PARTIES: GRICE HOLDINGS PTY LTD AND
GRICE INVESTMENTS NT PTY LTD
v
COMMISSIONER OF TAXES
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY
JURISDICTION
FILE NO: 20005652 (36 of 2000) and
20006590 (LA6 of 2000)
#DATE 23:10:2000
DELIVERED: 23 October 2000
HEARING DATES: 1 September 2000
JUDGMENT OF: BAILEY J
STAMP DUTY - APPEAL AGAINST ASSESSMENT
Whether the plaintiffs/appellants lodged a valid objection - must be a
`person
aggrieved' - a person aggrieved is the person liable to pay the duty
assessed
Taxation (Administration Act), section 100
McDonald's Australia Ltd v The Commissioner of Taxes, 72/2000,
unreported, Supreme court of the Northern Territory, 6th September
2000, applied.
In the absence of a valid objection there is no basis for the court to consider
an appeal pursuant to s100 of the act; to grant an order in the nature of
mandamus; or to grant a declaration in the terms sought by the
plaintiffs/appellants.
Counsel:
Appellant: Mr Russel
Respondent: Ms Kelly
Solicitors:
Appellant: Paul Maher
Respondent: Clayton Utz
Judgment category classification: B
Judgment ID Number: bai00007
Number of pages: 22
bai00007
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
No 36 of 2000 (20005652) and LA6 of 2000 (20006590)
BETWEEN:
GRICE HOLDINGS PTY LTD AND GRICE INVESTMENTS NT PTY LTD
Appellant
AND:
COMMISSIONER OF TAXES
Respondent
CORAM: BAILEY J
(Delivered 23 October 2000)
Background [2] There are two proceedings:
(a) By originating motion, filed on 17 March 2000, the plaintiffs (Grice
Holdings Pty Ltd and Grice Investments Pty Ltd) seek relief in the following
terms: 2. In the alternative, the Plaintiffs apply to the Court for an Order in the
nature of mandamus requiring the Defendant to determine the objection lodged by
them (or alternatively by the First Plaintiff on its own behalf and on behalf
of the second Plaintiff) against the assessment which objection the defendant
has refused to determine.
3. In the further alternative, the Plaintiffs apply to the Court for a
declaration that the objection lodged by them (or alternatively by the First
Plaintiff on its own behalf and/or on behalf of the second Plaintiff) against
the assessment is an objection which complies with section 100 of the
Taxation (Administration) Act 1978 which objection the Defendant is
required by law to determine."
Grounds relating to the appeal under section 101 of the
Taxation (Administration) Act and to the application for an order in the
nature of mandamus or for a declaration are set out in the originating motion
which concludes with a claim for orders in the following terms: (ii) alternatively an order that the assessment be remitted to the
Defendant for reassessment according to law;
(iii) in the further alternative, an order directing the Defendant to
determine the objection lodged by the solicitors for the Plaintiffs with the
Defendant on 20 January;
(iv) in the further alternative, a declaration that the objection lodged by
the solicitors for the Plaintiffs with the Defendant on 20 January was an
objection for the purposes of section 100 of the Taxation (Administration)
Act 1978 which the Defendant is required by law to determine; and
(v) costs."
(b) By notice of appeal, filed on 30 March 2000, the appellants
(Grice Holdings Pty Ltd and Grice Investments Pty Ltd) appeal from the decision
of the Commissioner of Taxes rejecting an objection to the assessment of stamp
duty made by the Commissioner on 22 December. The "grounds" of the appeal set
out in the notice included applications for relief in the same terms as
paragraphs 1, 2 and 3 of the originating motion (set out at (a) above). The
notice also includes further grounds relating to the appeal under the
Taxation (Administration) Act in the same terms as the originating
motion (but does not reproduce the grounds relied upon in the originating
motion for an order in the nature of mandamus or for a declaration). The
orders sought are in the same terms as those sought in sub-paragraphs (i), (ii)
and (v) of the originating motion (set out at (a) above).
[3] The originating processes adopted in the two proceedings are clearly
defective in attempting to combine in a single document an appeal under the
Taxation (Administration) Act with an application for an order in the
nature of mandamus or, in the alternative, declaratory relief. However, it is
clear enough that Grice Holdings Pty Ltd and Grice Investments Pty Ltd wished
to pursue:
(a) an appeal pursuant to section 101 of the Taxation (Administration)
Act against what is said to be a decision of the Commissioner of Taxes
disallowing an objection against the assessment in question; and
(b) in the alternative, proceedings seeking an order in the nature of mandamus
or a declaration requiring the Commissioner of Taxation to determine the
purported objection to the assessment lodged by Grice Holdings Pty Ltd and/or
Grice Investments Pty Ltd.
Agreed Facts
[4] The two proceedings were conducted largely on the basis of an agreed
statement of facts and issues. In addition the plaintiffs/appellants
("Holdings" and "Investments") relied on three affidavits each sworn on 1
September 2000 by Joseph Scully (accountant to the Grice Family Superannuation
Fund), Ian Campbell (accountant to Fannie Bay Investments Pty Ltd and Holdings)
and Paul Maher (solicitor for Holdings and Investments). Mr Campbell and Mr
Maher also gave brief evidence concerning aspects of their affidavits after
objections by Ms Kelly on behalf of the Commissioner of Taxes (the
defendant/respondent - the "Commissioner"). Ms Kelly called Ms Rosemary
Campbell, a charted accountant, who gave brief evidence concerning aspects of
Holdings' accounts.
[5] The agreed statement of facts is in the following form: 2. On 8 July 1987 Holdings became the registered proprietor of Lot 5498 of
Darwin.
3. On 14 April 1989 Lots 5279 and 5498 were consolidated into one lot, being
Lot 5500 of Darwin.
4. Holdings remained the registered proprietor of Lot 5500 of Darwin until
30 June 1999.
5. On 17 May 1995 the Grice Family Superannuation Fund was created by trust
deed (`the Trust Deed') with Fannie Bay Investments Pty Ltd ACN 063 776 214
(`Fannie Bay') as its trustee (Annexure `1').
6. On 9 November 1998:
(a) the common seal of Fannie Bay was affixed to the document entitled
`First Deed of Amendment' for the Grice Family Superannuation Fund in the
presence of two of its directors and with the authority of all three of the
directors;
(b) by notice in writing a majority of the members of the Grice Family
Superannuation Fund removed Fannie Bay as trustee and appointed Holdings as the
trustee in its place (Annexure `2');
(c) the minutes of the meeting of directors of Holdings were signed by the
persons who at that time were all the directors and secretary of that company
(Annexure `3');
(d) Janice Grice, a director of Holdings spoke the words set out in
attachment `A' to the statutory declaration of Paul Gerard Maher;
(e) Paul Gerard Maher made the statutory declaration (Annexure `4');
(f) a cheque for $3.6 million on account number 065 901 10129262 in the name
of Fannie Bay (`the Account') was written out, signed by the persons whose
signatures it bears, and endorsed in succession by the persons named thereon
(`the Cheque') (Annexure `5'); and
(g) at the time the Cheque was written out Fannie Bay did not have a credit
balance in the Account or an overdraft or other credit facility in place
sufficient to allow the Cheque to be honoured.
7. On 13 May 1999 a majority of the members of the Grice Family
Superannuation Fund, by notice in writing, removed Holdings as trustee and
appointed Grice Investments Pty Ltd ACN 087 278 108 (`Investments') as trustee
(Annexure `6').
8. On 30 June 1999 Lot 5500 of Darwin was transferred from Holdings to
Investments. The transfer was dated 30 June 1999 and executed by Holding (as
transferor) and Investments (as transferee) (`the Transfer') (Annexure `7').
9. On 22 December 1999 the respondent issued a Notice of Assessment to
Investments in the amount of $194,000.00 pursuant to section 4 and sub-item
5(1) of Schedule 1 of the Stamp Duty Act 1978 (NT) (`the SD Act') on the
basis that the Transfer effected a conveyance of the property from Holding to
Investments which was not exempt from stamp duty under sub-item 9A(a) of
Schedule 2 of the SD Act (Annexure `8').
10. The unencumbered value of Lot 5500 is $3,6000,000.00.
11. The stamp duty assessment was paid in full on 21 January 2000.
12. On or about 20 January 2000 Messrs Noonans lodged with the respondent a
document entitled `Notice of Objection Against Assessment' (Annexure `9')
against the assessment (`the purported objection').
13. No other Notice of Objection was lodged with the respondent in respect
of the assessment.
