VENTURE MANAGEMENT LTD v COMMISSIONER OF STATE TAXATION (WA)

Members:
Franklyn J

Tribunal:
Supreme Court of Western Australia

Decision date: Judgment handed down 5 June 1991

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Franklyn J

This is an appeal under s 33 of the Stamp Act 1921 as amended (``the Act'') against the decision of the Commissioner on an objection by the applicant to an assessment of stamp duty issued on 22 August 1989 in respect of a Deed made 26 October 1988 between the City of Perth and the applicant whereby the City agreed to sell and the applicant to purchase certain lands. The appellant's objection is as follows:

``1. By a deed (`Deed') made 26 October 1988 between City of Perth and Venture, City of Perth agreed to sell and Venture agreed to purchase certain land upon the terms and conditions contained in the Deed.

2. On 14 December 1988 the Commissioner expressed his opinion with reference to the Deed on whether or not the Deed was chargeable with any duty.

3. The Commissioner was of the opinion that the original Deed was chargeable with duty in the amount of $144,275, and a duplicate of the Deed was chargeable with duty in the amount of $2

4. On 14 December 1988 the Commissioner issued an assessment (`First Assessment') of stamp duty with reference to the Deed in the amount of $144,275 in respect of the original Deed and $2 in respect of the duplicate Deed.

5. On 14 March 1989 Venture paid the amount of the First Assessment and the original Deed was duly stamped for $144,275 and the duplicate Deed was duly stamped for $2.

6. On 22 August 1989 the Commissioner purported to issue the Assessment. By the Assessment the Commissioner purported to charge the Deed with stamp duty in the amount of $395,025. The Assessment, in effect, was an amended assessment or a re-assessment of the duty charged on the Deed by the First Assessment.

7. The Commissioner has no power under the Act to amend an assessment or make a re-assessment of duty at any time, or alternatively after the amount of the assessment has been paid. The Commissioner therefore had no power under the Act to issue the Assessment.

8. The Assessment, being beyond the powers of the Commissioner, is not authorised by the Act and has no force or effect.

9. No provision of the Act or of a Schedule to the Act supports or justifies the Assessment.''

The matter came before me on the following stated agreed facts.

Statement of Agreed Facts

``1. On 25 November 1988 a Deed made on 26 October 1988 between the appellant and the Perth City Council (`the Deed') for the sale of two parcels of land bordering on Wellington, Elder and Murray Streets, Perth (`the project land') was lodged for stamping with the respondent.

2. The Deed was lodged together with the form attached coloured pink. A copy of the `pink form' lodged with the Deed is annexed and marked `A'.

3. The respondent did not issue any requisition or make any requirements of the appellant in relation to the assessment of the Deed prior to issuing an assessment.

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4. On 14 December 1988 the respondent issued an assessment of stamp duty for an amount payable of $144,277.00 being the duty chargeable on a conveyance to the value of $3,500,000.00 under item 4(1) of the Second Schedule of the Stamp Act, 1921 (`Act') together with the sum of $2.00 payable on a counterpart copy of the Deed under item 9 of the Second Schedule.

5. Subsequently, it came to the attention of the respondent that the purchase price appeared to be below the market value of the project land as at the date of the Deed and, therefore, the respondent requested the Valuer General to carry out a valuation of the project land.

6. On 12 May 1989 the Valuer General submitted to the respondent his valuation of the project land stating that, as at the date of the Deed, the market value of the project land was $9,400,000.00.

7. On 28 July 1989, the respondent wrote to the appellant stating the respondent's belief that the Deed had been insufficiently stamped and requesting the appellant to furnish a valuation of the project land.

8. On 16 August 1989, the appellant wrote to the respondent enclosing a stamp duty valuation form estimating the value of the project land to have been $3,500,000.00.

9. On 22 August 1989, the respondent issued a further assessment of stamp duty showing an amount payable of $250,750.00 comprising $395,025.00 being the duty chargeable on a conveyance of property to the value of $9,400,000.00 under item 4(1) of the Second Schedule to the Act less the sum of $144,275.00, being the amount already paid (`the second assessment').

