Oakes v Commissioner of Stamp Duties (NSW) [1952] HCA 22

High Court of Australia Dixon C.J. Williams, Webb, Fullagar and Kitto JJ. Oakes v Commissioner of Stamp Duties (NSW) [1952] HCA 22

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 8, 1952 Dixon C.J.

This is an appeal from an order of the Supreme Court of New South Wales determining a question submitted by special case under s. 124 of the Stamp Duties Act 1920-1949 N.S.W.. The question concerns property the subject of trusts declared by Leslie William Friend, who died on 17th October 1947. The trusts were declared by a deed which was made 1st September 1924 but took effect as from 1st July 1924.

The question submitted by the special case is whether the whole of the property which was, at the date of the death of the deceased, subject to the trusts of the deed should be included in his estate for the purposes of the assessment of death duty. By the order under appeal the Supreme Court answered this question in the affirmative. The answer means that in the opinion of the Supreme Court the case fell within s. 102 (2) (d) of the Stamp Duties Act. That provision requires that for the purposes of the assessment and payment of death duty the estate of a deceased person shall be deemed to include any property comprised in any gift made by the deceased, at any time, of which bona-fide possession and enjoyment has not been assumed by the donee immediately upon the gift and thenceforth retained to the entire exclusion of the deceased or of any benefit to him of whatsoever kind or in any way whatsoever whether enforceable at law or in equity or not and whenever the deceased died.

The question for our decision is whether the circumstances of the case bring it within this provision, with the consequence that the whole property subject to the trusts is dutiable. It is a question, as I think, depending much more on the view taken of the facts than upon any question of law. The provision is one the meaning and application of which has created much difficulty, but it has been elucidated by the decisions of the Privy Council in Munro v. Commissioner of Stamp Duties [1] ; Hall's Case (Commissioner of Stamp Duties (N.S.W.) v. Perpetual Trustee Co. Ltd.) [2] ; and Commissioner of Stamp Duties N.S.W. v. Way [3] ; and by the opinions delivered in the House of Lords upon the analogous provision contained in s. 43 (2) of the Finance Act 1940 in St. Aubyn v. Attorney-General [4] . As a result there are certain propositions which are removed from doubt.