CASELLA v COMMISSIONER OF STATE TAXATION (WA)

Judges:
Franklyn J
Ipp J
Parker J

Court:
Full Supreme Court of Western Australia

Judgment date: Judgment handed down 20 February 1996

Franklyn J

This is an appeal against the decision of a Judge of the District Court delivered on 16 July 1995 whereby, on appeal, he upheld the decision of a Deputy Registrar of that Court delivered 4 March 1994 whereby summary judgment was entered for the respondent against the appellant pursuant to O 14 of the Rules of the Supreme Court . Before turning to the appellant's grounds of appeal and the Notice of Contention filed by the respondent, it is helpful to set out the background facts.

By a contract in writing dated 13 July 1989 (``the contract'') made between the appellant as purchaser and Town and Country WA Building Society as vendor, the appellant agreed to purchase certain lands for the sum of $23,500,000. The contract was submitted to the Stamp Office for assessment of duty and, on 28 September 1989 pursuant to the provisions of s 31 of the Stamp Act and item 4 of the Second Schedule thereto, ad valorem stamp duty of $994,275 was assessed on the contract (``the first assessment''). Pursuant to item 4 and s 39(1) the appellant as purchaser was the person liable to pay that duty. Notice of the assessment was given to the appellant on or about 28 September 1989 advising the amount of duty assessed and that it was payable on or before 28 December 1989. However, on 26 September 1989 and so prior to the date of that assessment, the parties to the contract had rescinded it by mutual agreement on terms which provided for repayment of the deposit of $300,000 and for payment of $30,000 in reimbursement of the appellant's expenses ``in investigating the land etc''. The appellant's solicitors advised the respondent of those facts by letter dated 13 November 1989. The first assessment has not been paid.

It is convenient to here set out the provisions of s 15A of the Act.

``15A(1) Subject to this section, the Commissioner shall refund all of the ad valorem duty paid on an instrument where the Commissioner is satisfied that -

  • (a) the instrument is rescinded, annulled, discharged or cancelled or that each matter contained in the instrument or to which the instrument relates and in respect of which ad valorem duty has been paid has not been, and will not be, carried into effect; and
  • (b) no amount of money, right, property or service in respect of the instrument or in consequences of the rescission, annulment, discharge or cancellation or from the matter or matters not being carried into effect has been or will be paid to or obtained by -
    • (i) a person liable to pay ad valorem duty on the instrument; or
    • (ii) any other person (being a person who was not a party to the instrument at the date of its execution) with the consent, or at the direction, of a person liable to pay ad valorem duty on the instrument.

15A(2) Subject to this section, where the Commissioner is satisfied that -

  • (a) an instrument on which ad valorem duty has been paid is rescinded, annulled, discharged or cancelled or each of the matters contained in the instrument or to which the instrument relates and in respect of which ad valorem duty has been paid has not been, and will not be, carried into effect;
  • (b) an amount of money, right, property or service in respect of the instrument or in consequence of the rescission, annulment, discharge or cancellation or from the matter or matters not being carried into effect has or will be paid to or obtained by -
    • (i) a person liable to pay ad valorem duty on the instrument; or
    • (ii) any other person (being a person who was not a party to the instrument at the date of its execution) with the consent, or at the direction, of a person liable to pay ad valorem duty on the instrument; and
  • (c) the total of the amount of money and the value of any right, property and service referred to in paragraph (b) is or will be less than the amount of the ad valorem duty paid,

the Commissioner shall refund the difference between the amount of the ad valorem duty paid and the total referred to in

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paragraph (c) as determined by the Commissioner.

15A(3) Subject to this section, where an instrument has been charged with ad valorem duty under section 19 in respect of each of several distinct matters contained in the instrument or to which the instrument relates and the Commissioner is satisfied that -

  • (a) at least one, but not all, of the matters in respect of which the ad valorem duty has been paid has not been, and will not be, carried into effect; and
  • (b) no amount of money, right, property or service in respect of that matter or those matters, or in consequence of that matter or those matters not being carried into effect, has been or will be paid to or obtained by -
    • (i) the person liable to pay the ad valorem duty in respect of that matter or those matters; or
    • (ii) any other person (being a person who was not a party to the instrument at the date of its execution) with the consent, or at the direction, of the person liable to pay the ad valorem duty in respect of that matter or those matters,

the Commissioner shall refund all of the ad valorem duty paid in respect of that matter, or those matters, as the case requires.

