Between: Collector of Imposts (Victoria)
And: Cuming Campbell Investments Pty Ltd

Judges: Latham CJ
Starke J
Dixon J
Evatt J

McTiernan J

Subject References:
TAXATION AND REVENUE
STAMP DUTY
Instrument of transfer of real property
No adequate consideration

Legislative References:
Stamps Act 1928 (Vic) No 3775 - Third Schedule, Headings VI and IX

Sydney (heard in Melbourne)

Decision by:
McTiernan J

In my opinion the instrument of transfer is not dutiable as a deed of settlement or gift within the meaning of part IX. of the Third Schedule of the Stamps Act 1928 of Victoria.

The schedule applies to any voluntary instrument (not made before or in consideration of marriage) whereby property is settled or agreed to be settled or is given or agreed to be given and to any such instrument not voluntary but made upon any good or valuable consideration other than a bona-fide adequate pecuniary consideration. Two classes of instruments are embraced by these provisions: first, instruments of settlement or gift properly so called and instruments which though made for consideration yet are not made for a bona-fide adequate consideration. But to attract the schedule it is not enough that an instrument should be made upon a consideration other than a bona-fide adequate pecuniary consideration. The instrument must still be one whereby property is settled or agreed to be settled or is given or agreed to be given. In the case of Collector of Imposts (Vict.) v Peers ^[F37] their Honours quoted with approval the following explanation of the schedule which Hood J. gave in Atkinson v Collector of Imposts: ^[F38]

"The real meaning of the schedule is that a deed of gift shall not escape taxation merely because there is some good or valuable consideration therefor. But the instrument, to be taxable, must be one by which property is `given,' though it is not easy to reconcile the idea of a `gift' with there being good or valuable consideration."

Whatever may be said of the result of the whole arrangement in the present case, it cannot be truly said, in my opinion, that the instrument of transfer, made as it was in pursuance of the contract of sale of 17th September 1931, is one whereby the transferor settled or agreed to settle property on the transferee or gave or agreed to give property to the transferee.

The case stated does not contain any material which would, in my opinion, enable the court to say that the value of the shares-if that was the true consideration for the transfer of the land-exceeded the sum of PD50,000, which is the amount therein expressed.

In my opinion the appeal should be dismissed.

Fullagar K.C. and A. D. G. Adam, for the appellant.

Ham K.C. (with him H. Walker), for the respondent.

Solicitors for the appellant, Frank G. Menzies, Crown Solicitor for Victoria.

Solicitors for the respondent, Cook & McCallum.