Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd [2002] HCA 43

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

COMMISSIONER OF STATE REVENUE APPELLANT

AND

PIONEER CONCRETE (VIC) PTY LTD RESPONDENT

Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd

[2002] HCA 43

4 October 2002

M13/2002

ORDER

1. Appeal allowed with costs. 2. Set aside orders made by the Court of Appeal of Victoria on 2 May 2001 and, in lieu thereof, order that the appeal to that Court be dismissed with costs. 3. Remit the matter to the Supreme Court of Victoria for consideration of the outstanding issues.

On appeal from the Supreme Court of Victoria

Representation:

C M Maxwell QC with R R Boaden for the appellant (instructed by the Solicitor for the Commissioner of State Revenue)

H M Wright QC with S G E McLeish for the respondent (instructed by Cornwall Stodart)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd

Taxes and duties – Stamp duty – Stamps Act 1958 (Vic) – Valuation of property – Transfer of estate in fee simple in land – Contract of sale reserved to transferor rights to use land for particular purposes for a certain time – Instrument of transfer transferred estate in fee simple without exceptions or reservations – Relevance of contractual rights to valuation of subject property.

Stamps Act 1958 (Vic), ss 17(1), 63.

Transfer of Land Act 1958 (Vic).

1. GLEESON CJ, GUMMOW, KIRBY AND HAYNE JJ. This appeal concerns the assessment of stamp duty, under the Stamps Act 1958 (Vic) ("the Act"), upon an instrument of transfer of real property. The contract of sale, pursuant to which the transfer was executed, provided that, following settlement, the transferor would have certain rights to use the subject land for particular purposes. The issue is whether those contractual rights were relevant to a determination of the value of the real property for the purpose of assessing duty on the transfer.