Keighley v Commissioner of Stamp Duties (NSW) [1971] HCA 51

High Court of Australia McTiernan, Menzies, Windeyer, Owen and Gibbs JJ. Keighley v Commissioner of Stamp Duties (NSW) [1971] HCA 51

ORDER Appeal allowed with costs. Order of the Court of Appeal set aside and in lieu thereof order that the questions set out in the stated case be answered as follows:

(a) $1,784,516.

(b) $382,832.71.

(c) By the respondent.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 11 McTiernan J.

In my opinion the appeal should be allowed. I agree in the reasons of Gibbs J. and in the answers which he proposes to the questions set out in the stated case.

Menzies J.

The respondent Commissioner has assessed the appellants, the executors of the will of F. M. Keighley deceased, to stamp duty upon the estate of the deceased on the basis that the deceased had, during his lifetime, disposed of assets by a settlement containing a trust in respect of those assets, to take effect after his death so that the assets subject to the trust are to be included in the dutiable estate of the deceased: Stamp Duties Act, 1920 NSW s. 102 (2) (a). The appellants have contended that the assets, subject to the trust of the settlement at the date of the death of the deceased, are not liable to be included in his dutiable estate. The Commissioner thereupon stated a case for the opinion of the Court of Appeal of the Supreme Court of New South Wales to have the issue determined. By a majority the Court of Appeal has upheld the assessment and the executors have appealed from that decision to this Court.

By a deed of settlement made on 5th June 1956, the deceased settled certain shares in Minster Ltd. in order to make provision for three of his employees. According to the trust deed, the trustees, to whom the shares were transferred by the deceased, were to pay the income of the trust property to the three employees in the proportion of three-eighths, three-eighths and two-eighths "as long as, in each case, the employee shall remain employed by the Settlor or the Settlor's wife Mabel Keighley". Clause 3 was in these terms: