Commissioner of Stamp Duties (Qld) v Chaille [1924] HCA 24; (1924) 35 CLR 166 (24 June 1924)

HIGH COURT OF AUSTRALIA

The Commissioner of Stamp Duties for Queensland Appellant; and Chaille and Others Respondents.

H C of A

On appeal from the Supreme Court of Queensland.

24 June 1924

Isaacs A.C.J., Rich and Starke JJ.

Woolcock (with him Real), for the appellant.

McGill, for the respondents.

The Court delivered the following judgment:—

Isaacs A.C.J.,

Rich and Starke JJ.

The Court has already considered this matter, and has come to the conclusion that the appeal should be allowed.

This case turns on the meaning of the statutory definition of the word in the Stamp Acts 1894-1918 Q.. Having regard to the terms of the deed in relation to the will, the Court is of opinion that the deed is an instrument which is a "settlement" within the meaning of that word in those statutes.

By the will the whole of the testator's property was given to trustees, and the only trusts declared were the payment of the rents, profits and income of that property to the widow for her life and on her death to the testator's children who were living at his death in equal shares. The Court, then, has to consider how it should regard the new discretionary trust imposed on the trustees of the will by the deed, and their obligations in considering the advisability of making a conversion and re-investment of the trust property, and, in the event of the trustees deciding in favour of conversion and re-investment, the duties that would then be placed upon them in carrying out that project. The instrument created a trust to exercise a power at discretion, and, on a sale and re-investment made pursuant to that discretionary trust, the beneficiaries will take interests in a converted trust fund instead of interests in the real and personal property of the testator; and, further, the instrument created a trust to make a division amongst children on the death of the testator's widow irrespective of any advancement that had been made by the testator during his lifetime and without bringing any advancement into hotchpot.

Having considered these points, the Court is of opinion that the document is a "settlement," and has decided to allow the appeal with costs.

Appeal allowed, with costs.

Solicitor for the appellant, H. J. H. Henchman, Acting Crown Solicitor of Queensland.

Solicitors for the respondents, McNab, Dowling & Wilson.