15A(4) Subject to this section, where an instrument has been charged with ad valorem duty under section 19 in respect of each of several distinct matters contained in the instrument or to which the instrument relates and the Commissioner is satisfied that -

  • (a) at least one, but not all, of the matters in respect of which the ad valorem duty has been paid has not been, and will not be, carried into effect;
  • (b) an amount of money, right, property or service in respect of that matter or those matters, or in consequence of that matter or those matters not being carried into effect, has been or will be paid to or obtained by -
    • (i) the person liable to pay the ad valorem duty in respect of that matter or those matters; or
    • (ii) any other person (being a person who was not a party to the instrument at the date of its execution) with the consent, or at the direction, of the person liable to pay the ad valorem duty in respect of that matter or those matters;
  • and
  • (c) the total of the amount of money and the value of any right, property or service referred to in paragraph (b) is or will be less than the amount of the ad valorem duty paid in respect of that matter or those matters,

the Commissioner shall refund the difference between the amount of the ad valorem duty paid in respect of that matter or those matters and the total referred to in paragraph (c) as determined by the Commissioner.

15A(5) For the purpose of determining the value of a right, property or service under subsection (2) or (4) the Commissioner may require such information and evidence as is necessary, and for that purpose section 7A shall apply as if the Commissioner were determining an amount of duty.

15A(6) For the purposes of this section, a person liable to pay the ad valorem duty on an instrument or in respect of any matter or matters chargeable as a conveyance or transfer of property is deemed to have obtained an amount equal to the duty paid if -

  • (a) the instrument provides for or contemplates the conveyance or transfer of the property to another person, unless the Commissioner is satisfied that the conveyance or transfer has not occurred and will not occur; or
  • (b) there exists an agreement, arrangement or understanding between the person liable to pay that ad valorem duty and another person that the property is or will be conveyed or transferred to that other person or another person, whether by the person liable to pay that ad valorem duty or by any other person.

15A(7) Where -

  • (a) a refund of less than the full amount of ad valorem duty paid on an instrument

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    is made under subsection (2), (3) or (4); or
  • (b) the full amount of the ad valorem duty that would be chargeable on an instrument if this section did not apply has not been paid, and the Commissioner has determined that a refund would have been payable in respect of that duty under this section if the duty were paid,

the amount of duty with which the instrument is chargeable for the purposes of this Act is the difference between the full amount of ad valorem duty and the amount of the refund paid or payable in respect of that duty.

15A(8) Where all of the ad valorem duty paid on an instrument is refunded under subsection (1), or no duty is payable on an instrument by virtue of the operation of subsection (7), that instrument shall, from the date of the refund or the determination of the Commissioner under subsection (7), be deemed not to be chargeable with duty under this Act.

15A(9) Where the amount of duty with which an instrument is chargeable under this section has been paid, or an instrument is not chargeable with duty under this section, the Commissioner may, at the request of any party to the instrument, endorse the instrument accordingly and that endorsement shall be prima facie evidence that the instrument has been duly stamped or is not chargeable with duty under this Act, as the case may be.''

