Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28

High Court of Australia Rich, Dixon, and Williams JJ. Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28

ORDER Appeal allowed. Order of the Supreme Court set aside. Questions asked in the case stated answered by saying that the transfers of shares were liable to be assessed for duty under the provisions of s. 66 (3B) of the Stamp Duties Act 1920-1940. Respondent to pay the costs of the appellants of this appeal and in the Supreme Court.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 18 Rich J.

In this appeal I have come to the conclusion that the case falls within s. 66 (3B) of the Stamp Duties Act 1920-1940 N.S.W., and as I agree with the judgments of my brothers Dixon and Williams it is unnecessary for me to detail similar reasons for the same conclusion. The appeal should be allowed.

Dixon J.

The question upon this appeal is under which sub-section of s. 66 of the Stamp Duties Act 1920-1940 N.S.W. certain transfers of shares fall. The choice is among sub-ss. (3) (a); (3A) and (3B). The sub-sections relate to conveyances, an expression which by s. 65 and the definition of s. 3 of property includes, among other things, transfers of personal property and things in action.

Sub-section (3) (a) prescribes the duty to be charged upon conveyances without consideration in money or money's worth; sub-s. (3A) prescribes the duty to be charged upon a conveyance made upon a bona-fide consideration in money or money's worth of less than what is called the unencumbered value of the property conveyed; and sub-s. (3B) prescribes the duty to be charged upon a conveyance made upon a bona-fide consideration in money or money's worth of not less than the unencumbered value of the property conveyed.

The transfers were made by the appellant company to two shareholders, who held the issued share capital of the company, with the exception of one share. The subject of the transfers was certain shares in other companies, forming part of the assets of the appellant company. The purpose of the transfers was to carry out a resolution, duly confirmed, for the reduction of the share capital of the appellant company. The reduction was carried out by a distribution of these assets in specie.