Commissioner of Stamp Duties (NSW) v Thomson [1927] HCA 57; (1927) 40 CLR 394 (10 December 1927)

The Commissioner of Stamp Duties for New South Wales Appellant; and Thomson and Others Respondents.

This is an appeal from a decision of the Supreme Court of New South Wales on a special case, stated by the appellant, raising the question whether duty is chargeable on certain property passing under a settlement dated 4th August 1896 made by Archibald Currie, who died on 3rd September 1914.

In the Supreme Court the claim of the appellant that duty was chargeable was founded on three grounds, namely, (1) that the settlement was a voluntary settlement whereby an interest in the settled property for life was reserved to the settlor (sec. 49 (2) (A) (e) of the Stamp Duties Act 1898); (2) that the property was real estate passing under a voluntary conveyance made by a person dying after the commencement of the Stamp Duties (Amendment) Act 1914 of which bona fide possession and enjoyment has not been assumed by the donee immediately upon the gift or conveyance and thenceforth retained to the entire exclusion of the donor or of any benefit to him (sec. 49 (2) (B) of the Act of 1898 as amended by sec. 36 of the Act of 1914); (3) that the settlement was a settlement containing a trust to take effect after the death of the settlor. The Supreme Court held that duty was not chargeable on any of these grounds; and it is from that decision that this appeal is brought.

As to the second ground the learned Chief Justice of New South Wales, who delivered the judgment of the Supreme Court, held that the transaction was really and in substance a settlement of the reversion expectant on the determination of a lease for seven years to the partnership firm of Currie and Smith, which was at the date of the settlement in occupation of the whole of the land passing under the settlement and the documents executed in pursuance thereof. On this view of the transaction he held further that bona fide possession and enjoyment of the property passing under the settlement was immediately assumed by the donee within the meaning of the sub-section and was thenceforth retained by her to the exclusion of the settlor or of any benefit to him.

On the third ground the learned Chief Justice held that, as the death of the settlor was not a necessary condition precedent to any of the trusts of the settlement taking effect, the settlement did not within the meaning of sec. 58 contain any trust to take effect after the death of the settlor.

I agree with the learned Chief Justice not only in his conclusion on each of these grounds but also in the reasoning by which his conclusions were supported, and I cannot usefully add anything on either ground.

My brother Gavan Duffy wishes me to say that he too thinks that the judgment appealed against is right though he does not adopt all the reasons relied on by the Judges of the Supreme Court.

Two separate questions have been argued. They are whether duty is payable by virtue of either (1) the final paragraph of sec. 49 of the Stamp Duties Act of 1898 as amended by sec. 36 of Act No. 3 of 1914, or (2) sec. 58 of the Act of 1898. The decision of this case must govern many others. The Supreme Court has unanimously held that duty is not payable under either provision. The majority of my learned colleagues agree with that conclusion so far as sec. 49 is concerned, which, to my mind, is the main section in this case. With regret and sincere deference I am compelled to take a different view of that section. It is, however, no small consolation to me to find, so far as I can discover, that at no single decisive point is my reasoning in conflict with that of more than one of my learned colleagues. As far as sec. 58 is concerned, my conclusion, as will be seen, is to some extent dependent on the validity of my method of approach to the issue as to sec. 49. I entertain no doubt that in these matters a Court is bound to regard substance rather than form. That is a familiar principle. If it is a question of the effect of a settlement, then the Court regards the substance of the settlement; if it is a question of the effect of a composite transaction, then the Court regards the substance of the totality of circumstances comprising the transaction. But, in doing so, I do not understand that the Court is at liberty to apply a rule of thumb or to disregard positive law or the recognized principles of evidence, or to leave out of consideration any of the relevant circumstances, or to employ conjecture in the place of inference, or, most dangerous of all, to substitute as an equivalent some other transaction or other circumstances which did not occur for the actual transaction or circumstances which did, and then treat the imaginary equivalent as the only real and actual transaction.

Dealing with sec. 49, the substance of the transaction as it actually occurred appears to me to be plain beyond dispute. Archibald Currie transferred to his wife, Jessie Currie, his whole unencumbered fee simple estate and interest in certain lands by way of voluntary conveyance according to stated trusts for her and children, at the same time stipulating that she should, out of the estate so transferred, grant to him and his partner, Andrew William Smith, a lease for seven years; and the stipulation was duly carried out, the lessees occupying and enjoying the land for the term granted and paying the agreed rent. If that be the correct view, it appears to me hardly arguable that the case does not fall within sec. 49 (2). That section was first enacted in April 1914 in the Stamp Duties (Amendment) Act 1914, with a number of other amendments of the Act of 1898. Inference strongly points to the origin of the sub-section being the case of the Commissioner of Stamp Duties v. Byrnes[1], in which it was held that a gift of realty by a father to his sons was not taxable under the Stamp Duties Act merely because the sons thereafter permitted the father to have the benefit of all the profits of the land. Two days after that case was decided Lord Sumner (then Hamilton J.) decided Attorney-General v. Seccombe[2]. The new paragraph of sec. 49 is an adaptation to gifts inter vivos of sub-sec. 3 of sec. 2 of the Finance Act 1894 (57 & 58 Vict. c. 30). As ex facie a suggestion of Lord Sumner was adopted it is desirable to see what was held under corresponding words in Seccombe's Case. It was held: (1) that the "exclusion" of the grantor was "not limited to a reservation" by him "out of the property passing under the gift." It included, subject to some following words, all possession and enjoyment of the property, having the same extension as "assumed"; (2) that there was no "contract or honourable understanding" that the donor should not be excluded but he relied on the will of the donee for any voluntary benefit; (3) that "benefit" includes (a) benefit conferred by the deed of gift, (b) benefit issuing out of the property conveyed, (c) benefit issuing out of some other property and (d) benefit given by some separate and independent contract; (4) that "by contract or otherwise" meant by contract or any other transaction enforceable at law or equity. With the exception of (4) there was prior authority for the law so enunciated. The learned Judge said as to the last point: "The enactment might have stopped at the words or of any benefit to him or it might have said of any benefit to him of whatsoever kind." The Parliament of New South Wales not only followed that suggestion but strengthened it, apparently being of the over-optimistic opinion that by employing the clearest and strongest of language all doubt would be avoided. The words are "any benefit to him of whatsoever kind or in any way whatsoever." To state my view of the sub-section in a nutshell, the Legislature, in view of the obvious difficulties of testing the reality and completeness of gifts of land inter vivos, so as to prevent evasion of taxation of conveyances for value on the one hand and evasion of probate duties on the other, made objective and outward facts the test. If the donor received any benefit whatever for or in connection with his gift, whether reserved by his deed or not, and in any of the ways mentioned in Seccombe's Case[3], and whether by enforceable obligation or not, the sub-section applies. Unless he is from the time of the gift utterly excluded from all possession and enjoyment of the property given (see per Duff J. for Supreme Court of Canada in Alberta v. Cowan[4]), the section applies. Unless the requirements of the sub-section are complied with, the law says, in effect, for the purposes of the Act the gift was not made, and the property remains part of his estate at death, although for other purposes the gift is unquestionable. A lease by the donee to the donor, whether stipulated for in the conveyance or not, entitling him to the exclusive possession and enjoyment of the land for an interest included in the estate passing by the gift, seems to me so clearly to fall within the negative provisions of the sub-section that no reasoning on the matter is able to assist. He could not be said to be entirely excluded from possession and enjoyment. He would take the produce of the land or he might sub-let at a higher rent. Archibald Currie conveyed as his "real estate" the full fee simple, or his full proprietary right in the Crown lands. There was then no lease. There could not be a lease by A to A and B, even under the Real Property Act. That allows a proprietor of any existing estate or interest to transfer it to himself and another. But there is no provision allowing him to lease to himself and another. For reasons to be later stated, that is an impossibility. An attempt so to demise would instantaneously merge his lesser interest in his freehold interest. On the state of facts I have assumed the Commissioner should succeed under sec. 49.

The view presented by the respondents and acted on by the Supreme Court is that "in substance" all that was given was (1) the donor's estate in the land as owner, less a seven years' term, (2) his interest as landlord in the lease granting that term, leaving always in him an interest which never passed to Jessie Currie, namely, an interest as co-lessee with Smith, and leaving also in Smith an interest as co-lessee with Archibald Currie. There are, in my opinion, four obstacles in the way of this view. I state them in the order of their general importance. They are: (1) The actual transfers and deed of settlement; (2) their legal effect; (3) the legal impossibility of the imaginary lease or agreement for lease by Archibald Currie; (4) the absence of any evidence to support its existence in fact.

(1)

The transfers were of Currie's full and complete proprietorship, no encumbrance or lease being excepted or noted in the register. The transfers were registered according to law, and Mrs. Currie got thereby what is known as a clean certificate. No reservation or exception appears in any shape or form in the transfers or registered title. The settlement recites the transfers, and states explicitly that they were made "to the intent that the said Jessie Currie should hold the same and the income and proceeds thereof upon the trusts and subject to the powers provisoes agreements and declarations hereinafter declared and contained." There is not a syllable in that document to support the inference necessary to sustain the respondents' position. Sec. 10 (1) of the Act of 1898 provides plainly, in order that those who frame such documents and rely on them shall not be entitled to rely on stipulations omitted: "Every fact and circumstance affecting the liability of any instrument to duty, or the amount of the duty with which any instrument is chargeable under this Act, shall be fully and truly set forth in such instrument." In face of that provision I am of opinion that no relaxation, by way of inference, of the provisions of that document or of the transfers can be made in favour of the respondents. As a fact, however, there is much in the settlement to repel the suggested inference. Without referring in detail to the minute provisions of the settlement the result is that during Currie's life, and beginning instanter, Mrs. Currie is to act in relation to the property so transferred as he directs. That, in the absence of any mention of an existing lease or right to a lease, excludes it. The completeness of Currie's control gives to the scheme a very close resemblance to a will.

(2)

The effect of the registered transfers does not appear to me to be doubtful. Two statutes apply—the Real Property Act and the Crown Lands Consolidation Act. With respect to the first statute the law is now definitely settled. Whatever interests existed in Currie himself were transferred to his wife, and whatever equities existed in others were shut out from affecting the land. Before registration equities, if they existed, could be protected by caveat or suit and by restraining registration except subject to them (Barry v. Heider[5] and Great Western Permanent Loan Co. v. Friesen[6]). But once registration is effected, then as to all interests adverse to the transferee, equitable or otherwise, up to that time existing, the statute law is distinct and imperative and no Court can override it. A registration taken in trust is quite a different matter. The distinction is brought out by Lord Lindley in Assets Co. v. Mere Roihi[7]:—"Then it is contended that a registered owner may hold as trustee and be compelled to execute the trusts subject to which he holds. That is true; for, although trusts are kept off the register, a registered owner may not be beneficially entitled to the lands registered in his name. But if the alleged cestui que trust is a rival claimant, who can prove no trust apart from his own alleged ownership, it is plain that to treat him as a cestui que trust is to destroy all benefit from registration." The recent case of Waimiha Saw Milling Co. v. Waione Timber Co.[8] is very much to the point here, in view of the almost identical similarity of the sections there dealt with and secs. 42 and 43 of the New South Wales Real Property Act. That case decided that, notwithstanding a prior existing contract affecting the land and even notwithstanding knowledge of that contract, the subsequent registration prevailed, there being no fraud in the sense of moral turpitude. This conclusion was reached on the mere words of the Act, nothing turning on whether the new registered proprietor was one for value or a volunteer. Value with notice is in ordinary equity as useless as voluntariness without notice. It is therefore now beyond controversy that by force of registration Mrs. Currie took all her husband's estate free from any bargain or arrangement previously made with Smith, unless she was guilty of fraud, which no one ventures to suggest. Then as to the Crown Lands Acts:—As to the Crown Lands Acts, registration is declared (sec. 259) to give to all transfers the protection which registration confers under the Registration of Deeds Act 1897. In the absence of bad faith on her part the registered party has priority over all others. Indeed, having regard to the provision of the Crown Lands Consolidation Act and Regulations, I think it would be a fraud on the Act to represent to the Minister by the form of transfer that "all estate and interest whether at law or in equity" was sought to be transferred to Mrs. Currie, and to obtain the Minister's sanction to that would be a fraud on the Act, if it were not absolutely true (see Roach v. Bickle[9]). I have pursued the inquiry as to the effect of the statutes, only because of the stress placed on the supposed bargain embodied in par. 6 of the case stated. That paragraph was pressed as establishing a prior contract for a lease between Currie and his partner, Smith, a contract said to be enforceable against him had he not transferred his property, and therefore one which left him shorn of so much equitable interest in the land as was required to satisfy the bargain. The result of the inquiry is that, even assuming the arrangement to have been of the character in fact and law attributed to it, still the statute law left the new title clear and remitted the immediately contracting parties to their personal relations and remedies. In the result the whole estate of Currie "passed" under the instruments.

(3)

Assuming, however, the conclusion of fact to be sustained as to the arrangement stated in par. 6, it had no legal validity or recognition, even as between the parties. In order to understand that paragraph we must look at the deed of partnership. That deed, dated 1st April 1896, was for a partnership between Currie and Smith for seven years ending 31st December 1902. Clause 4 of the deed described the capital of the partnership. It began with what it called "the lease" of the freehold leasehold lands, and the right of occupation for the "term of this agreement" of other lands. The term, rent and covenants, &c., of "the lease" are all left unmentioned and uncollectable from the deed (see Marshall v. Berridge[10]). Clearly the term "the lease" was referential; and, if so, to what? Apart from the lease actually given, there is no guide and certainly none which would extend its term beyond 1902. Par. 6 of the case says: "Prior to the date of the said indenture of settlement the said Archibald Currie had agreed with the said Andrew William Smith that the said lands should be leased to the said partnership and the said Jessie Currie executed the said indenture of lease in accordance with the said arrangement." The vague initial agreement is simply a repetition of clause 4 of the partnership deed, unless the concluding words extend the agreement to include a different term. Those concluding words make it perfectly plain to me that the agreement between Currie and Smith was that the lease which the partnership was to have was the precise lease, executed by Mrs. Currie, that is, a lease wherein she was to be landlord and the partners the tenants. If that be so, the case falls within sec. 49 (2). But if that were not so, if we could assume there was originally an agreement between Currie and Smith while Currie was owner that Currie should give the firm a lease on certain terms, how would that stand in law? It would be an agreement that Currie should enter into a binding contract of tenancy with himself and Smith—for a "firm" is not an entity—with mutual rights and obligations, and at the same time create a demise of the land to himself and Smith for seven years, ending 31st December 1902. First we must remember that the only sense in which equitable interests in land under the Act exist by virtue of a contract is, in the words of Lord Parker of Waddington in Howard v. Miller[11], "if and so far as a Court of equity would under all the circumstances of the case grant specific performance of the contract." Nothing is clearer than that neither equity nor common law would recognize such a bargain as that suggested. An agreement between A and B that A shall contract with A and B is, in point of law, nonsense. In Henderson v. Astwood[12] Lord Macnaghten, for the Privy Council, said:—"A man cannot contract with himself. A man cannot sell to himself, either in his own person or in the person of another." If he cannot sell he cannot lease. In Ellis v. Kerr[13] Lord Warrington (then Judge of first instance) held that neither at law nor in equity can a man contract with himself or with himself and another. He confirmed this ruling in Napier v. Williams[14]; and the complication of title and interests where a lease is actually granted in such circumstances can be seen at pp. 363 and 369 of the report. Obviously equity, even apart from the Real Property Act, could not enforce the bargain suggested here, if it were made and insisted on.

(4)

No such inference can be rightly drawn, because it would be an inference of a useless bargain and because in fact there is nothing to suggest it, and again because the natural meaning of the concluding words of par. 6 is that what the two partners agreed to was that when Mrs. Currie became registered proprietor she should do exactly what she did do. Why the term was to begin six weeks later and end six weeks after the partnership is not stated. That is one of the circumstances within the exclusive knowledge of the parties interested, and the Commissioner is obviously dependent on them for information. But the fact of the overlapping shows that the lease was granted out of the property intended to be given, and which according to the instruments and statute was given in full to Mrs. Currie, and which she, having personally accepted it on trusts, was bound to hold on those trusts.

For these reasons I am of opinion that the appeal should be allowed and the question as to sec. 49 answered in favour of the Crown.

As to sec. 58, I am further of opinion that if the same method of approach to sec. 58 be adopted as is contended for by the respondents in relation to sec. 49, namely, the rough eventual result, there was such a retention in fact of dominion by Currie until his death as to make the trust one to take effect after his death. The practical position was that as long as he lived the beneficiaries could get no more than he permitted the property to produce after expending what he considered proper. The trust technically created was nominal except to the extent that he considered desirable. He could use up every penny in the management. I am not sure that even technically this was not the result. But if my view is wrong as to sec. 49 for the reasons relied on by the respondents, then I am of opinion that they should for the like reasons fail under sec. 58.

