ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue [2012] HCA 6

HIGH COURT OF AUSTRALIA

FRENCH CJ,

HAYNE, CRENNAN, KIEFEL AND BELL JJ

ALH GROUP PROPERTY HOLDINGS PTY LIMITED APPELLANT

AND

CHIEF COMMISSIONER OF STATE REVENUE RESPONDENT

ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue

[2012] HCA 6

8 March 2012

S285/2011

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 3 March 2011 and, in their place, order that:

(a) the appeal to that Court be dismissed; and

(b) the Chief Commissioner of State Revenue pay the costs of ALH Group Property Holdings Pty Limited in that Court.

3. The respondent pay the appellant's costs in this Court.

On appeal from the Supreme Court of New South Wales

Representation

C J Bevan with A Tsekouras for the appellant (instructed by JDK Legal)

C W J Leggat SC with M L Robertson for the respondent (instructed by Crown Solicitor (NSW))

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

CATCHWORDS

ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue

Stamp duty – Agreement for sale or transfer of dutiable property – Cancelled agreement – Section 8(1)(b)(i) of Duties Act 1997 (NSW) ("Duties Act") charged duty on "an agreement for the sale or transfer of dutiable property" – Section 50(1)-(2) of Duties Act relevantly provided that cancelled agreement for sale or transfer of dutiable property not liable to duty and that respondent must refund duty paid on such agreement – Oakland Glen Pty Limited ("Oakland") entered into contract ("2003 contract") to sell property to Trust Company Fiduciary Services Limited ("Trust") – Oakland, Trust and appellant executed deed ("Deed of Consent") under which appellant assumed Trust's obligations under 2003 contract – Oakland and appellant executed deed ("Deed of Termination") which as rectified cancelled Deed of Consent – Whether Deed of Consent recorded agreement on which duty chargeable under s 8(1)(b)(i) of Duties Act – Whether Deed of Consent effected novation or assignment of Trust's rights under 2003 contract to appellant – Whether Deed of Consent rescinded 2003 contract – Whether Deed of Termination cancelled any agreement for sale or transfer of property recorded in Deed of Consent so that respondent must refund duty paid pursuant to s 50(2) of Duties Act.