Asciano Services Pty Ltd v Chief Commissioner of State Revenue [2008] HCA 46

HIGH COURT OF AUSTRALIA

GUMMOW, KIRBY, HAYNE, CRENNAN AND KIEFEL JJ

ASCIANO SERVICES PTY LTD APPELLANT

AND

CHIEF COMMISSIONER OF STATE REVENUE RESPONDENT

Asciano Services Pty Ltd v Chief Commissioner of State Revenue

[2008] HCA 46

25 September 2008

S211/2008

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

S J Gageler SC with J O Hmelnitsky for the appellant (instructed by Clayton Utz Lawyers)

A H Slater QC with R L Seiden for the respondent (instructed by Crown Solicitor for New South Wales)

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

CATCHWORDS

Asciano Services Pty Ltd v Chief Commissioner of State Revenue

Taxes and duties – Duty payable on lease instrument – Lease defined as agreement "by which" a right to use land is conferred on or acquired by a person – Appellant entered into rail access agreement with Rail Access Corporation giving appellant access rights to rail lines and rail infrastructure facilities – Statute provided party to access agreement with right to access land in or on which rail infrastructure facilities situated – Whether access agreement dutiable as agreement "by which" a right to use land is conferred on or acquired by a person – Whether statute imposing duty refers to source of rights to use land or directs attention to what is received by grantee – Interrelationship between statute conferring right to access land and access agreement.

Taxes and duties – Duty payable on lease instrument – Whether rail lines and rail infrastructure facilities themselves land in which grantee under access agreement acquired rights.

Statutes – Construction – Statute vests rail lines and rail infrastructure facilities in grantor and land in or on which rail lines and rail infrastructure facilities lie in another statutory body – Whether grantor under access agreement able to grant rights to access land owned by other body.