Marilyn Elizabeth Trethowan v Chief Commissioner of State Revenue [2013] NSWSC 576

Supreme Court New South Wales

Medium Neutral Citation: Marilyn Elizabeth Trethowan v Chief Commissioner of State Revenue [2013] NSWSC 576 Hearing dates: 09.05.13 Decision date: 17 May 2013 Before: Nicholas J Decision: Pars 47-48 Catchwords: TAXES AND DUTIES - stamp duties - instrument of transfer of land under Real Property Act 1900 - instrument not lodged for assessment of duty prior to registration - instrument later deregistered by Registrar-General and withdrawn - assessment for duty issued in respect of transfer to plaintiff - plaintiff's objection disallowed - whether instrument of transfer cancelled - whether transfer of dutiable property to transferee occurred - whether no duty payable under s 50A(1) Duties Act 1997 - whether assessment should be set aside Legislation Cited: Duties Act 1997 Real Property Act 1900 Taxation Administration Act 1996 Cases Cited: Gardiner v Chief Commissioner of State Revenue [2004] NSWSC 107; (2004) 59 NSWLR 549 Category: Principal judgment Parties: Marilyn Elizabeth Trethowan - plaintiff Chief Commissioner of State Revenue - defendant Representation: Counsel: R Horsley - plaintiff J Needham SC/J Mitchell - defendant Solicitors: Jonathan Abbott & Associates - plaintiff Crown Solicitor - defendant File Number(s): 12/195020

Judgment 1His Honour: In these proceedings, under s 97 Taxation Administration Act 1996, the plaintiff appeals from the decision of the defendant against an assessment of duty dated 19 September 2011 (the assessment) in respect of a transfer of land executed on about 21 July 2009. 2The assessment is for duty payable under the Duties Act 1997 (the Act) in the amount of $47,390.95, pursuant to a transfer of land said to be a dutiable transaction under s 8(1)(a) of the Act. The plaintiff contends that the transfer is not liable to duty under s 50A of the Act on grounds that the transfer instrument has been cancelled and the property has not been transferred to her as the transferee, and the transfer was not cancelled to give effect to a sub-sale. The appeal is opposed. The defendant denies that the transfer has been cancelled and that the property has been transferred, and contends that s 50A has no application. It seeks an order that the assessment be confirmed.