The Commissioner of Stamp Duties for New South Wales has claimed and received duty on the property comprised in this settlement on three separate grounds; and the Full Supreme Court has decided against him—has decided that duty is not chargeable on any of the grounds, and has ordered that the duty paid be refunded. One of the grounds is that stated in sec. 49 (2) (A) (e) of the Stamp Duties Act 1898; but the Commissioner has now abandoned this ground on this appeal. A second ground is that stated in sec. 49 (2) (B) (b), a ground which was added by the Stamp Duties (Amendment) Act 1914 (sec. 36): "All real estate (including chattels real) passing under a deed of gift or voluntary conveyance, whenever made by any person dying after the commencement of the Stamp Duties (Amendment) Act 1914, of which bona fide possession and enjoyment has not been assumed by the donee or person to whom such conveyance has been made immediately upon the gift or conveyance, and thenceforth retained to the entire exclusion of the donor or the maker of the conveyance or of any benefit to him of whatsoever kind or in any way whatsoever."

The Commissioner still persists that the facts bring this case within this clause; and it may well be conceded that the facts fit this clause, except as to the words beginning "of which bona fide possession and enjoyment has not been assumed" &c. In my opinion, the decision of the Full Court is right in its conclusion as to this ground, though I cannot accept all the reasoning. The freehold lands were duly transferred to the settlor's wife by transfers accepted and registered under the Real Property Act 1900, transfers dated 4th August 1896; and the conditionally purchased and leased lands were duly transferred to her in pursuance of the Crown Lands Act on the same date; but the trusts on which the wife was to hold all these lands were declared by the indenture of settlement of the same date. I cannot regard the settlement as being a mere settlement for a reversionary interest: in my opinion, the whole estate of the settlor passed in the lands—whatever estate he had on 4th August.

I propose now to examine the meaning of sec. 36 and its application to the facts of this case on the assumption that we are not constrained by the authority of certain English cases which have been cited, cases decided under an Act containing similar words—similar, but with a significant difference; and I propose to examine these cases subsequently. It is to my mind obvious that when the clause speaks of "bona fide possession and enjoyment being assumed by the person to whom such conveyance has been made," it means possession and enjoyment according to the nature of the property conveyed, and the possession and enjoyment must be immediate possession and enjoyment—immediate on the conveyance. As Lord Fitzgerald said, in Lord Advocate v. Young[15], "by possession is meant possession of that character of which the thing is capable" (and see p. 553). Applying this view to the facts of this case, it is clear from the case stated (par. 7) that immediately upon the execution of the conveyance in August 1896 the wife of the settlor began to receive for her own use the whole of the rents of the land conveyed; and that she received the rents for her own use until the settlor's death in 1914; and that then the daughters received the rents, as provided by the settlement. So that, prima facie, at all events, possession and enjoyment was assumed and retained immediately on the conveyance, and was retained to the exclusion of the settlor or of any benefit to him of any kind or in any fashion. What other possession or enjoyment was the thing capable of? No difficulty arises as to the fact of enjoyment; but it has been urged that Mrs. Currie did not get "possession," for the land was occupied by the partnership of Currie and Smith—the settlor and another person. The settlement recites this fact of occupation. But sec. 36 of the Act does not make it a condition of exemption from the tax that the person to whom the conveyance is made shall get vacant possession, possession free from any tenant or occupier. Even if we must, in applying this section, find "possession" in the strict legal technical sense, Mrs. Currie got such possession. In these days we are too apt to lose sight of the old principles of land tenure, and statutes frequently use words in a popular sense; but there is no doubt that Mrs. Currie obtained immediate actual possession—seisin—of the lands, even if there were tenants working the lands. The possession of a tenant is the possession of his landlord; and since the statute of Anne there is no need of attornment (4 & 5 Anne c. 16, sec. 9). As stated by Mr. Challis, in his book on Real Property, 3rd ed.:—"When ... lands are in the possession, or rather, in the occupation, of a tenant for years, or from year to year, entry is not necessary in order to convert a seisin in law into a seisin in deed, or actual seisin" (p. 236). "The existence of a prior term of years does not prevent the first vested estate of freehold from being an estate of freehold in possession" (p. 99). "During the continuance of a prior term, the first estate of freehold is properly described, not as being a remainder of freehold expectant upon the term of years, but as being the freehold in possession subject to the term" (p. 100).

The position correctly appears in the ordinary form of a defence by a landlord in an action for possession of land—"the defendant is in possession by his tenant AB." Moreover, the law is luminously explained by the Justices of the King's Bench in Bushby v. Dixon[16]. There A, seised in fee simple, died, the land being in the possession of his tenant. B was A's heir, but received no rent, as it was supposed that the land was devised by will. B died leaving C his heir. An action of debt was brought against C, on B's bond; and C pleaded no assets by descent. But it was held that B was seised in fact of the land—not merely seised in law—and that the land descended to C, and was assets liable to the bond debt. Abbott C.J. said[17]: "The possession of a tenant for years, being a rightful possession, is considered in law as the possession of the heir, and therefore gives him a seisin in fact." Bayley J. said[18]: "When there is a tenant, his possession becomes that of the heir immediately on the death of the ancestor." Littledale J. said[19]: "At the moment of" A's "death," B "did become actually seised, for the possession of the tenant for years is the possession of the owner of the freehold." It would take a long time to discuss the origins of all this technical law; but it is sufficient to say that, at common law, a tenant for years was not regarded as having an estate of which there could be seisin (possession), but was regarded as in the nature of a bailiff or servant.

