Emanuel (Rundle Mall) Pty. Ltd. v. Commissioner of Stamps (S.A.).

Judges:
Jacobs J
Mohr J
Bollen J

Court:
Supreme Court of South Australia (Full Court)

Judgment date: Judgment handed down 13 June 1986.

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Jacobs J.

There is little I can usefully add to the analysis of the issues in this appeal to be found in the judgment about to be published by Bollen J., and in the judgment of White J., from whose decision the appeal is brought. They have held that the instruments of transfer were properly assessed to stamp duty, and I can see no escape from that conclusion. Whatever equities might exist inter partes, the instruments of transfer operated as ``a conveyance on sale'' to pass to the transferee an estate in fee simple in the whole of the land in the respective certificates of title. Whatever passed with the land as part of the conveyance of the legal estate is therefore brought to ad valorem duty. The notion of a legal estate in land which is somehow diminished by an equitable interest in the permanent fixed improvements which passed with the land on a conveyance of the fee simple is contrary to the whole philosophy underlying the Real Property Acts, as well as to the Stamp Duty Act, which brings to duty the transaction - a conveyance on sale of an estate in fee simple - to which the instrument gives effect. It does not avail the appellant to show that behind the transaction evidenced by that instrument, there is another instrument which is said to give the transferor an equitable interest in a ``part'' of the land conveyed.

The appeal should be dismissed.