10. On 29 September 1989, the appellant objected to the second assessment on the ground that the respondent had no power under the Act `to amend an assessment or make a re-assessment of duty at any time or, alternatively, after the amount of the assessment has been paid.'

11. On 2 February 1990, the respondent disallowed the appellant's objection on the following basis:

• `(i) When, on 14 December 1988, the Commissioner assessed the duty payable on the Deed, the subject of the objection, the Commissioner was not fully informed of the facts and circumstances affecting the liability of the said Deed to duty.
• (ii) Subsequently, in accordance with the provisions of Section 75A of the Stamp Act, the Commissioner ascertained the correct value of the property agreed to be sold by the said Deed as at the date of execution of the said Deed.
• (iii) Accordingly, on 22 August 1989, the Commissioner issued a further assessment based on the correct value.
• (iv) It is the Commissioner's view that he has power to assess further duty in respect of an insufficiently stamped instrument, except where the amount involved had previously been specified in an opinion expressed under the provisions of Section 31 of the Stamp Act. In this instance no such opinion was expressed.
• (v) It would be particularly absurd for him to be prevented from making a further assessment where the need to do so arose from the Commissioner's dissatisfaction with the consideration or value furnished by a tax-payer as the basis for assessment in the first instance.''

It was common ground before me that the ``pink form'' referred to in para 2 of the Statement of Agreed Facts is a form prepared and made available by the Commissioner to members of the public for use when presenting documents for assessment of duty. As is apparent from its heading it is a ``request'' for the assessment of duty on the documents there specified.

It is not in dispute that the duty so assessed was paid on 14 March 1989 nor that the Commissioner nevertheless retained the Deed in his hands on the payment of the reassessed duty following from his assessment issued on 22 August 1989.

Also made available by consent for the purposes of my determination were the affidavits of Michael John Barry Controller of vehicle parking for the City of Perth Parking Department and Lawrence James Shervington a member of the firm of solicitors acting for the

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applicant, each sworn on 10 January 1991. Counsel for the Commissioner advised that he did not wish to file any affidavit in reply or to cross-examine either deponent and accepted that there was no reason why the facts therein deposed to should not be accepted. The facts therein upon which applicant's counsel asked me to rely and which I accept as correct are as follows:

``1. In late 1986 the appellant entered into negotiations with the Perth City Council (`the PCC') for, inter alia, the purchase from the PCC of two parcels of land bordering on Wellington, Elder and Murray Streets, Perth described as the project land (`the project land'). The two parcels of land which comprised the project land were divided by a lot on which it was proposed to build a new PCC car-park (`the car-park land').

2. At all material times the PCC and the appellant were negotiating at arms length. The appellant was not a member of the PCC, nor did it have any relationship with any member of the PCC.

3. On 26 November 1987, a PCC meeting was held in which the PCC considered a proposal for the construction of the PCC car-park on the car-park land by the appellant and the purchase of the project land by the appellant from the PCC (`the proposal'). The details of the proposal were set out in the notes of the meeting held on 26 November 1987 (page 75 of the Transmission of Objection).

4. The sale of the project land formed only one part of the proposal in terms of which, inter alia:

• (a) the appellant had to prepare various plans regarding the proposed construction of the PCC car-park;
• (b) the appellant was to construct the PCC car-park;
• (c) various legal documents had to be prepared to safeguard the interests of the PCC and the appellant;
• (d) the appellant had to comply with the PCC's Engineering, Parking, Planning, Valuations and Health Departments' requirements;
• (e) the project land and the car-park land had to be sub-divided and the plans and approvals for sub-division obtained;
• (f) the appellant had to provide the PCC with a traffic impact study;
• (g) the appellant was to make provision for access and egress to the PCC car-park over the project land;
• (h) the appellant had to provide a bankers' guarantee for the funding of the PCC car-park.

5. At the meeting of 26 November 1987, the PCC decided that there was insufficient detailed information to allow it to grant its final approval to the proposal.

6. At the meeting of 15 February 1988 it was disclosed that the PCC had obtained an independent valuation of the project land of $3,500,000.00 and that it intended to sell the project land for not less than an amount equivalent to that independent valuation.

7. The PCC and the appellant then agreed that this sum would be a commercial price to be paid by the appellant to the PCC for the project land and that the appellant would build the PCC car-park at a contract price to be determined by independent quantities surveyors.

8. By letter dated 4 March 1988 the PCC advised the appellant that, at its meeting on 15 February 1988, the PCC had formally agreed to accept the proposal but its agreement was still subject to a number of conditions being fulfilled, including those conditions referred to in paragraph 4 above.

9. Following further delays arising from, inter alia, the internal procedures imposed on the PCC by various statutes and regulations, on 26 October 1988 the deed encompassing the agreement made between the appellant and the PCC was executed.''

It further emerges from the documents made available to me and is not in contest:

• (1) that by his letter of 28 July 1989 referred to in para 7 of the Statement of Agreed Facts the Commissioner advised the appellant that he had impounded the Deed under the provisions of s 7 and relied on the authority of s 75A of the Act for his requirement that the applicant furnish a

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  valuation as at 26 October 1988 he providing therewith the necessary valuation form;
• (2) that the applicant submitted to the Commissioner with such completed valuation form a letter setting out the history of the negotiations with the City which led to execution of the Deed on 28 October 1988;
• (3) that by his letter of 22 August 1989 referred to in para 9 of the said Statement the Commissioner advised that he had revalued the land as at 26 October 1988 under s 75A and assessed duty on that valuation pursuant to s 7(4).

It is the applicant's submission that the only provision in the Act which empowers the Commissioner to issue an assessment upon the presentation of an instrument for stamping is s 31; that on 14 December 1988 the Commissioner duly exercised that power in respect of the deed and issued his assessment, the duty so assessed being paid on 14 March 1989; that that having been done there is no power in the Commissioner, at least in the circumstances of this case, to reassess the amount of duty payable whether pursuant to s 7(4) or otherwise. The Commissioner however denies that the Deed was first assessed under s 31 and says that the assessment of 14 December 1988 was made pursuant to the powers conferred by s 23. He concedes that when an instrument is stamped in accordance with an assessment issued under s 31(2)(a) then, because of the provisions of s 31(4) he is not entitled to reassess under s 7(4) or, as I understand his concession, otherwise. That concession inevitably incorporates the further concession that an instrument so stamped is not an ``insufficiently stamped'' document.

Section 23 provides:

``23 It is the duty of the Commissioner or any person required or authorised under this Act to impress stamps, make out and affix adhesive coupons or cancel adhesive stamps, to determine whether any instrument produced for stamping or to have the stamp cancelled may be stamped, and the amount of the duty payable, and of the fine (if any), and, in case of doubt on the part of any person, other than the Commissioner, the question shall be referred by such person to the Commissioner.''

Section 7 relevantly provides:

``7(3) Whenever any instrument which is produced to or otherwise comes into the hands of the Commissioner appears to him to be chargeable with duty and to be unstamped or insufficiently stamped, he may impound that instrument until the duty and any fine payable under this Act have been paid.

7(4) When an instrument has been impounded under subsection (3), the Commissioner may assess the duty with which the instrument is in his opinion chargeable.''

Section 31 of the [Act] provides:

``31(1) Subject to subsection (6), the Commissioner shall, if required by any other person, or may, of his own volition, express his opinion with reference to any executed instrument -

• (a) on whether or not that instrument is chargeable with any duty; and
• (b) if he is of the opinion that that instrument is chargeable with any duty, on the amount of duty with which that instrument is chargeable.

31(2) Having expressed his opinion under subsection (1), the Commissioner shall -

• (a) if he is of the opinion that the instrument concerned is chargeable with duty, issue an assessment of duty in respect thereof; and
• (b) endorse on the instrument concerned his opinion -
  • (i) on the amount of duty with which that instrument is chargeable; or
  • (ii) that that instrument is not chargeable with duty,

  as the case requires.

31(3) Every instrument -

• (a) on which the opinion of the Commissioner that that instrument is not chargeable with duty is denoted; or
• (b) which has been stamped in accordance with an assessment of duty

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  issued under subsection (2) in respect of that instrument,

shall be admissible in evidence and available for all purposes.

31(4) An instrument on which the duty has been assessed by the Commissioner shall not, if it is unstamped or insufficiently stamped, be stamped otherwise than in accordance with the assessment of duty issued under subsection (2) in respect of that instrument.

31(5) The Commissioner may require the person submitting the instrument concerned to furnish him with an abstract thereof and with such information or evidence as the Commissioner deems necessary to satisfy him that all the facts and circumstances affecting the liability of that instrument to duty or to any particular amount of duty are fully and truly set forth therein.

31(6) When the Commissioner has made a requirement under subsection (5), he may, until that requirement has been complied with, refuse to express his opinion with reference to the instrument concerned.

31(7) When the duty chargeable on an instrument amounts to $2 or less than $2, the Commissioner may waive that duty and the instrument shall be marked accordingly and shall thereupon be deemed to be duly stamped.''

Section 32 makes provision for a person dissatisfied with an assessment made by the Commissioner to object to that assessment in the manner therein provided and empowers the Commissioner on a consideration of the objection to allow or disallow it wholly or in part and to modify or confirm the assessment in question.

Section 32(6) provides:

``32(6) For the purposes of this section and sections 33 and 34A the term `assessment' shall include any determination or decision made or purported to be made by the Commissioner under the provisions of this Act other than under this section and section 33.''

Section 33 provides for an appeal to this Court against the Commissioner's decision on an objection under ss 32 and 34A for an appeal against his refusal to extend time for objecting or appealing.

There is no express power in the Act for the Commissioner to amend or vary an assessment or to reassess having once issued his assessment other than pursuant to s 32.

It was suggested by the Commissioner that such a power is illustrated by s 26(3). The power under s 26(3) to increase liability in the case of a document which has been altered is not a power to vary or amend. It enables the altered document to be treated as a fresh instrument and so the appropriate duty to be charged in accordance with the alteration. It applies only to an increased liability (
Prudential Assurance Co Ltd v IRC [1935] 1 KB 101). The Commissioner's counsel however submits that such a power necessarily follows from the references in the Act to ``insufficiently stamped documents'', and refers to s 7(3), s 20 and s 31(4). It does not follow however from those references that the Commissioner has a general right to vary, amend or reassess an assessment already made. By s 7(3) he is empowered ``whenever any instrument which comes into his hands appears to him chargeable with duty and to be unstamped or insufficiently stamped'' to impound the same until the duty and any fine payable are paid and by sub-s (4) to assess the duty with which that instrument is in his opinion chargeable. The power is limited to instruments which appear to be chargeable with duty because they are unstamped or insufficiently stamped. Insufficiently stamped instruments are instruments which have previously been stamped, ie to which an adhesive stamp is affixed, on which a stamp is impressed by means of a die or to which an adhesive coupon is affixed (s 4(1)). The power in relation to such an impounded document conferred by s 7 ceases there. It is a power to assess the duty with which the instrument is in his opinion chargeable. He has no unfettered discretion as to what that duty shall be. It can only be duty as authorised by the Act.

It is the Commissioner's case that the Deed as first stamped was insufficiently stamped.

When is an instrument insufficiently stamped? The simple answer is when not stamped in accordance with the duty chargeable in respect of it as provided for by the Act at the time of its first execution. Such duties are

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provided for by s 16 which specifies that the duties to be charged shall ``subject to this Act'', be the duties specified in the Second Schedule subject however to the exemptions in the Third Schedule. In my opinion the expression ``subject to this Act'' there used means that for duty to be chargeable otherwise than in accordance with s 16, the authority therefor and the method of ascertainment thereof must be found in some other provision of the Act. It is common ground as I understand the concession - which on the proper construction of s 31 I find to be rightfully made - that an instrument in respect of which an assessment of duty has issued under s 31(2) is not or is deemed not to be ``insufficiently stamped''. An instrument is stamped when either an adhesive stamp or adhesive coupon is affixed to it or a stamp is impressed by a die (s 4(1)). Subsequent cancellation of the adhesive stamp is provided for by s 21 but is not necessary for the ``stamping'' to be effected. Cancellation otherwise than within the time limited by s 21 renders the instrument liable to a fine. Adhesive stamps may be affixed it seems by any person but only prescribed persons of the Commissioner can cancel them. One can readily conceive instruments bearing adhesive stamps being found to be ``insufficiently stamped'' so giving rise to the exercise of the Commissioner's power to impound and assess under s 7(3) and (4). It may be that instruments stamped by an impress may also be insufficiently stamped if such stamping is not the result of an assessment issued under s 31(2).

