Wing On v Collector of Customs (NSW)
(1938) 60 CLR 97(Judgment by: RICH J)
Wing On v Collector of Customs (NSW)
Court:
Judges:
Latham CJ
Rich J
Dixon J
Subject References:
Taxation and revenue
Customs duty
Liability of purchaser
Whether restraint reasonable
Legislative References:
Customs Act 1901 - Section 4,; Section 33.
Judgment date: 22 April 1938
Sydney and Melbourne (6 June 1937)
Judgment by:
RICH J
Although, no doubt, general considerations arising upon other provisions of the Customs Act 1901-1935 may provide a guide as to the general intention, the decision of this appeal finally turns upon the interpretation of s. 153 of the Act. More especially it turns upon the meaning of the words "payable by the owner of the goods." Ownership of commercial goods is a transferable and, therefore, a transient condition or relation. This is so even when "owner" is used in the extended sense of s. 4. The suggested meanings among which we are to choose are: (a) "owner at the time of arrival," (b) "owner at the time of entry," (c) "owner for the time being until the control of the customs ends," and (d) "each and every owner from arrival until the control of the customs ends." It is not possible to make the choice without misgiving, but I think a clue is to be found in the manner in which the section constitutes the duty a charge upon the goods and immediately proceeds to make it payable by "the owner." This suggests that the mind of the draftsman was, first, that the duty should be a debt, next, that the debt should follow and be answerable out of the goods and, third, that the obligation to discharge it should follow ownership. It is unnecessary to say whether this indication carries the fourth of the four meanings in its full application, as the Crown contended. But it does show that it was intended that until the goods were entered for home consumption at least none was to take ownership except cum onere, and that if he enjoyed full ownership he should pay the charge, i.e., the duty. The facts show that this was the situation of the appellant who, I think, comes fairly within the meaning of the provision making the duty payable by the owner.
In my opinion the appeal should be dismissed.