Ashby v Commissioner of Succession Duties (SA) [1942] HCA 24

284 HIGH COURT [1942.

(HIGH COURT OF AUSTRALIA.]

ASHBY AND ANOTHER ; : : . APPELLANTS ;

APPELLANTS, AND

THE COMMISSIONER OF SUCCESSION R DUTIES (SOUTH AUSTRALIA) x ESL ON DEN RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

H.C. or A. Succession Duty (S.A.)—Definition of deed of gift—Non-testamentary " disposition

1942. of property "—Covenant to pay money—Succession Duties Act 1929-1940 (S.A.) Se (No, 1898 of 1929—No. 62 of 1940), secs. 4, 32 (1) (f), 35 (3). ADELAIDE,

'A covenant to pay money is not a disposition of property within the meaning

Sept. 15, 16. i : ee of the Succession Duties Act 1929-1940 (S.A.), secs. 4 (definition of "deed Marnourne, of gift"), 32 (1) (f) and 35 (3). i Coe Simms v. Registrar of Probates, (1900) A.C. 323, distinguished. ie aele Decision of the Supreme Court of South Australia (Napier C.J.): Ashby v. Williams JJ. Commissioner of Succession Duties, (1942) S.A.S.R. 102, reversed.

Apprar from the Supreme Court of South Australia.

On an appeal to the Supreme Court of South Australia by Eric Johnston Ashby and Mary Elizabeth Drew against assessments to succession duty under the Succession Duties Act 1929-1940 (S.A.) the following facts were agreed :—

1. On or about Ist February 1938 an indenture between Hric Johnston Ashby of the first part, Mary Elizabeth Drew of the second part, William Brownlow Ashby the elder of the third part, W. B. Ashby & Sons Ltd. of the fourth part, and Mary Jane Ashby, Thomas Edward Ashby and William Brownlow Ashby the younger

of the fifth part was duly executed by the said parties.

2. On 8th May 1940 William Brownlow Ashby the elder died.

3. On 25th January 1941 the Commissioner of Succession Duties (S.A.) made an assessment wherein he assessed duty on the death of William Brownlow Ashby the elder deceased as follows :—