Tesoriero and Anor v. Chief Commissioner of Stamp Duties [2001] NSWSC 489

New South Wales Supreme Court

CITATION : Tesoriero and Anor v. Chief Commissioner of Stamp Duties [2001] NSWSC 489 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4888/00 HEARING DATE(S) : 22 May to13 June 2001 JUDGMENT DATE : 14 June 2001

Peter Tesoriero (First Plaintiff) PARTIES : Tonia Tesoriero (Second Plaintiff) Chief Commissioner of Stamp Duties (Defendant) JUDGMENT OF : Palmer J

COUNSEL : P.D. White (Solicitor), M.K. Condon (Plaintiffs) H.R. Sorensen (Defendant) SOLICITORS : P.D. White (Plaintiffs) State Crown Solicitor (Defendant) CATCHWORDS : STAMP DUTIES - AVOIDANCE SCHEME - Joint venture formed for real estate development - investment vehicle is unit trust in which venturers subscribe for units - Trust Deed contains provisions for issue of "special rights units" to venturers to enable them to acquire townhouses in the development without payment of stamp duty - "special rights units" provisions not complied with - venturers enter into contracts with trustee company for purchase of townhouses and pay consideration - upon completion of the venture several townhouses remain registered in name of trustee company - one of venturers acquires trust units of other venturers - Commissioner assesses acquiring venturer on the basis that venturer acquired majority interest in a "designated landholder" so that acquisition is assessable under s.99E(1) Stamp Duties Act 1920 - ad valorem duty levied upon unencumbered value of townhouses still registered in name of trustee company - townhouses not held as assets of the unit trust but upon bare trusts for the purchasers - assessment set aside. - CONTRACT - OFFER AND ACCEPTANCE - Offer constituted by application to trustee company to acquire townhouses which are assets of a trust - acceptance of offer by resolution of the board of the trustee company to transfer townhouses to the applicants - alternatively, contracts to be inferred from the conduct of the parties in all the circumstances - contracts legally binding. - EQUITY - contract for sale of land - purchaser pays to vendor full consideration for sale of land - title to land remains in the name of the vendor - the vendor holds the land on a bare trust for the purchaser. Stamp Duties Act 1920 LEGISLATION CITED : Stamp Duties (Amendment) Act 1987 Strata Titles Act Chang v Registrar of Titles (1976) 137 CLR 177 CASES CITED : Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326 K.L.D.E. Pty Ltd v Commissioner of Stamp Duties (Qld) (1984) 155 CLR 288 DECISION : Plaintiffs' objection to stamp duty assessment upheld; stamp duty assessment set aside.