Baystone Investments Pty. Limited v. Commr. of Stamp Duties (N.S.W.)

Judges:
Sheppard J

Court:
Supreme Court of New South Wales

Judgment date: Judgment handed down 28 November 1977.

Sheppard J.: Two matters are involved in these consolidated proceedings. The first is an application for declaratory relief and the second a stated case. The stated case has only recently been prepared. It was stated in order to overcome possible difficulties arising by


ATC 4441

reason of the course adopted by the plaintiff in proceeding by way of an application for declaratory relief. Arguments based upon both jurisdictional and discretionary grounds were put to me in relation to the summons. If I had acceded to them the matter would have gone off without the merits or substance of it being determined. This seemed to me to be undesirable and I suggested that the parties proceed by way of sec. 124 of the Stamp Duties Act, 1920 so that the substance of the matter would certainly be resolved.

The question to be determined concerns the amount of duty chargeable in respect of an agreement dated 16th February, 1977, made between Taimoshan Investments Limited and the plaintiff. The agreement provided for the borrowing by the plaintiff from Taimoshan of $3,000,000. By cl. 2 the amount was to be drawn down by the plaintiff within three months of 10th December, 1976, in draw downs of not less than $200,000 Australian currency. Clause 4 provided that the plaintiff should be liable for simple interest annually in advance on the principal amount or the amount thereof outstanding on the date on which interest fell due at the rate of 13.9 per cent per annum ``calculated as hereinafter set out''. Clause 5 provided for the repayment of the principal amount at the expiration of three years ``from the date of the loan''.

Clauses 7 and 8 of the agreement are in the following terms: -

``7. Interest shall be calculated on the Principal Amount from the date of the loan and the Company shall be entitled to deduct from the sum or sums standing to the credit of the draw down accounts the interest due for the first year of this loan and any such deduction from the draw down accounts will be a full discharge of the Borrower's liability for such interest provided that to the extent that such interest is not so deducted the same shall be due and owing on the date of the loan.

8. Interest in respect of the second and subsequent year of the loan shall be due on the first and subsequent anniversaries of the date of the loan and such interest shall be paid by the Borrower to the Company or to such bank account or to such Solicitor or Accountant as the Company may nominate for the purpose.''

Mr. Leece is the plaintiff's accountant. On 16th February, 1977, he received instructions to draw down the full amount available under the agreement. He calculated the first year's interest at \ca\417,000 leaving a balance of \ca\2.583 million (hereinafter for ease of reference sometimes referred to as $2.6 million). On 16th February he sent a telex to Taimoshan, the answer to which was as follows: -

``The amount credited to the account is $3 million (Australian currency) the amount deducted for interest under cl. 7 of the agreement is $417,000 (Australian currency) the amount available for draw down is $2.583 million (Australian currency).''

The relevant provisions of the Stamp Duties Act are to be found in sec. 4 which is the general charging section and which refers to the second schedule, in the second schedule under the heading ``Loan Instrument'', and in sec. 82A, 82B, 82C and 82D. The relevant part of the schedule provides for duty upon a loan instrument at the rate of 1.5 per cent on the amount of the principal of the loan. The person primarily liable for the payment of the duty is the lender but there are provisions of the Act making the borrower responsible where the lender is not a resident of New South Wales, as in the present case (sec. 82C(5)).