I am not at all sure that such a disquisition on the technical meaning of that much abused term "possession" is necessary, when we consider the nature and object of sec. 36. I rather think that the word "possession" was used in contradistinction to "remainder" or "reversion"; as when we speak of a tenant for life in possession as distinguished from a tenant in remainder: and that the word "possession" in the section is not restricted to land, but is applicable to the total beneficial property given by the settlement, whether the land or the proceeds. Indeed, if the argument for the Commissioner be accepted, it means that every settlement of land is taxable unless the settlor give "vacant" possession to the donee or the trustees of the settlement—unless all tenants are cleared out: a most improbable meaning.

But the question still remains, was the testator entirely excluded from the property conveyed—did he retain any "benefit" out of the property or in any way? What is the meaning of the final words in the section?

To answer this question, we have to consider the object of the Act, and its scope. Part III. of the Stamp Duties Act 1898 is primarily devoted to the taxation by stamp duty of assets which belonged to any testator or intestate at his death (sec. 49). But, of course, various devices are used by owners for the purpose of avoiding such taxation; and one device is to settle property before death so that it cannot be said to belong to the testator at his death or be included in the statement of assets for duty. If the executors say "this property was not owned by the testator at his death," the Legislature accepts the position, provided that the testator passed all his interest in the property by the settlement. The object of this sec. 36 is to make such a provision in definite terms; and, in insisting on bona fide possession and enjoyment being assumed immediately by the beneficiaries and retained by them, it insists also that the settlor shall not directly or indirectly retain any benefit of any kind from or under the settlement, so far as regards the property the subject of the settlement. I take it, therefore, that the "benefit" referred to means a tangible benefit from the property, a commercial benefit—not necessarily vendible, perhaps, but not a mere sentimental benefit such as may be incident to the honour of being a trustee, or a person who has to be consulted in the administration of property for the benefit of others. The "benefit" referred to in the section may, however, be of any character—"of whatsoever kind"; and it may come "in any way whatsoever"—whether by exception or condition or stipulation at the time of the settlement or otherwise howsoever. But the benefit must be a benefit as of right—an enforceable benefit—not a benefit dependent on the courtesy of the owner, as that of entering the house. Moreover, there is nothing to prevent the settlor from acquiring a new right or benefit by a subsequent independent transaction, without rendering the property liable to the tax. There is no indication of any intention to interfere with freedom of contract; and a married woman may now contract even with her husband (Married Women's Property Act 1901, sec. 3 (2)). The settlement in question took effect on 4th August 1896; and Mrs. Currie, the trustee for the time being, gave a lease of the property to the settlor and another for seven years on 25th August. This does not involve any "retaining" of benefit; such rights as the lease gave were newly acquired under the lease, a lease which she was free to give or to refuse. Therefore, in my opinion, this settlement does not come within sec. 36 so as to render the property taxable, as the settlor has not retained for himself in respect of the property settled some benefit which is inconsistent with the full possession and enjoyment of the property on the part of the beneficiaries—as he here did not keep back for his own benefit any interest in the property. This is the view taken of the words in the Mortmain Acts (9 Geo. II. c. 36, &c.), from which the phrasing of sec. 36 seems to be mainly taken (see Attorney-General v. Munby[20]; Doe d. Graham v. Hawkins[21]).

In order to test this question, did the settlor retain any benefit for himself out of the property which he affected to give, it is necessary to fix one's eyes steadily on the position on 4th August 1896, the date of the settlement. The settlor was giving away his freehold lands, his conditional purchases and leaseholds, &c., all of which were in the actual occupation of the partnership. Whatever may be said as to the legal difficulties in the way of Currie making a lease to a partnership of which he was himself a member, there is no doubt that the partners were not trespassers: they were in occupation with the consent of the registered proprietor, Currie himself. Mrs. Currie did not give a lease to the partners till 25th August, three weeks after the settlement; but on 4th August, when Mrs. Currie came into enjoyment of the property, Currie was under a binding agreement with Andrew William Smith which is expressed in par. 6 of the case stated. The settlement itself recites that the partnership was then actually carrying on the partnership business on the lands. According to par. 6 Currie had agreed with the said Andrew William Smith that the lands should be leased to the partnership; and Mrs. Currie executed the lease "in accordance with the said arrangement" (sic). The length of the term agreed to, and the rent, are not otherwise stated in the case; but probably, as the lease granted by Mrs. Currie was "in accordance with" the arrangement made, we should take it that the rent, £1,875 per annum, and the term, seven years, were settled, so far as Currie and Smith were concerned, before 4th August. But there was no stipulation before the settlement between Mr. and Mrs. Currie that she should grant a lease to the partners. At all events, as there was an "agreement," Smith was entitled to get from Currie, the proprietor, a lease for some term and at some rent. Specific performance of this agreement could have been enforced by Smith against Currie; and although we have not been shown, at all events as to the Crown lands (conditional purchases and conditional leases), that the Court could have directed a lease from Currie to Currie and Smith, it could have directed a lease which would be substantially the same in substance (e.g., a lease to Smith with a declaration of trust on the part of Smith in favour of the partnership) (see Fry on Specific Performance, 6th ed., pp. 467-470). Mrs. Currie was not faced with the same technical difficulty in exercising her power to lease to Currie and Smith; and, as trustee of the settlement, she was allowed "to grant or renew leases of any description and upon any terms ... (including any lease ... to the said Archibald Currie either solely or jointly with any other person)"; but she, and she alone (not with her husband's assistance), was to fix and determine the rent. The lease which she executed was for a term of seven years from 15th February 1896; but the first payment by way of rent was to be calculated as from 28th March 1896 to 30th June 1896; and this first payment, as well as the rent from 30th June to 4th August, went to herself (not to Currie). Certainly, so far as the lease is concerned, there was no benefit that came to Currie out of the property settled, no benefit accruing to the settlor by the provisions of the settlement; what Currie got was by virtue of a subsequent, independent agreement made freely by Mrs. Currie, who was both trustee and tenant for life; and, under the New South Wales law, a married woman can (as I have said) make a contract with her husband, or with her husband and another.