Section 20 does not confer any power in respect of an insufficiently stamped instrument but contemplates that it may be further stamped, either with or without a fine depending on when it is ``presented for stamping''. It contemplates some prior recognition that the instrument is or may be insufficiently stamped which results in it being presented for stamping. Section 23 imposes a duty on the Commissioner when the instrument is produced (or presented) for stamping to determine whether it is in fact insufficiently stamped and if so the amount of duty payable. The provisions of ss 20 and 23 which refer respectively to an instrument ``presented'' and ``produced'' for stamping each import that by such presentation or production the person presenting or producing requires a determination whether the document may be stamped or further stamped, and if so with what amount. Section 20 relevantly provides that ``except when other express provision is made'' by the Act an unstamped or insufficiently stamped instrument may be stamped without fine after its execution if it is presented for stamping within a period of three months after the date of its first execution and that if not presented for stamping within that time it shall, in addition to being charged with the appropriate duty, be charged with a fine. By sub-s (3) it provides:

``20(3) If the full amount of the duty chargeable on an instrument is not paid within a period of 3 months after the date of issue of an assessment of duty made by the Commissioner in accordance with this Act in respect of the instrument, or within any period allowed under section 34C(2), the instrument shall, in addition to being charged with the appropriate duty, be charged with a fine equal to 20% of that duty or a fine of $2, whichever is the greater amount.''

(emphasis added)

Such liability to a fine arises from its provisions only if:

• (a) the Commissioner has made an assessment of duty ``in accordance with the Act'';
• (b) an assessment for that amount has issued.

Section 23 (set out in full above) imposes on the Commissioner and others there specified the duty to determine in respect of any instrument produced for stamping or for cancellation of the adhesive stamps affixed to it:

• (1) whether it may be stamped and if so
• (2) the amount of the duty payable and
• (3) the fine if any.

The duty arises on production of the instrument for stamping and is not referable to instruments which otherwise come into the Commissioner's hands (eg pursuant to s 7). The duty to determine whether it ``may be stamped'' is one to determine whether it is liable for duty under the provisions of the Act. The provisions of s 20 apply to the instruments so produced. Section 23 however is not concerned with any duty to issue an assessment or with the consequences of non-payment

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within the period prescribed by s 20(3). The reason for this would appear to be that it declares the duty not only of the Commissioner but also of persons who are given the limited authority to do the things there specified which do not extend to the making or issue of assessments of duty. Before s 20(3) can operate in respect of the instrument the Commissioner or other authorised person must have exercised his duty under s 23 to determine that it was liable for duty and the amount of that duty. Additionally however the Commissioner must have issued an assessment of duty made by him in accordance with the Act. There is no power or duty created by s 23 in either the Commissioner or such authorised persons to do either such thing. However the necessary power and duty to so do is conferred on the Commissioner by s 31(2). The need to declare the duty set out in s 23 is clear, as instruments chargeable with duty are not, except in criminal proceedings, admissible in evidence or useful or available in law or in equity unless and until duly stamped (s 27). Other consequences are set out in ss 28 and 29.

The determination under s 23 of the amount of duty payable is essential to the making of an assessment but it does not follow either as a matter of construction or logic that it is an assessment of duty for the purposes of s 20(3) and so one which gives rise to a penalty if not paid within the time there limited. Indeed the section appears to be consciously drafted to avoid conferring a power or duty to assess. The requirement that ``in case of doubt'' an authorised person must refer the question to the Commissioner is inconsistent with that person's determination being an assessment of the duty payable. ``Assessment'' is not defined in the Act save in the form used in s 32(6) to which I shall return. I am satisfied that s 23 gives no power to assess or issue a notice of assessment of duty payable.

