Bone v Commissioner of Stamp Duties [1974] HCA 29

High Court of Australia Barwick C.J. McTiernan, Menzies, Stephen and Mason JJ. Bone v Commissioner of Stamp Duties [1974] HCA 29

ORDER Appeal allowed with costs. Order of the Court of Appeal Division of the Supreme Court of New South Wales set aside and in lieu thereof the questions in the stated case answered as follows:

(1) No.

(2) Does not arise.

(3) $477.23.

(4) By the respondent.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 12 Barwick C.J.

In this appeal I have had the advantage of reading the reasons for judgment to be delivered by my brothers Mason and Stephen. The relevant facts and statutory provisions are there to be found and I have no need to repeat them.

I agree with my brothers in the conclusion that, by reason of the provision in the will of the deceased expressly forgiving the indebtedness to her of her executors, the inclusion by the respondent Commissioner of the amount of that indebtedness in the dutiable estate of the deceased as property to which the executors became entitled under the will of the deceased, was erroneous and insupportable. I agree with the reasons which my brothers give for that conclusion. I would add for myself that even if, contrary to the opinions expressed by them, the appointment by the deceased of her debtors as her executors operated to release the debts (a matter which I do not find it necessary to decide in this case), there would yet have been no relevant property to which the executors became entitled under the will of the deceased.

I would allow the appeal and answer the questions asked in the stated case: (1) No. (2) Does not arise. (3) $477.23. (4) By the respondent.

McTiernan J.

I agree that the appeal should be allowed and that the questions asked in the stated case should be answered as follows: (1) No. (2) Does not arise. (3) $477.23. (4) By the respondent.