Commissioner of Stamp Duties (NSW) v Perpetual Trustee Company Limited [1943] UKPCHCA 1

Privy Councin. 1943. ee

April 15.

'Viscount Maugham, Lord Russell' of Killowen, Lord Wright, Lord Romer, Lord Porter:

THE COMMISSIONER OF STAMP DUTIES \

HIGH COURT (1943.

[PRIVY COUNCIL.)

OF NEW SOUTH WALES... ¢ sanuuuaNG

RESPONDENT,

AND

PERPETUAL TRUSTEE COMPANY (LIMITED) Responpent.

APPELLANT,

ON APPEAL FROM THE HIGH COURT OF AUSTRALIA.

Death Duty (N.S.W.)—Property comprised in gift—Bona-fide possession and enjoy-

ment—Entire exclusion of deceased—Settlement by deceased—Deceased a trustee of settlement—Resulting trust in favour of deceased—Stamp Duties Act 1920 (N.S.W.) (No. 47 of 1920), sec. 102 (2) (d).

Sec. 102 (2) (d) of the Stamp Duties Act 1920 (N.S.W.) provided for the inclusion for the purposes of death duty as part of a deceased person's estate of

"any property comprised in any gift made by the deceased at any time . . - of which bona fide possession and enjoyment has not been assumed by the donee

"immediately upon the gift and thenceforth retained to the entire exclusion

of the deceased, or of any benefit to him of whatsoever kind or in any way whatsoever." Gift was defined by sec. 100 of the Act to mean any disposition of property (which includes the creation of a trust) without full consideration. in money or money's worth,

Held that the subject matter of a settlement made by a deceased person is not included in the deceased person's estate under sec. 102 (2) (d) merely because the deceased person was one of the trustees of the settlement and thus retained a legal interest in the subject matter of the settlement or because the trusts declared did not necessarily exhaust the entire beneficial interest, so that in certain contingencies which did not happen there would have been a resulting trust in favour of the deceased person.

In re Cochrane, (1905) 2 IR. 626; (1906) 2 I.R. 200, approved.