Duties court decision summaries

NSW Supreme Court Decision Summaries

Dutiable Property/Land

2013 Decision Summary

Marilyn E Trethowan v Chief Commissioner of State Revenue [2013] NSWSC 576
Date of Decision: 17 May 2013

Decision: In my opinion, the application of s 50A(1) is enlivened, and the Chief Commissioner erred in concluding otherwise. The appeal should be allowed and the assessment of 19 September 2011 should be set aside.

Catchwords: Taxes and Duties - stamp duties - instrument of transfer of land under Real Property Act 1900 - instrument not lodged for assessment of duty prior to registration - instrument later deregistered by Registrar-General and withdrawn - assessment for duty issued in respect of transfer to plaintiff - plaintiff's objection disallowed - whether instrument of transfer cancelled - whether transfer of dutiable property to transferee occurred - whether no duty payable under s 50A(1) Duties Act 1997 - whether assessment should be set aside

Case summary: Marilyn E Trethowan v Chief Commissioner of State Revenue [2013] NSWSC 576

Landholder Duty

2015 Decision Summary

Milstern Nominees Pty Ltd v Chief Commissioner of State Revenue [2015] NSWSC 68
Date of Decision: 18 February 2015

Decision: The proceedings are stood over to a convenient time to make orders in accordance with the decision.

Catchwords: TAXES AND DUTIES – landholder duty – appeal to the Supreme Court from a decision of the Chief Commissioner not to grant an exemption under s 163H of the Duties Act 1997 (NSW) – whether exemption ought to be granted where company acquires shares in an object of a discretionary trust – consideration of circumstances in which it is “not just and reasonable” under s 163H that duty should be charged on a relevant acquisition – discretion exercised favourably to taxpayer

Case summary: Milstern Nominees Pty Ltd v Chief Commissioner of State Revenue [2015] NSWSC 68

Mortgage Duty

2013 Decision Summaries

Bondi Beachside Pty Ltd and Others v Chief Commissioner of State Revenue [2013] NSWSC 21
Date of Decision: 30 January 2013

Decision: Assessment including interest in amount secured revoked and matter remitted to Chief Commissioner to assess mortgage duty on principal excluding capitalised interest.

Catchwords: Taxes and Duties - Stamp Duties - mortgage duty - charge stamped at $5 on execution as securing no amount - variation deed extending time for payment - whether an advice as a forbearance under s 206(a)(iii) of the Duties Act 1997 - whether charge required to be upstamped under s 208(2) - whether capitalised interest included in amount secured

Case summary: Bondi Beachside Pty Ltd and Others v Chief Commissioner of State Revenue [2013] NSWSC 21
CCM Holdings Trust Pty Ltd v Chief Commissioner of State Revenue; CCT Motorway Company Nominees Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1072
Date of Decision: 09 August 2013

Decision: In each proceeding, the Chief Commissioner's assessments of duty are revoked.

The Court found that duty of $10 was chargeable under s 54(3) of the Duties Act in respect of the transfer of shares in CrossCity Motorway Pty Limited, and that the transfer of units in the CrossCity Motorway Property Trust was exempt under s 163ZB(1)(i) of the Duties Act.

The Court therefore rescinded the Chief Commissioner’s assessments.

Catchwords: Where duty assessed pursuant to land rich provisions of the Duties Act 1997 - review/appeal from decision of Chief Commissioner of State Revenue - whether the land holder was land rich at the time of the relevant acquisition - whether transfers exempt from land rich duty

Case summary: CCM Holdings Trust Pty Ltd v Chief Commissioner of State Revenue; CCT Motorway Company Nominees Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1072

NSW Court of Appeal Decisions Summaries

Land Rich/Landholder

2014 Decision Summary

Chief Commissioner of State Revenue v CCM Holdings Trust Pty Ltd; Chief Commissioner of State Revenue v CCT Motorway Company Nominees Pty Ltd [2014] NSWCA 42
Date of Decision: 07 March 2014

Decision: Gleeson JA refused to grant the Chief Commissioner leave to proceed with the proceedings, and dismissed the applications by the Chief Commissioner with costs.

