COLES MYER LTD v COMMISSIONER OF STAMP DUTIES (QLD)

Judges:
McPherson SPJ
Derrington J
Moynihan J

Court:
Full Supreme Court of Queensland

Judgment date: Judgment handed down 7 March 1991

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McPherson SPJ

The scheme of the Stamp Act 1894-1988 is by s. 4(1) to charge duties upon the several instruments specified ``for the time being'' in the First Schedule to the Act. A lease ``for any term of any lands...'' is one of the instruments so specified. Section 4(2) is a provision that, as I conceive it, is concerned primarily with the time at which an instrument becomes chargeable with duty and the rate of duty with which it is to be charged. It provides:

``(2) Save where the contrary is expressed in this Act, an instrument shall be chargeable with duty and shall be stamped in accordance with the law in force at the time -

• (a) in the case of an instrument which relates to property situated... in Queensland -
  • (i)...
  • (ii) Where the instrument... is executed outside Queensland after the commencement of the Stamp Act ...
  • 1982, when the instrument... was executed;''

The instrument in the present case is a lease of a defined area of floor space in a retail shopping centre erected on registered land in Queensland. It is therefore, within s. 4(2)(a), an instrument which relates to property situated in Queensland. It was executed evidently in Victoria by the appellant lessee Coles Myer Ltd. on 16 November 1988, which is the date on which the Case Stated says that the lease was executed. The date 16 November 1988 is therefore the relevant date for the purpose of s. 4(2)(a)(ii) of the Act. It is a date that is after the amending Act referred to in that provision. The lease is for a term of 27 years commencing on 3 November 1986. As such, it is within the relevant heading in the First Schedule that specifies: ``Lease: For any term of any land...''. That being so, the instrument was chargeable to duty at the rate specified in that Schedule at the date of execution of the instrument.

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ATC 4246

The lease was assessed to duty by the respondent Commissioner on 22 February 1989. The amount of duty calculated by the Commissioner was $137,906.65. Under the First Schedule the duty payable is to be calculated at a rate of so many cents for every $100 of the total rental payable over the term of the lease. The duty was, I assume, calculated on that basis in this instance.

There can, in my view, be no complaint in law about an assessment of stamp duty on a lease that is calculated in that way. The lease was an instrument specified ``for the time being'' in the First Schedule and so by s. 4(1) liable to a charge of stamp duty. Section 4(2)(a)(ii) required that it be stamped ``in accordance with the law in force at the time'' when the instrument was executed outside Queensland, which was 16 November 1988. If the assessment proceeded (as I understand it did) at the rate of duty that accorded with the law in force on 16 November 1988, then the assessment was valid and cannot be made the subject of a successful appeal under the Act.

What then does the appellant complain about in this Court? It says that the law used to be different. Before 26 April 1988, which was when the Stamp Act Amendment Act 1988 came into force, the rule for assessing leases was different. Then as now the First Schedule contained a heading ``Lease''; then as now s. 62(1) of the Act provided that ``an agreement for a lease in respect of the letting of any lands... for any definite or indefinite term is to be charged as if it were a lease made for the term and consideration mentioned in the agreement''. Formerly, it was also provided in s. 62(2) that a lease made subsequently to and in conformity with such an agreement for lease if duly stamped was to be charged with a duty of $1.00, or the equivalent of the duty paid in respect of the agreement, whichever was less. These provisions may be compared to those of ss. 54(1) and 54(6) providing in effect that an agreement for sale is to be charged with duty as if it were a conveyance on sale. The legislation is, with some local variation and amendment, derived from comparable provisions of s. 75 and s. 59 of the Stamp Act 1891 (U.K.).

Section 64A(2) of the Queensland Act contained a special provision for the case of an agreement for lease having a term that was indefinite or could not be ascertained. The subsection required that the term of such an agreement be deemed to be a definite term of three years, and that the instrument be deemed to create that initial three year term followed by a series of recurring three year tenancies. By s. 64A(4) if the agreement for lease provided for payment of a rental that could not be ascertained at the time the instrument was submitted to the Commissioner, the assessment then made was an interim assessment only: s. 62A(4); and the instrument was required to be resubmitted for assessment after three years.

Before the subject lease was executed on 16 November 1988, the appellant had on 1 October 1985 entered into an agreement for lease of the subject land for a term of 27 years to commence on date to be fixed on completion of the shopping centre. In accordance with s. 64A as it then stood this agreement was assessed to duty in the sum of $5,140.80 in respect of the first three years of the lease. Thereafter the law was changed by the coming into force of the amending Act on 26 April 1988, introducing the new regime by which a lease when executed is to be assessed to stamp duty at a rate calculated by reference to the rent payable over the full term of the lease. It was under this new regime that the subject lease executed on 16 November 1988 was assessed on 22 February 1989. In doing so the Commissioner allowed a credit for the amount of $5,140.80 earlier paid under the assessment in respect of the agreement for lease, describing this in the assessment as ``less paid on a/c''. That appears to have been done in consequence of provisions introduced into s. 62(2) by the amending Act in 1988. They now are to the effect that, where duty has been paid under s. 62(1) on an agreement for lease, and a lease is subsequently granted that is in conformity with the agreement, the Commissioner is to allow the duty so paid as an ``offset'' against duty chargeable on the lease.

What has therefore happened is that between the making of the agreement for lease and its assessment to duty, and the execution of the lease and its assessment to duty, the legislation has undergone a change. Under the new legal regime a lease is liable to duty calculated on the rent payable over the whole term. That was the law that applied at the time the lease was executed on 16 November 1988. Under s. 4(2), the instrument was to be ``chargeable with duty'' and was to be ``stamped in accordance

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ATC 4247

with the law in force'' at the time of such execution. Having regard to the explicit provisions of s. 4(2) of the Stamp Act subjecting an instrument to a charge of duty, and making it liable to be stamped, ``in accordance with the law in force'' at that time, I can see no room for the application of the provisions of s. 20(1) of the Acts Interpretation Act 1954-1977, on which the appellant relies. Those provisions are in any event subject to the provisions of s. 3(1) of that Act. Speaking generally, s. 3(1)(b) specifically displaces ``the several provisions'' of the Acts Interpretation Act in cases where the interpretation that a provision of the Acts Interpretation Act would give would be inconsistent with the context of the particular Act to be interpreted. In my opinion the context afforded by s. 4(2) of the Stamp Act clearly shows that the saving provisions of s. 20(1) of the Acts Interpretation Act, if otherwise applicable, are not intended to apply to the charging of this instrument with duty and its stamping in accordance with the law at the time of its execution on 16 November 1988.

This makes it unnecessary for me to consider whether the appellant acquired any ``right or privilege'' under the law as it was before the amendment took effect on 26 April 1988. However, if it were necessary to decide that question, I would agree with the reasons (which I have had the advantage of reading) in relation to that matter of my brother Derrington.

In my opinion the appeal should be dismissed with costs.