Anderson's Pty Ltd v Victoria
[1964] HCA 77111 CLR 353
(Decision by: Mctiernan J)
Anderson's Pty Ltd
vVictoria
Judges:
Barwick CJ
Mctiernan JKitto J
Taylor J
Menzies J
Windeyr J
Owen J
Legislative References:
Stamps Act 1958 (Victoria) - subdiv (14) of Div 3 of Pt II
Case References:
Bolton v Madsen (1963) - 110 CLR 264
Parton v Milk Board (Vic) - (1949) 80 CLR 229
Dennis Hotels Pty Ltd v Victoria - (1960) 104 CLR 529
Matthews v Chicory Marketing Board (Vic) - (1938) 60 CLR 263
Peterswald v Bartley - (1904) 1 CLR 497
Browns Transport Pty Ltd v Kropp - (1958) 100 CLR 117
Bank of Toronto v Lambe - (1887) 12 App Cas 575
Judgment date: 17 December 1964
Decision by:
Mctiernan J
The question which is involved in these demurrers respectively is whether the duty under subdiv (14) of Div 3, Pt II of the Stamps Act 1958 (Vic) is a duty of excise within the contemplation of the Constitution, s 90. The duty is imposed on instruments which are agreements of instalment purchase or contain the material particulars of such agreements as are not in writing. The agreements made dutiable are of three classes namely credit purchase, hire-purchase and rental. There is a definition of each class. A credit purchase agreement or a hire-purchase agreement is not dutiable if the purchaser is engaged in the trade or business of selling goods of the same nature or description as the goods to which the agreement relates. No list of goods is specified in the Act for the purposes of the subdivision. It contains a definition of "goods" which says that this word "includes all chattels personal other than money, livestock books and things in action". The application of the provisions of the subdivision is not limited to goods of home manufacture and second-hand goods are not excluded. The duty under the subdivision is two per cent of the "purchase price". This means in the case of a credit purchase agreement or a hire-purchase agreement "the total amount payable under the agreement by the purchaser on any account whatsoever in respect of the goods the subject-matter of the agreement less the amount of the deposit or other money or consideration paid or given to the vendor at or before the making of the agreement and less the total amount payable under the agreement for or by way of interest or insurance or other charge". In the case of a rental agreement the "purchase price" means "the price at which the goods the subject-matter of the agreement might have been purchased for cash at the time of entering into the rental agreement". The tax is payable by the vendor: if he is not bound by the Act the tax is payable by the purchaser. S 131D prohibits the vendor from transferring the burden of the duty or any part of it to the purchaser.
It seems from the words of the definition of these agreements that they are made dutiable merely in the relation of instrument by means of which credit is provided for the purchase of goods for use or consumption and payment of the outstanding liability is deferred and secured. The expression "purchase price" is selected to specify an amount which having regard to the terms of the definition is the monetary value of the credit provided in each case. I think that it is a misconception of the nature of the duty to describe it as a tax on the goods in respect of which credit is given. It has clearly a direct relation to such credit but no such relation to the goods. I think that it is not the sort of tax the imposition of which naturally tends to be an ingredient of the price paid by the purchaser under the agreement. Of course, a vendor might attempt to recoup himself the tax but this would be achieved by increasing charges for services rendered to purchasers generally. That would not amount to a passing on of the burden of the tax which is an incident of taxes within the scope of s 90. I would allow the demurrer in each case.