Stamp Duties, Commissioner of v Bradhurst [1950] HCA 17

High Court of Australia Latham C.J. McTiernan, Williams, Webb and Fullagar JJ. Stamp Duties, Commissioner of v Bradhurst [1950] HCA 17

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 8 Latham C.J.

This is an appeal from an order of Roper C.J. in Eq. dismissing an application under s. 120 of the Stamp Duties Act 1920-1940 N.S.W. for an order that a sufficient part of property, being portion of the estate of the late Sir William Daniel Cooper, should be sold so that the proceeds might be applied in payment of duty assessed and of costs. Sir William Cooper died on 2nd September 1925. He had made a settlement on 4th February 1910, the terms of which were afterwards varied, under which a grandchild, Joyce Mabel Cooper, now Joyce Mabel Scott, was a beneficiary. Death duty was assessed under the Stamp Duties Act on 26th May 1926 and the duty was paid. Further assessments were made on 15th July 1926, on 12th November 1934 and 9th May 1935. In 1943 duty was assessed in respect of the interest of Mrs. Scott under the settlement of 4th February 1910 as varied. This proceeding relates to the assessment of duty upon her interest. The commissioner assessed duty upon what he claimed to be the value of Mrs. Scott's beneficial interest in the trust fund accruing or arising on the death of the testator. This assessment was made upon the basis that s. 102 (2) (i) of the Stamp Duties Act was applicable.

Section 102 (2) provides—"For the purposes of the assessment and payment of death duty but subject as hereinafter provided, the estate of a deceased person shall be deemed to include and consist of the following classes of property:— (i) Any annuity or other interest purchased or provided by the deceased, whether before or after the passing of this Act, either by himself alone or in concert or by arrangement with any other person, to the extent of the beneficial interest accruing or arising by survivorship or otherwise on the death of the deceased." The commissioner assessed the duty upon a sum of £9,659 as representing the extent to which the value of the beneficial interest in the trust fund situated in New South Wales of Mrs. Scott upon the death of the testator exceeded the value of her expectant beneficial interest prior to such death. The value of the assets constituting the trust fund was estimated by the commissioner at £9,759. Accordingly the value of the beneficial interest of Mrs. Scott in that fund before the death was estimated at £100 and after the death at £9,659. This assessment was based upon the fact that by the settlement as varied the settlor had reserved to himself a power of revocation of the trust in favour of Joyce Mabel Cooper and that upon his death the exercise of that power had become impossible so that in the view of the commissioner a beneficial interest arose or accrued upon the death of the settlor. The value of her interest had increased from £100 to £9,659 by reason of the fact that it was no longer subject to the power of revocation.