WF SECURITIES PTY LIMITED v CHIEF COMMISSIONER OF STAMP DUTIES (NSW)

Judges:
Campbell J

Court:
Supreme Court of New South Wales

Judgment date: Judgment handed down 2 August 1992

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Campbell J

The plaintiff submitted a transfer to the defendant together with $10 and an assertion that that was the amount of duty payable in respect of the transfer. The Defendant was of the view that ad valorem duty was payable.

The plaintiff sought a Declaration in the Administrative Law Division of this Court that the duty exigible on the transfer ``is $10 only''.

The matter was argued before Smart J who made the Declaration sought. In the course of his judgment Smart J said:

``The Chief Commissioner raised no objection to this matter proceeding by way of summons for a declaration and did not submit that declaratory relief or the particular declaration sought was inappropriate.''

The Commissioner wishing to test the Declaration made by Smart J lodged an appeal to the Court of Appeal. Instead, however, of seeking a stay either from the trial Judge or from the Court of Appeal, the Chief Commissioner sought to frustrate the clear intentions of the Declaration by administrative action or rather inaction, that is refusing to process and release the transfer.

In these circumstances the Plaintiff has sought orders:

``1. That the defendant stamp the transfer the subject of these proceedings with duty of $10.00.

2. That the defendant deliver the said transfer stamped with the duty of $10 to the Plaintiff's solicitors not later than 5.00pm. on the second business day following pronouncement of this order.''

In an affidavit in support of the application the transferee has proffered certain undertakings and other arrangements for securing, in some measure at least, the defendant's position should he succeed upon the appeal.

It seems to me likely that the Commissioner's attitude to these proposals is somewhat skewed by a failure to appreciate that it is, or at least should be, the Chief Commissioner who is seeking to stay the effect of the Declaration made by this Court, which until and unless it is reversed or altered on appeal, is final, conclusive and binding upon the plaintiff and the Chief Commissioner.

Having regard to what occurred before Smart J, I should make the orders sought, or

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ATC 4431

something like them, unless I am prevented from doing so by some applicable legal principle or provision. (See
Royal Insurance Co Ltd v Mylius & Ors (1926) 38 CLR 477 per Isaacs J at 497.)

Dr Sorenson referred to the availability to the Plaintiff of procedures under Part 5 of the Stamp Duties Act 1920 (as amended); however, the defendant raised no objection to the plaintiff proceeding in the way it did to have the issue between it and the defendant determined. I do not consider that the availability of the Part 5 procedure has any relevance at this stage.

Dr Sorenson submitted that the order sought was designed, impermissibly, to compel the defendant to hold a certain opinion or to exercise a discretion in a certain way. He referred to
Ex Parte The Carpathia Tin Mining Company Ltd (1924) 35 CLR 552 and
Australasian Scale Co Ltd v Commissioner of Taxes (Q) (1935) 3 ATD 171; (1935) 53 CLR 534. I prefer the argument of Mr Slater, Counsel for the Plaintiff, that the defendant having agreed to the matter of the correct duty that is, ad valorem duty or nominal, being determined by declaration in this Court there is no scope for him to hold, for the purpose of exercising his duty under s. 35, any opinion other than that the duty is $10, at least until the declaration of Smart J is reversed or altered on appeal.

In my view a requirement by the Court that the defendant comply with the effect of the Declaration made by it does not depend upon estoppel and does not come into conflict with the policy limitations upon that doctrine where legislative powers are concerned.

I consider that I should make the orders asked, however, I propose to make a different order as to time and method of delivery.

It is not disputed that the defendant has legitimate interests to protect, as was acknowledged by the proposals advanced by the plaintiff. Counsel sensibly agreed that, if I reached the conclusion I have expressed, I should deal with an application for a stay as if there was one formally before me.

There are three matters which require some comment. The only evidence of value is the letter from Mr Bridges dated 19 May 1992 putting the current market value as at that date at $1,150,000. The defendant has not put on any evidence of value, no doubt reflecting the view that I have referred to above. I would be inclined, in these circumstances, to act on Mr Bridges' letter, however, the relevant date for assessment of ad valorem duty would be, I assume, in November 1990 and the value might have been higher then. Before the orders referred to below are made there should be evidence as to the value at the relevant date or agreement that there would be no relevant difference. I should indicate that unless the defendant presents evidence to the contrary effect I would be prepared to act on a similar letter to that presently before me.

The proposal that an amount equivalent to the estimated ad valorem duty be held in the way suggested in Miss Wadsworth's affidavit is to my mind quite appropriate bearing in mind the true nature of the application with which I am now dealing.

Again bearing in mind the Declaration made by Smart J and the nature of the application with which I am now dealing I consider the undertaking to the Court given by Miss Wadsworth in relation to any fine that may be imposed should the defendant succeed on appeal is all that may reasonably be required of the plaintiff, subject of course, to its own statutory duty to pay any such fine.

I indicate, therefore, that I will make orders 1 and 2 of the Notice of Motion, subject to hearing Counsel on the time and place for compliance with order 2. I will grant a stay of the order for 28 days. The stay will continue (unless the deposit is made within the 28 days) thereafter until an amount equivalent to the ad valorem duty as discussed above is deposited upon the basis set out in Miss Wadsworth's affidavit. It will be noted that the orders are made upon the basis of the undertaking to the Court set forth by Miss Wadsworth in that affidavit. I shall grant liberty to apply on 7 days notice.

Counsel should bring in short minutes of order in accordance with the above judgment.

I shall hear Counsel as to costs.