Section 82A contains a number of definitions relating to expressions used in the later sections and also in the second schedule. It is relevant to set out the definitions of ``Fixed Loan'', ``Interest'', ``Loan'', ``Loan Instrument'', ``Prescribed Rate'' and ``Principal''. Those definitions, so far as they are material to the present case, are as follow: -

```Fixed loan' means a loan -

...

  • (c) the interest on which -
    • (i) is to be paid by amounts calculated by reference only to one or more rates that is or are fixed or ascertainable at the time the loan is made;

...

`Interest', in relation to a loan, includes any amount (by whatever name called) in excess of the principal of the loan, which


ATC 4442

amount has been paid or is to be paid or payable in consideration of or otherwise in respect of the loan and, without limiting the generality of the foregoing provisions of this definition, includes any amount which has been paid or is to be paid or payable by any person in consideration of or otherwise in respect of the loan,

...

`Loan' includes -

  • (a) an advance of money;

...

`Loan instrument' means an instrument constituting or evidencing the terms of a loan, other than a short term loan.

`Prescribed rate' means a rate of 14 per centum per annum, or such other rate per centum per annum as the Governor may at any time prescribe.

`Principal', in relation to a loan, means the amount actually lent.''

So far as they are relevant the provisions of sec. 82B are as follow: -

``(1) The provisions of section 82C and 82D of this Act apply to and in respect of -

  • (a) every fixed loan in relation to which the applicable rate of interest determined in accordance with sub-section (3) of this section exceeds the prescribed rate;

...

(3) The applicable rate of interest in relation to a fixed loan is -

  • (a) where the terms of the loan provide that the whole of the interest on the loan is to be paid at a rate of simple interest that is constant throughout the term of the ban - that rate expressed in terms of a rate per centum per annum; or
  • (b) in any other case - a rate equal to the rate per centum per annum represented by the interest charged on the loan as calculated in accordance with the provisions of the First Schedule to the Moneylending Act, 1941, and applying the provisions of section 3(3) of that Act for the purposes of making that calculation.''

Section 82C, so far as it is relevant, provides as follows: -

``(1) Subject to subsection (3) of this section, a person who is the lender in respect of any loan shall make out an instrument at or before the time the loan is made.

(2) For the purposes of subsection (1) of this section, an instrument -

  • (a) shall clearly and truly set out -
    • (i) the full name and address of the lender;
    • (ii) the full name and address of the borrower;
    • (iii) the amount of the loan;
    • (iv) the date on which the loan is or is to be made; and
    • (v) the term of the loan, and the applicable rate of interest in respect of the loan; and
  • (b) shall -
    • (i) be marked `Original Instrument' on the front or first page thereof;
    • (ii) be duly stamped with duty as duty on a loan instrument, and for that purpose, notwithstanding section 26 of this Act, be deemed to be first executed at the time the instrument is made out; and
    • (iii) be retained by the lender for a period of twelve months, after the principal of the loan is repaid.

(3) This section does not apply in respect of a loan -

  • (a) where the lender is an approved person referred to in section 82D of this Act; or
  • (b) where the payment of duty, as duty on a loan instrument, is denoted on an instrument constituting or evidencing the terms of the loan.

(4) Where the lender is a person resident outside New South Wales the provisions of subsection (1) of this section apply to that person where -

  • (a) the loan is to a person resident or domiciled in New South Wales; or
  • (b) any negotiations for the loan were carried on in New South Wales.

...


ATC 4443

(7) Where a person fails to make out an instrument in accordance with the requirements of subsection (1) of this section or to make out and furnish a return in accordance with the requirements of subsection (5) of this section the Commissioner may cause to be made an assessment of the amount of stamp duty with which, in his judgment, the instrument or return should have been stamped if that person had made out such an instrument or made out and furnished such a return and that person shall be liable to pay that duty and to a fine under section 25 of this Act as if he had so made out that instrument or so made out and furnished that return without causing it to be duly stamped.''

Failure to comply with any of the provisions of the section is an offence and the offender is liable to a fine for each such offence not exceeding $500.

It is unnecessary to set out any of the provisions of sec. 82D which deals with returns to be made by approved persons in respect of loans to which the legislation applies. Neither Taimoshan nor the plaintiff was an approved person.

It is the plaintiff's contention that the loan is a fixed loan within the meaning of the legislation and that the applicable rate of interest in relation to it pursuant to the provisions of sec. 82B(3) is 13.9 per cent per annum. That is a rate which is below the prescribed rate of fourteen per cent. The result is that the instrument is not a loan instrument chargeable with the duty claimed by the Commissioner of 1.5 per cent upon the amount of the principal pursuant to the provisions relating to loan instruments in the second schedule earlier referred to. The plaintiff concedes that the interest is, within the meaning of the second schedule, a loan security (see sec. 83-84F), and has already paid duty in the sum of $11,945.