14. On or about 22 February 2000 the respondent:
(a) determined that:
(i) he did not have the power or authority to consider the Purported
Objection because Holdings is not a `person aggrieved by an assessment made in
relation to [it] under the Act' for the purpose of sub-section 100(1) of the TA
Act; and
(ii) if he did have the power or authority to consider the Purported
Objection, it would be disallowed because sub-item 9A(a) of Schedule 2 to the
SD Act had no application; and
(b) informed Holdings of the above by letter dated 22 February 2000
(Annexure `10')."
[6] It is not necessary for present purposes to reproduce the
various annexures referred to in the agreed statement of facts - although it is
necessary to describe the "purported objection" (Annexure `9') referred to in
paragraph 12 of the agreed statement of facts in some detail.
[7] The purported objection opens with the words: [8] Thereafter, details of the assessment of $194,400 are set
out, followed by the statement: [9] The notice of objection then sets out details of the
objection. In essence, it is claimed that the land which is the subject of the
transfer and assessment became subject to the Grice Family Superannuation Trust
Fund on 9 November 1998 as a result of an oral declaration of trust by a
director of Holdings, which at the relevant date was the trustee of the Trust
Fund. Subsequently, on 13 May 1999, the trustee of the Trust Fund was changed
from Holdings to Investments and the notice of objection claimed that the
transfer of the land was exempt from stamp duty pursuant to sub-item 9A(a) of
Schedule 2 to the Stamp Duty Act as one: [10] The notice of objection is signed by Thomas Alexander
Walker "a solicitor in the employ of Noonans Lawyers, the solicitors for
Grice Holdings Pty Ltd" (emphasis added).
Issues for Determination
[11] The parties have agreed that the following issues are required to be
determined by the court:
(1) In relation to the originating motion seeking an order in the nature of
mandamus or a declaration: (b) if no to (a), did Investments validly ratify the purported objection so
as to render it a valid objection by Investments within the meaning of
sub-section 100(1) of the TA Act; and
(c) if yes to (a) or (b):
(i) are the plaintiffs entitled to raise the appeal in this proceeding; and
(ii) should the Court exercise its discretion to grant the relief sought by
the plaintiffs (mandamus and declaratory relief)."
(2) In relation to the appeal pursuant to section 101 of the
Taxation (Administration) Act: (a) for failure to comply with the requirements of section 7 of the
Statement of Frauds and/or;
(b) for want of certainty of objects/beneficiaries."
[12] It will be apparent from the terms of the relief sought by
Holdings and Investments in both the appeal under the Taxation
(Administration) Act and the application for an order in the nature of
mandamus or a declaration that a key preliminary issue is the validity of the
notice of objection lodged with the Commissioner on 20 January 2000. In the
absence of a valid objection, Holdings and Investments must necessarily fail in
an appeal from the Commissioner's "disallowance" of the purported objection and
there would be no basis for an order or declaration that the Commissioner
"determine" the purported objection. In short, it hardly needs to be spelt out
that an appeal pursuant to section 101 of the Taxation (Administration)
Act can be pursued only where the Commissioner has made a decision
concerning a (valid) objection and discretionary relief to order the
Commissioner to determine an objection could be contemplated only where a
(valid) objection has been made to the Commissioner.
[13] Although it is unnecessary to canvass the issue in detail for present
purposes, I add that nothing in these reasons should be taken to endorse the
simultaneous pursuit of an appeal under section 101 of the Taxation
(Administration) Act and an application in the nature of prerogative
relief. In Carrigan v Risdale & Others, 141/99, unreported,
Supreme Court of the Northern Territory, 9 December 1999, Thomas J after
considering Twist v The Council of the Municipality of Randwick (1976)
136 CLR 106, Marine Hull & Liability Insurance Co Ltd v Hurford &
Anor (1985) 62 ALR 253 and Hill & Others v King & Others
(1993) 31 NSWLR 654 observed (at p 9): [14] Gray J in Gardner v General Manager of the Territory
Insurance Office and Ors (1991) 104 FLR 287 at 293 referred to the
remarks of Dixon CJ in Tooth & Company Ltd v Paramatta City Council
(1955) 97 CLR 492 at 498: [15] With respect, I agree with the observations of Thomas and
Gray JJ. In the present proceedings, the application for an order in the
nature of mandamus or a declaration would appear to be entirely redundant
if the purported objection was properly made in accordance with
the Taxation (Administration) Act. In such circumstances, an appeal
pursuant to s 101 of the Act would be entirely adequate to resolve the
substantive issue between the parties. I also note in the present case that
the appeal by Holdings and Investments was filed outside the 30 day time limit
provided by s 101 of the Act, while the originating motion filed pursuant to
Order 56 of the Supreme Court Rules is within the 60 day time limit
provided by r 2(1) of o 56. In my view, this would be a further consideration
militating against the grant of discretionary relief in favour of Holdings
and/or Investments.
The Purported Objection
[16] In the present case, there is no dispute between the parties that:
(a) the notice of assessment issued by the Commissioner on 22 December 1999 was
issued with respect to a transfer of real property from Holdings to
Investments;
(b) the transfer was a "conveyance" within the meaning of s 4(1) of the
Taxation (Administration) Act;
(c) the transfer was prima facie dutiable, subject to any applicable exemption
(s 4 and Item 5 of Schedule I of the Stamp Duty Act); and
(d) Investments as the "conveyee" within the meaning of section 4(1) of the
Taxation (Administration) Act was the person liable to pay any stamp
duty duly assessed pursuant to section 50(1) of that Act.
[17] As the person liable to pay any stamp duty duly assessed, Investments was
obliged to lodge the instrument of transfer with the Commissioner for
assessment: s 9(1A)(b) of the Taxation (Administration) Act. It is not
a matter of dispute that Investments did lodge the instrument of transfer
(Annexure 7 to the agreed statement of facts) with the Commission - albeit the
transfer instrument stated that the value of the transfer was: "Nil - change of
trustee".
[18] Section 92 of the Taxation (Administration) Act relevantly
provides:
(a) if he adjudges that duty on the instrument is not payable - he may put
an impressed stamp on the instrument as provided by section 17(2); or
(b) if he adjudges that duty is payable - he shall assess the amount of the
duty.
(2) The Commissioner shall inform the person lodging the instrument of his
assessment under subsection (1), but is not required to give notice in writing
of the assessment to that person unless so requested in writing by that person
within 30 days after the lodging of the instrument."
[19] Accordingly, pursuant to s 92(2), the Commissioner was
obliged to inform Investments of his assessment. It is agreed that the
Commissioner informed Investments of his assessment by issuing the Notice of
Assessment dated 22 December 1999 (Annexure 8 to the agreed statement of
facts).
[20] Section 100 of the Taxation (Administration) Act provides: [21] In my view, the meaning of s 100(1) is clear and
unambiguous. The only person who is entitled to object to an assessment of the
Commissioner is "a person aggrieved by an assessment made in relation to
him". Mr Russel, on behalf of Holdings and Investments, submitted with
a good deal of ingenuity that a wide interpretation should be given to the term
"person aggrieved". He submitted that, in a general administrative law sense,
the term comprehends almost anyone who has a special interest in the subject
matter of the decision greater than that of members of the public generally
(Commissioner of State Revenue (Victoria) v Royal Insurance Australia
Ltd (1994) 182 CLR 51). Mr Russel submitted that Holdings is a "person
aggrieved", being a party to the instrument of transfer and as a former
trustee, Holdings, would be liable to account to the beneficiaries of the Grice
Family Superannuation Fund for its conduct as a trustee (including liability
for negligence resulting in the payment of unnecessary stamp duty). Mr Russel
further submitted that the words "made in relation to him" could be interpreted
broadly to embrace any potential objector with a genuine interest in a correct
assessment and such words were not required to be limited to the person with a
primary liability to pay an assessment.
[22] I intend no disrespect to Mr Russel in not setting out the totality of his
submissions in favour of a sufficiently broad interpretation of s 100(1) of the
Taxation (Administration) Act to encompass Holdings as a person with a
right to lodge an objection to the assessment issued against Investments.
However, I am firmly of the opinion that no matter how generous a construction
is given to the words "person aggrieved" in other circumstances and in the
context of other legislative provisions, in no sense can the present assessment
be said to have been made "in relation to" Holdings. Even if the English
language could be legitimately stretched (or tortured) into accommodating
Holdings as a "person aggrieved by an assessment made in relation to him" this
would not overcome the further qualification in s 100(1) that an objection
be lodged "within 30 days after the date on which he is
informed of the assessment". The legislation is unambiguous: the only
person who is entitled to object to an assessment is the person who is liable
to pay the duty assessed and who has been informed of the assessment in
accordance with the Taxation (Administration) Act.
