Chief Commissioner of State Revenue v Shell Energy Operations No 2 Pty Ltd [2023] NSWCA 113

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chief Commissioner of State Revenue v Shell Energy Operations No 2 Pty Ltd [2023] NSWCA 113 Hearing dates: 21-22 March 2023 Date of orders: 26 May 2023 Decision date: 26 May 2023 Before: Kirk JA at [1]; Adamson JA at [156]; Griffiths AJA at [157] Decision: (1) Allow the appeal on Ground 2 only. (2) Any proposed consent orders should be filed within 21 days of these orders. (3) To the extent that the parties are not agreed on orders to resolve the appeal they may file and serve: (a) submissions of no more than 4 pages relating to what final orders the Court should make, together with any relevant supporting materials, within 21 days of these orders; and (b) submissions in reply of no more than 2 pages within 28 days of these orders. (4) Subject to any further order, final orders will be made on the papers and without a further oral hearing. Catchwords: TAXES AND DUTIES — Vesting orders — Power sufficiently broad under the Electricity Generator Assets (Authorised Transactions) Act 2012 (NSW) to authorise vesting of interests owned by the Water Administration Ministerial Corporation — Purposive considerations especially significant in relation to poorly drafted instruments — Construction of practical documents meant to achieve a practical end — Achieving certainty in identification of assets for sale by privatisation — Vesting orders legally severed the interests in the items constituting the power stations TAXES AND DUTIES — Dutiable transactions — Dutiable property — Whether items constituting power stations were fixtures, innominate sui generis property or "goods" — Items in question had been goods but became part of the land when affixed — Statutes may operate by reference to general law notions — Duties Act does not alter conclusion that the items were "goods" liable to duty — Even if innominate sui generis interests would still be liable to duty TAXES AND DUTIES — Whether primary judge fell into error by considering if the leases were a "driver of value" — Finding that the bare lease agreements contributed to value did not foreclose the finding that the water agreements were fundamentally more important — Primary judge did not mistake the facts in House v The King sense Legislation Cited: Duties Act 1997 (NSW), ss 11(1)(j), 32, 148, 149, 155, 163K Electricity Generator Assets (Authorised Transactions) Act 2012 (NSW), ss 3, 7, 13; cll 1, 2 of Sch 1; cll 2, 7 of Sch 4 Energy Services Corporations (Eraring Energy) Regulation 2000 (NSW) Energy Services Corporations Act 1995 (NSW) Stamp Duty Act 1920 (NSW) State Revenue Legislation Further Amendment Act 2009 (NSW) Taxation Administration Act 1996 (NSW), s 97(1)(a) Water Administration Act 1986 (NSW), cl 10 of Sch 4 Water Management Act 2000 (NSW), s 371 Cases Cited: Attorney-General (Cth) v R T Co Pty Ltd (No 2) (1957) 97 CLR 146; [1957] HCA 29 Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 Australian Provincial Assurance v Coroneo (1938) 38 SR (NSW) 700 Bain v Brand [1876] 1 App Cas 762 Browning v Australia and New Zealand Banking Group Ltd [2014] QCA 43 Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118; [1967] HCA 41 Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336; [1981] HCA 4 Cottee Dairy Products Pty Ltd v Minad Pty Ltd (1997) 8 BPR 15,611 Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534; [2004] NSWSC 1096 Holland v Hodgson (1872) LR 7 CP 328 Knight v Barber (1846) 16 M & W 66; 153 ER 1101 Meridian Energy Australia Pty Ltd v Chief Commissioner of State Revenue [2022] NSWSC 1074 North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52 Smith's Snackfood Co Ltd v Chief Commissioner of State Revenue (NSW) (2013) 97 ATR 904; [2013] NSWCA 470 SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue (2021) 113 ATR 24; [2021] NSWSC 395 Stephenson v Thompson [1924] 2 KB 240 TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 241 CLR 576; [2010] HCA 49 The Noordam (No 2) [1920] AC 904 Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd (2009) 258 ALR 89; [2009] FCA 742 Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351; [2004] VSCA 10 Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 Texts Cited: Hansard, Legislative Assembly, 17 June 2009, p 16248 Hansard, Legislative Assembly, 6 March 2012, pp 8992-8993 Peter J McMahon, "Legal Nature of a Tenant's Interests in its Fixtures" (2016) 90 ALJ 370 Samantha Hepburn and Steve Jaynes, "The nature and scope of rights of removal" (2013) 2 Property Law Review 123 Stuart Bridge, Elizabeth Cooke and Martin Dixon, Megarry & Wade: The Law of Real Property (Sweet & Maxwell, 9th edn), [22-005] Category: Principal judgment Parties: Chief Commissioner of State Revenue (Appellant)