Between: LIVINGSTON
And: COMMISSIONER OF STAMP DUTIES (QUEENSLAND)

Judges: Dixon CJ
Fullagar J
Kitto J
Menzies J

Windeyer J

Subject References:
Conflict of laws
Assessment of succession duty
Wife entitled to share in residue under husband's will
Husband's estate not fully administered
Assets in New South Wales and Queensland

Legislative References:
Succession and Probate Duties Act 1892 (Qld) - the Act

Judgment date: 16 December 1960

SYDNEY

Judgment by:
WINDEYER J

I agree that in this case an appeal lay to the Supreme Court of Queensland in respect of both succession duty and administration duty, although I appreciate the force of the contrary view expressed by the Supreme Court. The legislation is a patch-work and s. 50 in its context is far from clear. On the questions of substance concerning succession duty and administration duty, I can state my conclusions shortly, for I fear they are naive: I think that if a person has an interest in Queensland land, of a kind recognized by the law of Queensland, then, for the purposes of Queensland law, that interest is in Queensland and is property there. It matters not, I think, what in juristic theory is the nature of the interest or by what name it is called. And similarly I think that an interest in the undertaking and assets of a partnership in a station in Queensland is, for the purposes of Queensland law, property in Queensland.

To go fully into all the matters argued in this case, and to discuss all the cases referred to would involve a consideration of the juristic nature of proprietary rights and equitable interests. I think I can avoid this. The noun "property" and the adjective "proprietary" are notoriously capable of much variety of explanation by writers on jurisprudence: but when used in statutes or judgments the meaning depends upon the context; and little is to be gained, I think, by theoretical analysis. As to the nature of equitable interests in our system of law, I think it enough to quote what Dr. Hanbury has said, reviewing Sir George Paton's, A Texbook of Jurisprudence 1946: "The vexed question of the nature of the right of a beneficiary is one that must exercise the mind of a jurist, though it is questionable how far the discussion is not purely academic, except in the realm of Private International Law" ((1947) 63 L.Q.R. 115). This case is within the realm of private international law: and the nature of the interest of a beneficiary in trust property is fundamental to it-the particular question here being the nature of the interest of those entitled as next of kin to the estate of a deceased person while that estate is in course of administration. It is, I think, the inevitable result of our system of equity and of the impact of equitable remedies upon legal rights that the rights of a beneficiary under a trust can be regarded as a right to be asserted against the trustee who has the legal title to the trust property or as an interest in that property. This double aspect of the existence of equitable remedies is peculiar to our system. "The continental jurist" is puzzled by any reference to a right that partakes of the nature of rights in rem and rights in personam. He asks: "Who has the ownership? If it is given to the trustee, the beneficiary has a mere right in personam; if to the beneficiary then the trustee is a mere agent". That is how Professor Paton puts it in the work above referred to, 2nd edition (1951) p. 432. We were, of course, pressed with the decision in Lord Sudeley v Attorney-General. ^[F152] Remarks in the speeches of their Lordships in that case concerning the nature of the interest of a beneficiary in the assets of an estate in the course of administration have been much criticized, trenchantly so by Jordan C.J. in McCaughey v Commissioner of Stamp Duties. ^[F153] But those remarks must now be read in the explanatory light of what was said later in Skinner v Attorney-General, ^[F154] and in In re Cunliffe-Owen; Mountain v Inland Revenue Commissioners. ^[F155] No one would now say that Mrs. Tollemache had no interest in the New Zealand assets in question in Sudeley's Case. ^[F156] True she could not have said, "they are mine: give them to me", for her husband's estate had not been fully administered. The New Zealand assets were still in his estate; and her share in that estate was an English asset in respect of which probate duty under English law was payable. But, as we now know, that does not mean that she had no interest in the items of property that were comprised in that English asset. A situation comparable with that in question here would have arisen if Sudeley's Case ^[F157] had been concerned not with a liability of the English estate to English probate duty but with a liability under the law of New Zealand to duty upon property locally situate there. It is not without significance that in the original judgment in Sudeley's Case in the Queen's Bench, ^[F158] Lord Russell of Killowen C.J. and Charles J. referred to the fact that the English executors could only possess themselves of the assets in New Zealand by the aid of the Court there, and that administration duty had been paid on the estimated value of the share of Frances L. Tollemache in New Zealand.

If then it be correct, as I think it is, to regard Mrs. Coulson as having had an interest in the several items of property that make up the estate of Livingston, where is that interest situate? In my view it is where that property is. The land and stock and plant of the station are in Queensland. The partnership business of conducting Maranoa Downs was carried on in Queensland. That does not, I think, contradict the parallel proposition that Mrs. Coulson would ordinarily have had to assert her rights under Livingston's will by insisting that Livingston's executors perform their duties, and that the proper tribunal to compel them to do so would be the New South Wales court. But the land and other physical things and the partnership in which Mrs. Coulson had an interest were all in Queensland. Her interest in those things existed only so far as the law of Queensland recognized it and would aid the New South Wales courts in enforcing it. It was not, I think, accurate to say, as was said, that proceedings in relation to her rights in those things could only be taken in New South Wales, and that those rights would only be protected by the New South Wales court. The Queensland court would, in some circumstances, exercise jurisdiction at her suit, certainly in relation to the Queensland realty, provided of course that the executors of Livingston were made parties, as they could be by service outside Queensland.

I have written this merely to emphasize my view that the matter must be judged from the point of view of Queensland law; the opposite situation from that under consideration in Sudeley's Case. ^[F159] Having done so, I need say no more than that I concur in the conclusions of the Chief Justice and in the general principles he has stated on which his conclusions are based. There are, of course, some distinctions between succession duty and administration duty: in a sense they reflect the basic distinction that Dicey emphasizes between administration and succession. Westlake's description of the nature of succession duty, in the course of his explanation of the differences between it and probate duty, in his earlier editions e.g. 3rd ed. pp. 125, 126 gave rather too limited an effect to succession duty. In the sixth edition the same passage (s. 116) is restricted to succession duty when it is incident on settled property. Here we are concerned with duty on a succession under s. 4 of The Succession & Probate Duties Act, which is in the same terms as s. 2 of the English Act of 1852. And a "succession" as so described, it is always important to remember, is not an event: it is property, a proprietary interest (see per Rowlatt J. in Attorney-General v Anderton ^[F160] ). And, as a result of the amendment to the law made in 1895, succession duty is chargeable on all property within Queensland. Administration duty, on the other hand, is in the nature of a probate duty, as ordinarily understood but with its scope extended by the amending Act of 1935. It is levied in respect of property belonging to a deceased in Queensland. So that substantially the same question arises in respect of both duties. In my opinion, there was, in this case, a liability for both succession and administration duty to the extent that the Chief Justice has stated. That involves excluding the wool realization moneys. I have not considered whether the valuations of the property in respect of which the duties were levied were made on a proper basis. That was not really contested: and, in any event, as most members of the Court think the duties are not payable, I need not consider it. I would dismiss the appeals.