[23] In the present case, only Investments was entitled to object to the
relevant assessment. The purported objection lodged by Holdings was not an
objection within the meaning of the Act.
[24] Since the hearing of the present proceedings on 1 September 2000 and the
preparation of the above reasons in draft, Riley J has delivered his judgment
in McDonald's Australia Ltd v The Commissioner of Taxes 72/2000,
unreported, Supreme Court of the Northern Territory, 6 September 2000.
[25] Both the Commissioner and Holdings/Investments drew my attention to the
McDonald's Case and provided written submissions. In that case,
McDonald's Australia Ltd entered into licence agreements with a number of
companies as licensor under which the licensee companies were granted certain
rights to use "the McDonald's system" in restaurants to be run on the premises
leased by the licensees from McDonald's.
[26] The Commissioner issued assessments for stamp duty payable in respect of
the licence agreements. The assessments were addressed to McDonald's on the
basis that the documents were lodged by it. McDonald's paid the duty, although
the persons liable to pay such duty were the licensees.
[27] McDonald's lodged objections to each of the assessments claiming to be "a
person aggrieved" by such assessments. The Commissioner responded that
McDonald's was not a person aggrieved and, therefore, the objections did not
comply with s 100 of the Taxation (Administration) Act. As with the
present case, notwithstanding this view, the Commissioner went on to consider
and reject the grounds of each objection.
[28] McDonald's sought to appeal from the Commissioner's decision to the Court
pursuant to s 101 of the Taxation (Administration) Act.
[29] In concluding that McDonald's had no standing to pursue an appeal pursuant
to s 101 of the Act, his Honour considered the scope and purpose of the
legislation (in particular ss 9, 50, 92, 100 and 101). His Honour found that
the assessments had not been made "in relation to" McDonald's (see paras [26]
to [30]). At para [29], Riley J held: [30] His Honour continued at para [30] to [32] of his
reasons: [31] The only interest that McDonald's Australia Limited has in this matter
arises indirectly from it being a party to each licence agreement. Any other
interest would be for some collateral commercial purpose of McDonald's
Australia Limited and, as Gummow J observed (CTC Resources NL v Commissioner
of Taxation (1994) 48 FCR 397 at 408), that is not sufficient to amount to
"dissatisfaction" in the relevant sense.
[32] In all of the circumstances I find that McDonald's Australia Limited
is not `a person who is aggrieved by an assessment made in relation to him' for
the purposes of s 100 of the Act. Further it is not `an objector who is
dissatisfied with a decision of the Commissioner' for the purposes of s 101(1)
of the Act. McDonald's Australia Limited is without standing and the appeal
must be dismissed."
[31] I agree with the Commissioner's (written) submissions
that the McDonald's Case is directly on point with the present case.
Here, the "statutory rights" of objection and, hence, appeal, are "reserved to"
the transferee, Investments. The most that Holdings has been able to assert is
that it is "potentially" liable to the beneficiaries of the Grice Family
Superannuation Trust. Holdings has no statutory liability (or indeed any other
liability) to pay the stamp duty assessed. Any interest Holdings may assert is
at most for "a collateral commercial purpose" and, as such, not sufficient to
amount to "dissatisfaction" in the relevant sense (as to which see para [14]
and para [31] of the McDonald's Case, referring to CTC Resources
NL v Commissioner of Taxation (1994) 48 FCR 397 at 408 per Gummow J).
[32] In addition to the reasons earlier given, with respect, I would adopt the
reasons of Riley J in the McDonald's Case in ruling that Holdings has no
standing to pursue either its purported appeal or the application for an order
in the nature of mandamus or a declaration.
[33] It follows from the above that the answer to the first issued identified
by the parties which requires determination (para [11] above: "Was Holdings
entitled to lodge an objection against the assessment?") is "No". The second
issue identified by the parties is: "Did Investments validly ratify the
purported objection so as to render it a valid objection by Investments within
the meaning of s 100 (1) of the Taxation (Administration) Act?
[34] I have referred earlier in these reasons to the terms of the purported
objection (see para [7] above and Annexure 9 to the agreed statement of facts).
