See Rabaul Times 26/7/1935; 23/8/1935 [69/1935]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Dixon J and Evatt J:
• Judgment Date: 14 May 1936
• Judgment Number: New Britain Plantations Ltd v Acting Treasurer of Territory of New Guinea (1936) 55 CLR 127; 10 ALJ 79; Rabaul Times 22/5/1936; On appeal from Treasurer v New Britain Plantations
• Year: 1936

High Court: Starke J, Dixon J, Evatt J

Judgment Delivered: 14 May 1936

1 Stamp Duty—Territory of New Guinea—Sales of land effected before commencement of ordinance—Instrument of transfer executed subsequent thereto—Transfer by direction—Liability to duty—Stamp Duties Act 1927–1933 (NG) (No 37 of 1927—No 16 of 1933), s6, s8(1), s15, s37.

The Stamp Duties Act 1927–1933 (NG) commenced on 1 February 1928. It provides, by s6, that from and after the commencement of the Act there shall be charged on conveyances or transfers on sale of any real property, duty as prescribed. S15 provides that any instrument which was executed before the commencement of the Act shall not be liable to duty thereunder. By s37(3), every sale of real property shall be chargeable with ad valorem duty upon the consideration therefor, and that duty shall be paid on the conveyance which seeks to give effect, whether directly or indirectly, to every sale of real property.

After the commencement of the Act an instrument of transfer, in respect of land situate in New Guinea, was executed by C, the transferor, and A and B, two directing parties, in favour of the appellant. The land had been sold by C to A, by A to B, and by B to the appellant. The consideration for each of these sales was set forth in the transfer. The contract for the first and second sales had been made before the commencement of the Act, and the contract for the third sale after its commencement.

Held that the instrument of transfer was dutiable under the Stamp Duties Act 1927–1933 (NG), and that the duty should be calculated upon all three considerations.

Decision of the Supreme Court of the Territory of New Guinea (Phillips J) affirmed.

APPEAL from the Supreme Court of the Territory of New Guinea.

On 10 May 1926 the Custodian of Expropriated Property, a corporation sole created by reg32A of the Treaty of Peace Regulations made under the Treaty of Peace (Germany) Act 1919–1920, as vendor, and Wilhelm August Mirow, as purchaser, entered into an agreement for the sale and purchase of certain lands, known as Kalili Plantations, situated in the Territory of New Guinea, for the sum of £73,500. By an agreement dated 1 November 1926, Mirow, with the assent of the Custodian, sold his interest in Kalili Plantations to Frederick Reidy Jolley for the sum of £100,450, and, by an agreement dated 23 July 1931, Jolley, with the assent of the Custodian, sold his interest in the plantations to New Britain Plantations Ltd for the sum of £47,882 10s. On 7 June 1935 an instrument of transfer under the Lands Registration Act 1924–1933 (NG), dated 30 April 1935, was produced on behalf of New Britain Plantations Ltd to the Treasurer of the Territory, for an assessment of the amount of stamp duty payable thereon under the Stamp Duties Act 1927–1933 (NG). The three agreements for sale and purchase referred to above were also produced to the Treasurer on that date.

The Stamp Duties Act 1927–1933 (NG) came into force on 1st February 1928. S6 provides that, from and after the commencement of the Act, there shall be charged, subject to certain exemptions, upon the several instruments specified in the schedule, the several duties therein set forth. Among the instruments specified in the schedule was a "conveyance or transfer on sale of any real property." But s15 provides that any instrument executed before the commencement of the Act shall not be liable to stamp duty under the Act. By s5, "instrument" is defined as including every written document, and by s31, the expression "conveyance or transfer on sale of any real property" is defined as including every instrument of any officer authorised by law, whereby any property, upon the sale thereof, was legally or equitably transferred to or vested in the purchaser, or in any other person on his behalf or by his direction. S37(3) provides that every sale of real property shall be chargeable with ad valorem duty upon the consideration therefor and that duty shall be paid on the conveyance which seeks to give effect whether directly or indirectly to every sale of real property. Other provisions of the Act are set forth in the judgments hereunder.

By the instrument of transfer the Custodian, as registered owner of an estate in fee simple in the land comprised in Kalili Plantations, "in consideration of the sum of £73,500 paid" to him by Mirow (the receipt whereof was thereby acknowledged) "and in consideration of the sum of £100,450 paid" to Mirow by Jolley (the receipt whereof was thereby acknowledged) "and in consideration of the sum of £47,882 10s. paid" to Jolley by New Britain Plantations Ltd (the receipt whereof was thereby acknowledged) "with the consent of and by the direction of . . . Mirow and . . . Jolley" transferred to New Britain Plantations Ltd all his—the Custodian's—estate and interest in Kalili Plantations. The instrument of transfer was executed by the Custodian, by Mirow, by Jolley and by New Britain Plantations Ltd. The Treasurer decided that the instrument of transfer was chargeable with duty in respect of all three considerations referred to therein, and assessed the amount of duty payable thereon at £1,228 15s. This amount was paid by New Britain Plantations Ltd to the Treasurer, who, at the request of that company, stated a case, in which the above–mentioned facts were set forth, for the opinion of the Supreme Court of the Territory of New Guinea.

The questions reserved for the opinion of the Court were:—(a) Is duty payable on the instrument of transfer in respect of the consideration for the sale by the Custodian to Mirow, and the consideration for the sale by Mirow to Jolley, made before 1st February 1928, the date of the commencement of the Act? (b) With what amount of duty is the instrument of transfer chargeable?

Phillips J answered question (a): Yes, and question (b): £1,228 15s.

From that decision New Britain Plantations Ltd now, by leave, appealed to the High Court.

Teece KC (with him Sturt), for the appellant. Ad valorem duty should be calculated only on the consideration for the last sale. In any event it should not be calculated upon the second sale. S37 of the Stamp Duties Act defines the way in which the duty is imposed, and the nature and extent of the obligation imposed on the various classes of taxpayer. It is set forth in general terms in the schedule. The provisions of s6 apply to all conveyances generally, those of s37 are directed to a particular class of conveyance, and qua that particular class, overrule the general provisions of s6 (Pretty v Solly (1859) 26 Beav 606, at 610; 53 ER 1032, at 1034; Baird v Federal Commissioner of Land Tax (1915) 19 CLR 490 at 497). Where there is a single sale it is covered by s6 and the schedule, and where there are a number of sub–sales the provisions of subsections 3, 5 and 6 of s37 apply. If s37(3) applies to all sales, then no duty is payable with respect to any sale completed before the commencement of the Act. The words in that subsection clearly show that the Legislature intended to...