Commissioner of Stamp Duties (NSW) v Henry
(1964) 114 CLR 322(Judgment by: Dixon CJ)
Between: Commissioner of Stamp Duties (NSW)
And: Henry
Judges:
Dixon CJMcTiernan J
Kitto J
Taylor J
Owen J
Subject References:
Stamp Duties (NSW)
Judgment date: 25 February 1964
Judgment by:
Dixon CJ
This is an appeal by special leave by the Commissioner of Stamp Duties of New South Wales against a judgment of the Supreme Court of New South Wales determining certain questions raised by a case stated. The decision of the Supreme Court was against an assessment by the Commissioner of the stamp duty upon an instrument. The Court decided that the instrument should not be assessed as a conveyance on sale ad valorem or otherwise, but as a lease at the rate provided by par. (6) of the duties under the heading of "Lease", set out in the Second Schedule, viz. 1 pound 10s. 0d. The instrument in question is a deed made on 3rd February 1959, between the Vale of Clwydd Colliery Ltd. on the one part, and, of the other part, certain persons, five in number, who are described as, jointly and severally, the members of Brown's Gap Colliery Syndicate. (at p326)
The deed recites that the company is the holder in fee simple of certain land and the holder of certain leases, comprised in the Vale of Clwydd, wherein lie certain seams of coal, and that the company is the owner of certain pits, tunnels, mine workings, buildings, plant, machinery and stores which are upon the said land and that the syndicate has applied to the company for permission to get, work and win coal from the said land. The deed witnesses that the company thereby grants to the syndicate a licence to operate the mine and to use and operate the pits, tunnels, mine workings, buildings, plant and machinery now thereon for the purpose of getting, working and winning of coal. The deed states that the licence shall be for an initial term of five years, commencing on 1st January 1958. The deed goes on that the syndicate acknowledges having taken delivery of the buildings and certain other things listed in a schedule and that the syndicate should have custody thereof as bailee for the company, with the right of use for the purposes aforesaid. Next, it was provided that the syndicate should pay the company for all stores and pit timber used by it and upon the termination of the licence should deliver the residue to the company and pay for any deficiency. (at p326)
Then followed cl. 4, the chief part of which is as follows: "For the use of the facilities aforesaid and for the use of the company's land pits tunnels mine workings, buildings, plant and machinery the syndicate shall pay to the company fortnightly a fee at the rate of three shillings per ton and in addition a royalty of two shillings per ton for each and every ton of coal won by the syndicate from the said land and such fee and royalty shall be cumulative from fortnight to fortnight during the term of this licence and any extension thereof. The syndicate shall keep proper and accurate records of all coal won and shall render to the company fortnightly a return showing the production tonnage with payment appropriate to the amount of licence fee and royalty aforesaid payable to the company." (at p326)
Clause 5 imposed upon the syndicate duties incurred under the law by a person working a mine, including the payment of workers' compensation insurances, excise duty, pay-roll tax, rates and so on. (at p327)
There is a provision directed towards the continuance of the rights and obligations of the syndicate, nothwithstanding the death of a member. No explanation appears for the separation of the tonnage rate, five shillings, resulting from cl. 4 into a fee of three shillings per ton, and in addition a royalty of two shillings per ton. Notwithstanding the arguments of Mr. Stuckey and the use sought to be made of s. 65, I am unable to adopt the view that the deed is itself a conveyance on sale or the disposition of a profit a prendre. It must be steadily borne in mind that we are concerned with the liability to duty of the deed itself, and as at the time of execution. What this deed does is to confer a right for a period to work a coal mine as a going concern for a consideration consisting of five shillings a ton of the coal won, together with the reimbursements of some minor costs. A lease it may be under the provisions of the Stamp Duties Act, but it is not a conveyance, and there is no divisible grant of a profit a prendre. Section 79 (2) of the Stamp Duties Act says that where there is no possible means of discovering what is the maximum value of the consideration dealt with under a lease, then the duty payable in respect of such lease shall be a fixed sum of 1 pound 10s. 0d. in addition to the duty chargeable in respect of the rent and of so much of the consideration as is capable of being valued. Here there is no rent reserved and no consideration capable of being valued. The amount payable in respect of coal won is quite another matter. The syndicate are obviously working miners and the like, and the coal is their return. Sub-section (1) of s. 79 speaks of consideration for a lease consisting of a royalty payable, either in money or in goods, or any consideration other than a fixed sum of money. It appears to me that, however the result is reached, the conclusion of the Supreme Court is right. I would therefore dismiss the appeal. (at p327)