Comptroller of Stamps v Ashwick (Vic) (No 4) Pty Ltd [1987] HCA 60

High Court of Australia Mason C.J. Wilson, Dawson, Toohey and Gaudron JJ. Comptroller of Stamps v Ashwick (Vic) (No 4) Pty Ltd [1987] HCA 60

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 10 Mason C.J., Wilson, Dawson, Toohey and Gaudron JJ.

This is an appeal from a decision of the Full Court of the Supreme Court of Victoria (Kaye, Murphy and Tadgell JJ.) upholding an objection to an assessment of stamp duty upon an instrument of transfer [16] . The assessment was made by the appellant in reliance upon s. 32 and Heading VI of the Third Schedule of the Stamps Act 1958 Vict. ("the Act").

1. [1987] V.R. 986.

The instrument in question was dated 7 November 1984 and was executed by Carlton & United Breweries Ltd. ("C.U.B.") and the respondent. By it C.U.B. transferred land to the respondent for a consideration expressed as follows:

The Transferee is entitled to the transfer of the land as a shareholder in the Transferor in the course of a distribution of assets of the Transferor in consequence of the reduction of the capital of the Transferor. The Transferee's entitlement arises upon the redemption of 10,000 Class Four redeemable preference shares held by the Transferee in the capital of the Transferor. The appellant ruled that the instrument was liable to duty of $47,229 calculated on an ad valorem basis, the property having a value of $899,557. An objection to the assessment was disallowed and an appeal against the disallowance came before Crockett J. who ordered, pursuant to s. 44 of the Supreme Court Act 1958 Vict., that the case be argued before the Full Court.

The respondent has objected to the assessment on the ground that the instrument was wholly exempt from duty by reason of the provisions of exemption (19) under Heading VI of the Third Schedule to the Act. That exemption reads: