McDonald's Australia Ltd v Chief Commissioner of State Revenue [2005] NSWSC 6

New South Wales Supreme Court

CITATION : McDonald's Australia Ltd v Chief Commissioner of State Revenue [2005] NSWSC 6

HEARING DATE(S) : 6/12/04, 7/12/04

JUDGMENT DATE : 1 February 2005

JUDGMENT OF : Gzell J

DECISION : Commissioner's challenge to the jurisdiction of the court dismissed except as to the exigibility of transactions entered into after the decision the subject of objection. Matter remitted to Chief Commissioner to determine whether to exercise the discretion under the Stamp Duties Act 1920, s 43A(2)(b) and the Duties Act 1997, s 26(1) ignoring the value of tenant's fixtures "sold" and without fettering the discretion by the application of Revenue Ruling DUT 004 alone.

CATCHWORDS : TAXES AND DUTIES - Stamp duties - Whether a document that fails to identify the duty assessed on each instrument can be a notice of assessment under the Stamp Duties Act, 1920 - Whether the subsequent service of a schedule identifying the duty combined with the original document constitutes a notice of assessment - Whether the exigibility of transactions entered into after the decision the subject of objection can be considered by the court on review - Whether a surrender of the balance of the term of a lease is a conveyance for the purposes of the Stamp Duties Act 1920 and a dutiable transaction for the purposes of the Duties Act 1997 - Whether the "sale" by a tenant to his landlord of tenant's fixtures is a waiver of the right of severance and neither a contract for sale of goods nor a contract for sale of an interest in land - Whether the application of Revenue Ruling DUT 004 alone is a fetter upon the discretion not to exact duty on the value of goods under the Stamp Duties Act 1920, s 43A(2)(b) and the Duties Act 1997, s 26(1) - Whether subservience of items of plant and equipment to the business conducted on land should be allowed to dominate the determination whether such items are fixtures - Whether operational interconnection of items is a relevant factor in determining whether such items are fixtures.