The affidavit supporting the summary judgment application reveals that the respondent, applying the provisions of s 15A(7) to those of s 15A(2), satisfied himself that ``the instrument'' (ie ``the contract'') was ``cancelled'', that the $30,000 was ``an amount of money in respect of the instrument or in consequence of the cancellation or from the matter not being carried into effect'' paid to the appellant, he being the person liable to pay ad valorem duty on the instrument, and that the said sum of $30,000 was ``less than the ad valorem duty as assessed'' on the contract. The respondent then determined that, had the full assessment of ad valorem duty assessed ($994,275) been paid, the appellant would have been entitled to a refund of $964,275, the difference between the sum of $994,275 and the said sum of $30,000. He then applied the provisions of s 15A(7)(b) to calculate the duty with which the instrument was then chargeable, it being the difference between the full amount of the ad valorem duty ($994,275) previously assessed (that being the full amount of duty chargeable if s 15A did not apply) and the refund which would have been payable ($964,275) and so the sum of $30,000. On 15 August 1990 he assessed the contract as chargeable with duty of $30,000 and issued and served on the appellant an assessment (the second assessment) claiming payment by 15 November 1990. That assessment also was not paid and the respondent charged the contract with a fine, requiring payment from the appellant of the assessment and fine by 27 December 1990. Those moneys not having been then paid, on 3 January 1991 he charged the contract with a further fine and gave notice requiring payment by 24 January 1991 of the second assessment and the fines, a total of $36,000. No payment being received, the respondent instituted proceedings for the recovery of those moneys and interest and on 4 March 1994 he applied for and was granted summary judgment against the appellant in respect thereof. It would seem from the Deputy Registrar's reasons for decision that the issues raised before him were:

As to (1) the learned Deputy Registrar held the second assessment to not vary the first assessment, but to be a ``different assessment''. As to (2) he effectively held that the decision in Prime Holdings was not relevant and was, in any event, based on different facts in that no ad valorem duty had been assessed on the instrument in that case and, further, that case was addressed to a different issue. He concluded that s 15A(7)(b) applied where ad valorem duty had been charged but not paid.

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The reasons for decision of the learned District Court Judge on appeal suggest that the appeal to him was argued on the same issues as those before the Deputy Registrar. His Honour dismissed the appeal. In essence he held the second assessment was not one issued in respect of the instrument assessed on the first assessment and was not an amendment of the first assessment. He considered that the first assessment was issued in respect of an agreement regarded as binding whereas the second was issued in respect of the agreement as rescinded, and so an agreement with a different legal effect. His Honour found that s 15A(7)(b) applied to the instrument. He was not prepared to adopt the ``obiter'' of Murray J in Prime Holdings , being of the view that His Honour there was concerned with a different question. Consistently with the Second Reading Speech to the Amending Act 20/1990 he held the scheme of s 15A to be to allow the Commissioner both to rebate duty unpaid and to refund duty paid and that in the present case the respondent determined the amount to be rebated to the appellant. He held the respondent to be entitled to issue the second assessment and to raise the fines imposed.

The grounds of appeal before us are quite voluminous. However, in effect, they contest His Honour's finding that the second assessment was not a re-assessment of the respondent's original determination giving rise to the first assessment and contend that it was such a re-assessment and, consequently, on the authority of Venture Management Ltd (supra) , invalid. The grounds allege the further consequence that the fines were not lawfully imposed. They further claim that His Honour should have found the appellant to have a defence to the respondent's claim. Before us the appellant sought leave to amend his grounds to allege an arguable defence that the $30,000 received by the appellant was not an amount of money to which s 15A(2)(b) applied and alternatively, if it were, there was an arguable defence that it was not paid in consequence of the agreement not being put into effect. The appellant was permitted to argue those amended grounds, leave being given to the respondent to file written submissions in reply, the Court however reserving its decision as to whether leave to amend would, in the end, be granted. I note that although the appellant's submissions rely heavily on his contention that s 15A has no application to an unstamped instrument, that submission is not reflected in the grounds of appeal or the proposed amended grounds of appeal.

It is not in dispute that the first assessment was purportedly made and issued pursuant to s 31(2). Consequently, if valid, s 31(4) applies to it and provides:

``Section 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.''

Consequently, having regard only to the provisions of s 31, the first assessment, if valid, is not capable of amendment, variation or modification by the respondent save following an objection and as provided for by ss 32 and 33. (
Commissioner of State Taxation v Bayswater Hire Cars Pty Ltd ; unreported; F Ct S Ct of WA; Library No 7941; 24 October 1989 ). See also Venture Management Ltd (supra) .

