Commissioner of State Revenue v Rojoda Pty Ltd [2020] HCA 7

HIGH COURT OF AUSTRALIA

BELL, GAGELER, KEANE, NETTLE AND EDELMAN JJ

COMMISSIONER OF STATE REVENUE APPELLANT

AND

ROJODA PTY LTD RESPONDENT

Commissioner of State Revenue v Rojoda Pty Ltd [2020] HCA 7 Date of Hearing: 6 & 7 November 2019 Date of Judgment: 18 March 2020 P26/2019

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 21 December 2018 and in their place order that the appeal be dismissed with costs.

On appeal from the Supreme Court of Western Australia

Representation

J A Thomson SC, Solicitor-General for the State of Western Australia, with E C Salsano for the appellant (instructed by State Solicitor's Office (WA))

B Dharmananda SC with S K Grimley for the respondent (instructed by Ernst & Young Law Pty Ltd)

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 Rojoda Pty Ltd

Stamp duties – Declaration of trust – Partnership – Dissolution – Partnership assets – Nature of partners' rights in relation to partnership assets – Where freehold titles to land held by two partners as joint tenants – Where other partners not registered title holders – Where partnerships dissolved but not wound up upon death of one partner holding titles – Where surviving partner declared trusts over freehold titles for benefit of other partners in proportion to partnership interests – Where Commissioner assessed declaration of trust as "dutiable transaction" within meaning of Duties Act 2008 (WA), s 11(1) – Whether partner holding freehold titles trustee for other partners – Whether declaration of trust by surviving partner holding freehold titles created new interests in land – Whether declaration of trust dutiable transaction.