The Commissioner claims duty at the rate of 1.5 per cent, either upon $3,000,000 or upon $2,583,000. If the Commissioner be right, there is not an instrument which complies with the provisions of sec. 82C(1) and (2). There is no return as provided for in sec. 82C(5). The Commissioner has purported to assess the duty pursuant to the provisions of sec. 82C(7).

The issue between the parties arises because of the fact that the interest is payable in advance. The Commissioner has made two submissions which are alternative. The acceptance of either one of them would warrant the conclusion that his approach to the problem is the correct one. His first submission is that the loan is a loan of $2.6 million and not $3 million and that it bears interest at a rate calculated at 13.9 per cent upon, not $2.6 million, but $3 million. The rate imposed therefore exceeded the prescribed rate of 14 per cent with the result that the duty claimed is payable. Alternatively he submits that because the interest is payable in advance there must be involved a rate exceeding 13.9 per cent because, the interest not having been earned, the payment must be regarded wholly or in part as a repayment of capital with the result that the interest must exceed 14 per cent. In my opinion these submissions, if not two sides of the same coin, are almost so.

The first submission is based upon the proposition that it is necessary to look at the true nature and effect of what the document purports to do. It is not a question of concluding that the document is in some way a sham or a disguise for some other form of transaction, but rather a question of determining what its true operation and effect is. The Commissioner relies upon the words ``the amount actually lent'' in the definition of ``principal'' earlier set out. It is his submission that the amount actually lent was $2.6 million and not $3 million. No interest was really paid in advance upon the making of the loan. All that Taimoshan did was to advance $2.6 million. At the end of the first year $0.4 million (in round figures) will be due for interest on that sum. At the end of the second year a further $0.4 million will become similarly due. At the end of the third year the plaintiff will pay Taimoshan $3 million, in the Commissioner's submission, $2.6 million by way of a repayment of capital and $0.4 million by way of interest thereon for the third year. The rate of interest is above fourteen per cent because it has to be paid in respect of a loan of $2.6 million at the rate of 13.9 per cent on $3 million.

But in my opinion the words of the agreement must be accepted at their face value. The document does provide for a loan of $3 million, albeit that interest is to be payable in advance. It is to be observed that there is no requirement that Taimoshan deduct the interest from the amount of $3


ATC 4444

million to be placed into the account mentioned in the agreement. There is an obligation to pay the interest in advance and under cl. 7 Taimoshan was entitled, as indeed it did, to take the interest from the loan moneys. But this in my opinion does not mean that the true effect of the document was to lend only $2.6 million. The transaction may have been accomplished just as easily by an exchange of cheques - $3 million to the plaintiff and $417,000 to Taimoshan or there could have been a draw down of $3 million by the plaintiff and a payment by it a day or so later of the interest.

In an income tax situation that interest would be income in the hands of the lender and, in a business situation, an outgoing on revenue account when paid by the borrower. It is not to be regarded as a repayment of capital because the parties did not so regard it. It was characterised by them, as I have said, as interest and payable as such. It did not reduce the amount of the capital indebtedness which remained at $3 million. The payment of it was the necessary price to be paid in order to obtain the capital that the plaintiff received. If the interest had not been met out of the capital sum it would have had to be found elsewhere, either from the plaintiff's own resources or from another borrowing.

Counsel for the Commissioner pointed to the absurdity that could arise in a situation where the entirety of the interest for the three year period of the loan was taken at the commencement thereof. This would have involved receipt by the plaintiff of (in round figures) $1.8 million out of $3 million and an obligation three years thereafter to pay $3 million. No doubt an inquiry as to the true nature and substance of a transaction always involves questions of degree. Often the line between regarding a transaction as of one kind or another will be a fine one and there will be a substantial grey area of uncertainty. In the case that is postulated by the Commissioner I would myself think that it fell upon the other side of the line just as I think that this one falls on the plaintiff's side of it.

For the above reasons I am of opinion that the Commissioner's first submission should be rejected.

His second submission has its origin in an article written by Dr. C.L. Pannam entitled ``The Calculation of Interest at a Rate `Per Cent Per Annum''' 40 A.L.J. 376. The learned author deals with four different cases, namely principal and interest payable at maturity of loan, principal payable at maturity of the loan but interest payable in periodical instalments as it accrues, principal and interest repayable in periodical instalments and principal payable at maturity of the loan but interest payable in advance of its accrual in a lump sum or by periodical instalments. It is the second and fourth of these categories of case to which reference needs to be made.

