AUST-WIDE MANAGEMENT LTD (RECEIVER APPOINTED) v CHIEF COMMISSIONER OF STAMP DUTIES [1996] NSWCA 29

AUST-WIDE MANAGEMENT LTD (RECEIVER APPOINTED) v CHIEF COMMISSIONER OF STAMP DUTIES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY and BEAZLEY JJA and ROLFE AJA 10 July 1996, 16 August 1996 [1996] NSWCA 29

STAMP DUTIES — Unit trust deed — redemption of units — whether transaction causing or resulting in change in beneficial ownership of estate or interest in lease of land in NSW — Stamp Duties Act 1920, s44.

Aust-Wide Grosvenor Place Trust was a unit trust, of which the appellant was the Manager, and Permanent Trustee Australia Limited was the Trustee. C119 of the trust deed conferred upon unitholders a right to request the appellant Manager to re-purchase all or any of the units held by the unitholder. C120 provided for the Redemption of Units, requiring the Manager to inform the Trustee in writing of the requested redemption which then obliged the Trustee to make the payment to the Manager.

On 30 June 1988, the appellant, the Trustee and the Superannuation Fund Investment Trust (SFIT) entered into a deed entitled the "Subscription Deed". The deed provided that SFIT would subscribe for a number of Aust-Wide units, and that those units would be redeemed at specified dates. Cl6 of the Subscription Deed provided for the redemption of units by SFIT. It required the appellant to provide the Trustee with a statement, pursuant to Cl120(1) of the Aust-Wide deed, certifying that units are to be redeemed. It also provided that the Trustee's obligation to redeem the SFIT units was subject to SFIT delivering the certificates to the appellant.

The court examined one set of transactions, as representative of what happened on each redemption of units. On 31 October 1988, SFIT notified the appellant that it required redemption of two units. The appellant informed the Trustee, by a statement in writing, in compliance with both cl20(1) of the Aust-Wide deed and cl6 of the Subscription Deed.