Gardiner v Chief Commissioner of State Revenue [2004] NSWSC 107

Reported Decision : 59 NSWLR 549

New South Wales Supreme Court

CITATION : Gardiner v Chief Commissioner of State Revenue [2004] NSWSC 107 HEARING DATE(S) : 26/02/04 JUDGMENT DATE : 3 March 2004

JUDGMENT OF : Gzell J DECISION : No equitable interest arose in the plaintiff. Registration having been acquired by transmission, the instrument of transfer failed in its intended operation and became useless and the plaintiff was entitled to reassessment.

CATCHWORDS : TAXES AND DUTIES - Stamp duties - Instrument of transfer of land under the Real Property Act 1900 in registrable form given to plaintiff by father to protect her prior to devise of land to her by will - Stamped ad valorem as a transfer - No intention to make a gift - Caveat claiming equitable interest - Whether equitable interest arose - Plaintiff obtained registration as proprietor of the land by transmission under the will - Reassessment under the Duties Act 1997, s 293(2) limited to instruments that fail in their intended operation and become useless - Whether the instrument of transfer as a means of protection had not failed in its operation Administrative Decisions Tribunal Act 1997 Duties Act 1997 LEGISLATION CITED : Real Property Act 1900 Taxation Administration Act 1996 Conveyancing Act 1919 State Revenue Legislation Amendment Act 2002 Anning v Anning (1907) 4 CLR 1049 at 1057 Corin v Patton (1990) 169 CLR at 540 Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555 CASES CITED : Costin v Costin (1997) 7 BPR 15,167 Lubrano v Gollin & Co Pty Ltd (1919) 27 CLR 113 Rose v Hvric (1963) 108 CLR 353 Commissioner of Stamp Duties (Qld) v Hopkins (1945) 71 CLR 351 PARTIES : Cheryl Gardiner - Plaintiff/Appellant Chief Commissioner of State Revenue - Defendant/Respondent FILE NUMBER(S) : SC 5669/03 COUNSEL : Mr S Y Reuben - For Plaintiff/Appellant Mr I Mescher - For Defendant/Respondent SOLICITORS : Cordato Partners, Solicitors The Crown Solicitor's Office