Chief Commissioner of State Revenue v ALH Group Property Holdings Pty Limited [2011] NSWCA 32

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chief Commissioner of State Revenue v ALH Group Property Holdings Pty Limited [2011] NSWCA 32 Hearing dates: 8 February 2011 Decision date: 03 March 2011 Before: Allsop P, Tobias JA, Handley AJA Decision: (1) Appeal allowed with costs. (2) Judgment of Gzell J of 27 April 2010 set aside. (3) In lieu thereof order that the respondent's appeal from the decision of the Chief Commissioner be dismissed with costs. (4) The respondent to have a certificate under the Suitor's Fund Act for the costs in this Court, if qualified.[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ASSIGNMENT - benefit of agreement for purchase of land - assignee covenants with vendor - purchaser released - agreement not novated CONTRACT - assignment of benefit of agreement for purchase of land - assignee covenants with vendor - purchaser released - agreement not novated CONTRACT - novation - assignment of benefit of agreement for purchase of land - assignee covenants with vendor - purchaser released - agreement not novated TAXATION - duties - assignment - whether agreement for transfer or transfer - whether taxpayer entitled to refund when transaction cancelled - Duties Act s 50 TAXATION - duties - whether transaction transfer of dutiable property or agreement for transfer - whether cancellation of transaction entitled taxpayer to refund - Duties Act s 50 Legislation Cited: Duties Act 1997, s 50Suitor's Fund Act Cases Cited: FCT v Orica Ltd [1998] HCA 33, 194 CLR 500 FCT v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35, 201 CLR 520 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 Foran v Wight [1989] HCA 51, 168 CLR 385 Goodridge v Macquarie Bank Ltd [2010] FCA 67 In re United Railways of the Havana and Regla Warehouses Ltd [1960] Ch 52 Leveraged Equities Ltd v Goodridge [2011] FCFCA 3 Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 Morris v Baron & Co [1918] AC 1 Olsson v Dyson [1969] HCA 3, 120 CLR 365 Orica Ltd v FCT [2010] FCA 197 Queensland Insurance Co Ltd v Australian Mutual Fire Insurance Society Ltd (1941) 41 SR 195 Rose v Watson (1864) 10 HLC 672 Scarf v Jardine (1882) 7 App Cas 345 Shaw v Foster (1872) LR 5 HL 321 Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd [1957] HCA 10, 98 CLR 93 Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660 Vickery v Woods [1952] HCA 7, 85 CLR 336 Westwood-Westply Ltd v Cundy (1965) 50 DLR (2d) 744 Category: Principal judgment Parties: Chief Commissioner of State Revenue (Appellant) ALH Group Property Holdings Pty Limited (Respondent) Representation: Counsel: M L Robertson (Appellant) Ms A Tsekouras (Respondent) Solicitors: Crown Solicitor (Appellant) J D K Legal (Respondent) File Number(s): CA 2009/289006 Decision under appeal Jurisdiction: 9111 Citation: ALH Group v Chief Commissioner of State Revenue [2010] NSWSC 276 Date of Decision: 2010-04-20 00:00:00 Before: Gzell J File Number(s): SC 3023/2009