On its face, the purported objection is made by Holdings and does not purport
to be lodged by Holdings as agent for Investments. This fact alone may well be
sufficient to defeat recognition of any supposed later ratification of the
purported objection by Investments (Keighley, Maxsted & Co v Durant
[1901] AC 241 at 247 and 249). However, on a more fundamental level, there is
no sufficient evidence that Investments in fact did ratify the action of
Holdings in lodging an objection against the Commissioner's assessment.
[35] In his affidavit of 1 September 2000, the solicitor for Holdings and
Investments, Mr Paul Maher states (para 12): [36] Mr Maher was cross examined about this matter. His
evidence was that in March 2000 he had spoken to a director of Investments who
had told him that Investments had ratified Holdings' action in lodging the
objection. Such evidence falls a long way short of proving that Investments
did in fact ratify the action of Holdings. There was no evidence of a
resolution by the board of directors of Investments purporting to ratify the
action of Holdings. Further, even if there had been such evidence, it would
appear that any purported ratification by Investments would have occurred after
the expiry of the 30 day time limit for lodgment of an objection (s 100(1) of
the Taxation (Administration) Act). In this regard, it is to be noted
that the purported objection by Holdings was lodged with the Commissioner on 20
January 2000 (para 12 of the agreed statement of facts), that is, one day
before the expiry of the 30 day time limit. Although it is unnecessary to
decide the issue for present purposes, authorities such as Dibbins v
Dibbins [1896] 2 Ch 349 at 351/2 and Firth v Staines [1897] 2 QB 70
support the proposition that Investments could not validly ratify the purported
objection lodged by Holdings after the time for objecting had expired. In
Firth v Staines, supra, at p 75, Wright J held: [37] It follows from the above that there was no valid
ratification of the purported objection by Holdings so as to render it a valid
objection by Investments for the purposes of s 100(1) of the Taxation
(Administration) Act.
[38] In the absence of a valid objection (or a valid ratification of the
purported objection lodged by Holdings) there is no basis for this Court to
consider an appeal under section 101 of the Taxation (Administration)
Act and nor is there any basis to grant an order in the nature of mandamus
or a declaration in the terms sought by Holdings and Investments. These
conclusions make it unnecessary to decide the substantive issue between the
parties (namely, whether the conveyance of the relevant land was exempt from
stamp duty pursuant to Item 9A(a) of Schedule 2 to the Stamp Duties
Act). The matter having been fully argued, I have considered whether it
would be appropriate to express a view.
[39] With a good deal of reluctance, I have come to the conclusion that it
would not be appropriate for me to express any views about the substantive
issue for the following reasons.
[40] In the course of submissions, I expressed some surprise at the nature of
the proceedings chosen by Holdings and Investments to resolve their dispute
with the Commissioner. Earlier in these reasons I have expressed doubts about
whether it was appropriate to pursue simultaneously an appeal against the
purported objection and an application for an order in the nature of a
prerogative writ or, alternatively, a declaration. During submissions, I
suggested that most, if not at all, of the procedural difficulties which have
attended the present proceedings could have been avoided if the substantive
issue between Holdings/Investments and the Commissioner had been raised in
another manner. In particular, I noted that s 97(1) of the Taxation
(Administration) Act provides: [41] I suggested that, notwithstanding that the time for
objecting to an assessment pursuant to s 100(1) of the Act had expired,
Investments might request the Commissioner to exercise his discretion to alter
the assessment in question pursuant to s 97(1). In the event that the
Commissioner refused and Investments could establish that it would be
unconscionable for the Commissioner to retain moneys paid because such moneys
were not properly due, then an order in the nature of mandamus might lie to
require the Commissioner to exercise his discretion in Investments' favour.
[42] Mr Russel sought to adopt my suggestion and applied to amend the
originating motion to raise the substantive issue under s 97(1) of the Act. I
refused to allow such an amendment, essentially for the reason that at no stage
has Investments requested the Commissioner to exercise his discretion under s
97 (1). It remains open to Investments to do so and in the event of a refusal
by the Commissioner, if Investments is so minded, to pursue the substantive
issue in the manner suggested above. With the existence of that possibility, I
do not consider that it would be appropriate for me to express any view as to
the substantive issue between the parties. It would be difficult, or
impossible, for a dissatisfied party to appeal any view that I might express
and there might remain a possibility for the issue to be relitigated pursuant
to s 97(1).