But counsel for the Commissioner has pressed us to consider the large powers conferred on the settlor during his wife's trusteeship under the settlement. The wife, under the settlement, had to sell all the lands if her husband told her; the husband could dictate the rate of interest on any unpaid purchase-money, had power to refuse consent as to any investment, to refuse consent to any purchase of land or effects, to refuse consent to any mode of managing the land, to refuse consent to any improvements, repairs, &c., or to the purchase of sheep deemed necessary for the "management" of the station and of carrying on the business, &c. But this does not confer any "benefit," in the legal sense, on the settlor; it merely reflects the usual conceit of husbands that they can manage business affairs better than their wives, and the usual desire of husbands that those dependent on them do not suffer from inexperience. When it becomes necessary to consider a lease or the renewal of a lease to the partnership of Mr. Currie and Mr. Smith, the trustee or trustees are to act alone in fixing and determining the rent. I have come to the conclusion, indeed, that the power of Mr. Currie to consent or refuse consent to the exercise of the power of the trustee or trustees to manage "as they think fit," ends just before the words "and to grant or renew leases." The form of the words now in question—"but subject to the consent of the said Archibald Currie during his life"—is appropriate to the phrase in the middle of which they actually are inserted, giving to the trustee or trustees full discretionary power to manage the land "as they or he shall think fit"; they are not appropriate or relevant to a power in which they are not inserted. But whether this is a correct view or not, I agree with the Full Court that no "benefit" in the sense of sec. 36 of the Act has been conferred on the settlor by the terms of the settlement.

I shall now deal with the cases which are said to be at variance with the view of the Supreme Court. In Attorney-General v. Worrall[22] the Court of Appeal had to deal with estate duty under the Customs and Inland Revenue Act 1889, sec. 11 (1). According to the words of the section, duty had to be paid on "property taken under any gift, whenever made, of which property bona fide possession and enjoyment shall not have been assumed by the donee immediately upon the gift and thenceforward retained, to the entire exclusion of the donor, or of any benefit to him by contract or otherwise." In Worrall's Case there was such a contract; for the father, who gave a mortgage debt to his son, was to be paid under the settlement an annuity of £735 during his lifetime; and the Court held that the property was liable to duty. It was argued that there was no benefit retained by the donor out of the subject matter of the gift, and that therefore the case did not come within the sub-section; but the Court felt coerced by the express words "by contract or otherwise," to hold the contrary. Any contract for a benefit to the settlor brought the settlement within the Act; and the Court was impressed by the fact that the sub-section was in substitution for a previous Act of 1881 which made gifts come under the duty only if there had been a reservation out of the subject matter of the gift. There are no such words as "by contract or otherwise" in this New South Wales sub-section; the words after "or of any benefit to him" are "of whatsoever kind or in any way whatsoever," and these words are quite susceptible of an interpretation which maintains what I regard as the main principle of the sub-section—if you affect to give a property otherwise than by will you must give it all, not hold back part like Ananias and Sapphira. The same sub-section was the subject of a decision of Hamilton J. (now Lord Sumner) in Attorney-General v. Seccombe[23]. There a farmer made a voluntary conveyance of his farm and stock to his grandnephew, who lived with him. The farmer had no other property except an annuity of £15 chargeable upon land of the grandnephew's. The farmer continued to reside on the land for years, and was maintained by the grandnephew, who retained the annuity; but there was no agreement that the farmer should be permitted to remain in the house or be maintained. It was held that the duty was not payable. Hamilton J.[24] referred approvingly to a Scottish case (Lord Advocate v. Stewart[25]): "The principle there laid down, as I understand it, is that the possession and enjoyment or benefit from which the Act contemplates that the cedent or donor must be entirely excluded must be derived from some enforceable right, a benefit, as the Lord President said3(1906) 8 F., at p. 595., which was part of his property before the cession" (or gift), "and therefore not merely a benefit which is derived from his being present for a greater or less time in the old house by leave and licence of the donee." There was no contract that in consideration of the gift the donor should be permitted to reside and be maintained by the donee. The words "by contract or otherwise" are aimed at any contract between the parties or with third parties having the effect of conferring a benefit on the donor, and any transaction enforceable at law or in equity, although not in the form of a contract (such as a lien). In Lang v. Webb[27] we have a decision of our own Court, on practically the same words, including "by contract or otherwise." So far as the decision is binding on us, it was merely a decision that there had been no bona fide possession or enjoyment assumed immediately on the conveyance; for, on the same day as that on which the conveyances were executed by the mother in favour of the sons, the sons executed leases to her. But Griffith C.J. agreed with the opinion of the Lord President and of Hamilton J. stated in Seccombe's Case, that the benefit intended is a benefit which was part of the property before the gift. Barton J. puts it that there was a stipulation at the time of the gift that the donee was to have an immediate lease; and he quotes aptly Lord Halsbury's words in Earl Grey v. Attorney-General[28]: "What the Act ... intended to prevent was that what has been described as a gift inter vivos should nevertheless reserve to the settlor some benefit, or some part of that which purported to be given inter vivos." Isaacs J. was evidently influenced in his decision by the words "by contract or otherwise" (see Lang v. Webb[29]). But, as I have said before, the words in the Act before us are "benefit to him of whatsoever kind or in any way whatsoever"; and full meaning can be given to these words without doing violence to what is otherwise the plain object of the section—to prevent a settlor from avoiding the tax while taking a benefit which was part of the property before the gift. "A benefit of whatsoever kind" refers to the character of the benefit—money, right of residence, use for pasture, &c.; and "a benefit in any way whatsoever" refers to the mode in which the benefit comes—by exception, or reservation, or condition or otherwise.