The appellant's oral submissions before this Court may be summarised as follows:

The effect of submission (1) is that the first assessment is invalid, which would set at nought the grounds of appeal as filed and the appellant's written submissions which rely on the validity of the first assessment to support the contention that the second assessment is invalid, it being a re-assessment of the instrument the subject of the first assessment. Indeed, before the Deputy Registrar and in the appeal to the District Court, the appellant's submission was that the first assessment is valid

ATC 4150

and, consequently, the second invalid and that, as the respondent's action against the appellant is in respect of the second assessment, the invalidity of that assessment provided a valid defence. The appellant there contended that the first assessment could be validly enforced but, if at were done and the duty paid, the appellant would then be entitled to a total refund under s 15A(1). I treat this submission as an alternative to the contrary proposition expressed in the grounds of appeal.

Appellant's counsel conceded that oral submissions (1)(a) and (b) are unsupported by any direct authority. He submitted however that they gain some support from the reasons for decision of Murray J in Prime Holdings (supra) which, he said, also provide the authority for oral submission (2). In my opinion those reasons of Murray J have no bearing on the facts of this case and are not authority for the propositions advanced. To the extent (if at all) that His Honour's observations as to the effect of s 15A(7) are seen to conflict with my opinion subsequently expressed, I respectfully disagree with them.

In my opinion there is nothing in the assertion that the first or second assessment was invalid for the reasons advanced in oral submission (1). The scheme of the Act is that duty is chargeable on instruments and not on the transactions they represent. (Section 4, s 16 and see
Commissioner of Stamps (Qld) v Weinholt & Or (1915) 20 CLR 531 :
Littlewoods Mail Order Services Ltd v IRC [ 1963] AC 135 :
Commr of State Taxation (WA) v Kitchener Mining NL 94 ATC 4987 at 4993 .) The instrument came into being and so became liable for duty. Relief from that liability or the right to a refund in whole or part after payment of that duty or the creation of an obligation to pay a lesser sum by way of duty than the ad valorem duty provided for by the Second Schedule can only result by way of the application of a provision of the Act. The only relevant provision is s 15A. In my opinion the first assessment was one validly made and issued. The second assessment was not invalid because of the prior rescission of the contract. I cannot see that the invalidity of either or both of the assessments has any bearing on the application of s 15A(7).

Section 15A, as it then was, was repealed on 24 July 1990 by Amending Act 20/1990 which substituted for it the provisions now appearing and set out earlier herein. The amending Act also provided that the new provisions apply to a rescission, annulment, discharge or cancellation of an instrument or failure of a matter or matters contained in an instrument or to which an instrument relates that occurred on or after 1 July 1988. Consequently the section applies to the ``rescission'' of the contract on 26 September 1989. I note that in the appellant's statement of claim it is said that the parties agreed to ``rescind'' the contract and that the appellant satisfied himself that ``the instrument was cancelled''. The wording of the document evidencing that agreement is that the agreement was ``terminated by mutual consent''. Whilst in some cases there may be some significant difference between the meanings of the words ``cancellation'', ``rescission'' and ``termination'', no significance attaches in the present case and no issue has been taken in respect of the different terminology. As did the parties to the appeal, I refer to the fact of what took place as ``rescission'' of the contract.

Section 15A, as it was prior to the Amending Act 20/1990, carried the heading ``Refund of duty on cancelled instruments''. Relevantly it provided only for refund of ad valorem duty paid on an instrument where the instrument was rescinded, annulled, discharged, cancelled or otherwise not carried into effect and no person had obtained or would obtain any significant benefit in respect of the instrument or in consequence of the rescission, annulment, discharge or cancellation or from the instrument not being carried into effect. The substituted provision also carries the heading ``Refund of duty on cancelled instruments''. Although the heading to a section may be of use in interpreting the section, it is not part of the written law ( Interpretation Act s 32). Thus the heading should not be relied upon as compelling the conclusion that s 15A is concerned only with refunds of duty paid, as is the appellant's contention. In my opinion, as it now stands, it contains, in subs (7), ``charging'' provisions and, in subss (8) and (9), further provisions relating thereto. Each of subss (1)- (4) inclusive commences with the words ``Subject to this section'' which draws attention to subss (5)-(9) inclusive. It is not necessary to refer again in detail at this stage to the provisions of subss (1)-(4). Suffice it to say that each requires the Commissioner to refund ad valorem duty previously paid in the

ATC 4151

circumstances and in the respective amounts there respectively provided for. Subsection (1) refers to circumstances which require a refund of the whole of the ad valorem duty paid on the instrument whereas subss (2), (3) and (4) respectively require refunds of amounts less than the total of such ad valorem duty.

