Wedge v Acting Comptroller of Stamps (Victoria)
64 CLR 751941 - 0228A - HCA
(Judgment by: Rich ACJ)
Between: Wedge
And: Acting Comptroller of Stamps (Victoria)
Judges:
Rich ACJStarke J
Williams J
Subject References:
Succession
Stamp duty
Transfer of trust property under will to beneficiary
Undertaking to hold property subject to trusts
Legislative References:
Stamps Act 1928 (Vic) No 3775 - Third Schedule, Heading IX
Judgment date: 28 February 1941
Melbourne
Judgment by:
Rich ACJ
This is an appeal from an order of Lowe J. by which an instrument annexed to a case stated was held to be chargeable with stamp duty.
The respondent contends that the instrument in question falls within the words of part IX. of the Third Schedule of the Stamps Act 1928 (Vict.) as being an instrument other than a will or codicil "whereby ... property is settled or agreed to be settled ... such instrument not being made before and in consideration of marriage."
The relevant facts are substantially that the appellant is entitled under his father's will to the residuary estate devised by it subject to an annuity to his mother and that he was entitled to have the property transferred subject to his mother's interest. The instrument the subject of this appeal is as follows:
"To whom it may concern-
I Ian Charles Wedge of Werribee in the State of Victoria theological student being of the full age of twenty-five years and entitled to the residuary estate under the last will of Charles Upton Wedge deceased, subject only to the bequests therein provided for the benefit of my mother Marie Josephine Wedge in consideration of her agreeing to the transfer by the executor and trustee of the said will to me of the whole of the residuary estate undertake to hold same subject in every respect to the trusts in the said will contained for her benefit and further to execute all assurances reasonably required for that purpose. Dated the sixth day of December One thousand nine hundred and thirty-nine.-Marie J. Wedge.-Ian Charles Wedge."
Subsequently the trustees of the will transferred the property in which the appellant and his mother were interested to the appellant.
His Honour the primary judge, considering that the case was governed by a decision of this court (Davidson v Chirnside), [F1] decided that the instrument in question was a settlement or agreement to settle within the meaning of the schedule to the Stamps Act. In my opinion the facts of the case of Davidson v Chirnside [F2] are altogether different from those in this case. There the testator directed a settlement to be executed, and when this was done it contained a succession of interests and the rights, obligations and trusts with respect to the property comprised in it. And any question subsequently arising with regard to the property would be determined by reference to this document and this document only. In Davidson v Chirnside [F3] observations were made to the effect that certain elements were not indispensable though not immaterial. The judgment then under appeal, which was written by Cussen J., [F4] contains an elaborate examination of the question of what amounts to a settlement for the purposes of the provision under consideration. Though it is true that the judgment of the Supreme Court was affirmed on different grounds and that a different view was taken of the nature of the specific instrument, the value of this general exposition of Cussen J. is not diminished.
No inclusive and exclusive definition can be given of what constitutes a settlement. The question must be determined by construing the particular instrument, which, of course, includes the transaction set forth in that instrument (Collector of Imposts (Vict.) v Peers), [F5] and examining its legal effect. The subject instrument contains no disposition or agreement to dispose of property belonging to the appellant but is merely an acknowledgment or recognition that he is not the absolute owner of the property comprised in the instrument and preserves other trusts or rights affecting it. No new beneficial interest is created in favour of the appellant or anybody else, and the property remains subject to the same trusts as it did before the instrument was executed.
For these reasons I am of opinion that the appeal should be allowed and the order of the Supreme Court discharged and in lieu thereof an order made answering question a: No, and ordering the respondent to pay the appellant's costs in this court and in the court below.