Section 31 (set out in full above) is to be read with an appreciation of the duty imposed by s 23. When an instrument is produced for stamping that production imposes an obligation or requirement upon the Commissioner to carry out the duty imposed on him by s 23. Such production in my opinion carries with it a requirement within the meaning of s 31(1) that he determine whether duty is payable, and if so, the amount of the duty payable for the purposes of expressing his opinion and so making an assessment. The expression in s 23 ``duty payable'' is not defined. It was not suggested by either party however that it has a meaning different to ``duty chargeable'' as used throughout the Act in relation to instruments, and nothing has been drawn to my attention to suggest that the Commissioner is entitled to determine that the ``duty payable'' may be more or less than the ``duty chargeable''. The Commissioner carries out the duty imposed on him by s 23 by complying with the procedure set out in s 31(1), the expressed opinion as to the duty chargeable (if any) being his determination of the amount of duty payable. Sub-section (2) then requires that he issue an assessment. In complying with that procedure he ``makes and issues an assessment in accordance with the Act'' (s 20(3)) thereby setting running the three months time period for payment without penalty. Once the instrument is stamped in accordance with the assessment so issued it is ``admissible in evidence and available for all purposes'' and so free of the consequences which would attach if the Commissioner were under no duty to assess on presentation of an instrument for stamping and consequently refused or failed to do so. One accepted effect of s 31(4) is that once the Commissioner has assessed duty and issued his assessment pursuant to s 31(2) he is bound by that assessment. He concedes that he cannot reassess an instrument in respect of which such an assessment has issued. It is the issue of an assessment under s 31(2)(a) which produces this result. It is not a result which is in any way affected by a failure to make the endorsement required by sub-s (2)(b). Such a failure would be a breach of duty but would not alter the effect of sub-s (4).

In my opinion s 31, unlike ss 20 and 23, is not limited in its application to instruments presented or produced for stamping. It applies to ``any executed instrument'', save to the extent that the Act may make specific contrary provision. The power thereby conferred by the words ``of his own volition'' enables the Commissioner to issue assessments in other cases. Consequently it applies in my opinion to the assessment of duty in all the circumstances provided for by ss 7(3) and (4) and by other provisions of the Act whereby a power to assess in respect of documents not presented or produced for stamping is conferred but no provision made for the issue of an assessment.

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ATC 4529

Its application is necessary in such cases for the penal provisions of s 20(3) to apply. It is not limited to the ``special cases'' of requests made for the specific opinions referred to in s 31(1)(a) as the Commissioner contends. The evidentiary effect of stamping provided for by s 31(3) is clearly not to be limited to such ``special cases'' but is the effect of stamping, in accordance with the section, ``any executed instrument''.

Be that as it may, for the purposes of the present case the effect of s 31 is that it prescribes the process for and is applicable to all assessments of duty which result from a presentation of an instrument to the Commissioner for stamping or alternatively for a determination that it is not chargeable with duty. It is the Commissioner's obligation on any such presentation, in accordance with the duty imposed on him by s 23, to determine whether or not the instrument is chargeable, and if so with what amount. If it is chargeable he must issue an assessment under s 31(2). He is then further obliged to endorse on the document the amount of duty to be paid. If it is not chargeable he must so endorse the instrument. The determinations so made are made by the expression of his opinion on the relevant matter. His opinion once expressed determines the question whether the instrument is liable for duty and if so in what amount and so gives rise to the making and issue of an assessment.

On the proper construction of s 31 the request made by the appellant for an assessment of stamp duty on presentation of the document to the Commissioner was a requirement within the meaning of s 31. It necessitated that he perform in the way provided for by sub-s (1) the obligation imposed by s 23 to determine whether the instrument ``may be stamped'' and if so the amount of duty payable and to then assess and issue an assessment as required by sub-s (2). That his opinion was in fact expressed on the relevant matter is evidenced by the making and issue of the assessments.

It is not admitted, although not expressly denied by the Commissioner, that the Deed bears the endorsement required to be made by s 31(2)(b). It is said that the absence of such endorsement goes to show that the assessment was not made and issued under s 31(2). In my opinion, if the Commissioner fails to duly endorse the document that does not invalidate the assessment issued. It means only that the Commissioner has failed in his duty to endorse. The assessment is nevertheless an assessment under sub-s (2) to which sub-s (4) applies. However an examination of the Deed reveals that in fact it bears a pencilled endorsement ``$144,275'' which is the amount of the duty first assessed and paid and which appellant's counsel says without contradiction was made by the Commissioner or his delegate. Accepting that to be the case it supports in a factual sense that the assessment was made under s 31.

Consequently in my opinion, on the proper construction of the Act, when the Commissioner purports to issue an assessment under s 23 he is in fact issuing an assessment under s 31 and that is what occurred in this case. In the circumstances therefore it was not in any event open to the Commissioner to rely on s 75A, as he has purported to do, to reassess the duty chargeable and issue a new assessment in the manner in which he has done. Although it is not necessary for me to decide, it appears doubtful that he was entitled in any event to rely upon that section. On its face it appears not to apply to permit a reassessment but rather to the case where the ad valorem duty ``chargeable'' has not yet been assessed. It enables the Commissioner to obtain evidence of value to assist him in his determination as to the true amount of duty chargeable. Its use is specifically provided for in the cases contemplated by ss 75(2) and 76AA. It may be that it is specifically provided for elsewhere in the Act. One wonders why specific provision was there seen necessary if, as the Commissioner appears to consider, it is a power generally available to him.

It was the Commissioner's contention that various other sections of the Act provided for the issue of assessments and specifically he referred to ss 7(4), 31A(1)(c), 75A, 75AE(3), 76AA(1)(b), 76C(9). In his submission this fact supported his claim that neither assessment made by him in the present case was one made under s 31. In fact none of such provisions provide for the issue of assessments. They do no more than authorise the making of an assessment, in some cases referring to matters to be taken into account in so doing. Section 31A is clearly somewhat different to the others. It is not directed to an assessment of the ``duty

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chargeable'' or the issue of an assessment thereof. It enables the Commissioner to make an assessment of the amount which in his judgment is the amount of duty which ought to be levied on a document which is not available to him and provides that he cause written notice of that assessment and the amount to be paid to be served on the person liable. Each of those provisions is specific to the matter with which it is dealing and is not relevant to the general stamping of instruments presented to the Commissioner for stamping. The fact that power exists in the Act to assess as in those and other sections provided does not in my opinion detract from the conclusions at which I have arrived.

The Commissioner further relies on s 55 of the Interpretation Act 1984 which provides:

``Where a written law confers a power or imposes a duty upon a person to do any act or thing of an administrative or executive character or to make any appointment, the power or duty may be exercised or performed as often as is necessary to correct any error or omission in any previous purported exercise or performance of the power or duty, notwithstanding that the power or duty is not in general capable of being exercised or performed from time to time.''

He submits that his reassessment of duty was a subsequent exercise of the power and duty conferred by the Stamp Act to assess the Deed with the full amount of duty chargeable necessary to correct an error made in the first assessment. I am not satisfied that there was an error on the facts of the present case. The Commissioner formed an opinion as to the amount of duty chargeable according to law and issued an assessment in respect thereof. It is not in question that the appellant had declared all relevant facts and circumstances. Subsequently, for reasons which are not clear, the Commissioner purported to apply the provisions of s 75A. I am told by his counsel that the reassessed duty was calculated in accordance with s 75(2). Thus it seems that subsequent to the issue of the first assessment he changed his opinion as to the amount of duty chargeable at law because he concluded that a substantial benefit of the nature specified in s 75(2) was conferred by the Deed on the appellant. Whether that conclusion is right or wrong is one of fact, but it was a conclusion open to him before the making and issue of the first assessment. In my opinion, having regard to the nature of the duty specified in s 23 and s 31(1)(b) and (2)(a) and (b), and that he chose not to exercise the powers conferred by s 75A prior to the first assessment, it cannot be said that the issue thereof was an error within the meaning of s 55. Rather, the second assessment resulted from a change of opinion occasioned by a decision taken subsequent to the issue of the first assessment, to make further enquiries as to the value of the land in question as at the date of the agreement. This conclusion is supported by the decision in
Triton Textiles Ltd v Minister of Trade and Industry 6 NZAR 261 in which Smellie J considered a similar provision under the New Zealand Interpretations Act.

I uphold the appellant's objection that the assessment issued by the Commissioner on 22 August 1989 was made without power and is of no force and effect.