It is not necessary for the purposes of these reasons that I refer to subss (5) and (6).

Subsection (7) provides difficulties in construction. Subsection (7)(b) is concerned with instruments on which the full amount of ad valorem duty that would be chargeable on an instrument if s 15A did not apply has not been paid. It is not concerned with refunding duty. It was the view of Murray J in Prime Holdings Pty Ltd (supra) that s 15A has no application to an instrument where no duty has been paid on the instrument. It may well be that His Honour's observation was appropriate to the facts and instrument with which he was concerned, but I do not accept the submission that it is a correct statement of law of general application. It seems to me that His Honour's conclusion was directed only to the effect of subs (7)(a). Subsection (7)(b) is expressly directed to instruments on which no duty has been paid.

The purpose of subs (7), in my opinion, is to provide, in the cases to which it applies, for a statutory variation of the amount of ad valorem duty otherwise chargeable under the Act in respect of an instrument. That, in my opinion, is apparent from its statement that the amount of duty calculated in accordance with its provisions is ``the amount of duty with which the instrument is chargeable for the purposes of this Act ''. It clearly distinguishes between the assessment of ad valorem duty on the one hand and the assessment of duty ``with which the instrument is chargeable for the purposes of this Act '' and for which it provides, on the other. One consequence is that it is not necessary that the ad valorem duty otherwise chargeable be firstly paid and a refund applied for under one or other of subss (1)-(4).

Subsection (8) is also directed to the issue of ``chargeability'' of duty and provides that, in the cases there provided for, which depend on the operation of subss (1) and (7) respectively, the instrument, ``from the date of the refund [ subs (1)] or the determination by the Commissioner under subs (7) shall be deemed not to be chargeable with duty under this Act ''. It thereby recognises that in such cases the instrument remains ``chargeable'' until, in the case of the application of s 15A(1), the date of the refund, and, in the case of the application of s 15A(7), the date of the Commissioner's determination under subs (7)(b) that a refund would have been payable had the duty been paid. It then applies the ``deeming'' provision which recognises that, absent that ``deeming'', duty would be chargeable under the Act. Subsection (8) in my opinion consequently lends support to my view of the purpose and effect of subs (7). It seems clear that the word ``payable'' in subs (8) is there used synonomously with the word ``chargeable'' in subs (7). The purpose and effect of subs (8), in my opinion, is to provide that, where a total refund of duty is made under subs (1) and where no duty is payable by virtue of the operation of subs (7), the other provisions of the Act which provide for the payment of ad valorem duty and the consequences of non- payment thereof cannot operate.

Subsection 9, in my opinion, is directed to the same issue. Its reference to ``where the amount of duty with which the instrument is chargeable under this section has been paid'' can only be a reference to subs (7) as that is the only provision in s 15A which provides for an instrument to be ``chargeable with duty''. Similarly its reference to an instrument being ``not chargeable with duty under this section '' can only be a reference to the effect of the provisions of subs (8). Subsection (9) is an evidentiary provision and, in my view, supports the proposition that the purpose of subss (7) and (8) is to give statutory authority to the results of their respective application which otherwise, on the face of the instruments in question, would be inconsistent with the charging provisions of the Act.

Section 15A(7)(a), by its reference to a refund being made under subss (2), (3) or (4) of less than the full amount of ad valorem duty paid on an instrument, is speaking of the result of the application of each of those subsections. Where they apply they each require a refund of part of the ad valorem duty paid on the instrument. In the case of subs (2), it is calculated as the difference between the amount of such duty paid on the instrument and the total of the moneys etc referred to in para 4(b) thereof. In the case of subs (3) it is the ad valorem duty paid on the distinct matter or

