|Date of judgement||9 April 2018|
|Judge(s)||RL Hamilton SC, Senior Member|
|Court or Tribunal||New South Wales Civil and Administrative Tribunal|
TAXES AND DUTIES - Stamp duty - Transfer not in conformity with agreement - avoidance of double duty - related parties
STATUTORY INTERPRETATION - resolving conflicting provisions - literal interpretation - contextual considerations
Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat & Livestock Corp & Ors (1980) 29 ALR 333 at 347;  FCA 45
These proceedings concerned the Chief Commissioner’s decision to assess ad valorem duty in respect of a Real Property Act Transfer Form which was executed by the applicant in relation to a purchase of a property at Goulburn, New South Wales (“the Property”).
By way of summary of the key facts:
The key issue in dispute in this matter was whether the Transfer was eligible for the concession in s.18(3) of the Duties Act 1997 (“the Act”) - in particular, whether the requirement in s.18(3)(d)(i) was satisfied that, at the time the agreement was entered into, and at the completion of the agreement, the purchaser under the agreement (ie Mrs Akkari) and the transferee under the Transfer (ie Chrissie Group Pty Ltd atf All Angels Family Trust) were “related persons”.
The Dictionary to the Act defines a “related person” as follows:
“‘related person’ means a person who is related to another person in accordance with any of the following provisions:
The applicant’s key submission was that the “related person” definition states that if “any” of the provisions are satisfied the persons are related, and Mrs Akkari and the applicant are “related persons” in this case by virtue of paragraph (c) of the “related person” definition (on the basis Mrs Akkari was the majority shareholder and a director of the applicant at all relevant times).
The Chief Commissioner submitted that when s.18(3)(d)(i) and the definition of “related person” are read together, the relevant item in that definition in the circumstances of this case is paragraph (d), not (c), for the following key reasons:
In approaching the task of statutory construction, the Tribunal relied on the guiding principles set out by the High Court of Australia in Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355. Its task was to “consider the text of the statutory provision itself in the first instance; and seek its meaning by reference to the context in which it sits” (at ). The Tribunal also noted that taxing provisions are subject to the same principles of interpretation as other statutes.
The Tribunal noted that the introductory words of the definition of “related person” say that if “any” of the following provisions apply the persons are related, and it was clear that the applicant and Mrs Akkari “met the literal words of par (c) of the definition” (at ). However, the Tribunal described the issue in these proceedings as being “whether the context requires the clear, natural meaning of these words to yield to another provision [paragraph (d)] which deals with the relationship between a natural person and a trustee” (at ).
The Tribunal ultimately accepted the Chief Commissioner’s contextual approach, and found that
“this is an appropriate case for application of the rule of interpretation that the special overrides the general” (at ).
Key aspects of the Tribunal’s reasoning included:
Accordingly, the Tribunal found that the applicant and Mrs Akkari were not to be treated as “related persons” because they did not satisfy the more specific paragraph of the definition (being paragraph (d)), with the effect that the s.18(3) concession did not apply to the Transfer.
The decision under review was affirmed.