Permanent Trustee Co (Canberra) Ltd v Finlayson [1968] HCA 85

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies, Windeyer and Owen JJ. Permanent Trustee Co (Canberra) Ltd v Finlayson [1968] HCA 85

ORDER Appeal allowed. Order of the Supreme Court of the Australian Capital Territory of 16th June 1967, set aside. In lieu thereof order as follows:

1. Declare that the respondent the Commissioner of Stamp Duties of the State of New South Wales is not entitled to be paid out of the estate of Fanny Lothian Niesche deceased in the Australian Capital Territory any amount in respect of death duty assessed under the provisions of the Stamp Duties Act, 1920-1959 N.S.W..

2. Order that the said Commissioner of Stamp Duties pay the costs of the plaintiff and the defendants in the said Supreme Court.

Order that the respondent the said Commissioner of Stamp Duties pay the costs of this appeal of the appellant and of the other respondents.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 23 Barwick C.J., McTiernan, Kitto, Menzies, Windeyer and Owen JJ.

This appeal is against an order of the Supreme Court of the Australian Capital Territory (Dunphy J.) [1] made in the course of an administration by the Court of what was described in the order as "the Estate of Fanny Lothian Niesche deceased". It seems that the only formal record of the order is in a recital contained in the order now under appeal. The deceased had died possessed of assets in the Australian Capital Territory and assets in New South Wales. Although the order took the form of a general order for administration, it could only have meant by "the Estate of Fanny Lothian Niesche deceased" the assets which were the subject of the probate granted in the Territory: see the comment on Preston v. Melville [2] , in Stirling-Maxwell v. Cartwright [3] ; Williams on Executors, 14th ed. (1960), p. 927, pars. 1469, 1470.