Between: Buzza
And: Comptroller of Stamps (Victoria)

Judges: Latham CJ
Dixon J
McTiernan J
Williams J
Webb J

Fullagar J

Subject References:
Taxation and revenue
Stamp duties
Deed of settlement
Agreement varying trusts of will
Extent of property settled

Legislative References:
Stamps Act 1946 (Vic) No 5204 - s 17; Third Schedule

Sydney

Decision by:
Fullagar J

In this case I have had the advantage of reading the judgment of my brother Williams, and, apart from a doubt on one point which does not affect the decision, I find myself in complete agreement with it.  

It has been said again and again that liability to duty under statutes framed as are the Stamps Acts 1946-1949 (Vict.) depends on the nature of the instrument in question, and not on the nature of any transaction which the instrument may be intended to effectuate or in which it may play a part.  Looking at the nature of the instrument in question in the present case,  I do not find it possible to say that "property" is not "settled" by it, and I think that the "property settled" is the whole of the property with which the instrument deals.  It is true that it does not create successive interests in respect of the whole of the property with which it deals, but only in respect of part of that property.  But it is not essential to the conception of a settlement that successive interests should be created in property.  It is enough, in my opinion, if, as here, new equitable interests are created and the trust is more than a "bare" trust.  The "property settled" is not merely the property in which successive interests are created.  The whole of residue is "settled" by the instrument.  

Mr. Walker's main argument was really, I think, that the case is one in which a settlement is made upon a bona-fide adequate pecuniary consideration.  I would agree that the settlement was made upon consideration in the sense that each of the parties to the instrument gave consideration by consenting to an alteration in his or her own rights under the will.  I doubt, however (and this is the doubt to which I have referred above), whether the instrument was executed upon consideration at all within the meaning of the statute.  I think that all the parties to the instrument are "settlors" for the purposes of the statute.  But it is not the case that each settles his own interest and receives consideration for so doing.  It is that all join in settling the whole upon themselves.  They together constitute a "settlor", and so regarded they do not receive consideration for what they do.  No consideration moves to them, or is received by them, in what may be called somewhat loosely their collective capacity.  I am very much inclined to think that this is the strictly correct view of this case.  I am, however, quite prepared to rest my decision on the view that, if the instrument was made upon consideration within the meaning of the statute, the consideration, though it was certainly bona fide and probably ought to be regarded as adequate, was not a pecuniary consideration.  

It is curious that the trustee does not seem to have executed the instrument of 3rd June 1949, though it is named as a party and, according to the terms of the document, undertakes to hold residue upon the trusts declared.  I do not think, however, that anything can turn on this.  The instrument makes an effective disposition of property, and the terms of the disposition give to it the character of a settlement.  

In my opinion, the decision of Sholl J. was correct, and this appeal should be dismissed.