Commissioner of Stamp Duties (NSW) v Way [1951] UKPCHCA 2

Privy Counem.

1951. Ww Oct. 30, 31; Dec. 10.

HIGH COURT (1951.

{PRIVY COUNCIL.]

THE COMMISSIONER OF STAMP DUTIES 'Apiarae

(NEW SOUTH WALES) : AND

WAY AND OTHERS : 7 7 3 . Responvents,

ON APPEAL FROM THE HIGH COURT OF AUSTRALIA.

Death Duty—Dutiable estate—Notional estate—Charitable trust created by deceased—

Conditions—Appropriation of trust property—Direction by settlor—Nature of trust—Time of taking effect—Powers of trustees—Property owned by trustees— Dispensation in trust instrument—* Any property passing under any seltle- ment" — That property —" Restore to himself "—' Reclaim" —* Possession and enjoyment" —Stamp Duties Act 1920-1940 (N.S.W.) (No. 47 of 1920— No. 50 of 1940), s. 102 (2) (a), (c), (d).

G. by an indenture made on 5th September 1928, created a trust and transferred and assigned to the trustees, of whom he was one, certain moneys and securities to be held by them on certain conditions. By cl. 2 of the indenture, after directing payment of certain charges, the trustees were to hold the fund and to apply the fund and income towards certain charitable purposes. Clause 3 provided that the time, manner and head or heads under which the application and appropriation of the trust fund and income should be made, and all other details and particulars as to such application and appropriation, should be in the absolute discretion of the trustees, but during the lifetime of the settlor subject to his direction and approval. Clause 24 provided that the trustees should during G.'s lifetime, if he so directed, apply any property belonging to the trust for the purposes of acquiring by purchase or exchange from him any real or personal property valued for the purpose at a sum at least five per cent below its value as ascertained by an independent valuator appointed by the trustees other than the settlor.