At the outset of his submissions counsel for the plaintiff referred me to two dicta of judges of the High Court relating to interest payable at periodical rests in advance of but unrelated to the date or dates when principal fell due for repayment. These dicta are to be found in
Wilson v. Moss (1909) 8 C.L.R. 146, and
Cloverdell Lumber Co. v. Abbott (1924) 34 C.L.R. 122. Both are money lending cases. In the first Griffiths C.J. said at p. 154: -

``The material facts of the transaction are as follows: The respondent was a money lender as I have said. The appellant was an officer of the Public Service of Victoria in receipt of a salary of £350 a year. He wanted to borrow £50. It appears that he probably could not have got the money on easier terms than those imposed upon him by the respondent, which were these. The appellant received £50. He gave a promissory note for £55.10s. payable three months after its date. When that promissory note became due, he paid £5.10s. and gave another promissory note for £55.10s. payable in three months. So the transaction went on. The appellant paying £5.10s. every quarter, that is, £22 in cash every year. This continued until June 1904, when the appellant paid £20 in addition to the £5.10s. and gave a promissory note for £33.10s. Thereafter he paid £3.10s. every three months and gave a new promissory note for £33.10s. So that the appellant for the loan of £50 paid £5.10s. four times a year. That is said to be 44 per cent. per annum. In reality, it is a great deal more. A very simple calculation will show that it is more than 50 per cent. per annum.''

In the second Isaacs J. in a dissenting judgment said at p. 131: -

``The plaintiff's position is that the matter is so clear that no opportunity for contesting liability should be given to the defendants,


ATC 4445

and that the Court, on the materials now before it, is bound to conclude that fourteen per cent per annum payable quarterly (which is of course more than fourteen per cent per annum simpliciter ) is a legitimate rate of interest.''

The emphasis is mine.

Although the judgment of Isaacs J. was a dissenting one, the matter dealt with by him in the above passage was not dealt with by the other judges.

In order to explain the basis of the conclusions both of Griffiths C.J. and Isaacs J. mathematically, counsel for the plaintiff, without dissent from counsel for the defendant, handed up a schedule showing that in respect of a loan for which interest was to be payable at the rate of 13.9 per cent per annum in arrears the true rate, if it were paid at quarterly rests in arrears, was 14.64 per cent. There is no dispute between counsel as to the mathematical correctness of the calculations but counsel for the Commissioner does not rely upon the approach adopted in the document. In other words he is not concerned in this case to submit that interest paid in arrears but more frequently than yearly involves a higher annual rate than that nominally provided for in a loan agreement. He does not concede that the rate is not higher. He submitted that the matter was not one which arose for consideration in this case and should be left for another day.

In Dr. Pannam's article reference is made to the two dicta to which I have referred and also to the judgment of the Supreme Court of Western Australia in
Gill v. The Queen (1960) W.A.R. 91. Wolff C.J. who delivered the judgment of the Court said of what had been said by Isaacs J. in Cloverdell (p.95): -

``I respectfully disagree with the learned judge's proposition and express the view that where a contract provides for interest at 12½ per cent per annum, payable quarterly... it is nevertheless a lending at 12½ per cent per annum.''

Support for this view was said to be found in the decision of the Court of Kings Bench in
Barnes v. Worlich (1604) Cro. Jac. 25, 79 E.R. 20, a decision with which I shall need to deal in due course. Since counsel for the Commissioner does not put his case upon the basis of the dicta in the two High Court judgments to which I have referred it is not necessary for me to consider the matter any further with regard to them.

The way in which the Commissioner's second argument is put is said to be in conformity with what is said by Dr. Pannam in relation to his fourth case, namely, principal payable at maturity of the loan but interest payable in advance of its accrual in a lump sum or by periodical instalments. But my own reading of what the learned author has written leads me to think that he is approaching the problem in very much the same way as does the Commissioner in his first argument here. At p. 380 Dr. Pannam said: -

``The final situation to be considered is where the principal of the loan is payable at maturity but the interest is payable in a lump sum or by periodical instalments before it has actually accrued. To state it in terms of the example we have been using, assume that the principal of $120 is payable at the end of the year but that interest is payable at the rate of $1 per month in advance. This means that $1 is due on the day the loan is made, $1 at the end of the first month and so on until all the interest is paid at the end of the eleventh month. The same problem is raised if the whole or any part of the $12 in interest is payable in advance of its accrual. It should be noticed that this situation differs from that considered under heading 2 above in that there the interest was paid as it accrued whereas here it is paid in advance.

