Commissioner of Stamp Duties (NSW) v Henry [1964] HCA 4

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Owen JJ. Commissioner of Stamp Duties (NSW) v Henry [1964] HCA 4

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1964, Feb. 25 Dixon C.J.

This is an appeal by special leave by the Commissioner of Stamp Duties of New South Wales against a judgment of the Supreme Court of New South Wales determining certain questions raised by a case stated. The decision of the Supreme Court was against an assessment by the Commissioner of the stamp duty upon an instrument. The Court decided that the instrument should not be assessed as a conveyance on sale ad valorem or otherwise, but as a lease at the rate provided by par. (6) of the duties under the heading of "Lease", set out in the Second Schedule, viz. £1 10s. 0d. The instrument in question is a deed made on 3rd February 1959, between the Vale of Clwydd Colliery Ltd. on the one part, and, of the other part, certain persons, five in number, who are described as, jointly and severally, the members of Brown's Gap Colliery Syndicate.

The deed recites that the company is the holder in fee simple of certain land and the holder of certain leases, comprised in the Vale of Clwydd, wherein lie certain seams of coal, and that the company is the owner of certain pits, tunnels, mine workings, buildings, plant, machinery and stores which are upon the said land and that the syndicate has applied to the company for permission to get, work and win coal from the said land. The deed witnesses that the company thereby grants to the syndicate a licence to operate the mine and to use and operate the pits, tunnels, mine workings, buildings, plant and machinery now thereon for the purpose of getting, working and winning of coal. The deed states that the licence shall be for an initial term of five years, commencing on 1st January 1958. The deed goes on that the syndicate acknowledges having taken delivery of the buildings and certain other things listed in a schedule and that the syndicate should have custody thereof as bailee for the company, with the right of use for the purposes aforesaid. Next, it was provided that the syndicate should pay the company for all stores and pit timber used by it and upon the termination of the licence should deliver the residue to the company and pay for any deficiency.