[43] I must emphasise that nothing I have said concerning the Commissioner's
powers under s 97(1) should be interpreted as either an encouragement to
Investments to pursue the suggested approach or an indication that there is any
merit in their submissions on the substantive issue. Whether Investments (or
Holdings) wishes to pursue this matter further is entirely a matter for the
parties.
Orders
[44] The formal orders of the Court are:
(1) The appeal pursuant to s 101 of the Taxation (Administration) Act is
dismissed.
(2) The application for an order in the nature of mandamus or, in the
alternative, a declaration is dismissed.
[45] I will hear the parties with respect to costs.
"1. The Plaintiffs appeal to the Court pursuant to section 101 of
the Taxation (Administration) Act 1978 against an assessment of Stamp
Duty made by the Defendant on 22 December 1999 on a Transfer made on 30 June
1999 in the sum of $194,400, an objection against which was disallowed by the
Defendant on 22 February 2000.
"(i) an order that the assessment be varied to nil or accordingly
some other amount less than $194,400.00;
"1. On 26 November 1980 Grice Holdings Pty Ltd ACN 009 598 216
(`Holdings') became the registered proprietor of Lot 5279 of Darwin.
"Grice Holdings Pty Ltd ACN 009 598 216 (`Holdings')
objects against the assessment of stamp duty contained in Notice
of Assessment of Stamp Duty issued by the Commissioner of Taxes on 22 December
1999......" (emphasis added)
"Holdings contends that the transfer is exempt from
duty under Paragraph 9A(a) of Schedule Two to the Stamp Duty Act......"
(emphasis added)
"...made for the purpose of effecting the appointment of a new
trustee on the retirement of a trustee and under which no beneficial interest
passed in the property conveyed;"
"(a) was Holdings entitled to lodge an objection against the
assessment;
"If yes to 1(a) or (b), is the exemption under Schedule 2 Item
9A(a) of the SD Act available in respect of the Transfer. In particular, is
the oral declaration invalid and ineffective to create a trust over the land:
"My understanding of the principle to be distilled from the
authorities to which I have referred, is that where a person has a statutory
right to appeal, the remedy on appeal should be pursued rather than an
application on a prerogative writ."
"But, where the legislature has provided for the very description
of case a remedy designed as appropriate and adequate, a court should be
careful that mandamus is not used to avoid recourse to the remedy or as a
substitute for it. The general rule is that the Court exercises its discretion
against granting a writ of mandamus where a remedy is provided by way of appeal
or the like which is equally convenient, beneficial and effective. If the writ
of mandamus does not provide the party with a more convenient and better
remedy, the Court, in such a case, leaves the party with that which has been
provided."
"(1) Where an instrument is lodged with the Commissioner for
assessment -
"(1) A person aggrieved by an assessment made in relation to him
under this Act may, within 30 days after the date on which he is informed of
the assessment, post to, or lodge with, the Commissioner an objection in
writing to the assessment."
"...McDonald's Australia Ltd had no interest in the matter and no
obligation imposed upon it. Both as a matter of statute and of contract the
obligation in relation to duty fell upon the individual licensees. The fact
that McDonald's Australia Ltd has assumed for itself a role in lodging the
instrument and paying duty assessed cannot create in it the statutory rights
which are reserved to the individual licensees."
"[30] In these cases the assessments were made in relation to the
licensees. They were not made in relation to McDonald's Australia Limited. No
statutory or other liability or obligation rested upon McDonald's Australia
Limited at all.
"Prior to the commencement of this appeal and of proceeding 36 of
2000 (the proceedings by originating motion), I advised the directors of the
appellants that Grice Holdings Pty Ltd had objected to the stamp duty
assessment and it would be desirable if Grice Investments Pty Ltd ratified that
action of Grice Holdings Pty Ltd. I received instructions that Grice
Investments Pty Ltd ratified that action of Grice Holdings Pty Ltd and that I
should commence proceedings on behalf of both appellants on that basis."
"To constitute a valid ratification three conditions must be
satisfied : first, the agent whose act is sought to be ratified must have
purported to act for the principal; secondly, at the time the act was done the
agent must have had a competent principal; and, thirdly, at the time of the
ratification the principal must be legally capable of doing the act himself."
"(1) The Commissioner may, at any time within a period of 3 years
after the date of an assessment by him of duty, amend the assessment by making
such alterations or additions to it as he thinks necessary."