Fineglow Pty Ltd v Anastasopoulos and Ors [2002] NSWSC 1181

Reported Decision : (2003) 57 NSWLR 39

New South Wales Supreme Court

CITATION : Fineglow Pty Ltd v Anastasopoulos and Ors [2002] NSWSC 1181 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4781/02 HEARING DATE(S) : 20 and 21 November, 2002 JUDGMENT DATE : 11 December 2002

Fineglow Pty Ltd - Plaintiff PARTIES : Georgina Anastasopoulos - First Defendant Patricia Mary Souleles - Second Defendant Olga Voukidis - Third Defendant JUDGMENT OF : Palmer J

COUNSEL : S.D. Rares SC, T.M. Faulkner - Plaintiff D.A. Smallbone - Defendants SOLICITORS : Southern Cross Lawyers - Plaintiff R.S. Davis & Davis - Defendants CATCHWORDS : VENDOR AND PURCHASER - STAMP DUTY - EVIDENCE - SPECIFIC PERFORMANCE - Plaintiff sued for specific performance of contract for sale of land - contract evidenced by two instruments - only one instrument stamped with duty - duty assessed on purchase price in arm's length transaction - Chief Commissioner of State Revenue provided letter stating that no further duty was payable - Defendants contended that contract inadmissible and unenforceable because not "duly stamped" under s.304(1) Duties Act as duty had been assessed on purchase price rather than true value of the land - Defendant tendered valuation evidence to prove that value of land exceeded purchase price. HELD: Determination by Commissioner that no further duty payable was a "notice of assessment" for the purpose of Taxation Administration Act - a notice of assessment is conclusive evidence of the validity of the assessment and cannot be challenged other than in review proceedings as between the taxpayer and the Commissioner - valuation evidence rejected. - Duties Act 1997 (NSW) - s.5, s.8, s.18, s.19, s.21, s.297, s.304, LEGISLATION CITED : - Stamp Duties Act 1920 (NSW) - s.4, Part 3 - Supreme Court Rules - Pt 36 r.10B - Taxation Administration Act 1996 (NSW) - s.4, s.7, s.8, s.14, s.16, s.67, s.118, s.119 - Huddleston v Briscoe (1805) 11 Ves 583 [32 ER 1215] CASES CITED : - Reliance Financial Services Pty Ltd v Baddock [2002] NSWSC 857 - Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 - Weston & Cussen as liquidators of Karl Suleman Enterprises Pty Ltd v Metro Apartments Pty Ltd and Anor [2002] NSWSC 682 DECISION : The stamped contract was "duly stamped" within the meaning of s.304(1) Duties Act and was admissible; the other unstamped instrument was not a "dutiable instrument" and was not affected by s.304(1); both instruments admitted into evidence; specific performance granted.