DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14

High Court of Australia Gibbs C.J. Stephen, Mason, Aickin and Brennan JJ. DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14

ORDER No. 66 of 1980 Appeal allowed in part with costs. Order that the order of the Court of Appeal be varied —

1. by setting aside par. 4 of that order and in lieu thereof ordering that the questions asked in the case stated be answered as follows:

(a) Yes;

(b) $1.00;

(c) No;

(d) $50.16;

(e) There should be no order as to costs.

2. by setting aside par. 5 of the said order and in lieu thereof ordering as follows — that there be no order as to the costs of the proceedings before Sheppard J. or in the Court of Appeal.

No. 67 of 1980 Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1982, April 21 Gibbs C.J.

The questions at issue in this case are whether the appellant, D.K.L.R. Holding Co. (No. 2) Pty. Ltd. ("D.K.L.R.") is liable to the payment of ad valorem duty on either or both of two instruments, dated 1 June 1976, viz. a memorandum of transfer of certain land from 29 Macquarie (No. 14) Pty. Ltd. ("29 Macquarie") to D.K.L.R. and a deed poll by which D.K.L.R. declared that it would hold the land on trust for 29 Macquarie. It is convenient to refer to the latter instrument as the declaration of trust, although whether it answers that description is one of the questions in the case.

Until the instruments in question were executed, 29 Macquarie was the registered proprietor of an estate in fee simple of certain land. The unencumbered value of the land in question on 1 June 1976 was $3,500 and the land was subject to a mortgage which secured the sum of $3,203. On 1 June 1976 at a meeting of directors of 29 Macquarie it was resolved to request D.K.L.R. to act as trustee for it of the land "on the terms of a declaration of trust which unexecuted was tabled for approval at the meeting". The minutes of the meeting go on to state that "(i)t was specifically resolved that the proposed Trustee would hold only the legal estate to the land there being no intention on the part of the Company to part with beneficial ownership of the land". A meeting of the directors of D.K.L.R. (who were the same persons as the directors of 29 Macquarie) was then held and it was resolved that upon request having been made to the company that it act as trustee absolutely on behalf of 29 Macquarie, the company execute a declaration of trust in favour of 29 Macquarie. The directors of 29 Macquarie then met again and resolved that the company "affix its seal to a transfer of the bare legal estate" in the land. After the meetings had been held, the declaration of trust was executed on behalf of D.K.L.R. Omitting formal parts it read as follows: