Melteal Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADT 116

CITATION: Melteal Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADT 116

DIVISION: Revenue Division

APPLICANT Melteal Pty Ltd PARTIES: RESPONDENT Chief Commissioner of State Revenue

FILE NUMBER: 096121

HEARING DATES: 14 May 2010

SUBMISSIONS CLOSED: 14 May 2010

DATE OF DECISION: 19 May 2010

BEFORE: Block J - Judicial Member

CATCHWORDS: Application for refund – consideration of "void" and "voidable"- when transfer becomes useless

LEGISLATION CITED : Duties Act 1997

Gardiner v CCSR [2004] NSWSC 107 CASES CITED: Gibbons and Wright 91 C.L.R 423 DKLR Holding Co (No 2) v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431

APPLICANT C Birtles, solicitor REPRESENTATION: RESPONDENT ML Robertson, barrister

ORDERS: The decision under review is affirmed and the claim for a refund of duty is denied.

REASONS FOR DECISION

Part A; preliminary and background

1 The decision under review is the refusal by the Chief Commissioner of an application for a refund of duty amounting to $40,490 which was paid in respect of a transfer dated 1 December 2000 ("the relevant transfer") by Tsung-Ching Lin ("Mr. Lin") as transferor, in favour of the Applicant as transferee, of Unit 6, 5-15 Dunning Avenue, Rosebery in the state of New South Wales ("the relevant property"); the relevant transfer was registered on 9 January 2001.

2 The Tribunal had before it the documents lodged pursuant to section 58 of the Administrative Decisions Tribunal Act 1997; in addition it received two sets of written submissions on behalf of the Applicant and written submissions on behalf of the Chief Commissioner.