Tay v Chief Commissioner of State Revenue [2017] NSWSC 338

Supreme Court New South Wales

Medium Neutral Citation: Tay v Chief Commissioner of State Revenue [2017] NSWSC 338 Hearing dates: 8 and 9 August 2016 Decision date: 06 April 2017 Jurisdiction: Equity - Revenue List Before: White J Decision: 1. In proceeding 2015/113063 order that the defendant's decisions dated 3 July 2014 and 16 July 2014 to assess the plaintiff as being liable to pay ad valorem marketable securities duty on the transfer of shares in Memocorp Australia Pty Ltd from the executors of the estate of the late Tee Peng Tay to the plaintiff dated 28 May 2014, be revoked.

2. In proceeding 2015/361534 order that the defendant's assessment dated 14 May 2015 be confirmed. Catchwords: REVENUE AND TAXES – Duties Act 1997 (NSW) ss 63 and 163A – Will contained trust for sale and for distribution of cash to residuary beneficiaries – Transfer of shares in landholder from deceased estate to residuary beneficiary in partial satisfaction of bequest – Transfer made with agreement of all residuary beneficiaries as part of family agreement under which shares in three companies were transferred to three beneficiaries – Whether agreement was an agreement to vary the trusts of the will (s 63(2)) – Whether an appropriation as referred to in s 46 of the Trustee Act 1925 (NSW) (s 63(1)(a)(iii)) – Whether acquisition of interest in landholder company exempt under s 163A(d) as being solely the result of the distribution of deceased's estate Legislation Cited: Duties Act 1997 (NSW) State Revenue Legislation Amendment Act 2008 (NSW) Taxation Administration Act 1996 (NSW) Trustee Act 1925 (NSW) Cases Cited: Beck v Henley [2014] NSWCA 201; (2014) 11 ASTLR 457 Carr v Carr (1987) 8 NSWLR 492 Commissioner for State Revenue v Victoria Gardens Developments Pty Ltd [2000] VSCA 233 Commissioner of State Revenue v Lend Lease Funds Management Ltd (2011) 33 VR 204; [2011] VSCA 182 Goulding v James [1997] 2 All ER 239 In Re Holt's Settlement; Wilson v Holt [1969] 1 Ch 100 In re Lepine Pty Ltd [1892] 1 Ch 210 Inland Revenue Commissioners v Holmden [1968] AC 685 Jopling v Inland Revenue Commissioners [1940] 2 KB 282 Long v Controller of Stamps [1964] VR 796 Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338 Perpetual Trustee Co Ltd v Commissioner of State Revenue [2000] VSC 177; (2000) 44 ATR 273 Re Beverly; Watson v Watson [1901] 1 Ch 681 Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367 Re Estate Late Austin Mack (1956) 73 WN (NSW) 218 Re Mack (1956) 73 WN (NSW) 218 Saunders v Vautier (1841) 4 Beav 115; 49 ER 282 Spens v Inland Revenue Commissioners; Hunt v Inland Revenue Commissioners [1970] 3 All ER 295 White Rock Properties Pty Ltd v Commissioner of State Revenue [2015] VSCA 77 Wigley v Crozier (1909) 9 CLR 425 Texts Cited: Thomas & Hudson, The Law of Trusts, 2nd ed Oxford University Press, 2010 Category: Principal judgment Parties: Chwan Yi Tay (Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: M Richmond SC with C Peadon (Plaintiff) J E Marshall SC with M Sealey (Defendant)