But having had the privilege of reading the judgment of my brother Isaacs, I desire to add a few remarks:—

(1)

I think I should agree with my learned brother if the case stated any stipulation—I mean stipulation between Mr. and Mrs. Currie before or at the settlement—that she should as to the lands transferred grant a lease to the settlor and Smith. There is no such stipulation alleged in the case; the only agreement made was between Currie and Smith, made before Currie settled the lands. The essential position is that from 4th August 1896 onwards, Mrs. Currie was absolutely free either to grant or to refuse a lease to the partners. Currie could no longer fulfil his contract with Smith. Mrs. Currie could have made a demand of possession on the partners as tenants at will; but she preferred to exercise her power to grant them a lease for seven years at £1,875 per annum. If an action had been brought by Smith on the agreement, for specific performance or damages, Currie would have had no valid defence.

(2)

It is quite true that on 4th August there was no lease in existence either registered or in writing. Under the Real Property Act of New South Wales a lease for less than three years need not be registered. But there was a contract between Currie and Smith that a lease should be given by Currie, the registered proprietor at the time, to the partnership; and that agreement was (as I have already stated) binding on Currie and enforceable by an order for specific performance or, in the alternative, by damages. There is nothing illegal in such an agreement; and a Court of equity would not be baulked in enforcing specific performance thereof in substance, even though it could not direct a lease to be made by A to A and B. It cannot be that an honest agreement by a landowner to grant a lease to a partnership of which he is a member must be rejected as being no agreement at all. Equity would merely have to prescribe in its decree the mode of performance.

(3)

Sec. 42 of the Real Property Act, when examined, is directed against estates or interests claimed as prior to the certificate of title (Josephson v. Mason[30]; Morrissy v. Clements[31]; Hood v. Cullen[32]; Gibbs v. Messer[33]). That is to say, people can deal with the registered proprietor freely and confidently, without regard to possible prior estates or interests; but the section does not hinder the registered proprietor from making contracts, &c., or from thereby creating, as between himself and the party dealing with him, equitable estates or interests. Sec. 43 shows that persons dealing with him may ignore even dealings subsequent to the certificate that are not protected by registration or by caveat.

But the third ground is to my mind much more serious—that this is a settlement as to which duty must be paid under sec. 58. There have been some cases cited before us as bearing on the subject, under analogous Acts; but, before examining these cases, it is well to consider the section closely, and see how far it fits the facts of this case on the assumption that there are no authorities which should induce us to give it a meaning other than that which it bears on its face. The section is: "Within six months after the death of any person who has executed a settlement containing any trust to take effect after his death ... notice of such settlement shall be lodged by the trustee thereof or by some person interested thereunder, together with a declaration specifying the property thereby settled and the value thereof, and duty shall thereupon be payable on such value at the rates specified in the Third Schedule hereto." Now, it is not contended that the settlement in this case is not a settlement within the meaning of this section, a voluntary settlement (see interpretation sec. 3). It contains trusts, some of which operate immediately, some in the future; but among those to operate in the future are trusts, "to take effect" after the settlor's death—including in particular a trust that "after the death of either of them the said Archibald Currie" (the settlor) "or Jessie Currie" the trustees are to pay one-fifth of the rents or income unto each of the five daughters of the said Archibald Currie during her life for her seperate use; remainder to each daughter's children. If the settlor die before his wife (as has actually happened in this case), it is clear that the daughters take upon and after his death. This satisfies the words "settlement containing any trust to take effect after his death." The words used are not "settlement to take effect after his death." But it is objected for the respondents that if the wife had happened to die before the settlor, the trust for the daughters would not take effect after his death but before his death. One answer to this objection is surely that though there is in the settlement a trust if the wife die first for the income to go to the daughters at once, yet there is also a trust if the settlor die first for the payment of the income to the daughters from the time of his death. The words of the section are not "settlement containing trusts all of which must take effect after his death," or "settlement containing trusts which in fact under all circumstances take effect after his death"; it is enough, for the purpose of the section, that the settlement contain any trust intended to take effect after his death. The governing purpose of the section seems to be overlooked. It occurs in Part III. of the Act, which is primarily directed to the payment of duty on the estates of testators or intestates (sec. 49). Sec. 49 (2) ropes in for duty property subject to general powers as well as property actually belonging to the deceased, property voluntarily given within twelve months before the death, property which comes to a person by survivorship on the death of a joint owner, &c.; but provision had yet to be made for the purpose of making subject to duty property which has been settled by deed where a will would have achieved the intention of the testator equally well; for a will is an instrument which always takes effect upon and after the death of the testator. Sec. 58 effectuates this purpose. In my opinion, it means simply that if the owner of property does not, by his settlement, divest himself of the settled property immediately, but postpones the benefit of any of his trusts till his death, he shall be treated as if he had made a will. But there is a difference—that the duty is levied on the whole settled property, not on the executors. If the duty on the settled property be not paid, the Commissioner can, on application to the Court, get an order for sale and for application of the proceeds in payment of the duty and costs (sec. 58 (2)).

There is nothing that I can find in the cases cited to us which prevents us from giving to sec. 58 this natural, obvious, interpretation. It is all a question as to the meaning of the Act; and it is our duty to give effect to the meaning of the Act, however harsh its operation may seem to us. Everyone holds his property at the mercy of the State; and if the State has enacted that duty must be paid as to property under a settlement, if the settlement in any way usurp the function of a will by containing any trust to take effect first after the settlor's death, and not before, the duty is payable.