Catchwords: CORPORATIONS - Application for leave to proceed against a company subject to a Deed of Company Arrangement pursuant to section 444E Corporations Act - Reasonably arguable grounds to support grant of leave - Whether would be futile or premature to grant leave to proceed

EQUITY - Trusts and trustees - Liability of beneficiaries to indemnify trustee - Hardoon v Belilios principle

PROCEDURE - When appeal lies - By leave of court - Threshold monetary value less than $100,000 - Failure to comply with filing of notice under r51.22 Uniform Civil Procedure Rules - Right of appeal to Supreme Court under Section 101(2)(r) of the Supreme Court Act

Case summary: Chief Commissioner of State Revenue v CCM Holdings Trust Pty Ltd; Chief Commissioner of State Revenue v CCT Motorway Company Nominees Pty Ltd [2014] NSWCA 42

Leases

2011 Decision Summary

Chief Commissioner of State Revenue v Centro (CPL) Limited [2011] NSWCA 325
Date of Decision: 18 October 2011

Decision:
  1. Appeal allowed.

  2. Set aside the orders made by Gzell J on 23 July 2010 and varied on 2 August 2010.

  3. In lieu thereof, order that:

    1. Centro's summons filed on 16 September 2008 be dismissed; and

    2. Centro pay the Commissioner's costs of the proceedings.

  4. Centro pay the Commissioner's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

In 2010 Centro (CPL) Limited (“Centro”) succeeded in an appeal to the Supreme Court against the decision of the Chief Commissioner of State Revenue (“Chief Commissioner”) to apply the anti-avoidance provisions of s.24 of the Duties Act 1997 ("Act"). Gzell J upheld Centro’s appeal against the Chief Commissioner’s decision to disregard the grant of a long-term concurrent lease of land in NSW in determining the dutiable value of the acquisition by Centro of the reversionary interest in Bankstown Shopping Centre

On 18 October 2011 the Court of Appeal delivered a unanimous judgment in favour of the Chief Commissioner, overturning the decision of Gzell J at first instance. The Court of Appeal found the scheme or arrangement identified by the Chief Commissioner had a collateral purpose of reducing the duty otherwise payable on the dutiable transaction under s 24 of the Act.

Catchwords: Taxes and Duties - application to review an assessment of duty - contract for the sale of a freehold interest subject to a 300 year concurrent lease at a substantial premium but nominal rental - whether grant of concurrent lease had the effect of reducing dutiable value for the purposes of s 24(1) of the Duties Act 1997 (the Act) - whether Chief Commissioner was correct not to be satisfied that the concurrent lease was not granted as a part of an arrangement or scheme for the purpose of reducing the duty otherwise payable

Case summary: Chief Commissioner of State Revenue v Centro (CPL) Limited [2011] NSWCA 325

Mortgage Duty

2014 Decision Summary

Bondi Beachside Pty Ltd and others v Chief Commissioner of State Revenue [2014] NSWCA 6
Date of Decision: 07 February 2014

Decision:
  1. Appeal allowed.

  2. Judgment and orders of Gzell J on 30 January 2013 be set aside and judgment entered for the plaintiffs in the proceedings before his Honour.

  3. Cross-appeal dismissed with costs

  4. Respondent to pay the appellants' costs of the appeal and the proceedings at first instance
(See original case decision summary - Bondi Beachside Pty Ltd and Others v Chief Commissioner of State Revenue [2013] NSWSC 21)

Catchwords: TAXES AND DUTIES - stamp duties - assessment and amount payable including fines - whether a deed of variation extending the time for payment of principal and capitalised interest was an advance under s 206(a)(iii) of the Duties Act

Case summary: Bondi Beachside Pty Ltd and others v Chief Commissioner of State Revenue [2014] NSWCA 6
Last updated: 4 May 2015