HAWLEY PARTNERS PTY LTD v COMMR OF STAMP DUTIES (QLD)

Judges: Macrossan CJ
MacPherson JA

Byrne J

Court:
Queensland Court of Appeal

Judgment date: Judgment delivered 20 August 1996

Byrne J

No doubt the deed of compromise was effective between the parties to regulate their relations on the basis of a shared assumption that the disposition was effective from 31 January 1990. That seems established by the authorities mentioned in the joint judgment of the Chief Justice and McPherson JA concerning retrospective operation of contracts and also receives support from
Colton v. Becollda Property Investments Ltd [1950] 1 KB 216 , 231 ,
Colchester Borough Council v. Smith [1991] Ch 448 (affirmed [1992] Ch 421 ) , and
G. Percy Trentham Ltd v. Archital Luxfer Ltd [1993] 1 Lloyd's Rep 25 , 27 . Of course, a transfer of title cannot have occurred before execution of the dispositive instrument: cf.
FC of T v. Happ (1952) 9 ATD 447 ; [1952] Argus LR 382

ATC 4854

, 384 ;
Rowe v. FC of T 82 ATC 4243 , 4245; (1982) 60 FLR 475 , 478-479 . However, of itself that does not mean that the Commissioner may not value the property at the time which the parties treated as the effective date of the disposition. Such a valuation does not conflict with any provision of the legislation to which we were referred. Nor is it opposed to the general notion that stamp duty is a tax imposed on instruments, not on transactions. For, as Philp J said in
Rogerson v. FC of T [1963] QWN 2 , at 7 , ``the quantum of duty which the instrument attracts is measured by the type of transaction it evidences''.

I agree that, for the reasons expressed in the joint judgment of the Chief Justice and McPherson JA, the questions raised by the case stated should be answered as their Honours propose.

 

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