LIVINGSTON v COMMISSIONER OF STAMP DUTIES (QUEENSLAND)
107 CLR 411(Decision by: MENZIES J)
Between: LIVINGSTON
And: COMMISSIONER OF STAMP DUTIES (QUEENSLAND)
Judges:
Dixon CJ
Fullagar J
Kitto J
Menzies JWindeyer J
Subject References:
Conflict of laws
Assessment of succession duty
Wife entitled to share in residue under husband's will
Husband's estate not fully administered
Assets in New South Wales and Queensland
Legislative References:
Succession and Probate Duties Act 1892 (Qld) - the Act
Judgment date: 16 December 1960
SYDNEY
Decision by:
MENZIES J
The late Jocelyn Hilda Coulson (whom I will refer to as "the intestate"), who died intestate domiciled in the State of New South Wales, was absolutely entitled under the will of her first husband. Hugh Duncan Livingston (whom I will refer to as "the testator"), to a one-third interest in the residue of his estate ascertained after the payment of debts, funeral and testamentary expenses, and duties. At the time of the death of the intestate, the executors of the testator, who were domiciled in the State of New South Wales, had not fully administered his estate, part of which was real and personal property situated in Queensland. Upon the merits of these proceedings (which are an appeal by the administrator of the estate of the intestate from the decision of the Full Court of the Supreme Court of Queensland with regard to succession duty (PD5,339 9s. 11d.) assessed and paid in respect of the estate of the intestate and an application for special leave to appeal with regard to administration duty (PD607) assessed and paid in respect of that estate), the questions are whether Queensland administration duty and succession duty are payable by the administrator, to whom letters of administration have been granted by the Supreme Court of New South Wales, in respect of any part of the interest that the intestate had in the estate of the testator.
Administration duty, although originally payable in respect of a grant of letters of administration, was by s. 2 of The Succession and Probate Duties Acts Declaratory and Amendment Act of 1935 declared payable under The Succession and Probate Duties Act of 1892 (Q.) as amended, s. 55, in respect of "any personal property whatsoever in Queensland or any interest therein ... taken possession of or in any manner administered without the grant in Queensland of ... administration ...". Succession duty, although originally not chargeable in respect of the personal estate of a person domiciled outside Queensland was, by s. 2 of The Succession and Probate Duties Act 1892 Amendment Act of 1895, declared chargeable "in respect of all property within Queensland although the testator or intestate may not have had his domicile in Queensland". More exactly the principal question is therefore whether because of her interest in an estate which included property in Queensland, there belonged to the intestate any property in Queensland.
The conclusion that I have reached is that because the intestate's interest was in the totality of the estate of the testator and because she had no separate or separable property in the Queensland assets of that estate, her interest in the estate of the testator was property situated in New South Wales, where the trustees were domiciled, and not as to any part in Queensland. Indeed, prior to the administration she had but one asset, not as many assets as there were assets in the estate of the testator. Were the executor of the testator's will to realize Queensland assets to pay debts, it could not, I think, with accuracy be described as property of the intestate that was being sold; her right was to share in residue ascertained by administration in due course.
This conclusion appears to me to be in line not only with the decision of the House of Lords in Lord Sudeley's Case [F150] and the many cases in which that decision has been followed, but also with the dictum of this Court in Smith v Layh [F151] when in speaking of the right which residuary beneficiaries take in the unconverted assets of an estate before it is fully administered, it was said: "They have no separate or separable property in the specific items or assets of which the estate is made up". Although upon the death of the intestate there was a devolution of her one-third interest in the residue of the testator's estate, there was, for the reasons I have given, no devolution of any property in Queensland, and it would not be correct to say that the administrator of her estate, in getting in her interest in the estate of the testator, has taken possession of, or in any manner administered, property in Queensland or any interest therein. Any merely colloquial use of the word "interest" is, of course, to be disregarded because without question the Act is throughout concerned with assets, i.e., proprietary interests.
I have had the advantage of reading the judgment of Fullagar J., surveying the authorities bearing upon the problem before us, and because I agree with his survey I refrain from making one of my own. There are, however, difficult questions regarding the jurisdiction of the Supreme Court to determine the appellant's appeals to it which I feel obliged to consider with some particularity for myself.
