal defendant appointed…
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.
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AGLC
Vickery v Woods [1952] HCA 7
Case
[1952] HCA 7
Decision Date
CaseChat Overview and Summary
Arthur Vickery sued the Commissioner of Stamp Duties for New South Wales to recover stamp duty paid on a contract for the purchase of a station property. Vickery had entered into the contract purportedly as an agent for a company yet to be formed. The company was incorporated two months later, and the transfer of the property to the company was executed, with the company paying the balance of the purchase money. The Commissioner assessed ad valorem duty on both the original contract and the subsequent transfers, which Vickery paid. Vickery then sought a refund of the duty paid on the contract under section 41(7) of the Stamp Duties Act 1920-1949 (N.S.W.), which allows for a refund if the agreement is rescinded or annulled within three months of its execution, subject to certain conditions.
The central legal issue before the High Court was whether the original contract for the sale of the station property had been rescinded or annulled, thereby entitling Vickery to a refund of the stamp duty paid on it. This required the court to determine if the subsequent transfer of the property to the newly formed company constituted a rescission of the initial contract, or if a novation had occurred, creating a new contractual relationship between the vendors and the company. The court also considered the conditions stipulated in section 41(7) of the Act, particularly the requirement that the Commissioner be satisfied that the rescission was not solely to avoid stamp duty on a sub-sale.
The High Court, by majority, held that the evidence did not establish a rescission of the original contract. The court reasoned that while Vickery acted as an agent for a company to be formed, the contract, in law, bound him personally as the principal. The subsequent transfer to the company was viewed as a performance of the original contract, consistent with the parties' intentions from the outset, rather than a rescission or a novation. The court found no evidence of an intention to rescind or to enter into a new contract between the vendors and the company. Consequently, Vickery was not entitled to recover the stamp duty paid on the contract under section 41(7) of the Act. The appeal was dismissed.