Commissioner of Stamp Duties (Qld) v. Edmunds & Anor

Members:
Matthews J

Tribunal:
Supreme Court of Queensland

Decision date: Judgment handed down 29 April 1988.

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Matthews J.

By an agreement in writing of 24 October 1985 the defendants had agreed to buy land in Queensland and during October 1985 executed a declaration in which they said that the house erected on the land would be occupied by them as and for their principal place of residence forthwith on their obtaining possession of the relevant property and that they would remain in continuous occupation of the residence for a period of not less than six months immediately following possession. By the declaration they acknowledged that if they failed to remain in continuous occupation of the property as their principal place of residence for a period of not less than six months after taking possession they would notify the Commissioner within 28 days of that failure and account for additional duty and also that if they failed to notify the Commissioner they would be required to pay a penalty in accordance with sec. 55A(5) of the Stamp Act 1894-1985 (``the Act''). Accepting the declaration, the Commissioner, pursuant to sec. 22(4) of the Act, assessed stamp duty at $2,275 and this amount was paid by the defendants on or about 26 November 1985. This amount was a lesser sum than would have been paid had the defendants not made the relevant declaration.

The Commissioner subsequently and by specially endorsed writ sued the defendants for $10,712.50 which comprised a balance of stamp duty $4,218.75 and penalties in the sum of $6,493.75. The Commissioner, as the plaintiff in the action, alleged that the defendants had failed to remain in occupation of the property in question for the continuous period of six months and further that they failed to notify the Commissioner of their failure to so occupy the property within 28 days of that failure. The Commissioner further alleged that pursuant to sec. 55A(3) of the Act, by which provision is made that, in the event of a person doing what the defendants were alleged to have done, ``the amount of duty chargeable in respect of the instrument effecting the acquisition of the premises shall be the amount chargeable as if the premises were not acquired as a prescribed principal place of residence and sec. 80 applies as if the amount of duty assessed in the first instance has been assessed at an insufficient amount''. Section 80 of the Act provides:

``In any case where it is ascertained or any Court has determined that the amount of duty payable on any instrument has been assessed at an insufficient amount the Commissioner may re-assess such duty at any time... and demand and recover so much thereof as may still be owing to Her Majesty.''

Applying the provisions of the two sections to which I have referred the Commissioner

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re-assessed the stamp duty on the agreement in question in the sum of $6,493.75 and pursuant to sec. 55A(5) of the Act demanded by way of penalty a similar sum. Section 55A(5) required that he do so.

In a rather confusing way the defendants by their defence in the action accepted the facts alleged in the statement of claim except that they denied a failure on their part to remain in continuous occupation of the property as their principal place of residence. They alleged that on about 15 November 1985 they commenced living on the property but also alleged that from on or about 15 December 1985 and until 19 May 1986 they travelled to and resided temporarily in the United Kingdom. They also alleged that on or about 19 May 1986 and thereafter they ``lived on the said property''.

By way of counter-claim (although not asserted in that form) the defendants claimed relief in the form of declarations that they had been in continuous occupation of the property between 23 November 1985 and 22 May 1986 and a further declaration that the re-assessment made by the plaintiff and the penalty imposed were invalid. The plaintiff demurred to the defence and the demurrer was wide enough in its terms to cover the relief claimed by the defendants (cf.
Hogarth v. Johnson (1987) 2 Qd. R. 383) upon the ground that the re-assessment of stamp duty by the plaintiff and the imposition of the penalty could only have been the subject of challenge by way of case stated pursuant to sec. 24 of the Act.

The demurrer was thus founded upon and counsel for the defendants did not contest the correctness of the decision of this Court in
O'Sullivan v. Commr of Stamp Duties 83 ATC 4684; (1984) 1 Qd.R. 212 in which it was decided that the appeal provisions in sec. 24 of the Act were exclusive in the sense that that section provided the only avenue of appeal to a person dissatisfied with an assessment of duty notwithstanding that in certain cases appeal by way of special case as given by sec. 24 of the Act would appear to be inappropriate. Counsel for the defendants, however, had based the defence and now bases his argument on the submission that a re-assessment made pursuant to sec. 80 of the Act is not an assessment for the purposes of sec. 24 of the Act. There is, he submits, neither an express nor a deeming provision in sec. 80 which would lead to a contrary conclusion. By reference to his argument, counsel pointed to the deeming provisions in sec. 22A of the Act which deal with default assessments and to other statutory provisions such as sec. 32 of the Pay-roll Tax Act 1971-1984 which allows objection to any ``decision, determination or assessment'' of the Commissioner. Section 22A of the Act was inserted in 1981 and does by its terms in subsec. (2) provide that a default assessment is to be deemed to be an assessment in respect of an instrument and shall be subject to appeal by a person dissatisfied as provided by the Act.

Section 80 of the Act has, along with sec. 24, been part of the Act since the consolidated Act was passed in 1894 and the question in issue resolved itself into one of construction. If, when the Commissioner re-assesses pursuant to sec. 80, sec. 24, which gives a person dissatisfied rights of appeal, does not apply, then there is no provision for appeal from the re-assessment and necessarily one is to neglect common English usage of the prefix ``re'' which strongly suggests that by re-assessing the Commissioner necessarily again assesses and issues a further assessment. In
Kent and Anor v. Commr of Stamps (1927) Q.S.R. 398, the Court accepted the procedure of appeal when duty was re-assessed pursuant to sec. 80 of the Act. It should be noted in passing that the reporter of that case wrongly refers to the Stamp Acts as having been passed in 1898 instead of 1894 and also in the statement of the facts which follows the headnote he has wrongly referred to sec. 20 of the Act as the section which authorised an appeal instead of sec. 24. Section 20 as it was in 1894 and as it is now had and has nothing to do with the subject of appeal.

I think it clear that in the instant case we should, as the Court obviously did in that case, accept the procedures of sec. 24 as being available and applying to a reassessment pursuant to sec. 80 of the Act. It follows that I think that the demurrer should be allowed and that in the circumstances judgment should be entered for the plaintiff in the action for the sum claimed. However, having regard to the amount claimed I think that the procedures adopted by the plaintiff both in suing in this Court and raising the issues by way of demurrer rather than by less expensive means which were open, were oppressive and, therefore, whilst allowing the plaintiff his judgment for $10,712.50 plus interest at the rate of 12 per

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cent from the date of issue of the writ until this day and costs of the action on the appropriate District Court scale, I would make no order as to costs of the proceedings by way of demurrer.

[Carter and Dowsett JJ. both concurred with the reasons of Matthews J. and did not deliver separate judgments.]