ATC 4152

matters not being carried into effect contained in the instrument which were separately and distinctly charged with such duty pursuant to s 19, this being part only of the total ad valorem duty charged and paid on the instrument in respect of all of the matters with which it deals. In the case of subs (4), which is also concerned with instruments charged with ad valorem duty under s 19, the refund is the difference between the amount of the ad valorem duty paid in respect of the separate and distinct matter or matters which are not being carried into effect and the total of the moneys etc (being less than the amount of the duty paid in respect of those matters) paid or to be paid to the person referred to in paras (b)(i) or (ii). The purpose of subs (7)(a) is clearly to make provision, by way of the calculation there provided for, for the amount of duty which shall be chargeable on the instrument after taking into account the refund of duty paid the amount of duty so calculated to be the amount chargeable for the purposes of the Act , which amount, absent the provisions of subs (7), would be inconsistent with the charging provisions of the Act.

Section 15A(7)(b) refers to a set of circumstances not dealt with in any other provision of s 15A. It applies where the full amount of the ad valorem duty that would be chargeable on an instrument (ignoring the effect of s 15A and so of subs (7)) has not been paid. In such case it requires the Commissioner to make a determination as to whether, had that duty been paid, a refund would have been payable under s 15A. That is the ``determination'' referred to in subs (8). It then requires the Commissioner to hypothesise the payment of ``the full amount of the ad valorem duty chargeable on the instrument'' in accordance with the relevant provisions of the Act other than s 15A and to then apply such provisions of s 15A(2)-(4) as are appropriate to the facts of the case. This he must do to determine whether a refund would have been payable and, if so, the amount of that refund. If that exercise results in the determination that a refund would have been payable, then that instrument (on which the full amount of duty chargeable without reference to s 15A has not been paid) shall be chargeable ``for the purposes of the Act'' with an amount of duty calculated as in the subsection provided for. If the facts of the case do not permit the application of any of s 15A(1)-(4) then the subsection has no application to that case. Should s 15A(1), on the facts, be the appropriate provision it is not incumbent on the Commissioner to undertake the calculations as they must, in any event, produce a ``nil'' result. Subsection (8) is expressly declared to then apply. Were s 15A(2) the appropriate provision, and on the facts of this case, that would be so, the amount of duty with which the instrument is chargeable is the difference between the ``full amount of ad valorem duty'' which would otherwise have been chargeable and the amount of the refund payable in respect thereof. The calculations done by the Commissioner for the purpose of his second assessment, as revealed by the affidavit filed in support of the summary judgment application, in my opinion were made on that basis and clearly pursuant to the provisions of s 15A(2) and (7) and reveal the amount of duty chargeable to be $30,000.

To take up another point raised by counsel. In my opinion subs (7)(b) contemplates an instrument which, by law, is chargeable with ad valorem duty, whether or not that duty has been assessed and or any assessment issued, and in respect of which duty has not been paid. The use in the subsection of the word ``chargeable'', rather than the word ``charged'', at first sight appears inappropriate. However, when considered with other provisions of the Act it is found to be quite appropriate, in my opinion, and to support that construction. Section 16 refers to ``duties to be charged'' as being those specified in the Second Schedule. Those words, in my view, have and can only have the same meaning as the usual meaning of the word ``chargeable''. Section 17, however, uses the word ``chargeable'' in subss (1) and (3) as applying to duties denoted on an instrument by stamps. Section 23 uses the words ``the full amount of duty chargeable'' to describe duty remaining unpaid following the issue of an assessment of duty. Section 29 refers to an instrument ``chargeable'' with duty which is insufficiently stamped. Section 31(2) provides for an assessment of duty and endorsement on the instrument of the duty ``chargeable''. It is thus seen that the expression ``chargeable with ad valorem duty'' is used in the Act to refer to an instrument in respect of which an assessment charging duty has actually been issued as well as instruments in respect of which no assessment has yet been made.

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It is unnecessary for the purpose of these reasons to consider the applications of s 15A subss (3) and (4).

It was submitted before us in argument, purportedly on the authority of the reasons for decision in Prime Holdings (supra) , that the words in subs (7)(b) ``Where the full amount of the ad valorem duty that would be chargeable on an instrument if this section did not apply has not been paid'' refer and are intended to refer to the case of partial payment only of such duty, and so to the result that the ``full amount'' of the chargeable duty has not been paid. Consequently, it is said, s15A does not apply to the case where no part of the chargeable duty has been paid.

