Sayden Pty Ltd v Chief Commissioner of State Revenue [2013] NSWCA 111

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sayden Pty Ltd v Chief Commissioner of State Revenue [2013] NSWCA 111 Hearing dates: 27 March 2013 Decision date: 10 May 2013 Before: Meagher JA at [1]; Tobias AJA at [2]; Gzell J at [3] Decision: (1) Leave granted to the respondent to argue on the appeal that whereas cl 2(c)(iii) of the Deed grants an implied power to distribute land in specie s 3A(3B)(a)(ii) of the Management Act requires a power to distribute trust property in specie. (2) Appeal allowed. (3) Decision of the ADT Appeal Panel of 2 May 2012 set aside. (4) Decision of the ADT Revenue Division dated 7 December 2011 restored. (5) Respondent to pay appellant's costs of the appeal and of the proceedings before the ADT Appeal Panel. [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: TAXES AND DUTIES - land tax - whether land subject to a "fixed trust" - trust deed constituting a unit trust amended by including and giving paramountcy to provisions adopting substantially the same language as s 3A(3B) of the Land Tax Management Act 1956 which describes the criteria required by s 3A(3A) to be satisfied for the trust to be taken to be a "fixed trust" - whether criteria satisfied depends on interpretation of amended deed applying orthodox principles of construction - criteria satisfied and trust taken to be a "fixed trust" Legislation Cited: Administrative Decisions Tribunal Act 1997 Land Tax Act 1956 Land Tax Act 1958 (Vic) Land Tax Management Act 1956 Cases Cited: Byrnes v Kendle [2011] HCA 26; 243 CLR 253 Charles v Federal Commissioner of Taxation (1954) 90 CLR 598 Chief Commissioner of State Revenue v Sayden Pty Ltd ATF Griffin Property Unit Trust (RD) [2012] NSWADTAP 14 Commissioner of Taxation v Bamford [2010] HCA 10; 240 CLR 481 CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria [2005] HCA 53; 224 CLR 98 Harmer v Federal Commissioner of Taxation [1991] HCA 51; 173 CLR 264 Sayden Pty Limited v Chief Commissioner of State Revenue [2011] NSWADT 288 Category: Principal judgment Parties: Sayden Pty Ltd (Appellant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: J C Kelly SC (Appellant) G Kennett SC, T Wong (Respondent) Solicitors: Munro Lawyers (Appellant) Crown Solicitor's Office (Respondent) File Number(s): CA 2012/194508 Decision under appeal Citation: [2012] NSWADTAP 14 Date of Decision: 2012-05-02 00:00:00 Before: Judge K P O'Connor, President M Hole, Judicial Member C Bennett, Non-judicial Member File Number(s): 119059