Commissioner of Stamp Duties (NSW) v Millar [1932] HCA 63

H.C. or A,

1932. SS Sypvey,

Nov. 16, 17; Dec. 8.

Gavan Dufly C.J., Rich, Starke, Dixon, Evatt and McTiernan JJ.

HIGH COURT (1932.

{HIGH COURT OF AUSTRALIA.]

THE COMMISSIONER OF STAMP DUTIES }

(NEW SOUTH WALES) ao

DEFENDANT, AND MILLAR AND ANOTHER . ae 2 . Responpents. PLAINTIFFS, MILLAR AND ANOTHER . : a : . APPELLANTS ; PLAINTIFFS, AND

THE COMMISSIONER OF STAMP DUTIES od a (NEW SOUTH WALES) ef é ESPONDENT.

DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Death Duty—Dutiable estate—Property wrongly included—Shares in company not registered in State—Company engaged in mining operations within State— Deceased shareholder neither domiciled nor resident within State—Constitutional Law—Legislative power of State Parliament—Claim for refund—Action against Commissioner—Proof to satisfaction of Commissioner— Mistake in the con- struction of this Act"—Constitution Act 1902 (N.S.W.) (Wo. 32 of 1902), sec. 5—Stamp Duties Act 1920-1924 (N.S.W.) (No. 47 of 1920—No 32 of 1924), sec. 103 (1) (6)*—Stamp Duties Act 1920-1931 (N.S.W.) (No. 47 of 1920— No. 18 of 1931), sec. 140 (1), (3)*."

Sec. 5 of the Constitution Act 1902 (N.S.W.), so far as material, provides

t "The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever."

*Sec. 103 of the Stamp Duties Act share and all stock held by such person. 1920-1924 (N.S,W.) provides:—"*(1) __at the time of his death in any company, The estate of a deceased person whether _ corporation or society, whether regis- domiciled at the time of his death in or tered or incorporated within or out of out of New South Wales shall also be New South Wales, and carrying on the deemed to include . . . (6) every business of mining for oli or other