I do not accept that submission. Firstly it is not what subs (7)(b) says. Secondly, it is my opinion that the words ``the full amount of the ad valorem duty...'' appearing in subs (7)(b) are used in contra-distinction to the words ``less than the full amount of ad valorem duty'' used in subs (7)(a). Thirdly, the fact that the calculation provided for by subs (7)(b) requires ascertainment of the difference between ``the full amount of ad valorem duty'' otherwise chargeable but not paid and the amount of a notional refund of all or part of that duty had it been paid, makes clear that the subsection is concerned with the full amount of ad valorem duty that should have been paid. It may be that the provision contemplates the case of non- payment of some part of the duty as well as of the whole. That indeed, is consistent with the use of the words ``full amount... chargeable'' instead of merely ``the amount... chargeable'' because the ``amount chargeable'' must indeed be the same as ``the full amount chargeable''. It is also consistent with the recognition in the Act that instruments may be insufficiently stamped. Section 20 makes provision for stamping without penalty insufficiently stamped documents by presentation within three months. Section 23 provides for steps to be taken ``if the full amount of the duty chargeable as an instrument is not paid within...'' thereby reflecting the words used in s 15A(7)(b). It is, however, not necessary to consider that point further on the facts of this case.

In my opinion there is no justification nor indeed logical reason for restricting the application of s 15A(7)(b) to cases where some but not all of the otherwise chargeable duty has been paid. I can perceive no sense and no purpose consonant with the purpose and intent of the Stamp Act in a provision that an instrument, on which only part of the chargeable ad valorem duty has been paid, be chargeable with a reduced amount of duty pursuant to s 15A but which denies the same application of the section to an instrument on which no part of the duty has been paid. It appears quite clear that, if an instrument on which no part of the ad valorem duty has been paid is subsequently fully stamped and rescinded, s 15A(1) would operate to compel a refund in full of that duty.

It is clear, in my opinion that, in determining on 15 August 1990 that the sum of $30,000 was the amount of duty with which the contract is chargeable, the respondent was acting properly and with the authority and in accordance with the provisions of s 15A(2) and (7) and that, by virtue of the provisions of subs (7), such sum represents the chargeable duty for the purposes of the Act.

I turn again to the provisions of subss (8) and (9). Subsection (8) is complementary to subs (7). Subsection (7) is concerned with instruments on which duty is chargeable calculated as there provided. Subsection (8) is concerned firstly with instruments on which duty was paid and a refund of the whole of that duty was made pursuant to s 15A(1) and secondly, with instruments on which no duty is payable by virtue of the operation of subs (7).

I turn now to the appellant's contention that, even if it be the case that $30,000 is the amount of duty with which the contract is now chargeable for the purposes of the Act, the respondent is precluded, by reason of having issued his first assessment under s 31 on 28 September 1989, from issuing any valid subsequent assessment. It is consequently said that the second assessment of $30,000 is invalid. This proposition is said to be made on the authority of Venture Management Ltd (supra) .

Venture Management is not an authority for the proposition advanced by the appellant. Relevantly the statements in the decision in that case relied on for the proposition are as follows:

``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.'' (Franklyn J at 4526)

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and

``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.'' (Franklyn J at 4528)

Those statements were made by me in the context of the facts of that case. The meaning and effect of s 15A were given no consideration and were not relevant to the facts of that case. It was concerned with an assessment found to have been issued pursuant to s 31 of the Act which the Commissioner purported to reassess. The facts of the present case are in no way similar to those of Venture Management . Section 15A is concerned initially with the obligation of the Commissioner, in the circumstances provided for by subss (1)-(4) inclusive, to refund duty paid where the relevant calculations of the specific subsections produce the result that a refund is payable. Subsection (7) then provides for the ascertainment of the duty (if any) chargeable for the purposes of the Act in the events there provided for. Duty so calculated is, by virtue of subs (7), the amount of duty with which the instrument is chargeable ``for the purposes of this Act''. Such duty was duly calculated by the respondent with the result that the instrument is no longer chargeable with the duty earlier assessed under s 31. The duty chargeable for the purposes of the Act is, instead, that calculated pursuant to ss 15A(7) and 15A(2).

In my opinion the effect of the calculation of duty chargeable for the purposes of the Act pursuant to subs (7) produced the result that the unpaid first assessment became a nullity. It was no longer an assessment of duty chargeable on that instrument for the purposes of the Act and s 31(4) no longer had or has application. This, in my view, is supported strongly by the provisions of subs (9) which provide that on payment of the amount of duty chargeable under s 15A - which, relevantly, is that calculated under s 15A(7)(b) - the instrument may be endorsed accordingly and the endorsement is prima facie evidence that the instrument is duly stamped. That provision is totally inconsistent with the situation being that the instrument so endorsed ``shall not be stamped otherwise than in accordance with the assessment of duty issued under subs (2) in respect of that instrument'' as provided for by s 31(4). If s 15A is to have effect in its terms and if absurdity is to be avoided and the duty chargeable as ascertained pursuant to s 15A is to be charged and recovered, it follows that in such case the Commissioner must be at liberty to issue a new assessment appropriate to the amount of duty with which the instrument is chargeable for the purposes of the Act as so determined. That he may do so is, in my view, a necessary implication from the provisions of ss 15A(7), (8) and (9). It is contended by the respondent that the Commissioner may issue under s 31 an assessment in respect of the duty calculated under s 15A(7). I have difficulty with that submission. Section 31 requires the Commissioner to form opinions as to whether an instrument is chargeable with duty and as to the amount of that duty. Duty chargeable under s 15A(7) however, is not dependent on that opinion and indeed there is no room under that subsection for that opinion. Under s 15A(7)(b) the Commissioner must first make a notional assessment under s 31, and to that extent form the necessary opinion as to the ad valorem duty, but the amount of duty chargeable is then determined, not by his opinion, but by the result of the calculation provided for.

As to the proposed amended grounds the appellant's submission, as I understand it, is no more than an assertion that the $30,000 paid to the appellant as reimbursement for his ``expenses in investigating the land etc'' ought not be regarded as money paid in consequence of the rescission. In my opinion that contention is without substance. Assuming the respondent to have been correct in applying the provisions of s 15A(7)(b) to those of s 15A(2) to arrive at the amount of duty with which the rescinded instrument is chargeable, it was for him to consider the facts of the case to determine whether he was satisfied that the moneys were so paid. He was so satisfied and, on the evidence of the advice received from the appellant's solicitors, he was entitled to be so satisfied. That evidence was a letter from Town and Country WA Building Society dated 26 September 1989 confirming termination of the contract by mutual agreement, that the deposit paid by the appellant would be refunded and ``in addition, the Society has agreed to pay to you (in reimbursement of your expenses in

ATC 4155

investigating the land etc) the sum of $30,000. That payment is made, and the deposit refunded, despite the fact that in the Society's view you are in default, rendering the whole of the deposit liable to be forfeited''. Further, in my view, the ground sought to be added is not one which may be argued on this appeal. It does not go to the validity of the assessment, but rather, raises a matter of objection which may only be raised by way of objection to an assessment pursuant to s 32. ( Commissioner of State Taxation v Bayswater Hire Cars Pty Ltd (supra) .)

In my opinion, for the reasons given, the first assessment made and issued by the Commissioner became a nullity upon the Commissioner making the determination under s 15A(7) which identified the amount of duty chargeable for the purposes of the Act in respect of the instrument following its rescission. The Commissioner was then entitled to issue an assessment in respect of that amount of duty and to take action for its recovery as if it were the duty otherwise payable under the Act. The power to impose fines is unaffected, the duty so assessed being the duty chargeable ``for the purposes of the Act''.

The respondent filed a notice of contention pursuant to O 63 r 9(2) that he was entitled to issue the second assessment, that it was a valid assessment and that he was entitled to judgment under O 14 r 1 of the Rules of the Supreme Court . In my opinion those matters are made out.

I would dismiss the appeal.

 

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