Stamp Duties, Commissioner of (NSW) v Gale [1958] HCA 42

High Court of Australia Dixon C.J. McTiernan and Menzies JJ. Stamp Duties, Commissioner of (NSW) v Gale [1958] HCA 42

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 14 Dixon C.J.

The question which by this appeal the Commissioner of Stamp Duties of New South Wales brings before us is whether a certain gift made by a deceased person named Leslie Ross Gale within three years of his death, and therefore forming part of his notional estate for the purpose of the assessment and payment of death duty, should be regarded as a money sum or an interest in real property.

The question arises under s. 102 (2) (b) of the Stamp Duties Act 1920-1949 N.S.W.. The material part of that provision says that for the purpose of the assessment and payment of death duty the estate of a deceased person shall be deemed to include and consist of the following classes of property:—" 2 (b) Any property comprised in any gift made by the deceased within three years before his death ". By Act No. 30 of 1939, s. 2 (c) (ii), a proviso was inserted on which a good deal turns. The material words run "Where the property comprised in any such gift consists of money the property to be included in the estate pursuant to this subparagraph shall be the actual amount of the money given or paid".

In Commissioner of Stamp Duties (N.S.W.) v. Perpetual Trustee Co. Ltd. (Watt's Case) [5] the Supreme Court and a majority of the High Court (Higgins J. dissenting) held, to use the language of Campbell J. " that it is an indispensable condition of the operation of s. 102 (2) (b) upon any gift that the subject of the gift should exist at the date of the death in some concrete identifiable form" [6] . (Doubtless the word "concrete" was not intended to exclude a chose in action or other incorporeal right). Thus where a deceased person had caused a sum of money to be applied in buying a steamer ticket to America for a friend and in handing the balance to him in cash as an aid to his intended journey and, as Isaacs J. said [1] , the recipient of the money and the ticket left Australia never to return, there was not a dutiable gift in existence at the donor's death. According to the suggestion of counsel for the executor upon his argument of the present appeal the proviso was inserted to meet the position disclosed by this decision in the case of gifts of money. The suggestion supposes that an unusual amount of time elapsed before the disclosure of the evil resulted in the adoption of the remedy; thirteen years. But whatever be the basis for the suggestion, it seems clear enough that the actual operation of the proviso is to clothe a gift of money with a special characteristic, namely, that of fixity, so that nothing is to be considered except the period that elapsed before the death of the donor took place. If it is less than three years from the gift, then the amount of money comprised in the gift forms part of the estate for duty, however the money may have been applied or misapplied.