Crowther v Commissioner of Stamp Duties [1964] HCA 5

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. Crowther v Commissioner of Stamp Duties [1964] HCA 5

ORDER Appeal allowed with costs. Order of the Supreme Court set aside and in lieu thereof order that judgment be entered for the plaintiff on both demurrers.

Cur. adv. vult.

The following written judgments were delivered:—

1964, Feb. 25 Dixon C.J.

This is an appeal from a decision of the Full Court of New South Wales (Hardie J. and Nagle J., Herron A.C.J. dissenting) in an action by an executor against the Commissioner, as a nominal defendant, to recover from the State of New South Wales an amount paid as death duty, erroneously assessed by the Commissioner. The action is brought under s. 140 of the Stamp Duties Act, 1920-1959 N.S.W.. The questions involved were brought before the Supreme Court by demurrer to pleas. Two pleas were involved. By the first plea the Commissioner sought to rely upon a defence that the over-exaction of duty was caused by a mistake on his part in the construction of the Stamp Duties Act. Section 140 (1) provides, inter alia, that no refund shall be made in respect of any property wrongly included in the dutiable estate of any person by reason of any mistake in the construction of this Act.

The facts to be collected from the pleadings are set out in detail in the judgment of Taylor J., which I have had the benefit of reading and in the reasoning of which I agree.

The essential question raised by the first plea is the nature of the cause of the overpayment. Is it correct that the cause of the Commissioner's wrongly including the estate of A. J. Annabel deceased in the dutiable estate of his daughter, Vera Madeline Crowther, was a mistake on his part in the construction of the Stamp Duties Act? Giving the widest meaning to the word "construction", I cannot see that it was such a mistake. It was due to a misunderstanding of the operation of s. 29 of the Wills, Probate and Administration Act, 1898 N.S.W.. I agree entirely with the judgment of Herron C.J. on this point and, in particular, I agree in the following statement of his Honour:—"In the present case the Commissioner's essential mistake was as to the true effect of s. 29 of the Wills, Probate and Administration Act, 1898. He was also mistaken in thinking that the fiction which its provisions create applied to the Stamp Duties Act at all. Section 29, on the facts of this case, created no right in property which became part of the estate of Vera Madeline Crowther. The Commissioner erroneously thought that it did. This was not due to a misconstruction of s. 102 (1) (a) or as to the meaning of property, but to a misunderstanding of the law relating to wills expressed in the Wills, Probate and Administration Act " [1] .