In my opinion the interest rate on such loans as these exceeds ten `per cent per annum'. As I have pointed out, each of these so called `interest' payments must be apportioned first to the amount of interest that has actually accrued at the date of the payment and the balance to reduction of principal. This means that interest for the succeeding period after the payment is calculated on a principal of less than $120 and hence the interest will exceed ten per cent per annum. It is true that the contract between the parties describes the payment as interest and that this apportionment both ignores and overrides their expressed intention. In my opinion, however, the statutory meaning of the words ten `per cent per annum' cannot be thwarted by the parties to a loan electing to describe what is in effect a partial repayment of principal as interest in advance. This conclusion is


ATC 4446

supported by such English authority as there is on the point.

If the interest in advance is deducted as a lump sum at the time the loan is made there are other methods of arriving at the same conclusion. Some of the Money Lenders Acts define the `principal' of the loan as `the amount actually lent to the borrower.' If the interest is deducted in advance, or made payable in advance, it is arguable that the `principal' of the loan is only $108 in our example. That is the only amount in effect received by the borrower from the lenders. On this assumption interest at 10 `per cent per annum' would be calculated on $108 for the year producing the figure of $10.08. Thus $12 would exceed 10 per cent per annum. In several States the actual deduction of interest in advance in this way is specifically prohibited. This, however, does not affect the reasoning here.''

A number of authorities are cited for these propositions but I do not myself find any directly in point except Barnes v. Worlich earlier mentioned.

The authorities need to be read in the light of the provisions of the legislation with which they are dealing. The legislation which concerned the Court in Barnes v. Worlich was the Ursury Act 1545 (37 Hen. VIII C9). It provided, inter alia, that, ``no person... shall receive accept or take any lucre or gains for the forbearing of one whole year of and for his or their money above the sum of ten pounds in the hundred...''. Five members of the Court of Queen's Bench Division constituted the Court in Barnes v. Worlich which was decided in 1604. The majority said (79 E.R. p.20): -

``... it is not any other usury than what the Statutes tolerate: for the statutes are, that he shall not receive or take above that rate; and here he doth not take any more: for when he hath forborne his money for half a year, and the other hath the use of his money for that time, he shall receive of him five pounds; so he doth not receive more from him for the year than ten pounds. And it is an usual course, if one lends an hundred pounds for a year, and takes land in mortgage of the value of ten pounds per annum, to receive the annual profits every day; and it is not any usury, because he receiveth in the whole year no more than ten pounds only. So if he takes a grant of a rent-charge, payable quarterly, it is not any usury above the statute (and Coke, Attorney-General, said that he knew it to be adjudged accordingly). But if he had agreed to take his money for the forbearance instantly when he lent it, that had made the assurance void; for then he had not lent the entire sum for one year, and the other had not had the use of his money according to the intention of the law.''

The words I have emphasized again tend to take one back to the defendant's first proposition. That is why I said earlier that the two arguments were close to being one and the same.

If one were to accept as applicable to the present case the dictum from Barnes v. Worlich above referred to, the case would be determinative of the course I should take. Counsel for the plaintiff made a number of submissions concerning it. Firstly he submitted that I should not follow it because ``it was a very old case'' and in any event had been distinguished in certain cases referred to in Dr. Pannam's article (
Flover v. Edwards (1779) 1 Cowp. 112 at p. 115; 98 E.R. 995 at p. 996;
Fleckner v. Bank of United States (1823) 8 Wheat. 338 and other cases cited in 40 A.L.J. p. 381 footnote 41) and also in some American authorities. Dr. Pannam puts these cases aside upon the basis of commercial and banking custom. As an instance judge it seems to me that I should follow Barnes v. Worlich if it is directly in point and that the cases referred to by Dr. Pannam do not provide any basis for not doing so. I could not allow any contrary American authorities to prevail over what I regard as a binding decision of an English Court.

Counsel for the plaintiff then sought to distinguish the case, firstly upon the basis of the legislation which was being construed in it and, secondly, upon the basis that this case was a revenue one and not a money lending one where Courts would be more astute to find an infringement upon the basis that a borrower was by a transaction being compelled to pay a usurious rate of interest.

I have difficulty myself in perceiving any distinction in the legislation. In other words, if it were the money lending legislation of this State which was in question, I would be inclined to regard the case as authority for the proposition for which the Commissioner contends. It was submitted by counsel for the


ATC 4447

Commissioner that I ought not to apply any different approach when construing the Stamp Duties Act. This was especially so when the Act imposed the duty, not upon the borrower, but, except in unusual cases such as the present, upon the lender, and imposed it only where the rate of interest was one which might be regarded as reasonably high.

Moreover, there was a specific reference in the legislation in question, in sec. 82B(3), to the local money lending legislation.

