Oakland Property Holdings Pty Limited v Chief Commissioner of State Revenue [2009] NSWSC 1190

New South Wales Supreme Court

CITATION : Oakland Property Holdings Pty Limited v Chief Commissioner of State Revenue [2009] NSWSC 1190

HEARING DATE(S) : 30 September 2009

JUDGMENT DATE : 30 November 2009

JUDGMENT OF : Gzell J

DECISION : Summons dismissed with costs.

CATCHWORDS : TAXES AND DUTIES - Stamp Duties - plaintiff executed contracts for sale of land in New South Wales as purchaser for stated prices - deeds executed at same time for vendor to pay plaintiff amounts to be setoff against fit out rebates for tenants - whether consideration for agreements for sale were stated price less payments under the deeds

LEGISLATION CITED : Duties Act 1997 Stamp Duties Act 1920

CATEGORY : Principal judgment

Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) (1948) 77 CLR 143 CASES CITED : Shop and Store Developments Ltd v Commissioners of Inland Revenue [1967] 1 AC 472 Chief Commissioner of State Revenue (New South Wales) v Dick Smith Electronics Holdings Pty Ltd [2005] HCA 3; (2005) 221 CLR 496 Coles Myer Ltd v Commissioner of State Revenue [1998] 4 VR 728

PARTIES : Oakland Property Holdings Pty Limited (Plaintiff) Chief Commissioner of State Revenue (Defendant)

FILE NUMBER(S) : SC 1409/08

COUNSEL : P Bolster (Plaintiff) P Singleton (Defendant)

SOLICITORS : Ma & Company (Plaintiff) Crown Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

MONDAY 30 NOVEMBER 2009

1409/08 OAKLAND PROPERTY HOLDINGS PTY LIMITED v CHIEF COMMISSIONER OF STATE REVENUE JUDGMENT

Synopsis 1 Oakland Property Holdings Pty Limited acquired two commercial properties in New South Wales, each for a stated price and each subject to an obligation on the part of the vendor to repay portion of the purchase price. The Chief Commissioner of State Revenue assessed duty on the stated purchase price. Oakland submits that in the one case it should have been assessed on the net amount after deducting the refund and in the other case upon the unencumbered value of the property, which was greater than the net amount. The statutory regime 2 Relevantly for present purposes, duty is charged on an agreement for sale or transfer of dutiable property under the Duties Act 1997, s 8(1)(b)(i). Land in New South Wales is dutiable property in terms of s 11(1)(a). Duty is charged as if the agreements for sale were transfers of the dutiable property in terms of s 9(1). Duty is charged on the dutiable value of the dutiable property in terms of s 19. Section 21(1) defines the dutiable value of the dutiable property. It was in the following terms: "The dutiable value of dutiable property that is subject to a dutiable transaction is the greater of: (a) the consideration (if any) for the dutiable transaction (being the amount of a monetary consideration or the value of a non-monetary consideration), and (b) the unencumbered value of the dutiable property."