There are to be found in various sections of the Act references to persons "accountable for the payment of duty", to persons "accountable for ... duty" who may be required by the Commissioner to "deliver an account", and to "every person who under the provisions of this Act delivers any account", and it seems to me that the word "accountable" is used in two senses-the first, liable to pay duty (e.g., s. 46); the second, liable to deliver an account (e.g., s. 49). Sometimes the duty to deliver an account and to pay duty are imposed upon the one person, but this is not always the case. Section 50, which gives "any accountable party dissatisfied with the assessment of the Commissioner" a right of appeal-and is the section under which these appeals were instituted-does, it seems to me, authorize an appeal by a person accountable in either of the senses in which the word is employed in the Act. The appellant here is the administrator of the estate of the intestate, to whom letters of administration were granted by the Supreme Court of New South Wales on 13th November, 1951. He did not apply for a grant of letters of administration in Queensland, but did as required by the Commissioner file an account of the estate of the intestate with the Commissioner, and subsequently he paid the succession and the administration duty assessed thereon. The appellant did these things under protest and "without prejudice to his contention that no succession or administration duty under The Succession and Probate Duties Acts was payable on the death of the said Jocelyn Hilda Coulson". He then instituted two appeals -one in relation to administration duty, the other in relation to succession duty. The Full Court of the Supreme Court of Queensland, before which the appeals came, dismissed them, deciding that they were incompetent. The Court decided that an appeal with respect to administration duty was altogether outside s. 50 and that, as regards succession duty, the section authorized an appeal only when accountability (in the sense of accountability for the payment of duty) is admitted and the details of the assessment are alone in dispute.
There is, of course, no doubt that an assessment of administration duty by the Commissioner is necessary because the duty is payable according to a scale upon the "net value of the property": and see ss. 47A and 56A (2) of the Principal Act, and s. 2 of The Succession and Probate Duties Acts Declaratory and Amendment Act of 1935. The Acts themselves do not in terms provide for any person making a return for the purpose of the assessment of administration duty, but having regard to their provisions as a whole, it is, I think, clear that a person in the position of the appellant should both make a return and pay administration and succession duty if the Acts apply. To infer an obligation upon an administrator to pay administration duty assessed with respect to the estate is not going very far, and as regards succession duty, s. 46 makes, besides the successor, "every trustee ... in whom ... any property, or the management of any property, subject to such duty, is vested" personally accountable for the duty payable in respect of any succession. The administrator here, therefore, is the person who, as required by the Commissioner, has delivered an account and has paid the duty assessed therein and may therefore properly be described as an accountable party, unless for the purposes of s. 50, notwithstanding the success of a party's appeal, his liability for some duty must remain. I do not regard it as necessary to read s. 50 as so restricted, but before elaborating this it is necessary to refer to a particular difficulty about administration duty, that is, that s. 50 stands as it did before the Act related to administration duty and, therefore, as it was enacted, s. 50 related only to appeals against assessments of succession duty. The section must, however, now be read in the context of the Act as it has been amended, and that context includes s. 47A which recognizes that s. 50 does relate to appeals against assessments of "probate duty", which clearly enough includes administration duty. I have therefore reached the conclusion that s. 50 does authorize appeals against assessments of probate and administration duty.
This brings me to the contention that as regards both administration and succession duty, the right of appeal given by s. 50 is limited to questions of amount, as the Full Court decided, and does not extend to questions of liability. In its forceful judgment, the Full Court points out that ss. 47, 48 and 50 of the Queensland Act correspond with ss. 45, 47 and 50 of the English Act, and the accepted view in England is that liability to account is not to be determined upon such an appeal: Hanson on Death Duties 7th ed. (1925) pp. 532, 535. It appears to me, however, that the language of s. 50 is capable of a construction that would cover appeals as to liability itself and there is nothing in any other provision of the Act which requires a more limited construction. In favour of according the section the larger construction is the consideration that s. 56A (2) (i) (b) provides that in legal proceedings other than on appeal against an assessment, the production of the assessment is conclusive evidence that the amount and all the particulars of the assessment are correct, which seemingly would apply to proceedings by or on behalf of the Crown to recover any duty that has been assessed. If this be so, to construe s. 50 to cover an appeal as to liability would be the only means of testing whether or not there is liability for duty which has been assessed. Upon the whole I have reached the conclusion that s. 50 does authorize the appeals which resulted in the orders that are the subject of these proceedings.
In my judgment the appeal in relation to succession duty should be allowed, there should be special leave to appeal from the judgment of the Full Court in relation to administration duty and that appeal should also be allowed.