In my opinion there is no assistance to be gained by that reference which simply applies the method of calculation provided for in the first schedule to the Moneylending Act, 1941, to cases which, unlike this one, do not fall within the provisions of sec. 82B(3)(a). The fact that the money lending legislation is referred to is no warrant for departing from the ordinary rule of construction of revenue legislation that in a case of ambiguity or doubt the ambiguity or doubt is resolved against the revenue.

But the principal reason why I think that the Commissioner's submission fails and that the case relied upon by him is distinguishable stems from the provisions of sec. 82B(3)(a). It provides that the applicable rate of interest in relation to a fixed loan, where the terms of the loan provide that the whole of the interest on the loan is to be paid at a rate of simple interest that is constant throughout the term of the loan, is ``that rate expressed in terms of a rate per centum per annum''. The loan here is a fixed loan. Its terms do provide that the whole of the interest is to be paid at a rate of simple interest that is constant throughout the term of the loan, that is 13.9 per cent per annum. Accordingly, the rate is in fact expressed in terms of a rate per centum per annum. Upon the basis that the amount advanced is $3 million and not $2.6 million, the $0.4 million is interest. In terms of sec. 82(3)(a) of the Act the applicable rate of interest is therefore 13.9 per cent per annum. It matters not whether it is paid in arrears or in advance. That in my opinion, is enough to dispose of the Commissioner's second submission. However, I should mention some other matters.

I was referred to the meaning of ``interest'' in the third edition of the Shorter Oxford Dictionary. The appropriate definition is ``money paid for the use of money lent (the principal), or the forbearance of a debt, according to a fixed ratio (rate per cent) 1545''. It was submitted that for interest to be interest in the true sense, it must be payable, ``in arrears''. Only in this way could it be looked at as the price payable by the borrower to the lender for the use of the money that was lent.

But unless one applies to the construction of the legislation here in question the views of Griffiths C.J. and Isaacs J. earlier cited, the fact that interest expressed at an annual rate is payable at all in advance of the end of the year does not mean that the rate of interest being paid is any greater than would be the case if it were payable in its entirety at the year's end. The importance of what I have just said for the present case is that once the payment in question is characterised, as I have decided it should be, as interest, it is of no consequence, when an enquiry is being made as to the rate per cent per annum at which interest is being charged, that all or part of it is payable in advance of the end of the year. Once that proposition is understood no difference ought logically to arise between cases where the interest is payable, say at monthly or quarterly rests, and one, such as the present, where the entirety of the year's interest is payable at the commencement of each year.

As I have previously said the Commissioner did not base any argument upon the dicta of the judges in the two High Court cases earlier cited. But in my opinion no question here arises as to whether it is open to me, if I thought it otherwise right to do so, to depart from them and to adopt the dictum of Wolff C.J. in Gill v. The Queen (supra). That is not because that matter was not argued. Rather, it is because the statute in question is one imposing taxation, and a different approach should, for that reason, be made to the problem from that taken in cases relating to money lending legislation, the object of which is to protect borrowers from usurious rates of interest.

For the above reasons the Commissioner's second submission is rejected with the result that the plaintiff is entitled to succeed.

The questions asked in the stated case and the answers which should be given to them are as follows:

  • (a) Whether the Agreement referred to in paragraph 1 of this case or the loan the subject thereof is liable to duty as a loan instrument or as a loan security.
  • Answer: As a loan security.

    ATC 4448

  • (b) Whether any duty under the said Act chargeable or payable in respect of loan instruments is chargeable or payable in respect of the loan made on the terms of the said Agreement.
  • Answer: No.
  • (c) Whether the plaintiff was at any time liable to make out or furnish to the defendant any return under or pursuant to the provisions of sec. 82C(5) of the said Act in respect of the loan made on the terms of the said Agreement.
  • Answer: No.
  • (d) Whether the defendant is entitled to make an assessment under the provisions of sec. 82C(7) of the Stamp Duties Act as if a return had been made out and furnished by the plaintiff under sec. 82C(5) of the Stamp Duties Act in respect of the loan made on the terms of the said Agreement.
  • Answer: No.
  • (e) Whether the duty properly assessable in respect of the said Agreement or the said loan is:
    • (i) $45,000;
    • (ii) $38,745;
    • (iii) $11,945; or
    • (iv) some other, and, if so, what other amount.
  • Answer: $11,945.
  • (f) By whom should the costs of this stated case be paid.
  • Answer: The defendant.

I have been informed by counsel that it has been agreed that if my decision is in favour of the plaintiff the costs of the summons (No. 62 of 1977) as well as of the stated case are to be paid by the defendant. Accordingly I order that the plaintiff's costs of the consolidated proceedings be paid by the defendant. Otherwise I make no order in respect of the summons No. 62 of 1977.


This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.