Sportscorp v Chief Commissioner of State Revenue [2004] NSWSC 1029

New South Wales Supreme Court

CITATION : Sportscorp v Chief Commissioner of State Revenue [2004] NSWSC 1029 HEARING DATE(S) : 20/10/04 JUDGMENT DATE : 12 November 2004

JUDGMENT OF : Gzell J DECISION : Commissioner's assessments confirmed save that value of improvements to be deducted. Matter remitted to Commissioner to determine values and consider whether discount should be given for sale in one parcel.

CATCHWORDS : TAXES AND DUTIES - Stamp duties - Land acquired on behalf of partnership by trustee - Trustee developed land at expense of partners - Land subdivided on registration of strata plan - Common property vested in owners corporation - Strata lots transferred to partners as tenants in common in equal shares - Commissioner assessed transfers to ad valorem duty - Whether transfers were exempt as additional instruments forming one dutiable transaction - Whether lots transferred were the same land acquired by the trustee - Nature of rights constituted on registration of a strata plan considered - Whether exempt as transfers from apparent purchaser to real purchaser - Whether exempt as transfers from trustee to beneficiaries and wholly or substantially same property subject of declaration of trust - Whether exempt as transfers back to transferors - Whether exempt as transfers on retirement of trustee - Whether exemption for corporate reconstruction applied where one partner not member of same corporate group - Whether duty assessed on value of bare legal title - Nature of property held on trust for another discussed - Whether value of improvements paid by partnership to be deducted - Whether value of lots to be discounted for sale of all lots in one parcel Duties Act 1997 Duties Act 1997 Income Tax Assessment Act 1936 (Cth) LEGISLATION CITED : Conveyancing (Strata Titles (Act) 1961 Body Corporate and Community Management Act Body Corporate and Community Management Act Real Property Act Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 Young v Owners - Strata Plan No 3529 (2001) 54 NSWLR 60 Breskvar v Wall (1971) 126 CLR 376 at 385 Chan v Cresdon Pty Ltd (1989) 168 CLR 242 Ashington Holdings Pty Ltd v Wipema Services Pty Ltd (1998) 8 BPR 15,961 Ashington Holdings Pty Ltd v Wipema Services Pty Ltd (1999) 9 BPR 17,315 Ashington Holdings Pty Ltd v Wipema Services Pty Ltd (No 2) (1998) 9 BPR 16,515 Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1970-1971) 124 CLR 73 Commissioner for Railways v Valuer General [1974] AC 328 at 351 Moruben Gardens Pty Ltd v Federal Commissioner of Taxation 72 ATC 4147 Growing Wealth Pty Ltd v Commissioner of Stamp Duties [2001] 2 Qd R 603 CASES CITED : Commissioner of State Revenue v Pattison (2001) 3 VR 520 Triantafilis v Commissioner of Stamp Duties (NSW) 95 ATC 4655 Triantafilis v Commissioner of Stamp Duties (NSW) 98 ATC 4484 Trust Company of Australia Ltd v Commissioner of State Revenue (2003) 77 ALJR 1019 Dadeeton Pty Ltd v Commissioner of State Taxation (2004) 88 SASR 109 Commissioner of State Revenue (Vic) v Pioneer Concrete (Vic) Pty Ltd (2002) 209 CLR 651 Vopac Terminals Australia Pty Ltd v Commissioner of State Revenue (Vic) 2004 ATC 4154 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (1980) 1 NSWLR 510 O'Sullivan v Commissioner of Stamp Duties (Qld) (1983) 14 ATR 299 O'Sullivan v Commissioner of Stamp Duties [1984] 1 Qd R 212 Re Transphere Pty Ltd (1986) 5 NSWLR 309 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1981-1982) 149 CLR 431 Perpetual Trustee Co Ltd v Commissioner of State Revenue (2000) 44 ATR 273 Sportscorp Australia Pty Ltd - 1st Plaintiff Addenbrooke Finance Pty Ltd - 2nd Plaintiff PARTIES : Neforu Pty Ltd - 3rd Defendant Queenscliff Estate Pty Ltd - 4th Defendant Chief Commissioner of State Revenue FILE NUMBER(S) : SC 6164/03 COUNSEL : Mr Steven Rares SC/ Mr Mark Robertson - Plaintiffs Mr Roger Hamilton/ Ms Raselle Seiden - Defendant SOLICITORS : Mallesons Stephen Jaques I V Knight Crown Solicitor