Registrar of Probates (SA) v Angas [1921] HCA 40; (1921) 29 CLR 477 (22 September 1921)

HIGH COURT OF AUSTRALIA

The Registrar of Probates (South Australia) Appellant; and Angas and Others Respondents.

H C of A

On appeal from the Supreme Court of South Australia.

22 September 1921

Knox C.J., Rich and Starke JJ.

Cleland K.C. (with him Ziesing), for the appellant.

Isbister K.C. and Moulden, for the respondents.

Cleland K.C., in reply.

The Court delivered the following written judgment:—

Sept 22

Knox C.J.,

Rich and Starke JJ.

This is an appeal from a decision of the Supreme Court declaring that no succession or other duty is payable in respect of the exercise by John Howard Angas, by his will, of a general power of appointment given to him by the will of George Fife Angas deceased over one quarter of the residuary estate of the said George Fife Angas. George Fife Angas died in the year 1879, having by his will devised his residuary real and personal estate to his trustees on trust as to one quarter thereof for John Howard Angas for life with remainder to such person as the said John Howard Angas should by deed or will appoint. John Howard Angas died in the year 1904, having by his will exercised the general power of appointment given him by the will of George Fife Angas. It was in respect of the "succession" created by the exercise of this power of appointment that the Commissioner claimed that duty was payable under sec. 23 of the Probate and Succession Duty Act 1876. That Act was repealed by the Succession Duties Act 1893, which, however, contained a saving clause in the following words:—"The Acts mentioned in the First Schedule hereto are hereby repealed from and after the coming into operation of this Act, except so far as regards the applicability of such Acts to the estates of persons dying, or to successions becoming chargeable with duty, before the day when this Act shall come into operation. This repeal shall not affect—(a) the past operation of any Act hereby repealed; nor anything done or suffered under any enactment hereby repealed; nor (b) any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment hereby repealed; nor (c) any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment hereby repealed; nor (d) any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment, as aforesaid. Any such investigation, legal proceeding, and remedy may be carried on as if this Act had not been passed." The appellant contends that these words preserve the liability to succession duty in respect of all successions derived from George Fife Angas, and that John Howard Angas, by reason of sec. 23, was to be deemed to be entitled to the property in question as a succession derived from George Fife Angas and consequently that his executor was liable to succession duty thereon. On the argument before us Mr. Cleland did not seek to support the assessment on any of the provisions of sec. 3 other than the words "except so far as regards the applicability of such Acts to the estates of persons dying ... before the day when this Act shall come into operation." He contended that these words preserved the liability to succession duty of all property which had formed part of the estate of a person dying after the Act of 1876, and before the Act of 1893, came into operation. In our opinion this is not the proper interpretation of the words relied on. Their effect is to preserve the liability to duty of the estate of a person so dying. This may be illustrated by reference to the provisions of the Act of 1876. By that Act a probate duty was imposed on the estates of persons dying after the commencement of the Act payable by the executor or administrator out of the assets coming to his hands as such; while the succession duty imposed was only payable by the person who took beneficially property under the will or intestacy (sec. 56). The facts show clearly that the duty claimed in this case was not a duty upon the estate of George Fife Angas.

This, in substance, was the decision of the learned Judges in the Supreme Court, and we agree with it. It may be observed that the property in question is taxable and duty has in fact been paid on it under the Act of 1893 (sec. 7 (b)).

Mr. Isbister contended that sec. 23, even if saved by the later Act, did not apply because a person could not take a succession on his own death. In the view we take of this case it is unnecessary for us to express an opinion on this point.

The appeal is dismissed with costs.

Appeal dismissed with costs.

Solicitor for the appellant, F. W. Richards, Crown Solicitor for South Australia.

Solicitors for the respondents, Moulden & Sons.