Stamp Duties, Commissioner of (NSW) v Owens [1953] HCA 37

High Court of Australia Dixon C.J. Williams, Webb, Kitto and Taylor JJ. Stamp Duties, Commissioner of (NSW) v Owens [1953] HCA 37

ORDER Appeal allowed with costs. Rule of the Supreme Court set aside. In lieu thereof order that the questions in the case stated be answered (1) Yes, (2) £2,981 12s. 8d. Respondents to pay costs of the proceedings in the Supreme Court. Order that security of £50 paid into Court be paid out to appellant.

Cur. adv. vult.

The following written judgments were delivered:—

June 16 Dixon C.J. and Kitto J.

This is an appeal from an order of the Supreme Court of New South Wales answering certain questions submitted to that Court in a case stated by the Commissioner of Stamp Duties. The questions were, first, whether the value of a grazing property known as "Wallaroi" was included in the dutiable estate of one Henry Owens deceased, and, secondly, what was the amount of the death duty payable in respect of that estate. The Supreme Court by a majority (Street C.J. and Herron J., Owen J. dissenting) gave a decision in favour of the executors of the estate, answering the first question: No, and the second question: £2,373 11s. 1d. The commissioner appeals, and it is common ground that if he succeeds in reversing the answer to the first question the answer to the second question should be £2,981 12s. 8d.

The case was stated pursuant to s. 124 of the Stamp Duties Act 1920-1949 N.S.W.. The duty of the commissioner under that section is to state and sign a case, setting forth the facts before him on making the assessment, the assessment made by him, and the question to be decided. On the hearing of the case, the court is at liberty to draw from the facts and documents stated in the case any inference whether of fact or law which might have been drawn therefrom if proved at a trial: (sub-s. (7)); but if it appears to the court that the facts necessary to enable the questions submitted to be determined are not sufficiently set forth in the case or that such facts are in dispute, the court may direct all such inquiries to be made or issues to be tried as it deems necessary in order to ascertain such necessary facts, and, if it deems fit, may amend the case: (sub-s. (6)).