Reliance has been placed on the Third Schedule to the Act of 1898 for an argument that the words of sec. 58, "containing any trust to take effect," are to be read as if they were merely taking effect after the death of the settlor. This argument seems to me to be futile; the Third Schedule merely shows the rates at which duty is to be paid; and the words used there are merely like a fingerpost to guide readers to sec. 58 of the Act:—"Part II. 2. Settlement of property taking effect after death of settlor—same duties as under Part I." These words are obviously an abbreviated expression. In any case, the Schedule must yield to the sections, not the section to the Schedule (In re Baines[34]; R. v. Baines[35]; Dean v. Green[36]). As for the cases, they really favour the view which I have put, although the Victorian Act, under which they were decided, is not so explicit in favour of the Commissioner as this Act of New South Wales. The Victorian Act (sec. 112 of the Administration and Probate Act 1890; sec. 147 of the same Act as consolidated in 1915) provides that: "Every settlement of any property made on or after the sixteenth day of December one thousand eight hundred and seventy by any person containing trusts or dispositions to take effect after his death, shall upon the death of the settlor be registered," &c. It was certainly arguable that under these words all the trusts and dispositions must be such as to take effect after the death; but the cases show that the words are to be treated as if they were, as in the New South Wales Act, "any" such trusts. In R. v. Austin[37] it was held that a settlement which immediately divested the settlor of all interest in the property and contained no provision dependent on the settlor's life or death, did not come within the section to make the property taxable. In Whiting v. Thompson[38] a station was settled in trust for sale, and the income of the proceeds was to be paid to the settlor for life, and after his death there was to be a trust of the proceeds for his sons (subject to an annuity to the widow). It was held that although in the gift of the income to the settlor for life and otherwise there was some immediate disposition of the property, the fact that there was a trust for the sons to take effect on the settlor's death rendered the property taxable. This clearly implies that the learned Judge (the late àBeckett J.) treated the property as taxable even if some of the trusts were not to take effect on the settlor's death. In Whiting v. McGinnis[39] there was a trust of the property for the settlor's wife for life, and after her death for the settlor for life, and after the death of the survivor upon trust for the children. The settlor died before his wife, and the trust for the children did not arise till both the parents were dead. The Judges all held the property was taxable, but apparently for different reasons. The view taken by Hodges J., however, was that the word "after" in the section did not necessarily mean "upon," or immediately after; and that therefore the trust for the children, as it arose after the inevitable death of both the settlor and his wife, came within the section; and this view was adopted by this Court on an appeal in Rosenthal v. Rosenthal[40]. In this case of Rosenthal v. Rosenthal the settlement gave the income to the wife for life, then to the settlor for his life, then to the children. The settlor died first, and the children did not take the corpus till the wife's life ended; and it was held, in accordance with the view of Hodges J. in Whiting v. McGinnis[41], that as the children's interest arose after, though not immediately after, the settlor's death, the property was taxable. Afterwards, in 1914, there came another case before the Supreme Court (In re Dick's Settlement[42]). The settlement gave the income to the wife for life, then to the son until he attained twenty-one, and the corpus was to be transferred to the son at that age. The son attained twenty-one in 1901; the wife died in 1908; the settlor died in 1913: so the corpus became payable to the son in 1908, when his mother died. But there was in the settlement an alternative trust, providing for an event which did not occur—that if both mother and son should die during the life of the settlor, the income was thenceforward to be paid to the settlor for his life, and then the corpus to his nephews. àBeckett A.C.J., after referring to the previous cases, said[43]: "Although the trusts to arise upon or after" the settlor's "death are contingent only, and the contingency never happens, these trusts are sufficient to bring the settlement within the definition." This shows clearly that the section applies if there is any trust intended to take effect after the settlor's death. It is true that, under the special circumstances—the corpus having been absolutely vested in the son twelve years before the settlor's death and payable to him five years before—it was held that the property was not taxable. It was an exceptional position; for the trust for the settlor and his nephews was very similar to a resulting trust for the settlor if his purpose failed—his purpose to benefit his wife and his son. But without presuming to decide, without argument, whether the facts of this case justified the result, I have no doubt that the learned Judge did not mean to overrule his own decision in Whiting v. Thompson[44]. There is not, therefore, anything in these decisions to militate against the view which I have suggested as being the natural, unsophisticated meaning of the New South Wales Act, sec. 58—that if the settlement contains any trust to take effect after the death of the settlor, if any trust is conditioned on his death, although in a certain event (the previous death of his wife) it may come into force before his death, the property is taxable.

On this third ground, therefore—the ground set out in sec. 58—I am of opinion that this property is taxable.

This is an appeal by the Commissioner of Stamp Duties (N.S.W.) from a judgment and order of the Full Court of the Supreme Court of New South Wales on the hearing of a case stated to that Court for its opinion. The case was stated under the Stamp Duties Acts 1898 to 1914. The Stamp Commissioner claimed that stamp duty was payable on the property subject to the indenture of settlement (referred to in the case stated) and interest thereon at the rate of 5 per cent per annum from the expiration of six months after the date of the death of the donor, Archibald Currie. The claim is made under the provisions of secs. 58 and 49 (2) (A) (e) and sec. 49 (2) (B) (b) of the Stamp Duties Acts 1898 and 1914 added to by sec. 36 of the Stamp Duties (Amendment) Act of 1914.

The questions submitted to the Supreme Court for its opinion were as follows:—[The questions asked in par. 13 of the case were here set out.]

The Supreme Court determined that question 1 should be answered in the negative; question 2, that no duty is payable; and question 3, that the costs of the respondents should be paid by the Commissioner. This appeal is against that determination. The Commissioner has abandoned the ground of appeal set out in 1 (a); and this Court has only to consider grounds 1 (b) and 1 (c) and questions 2 and 3.

It was contended for the respondents that (1) the real nature of the transaction was that the gift was not a gift of an estate in possession, it was a gift of a reversionary interest only or in the alternative; (2) the real nature of the transaction was a gift of an estate in possession free from legal encumbrances without any stipulation or condition, and the lease in question, granted after the property had been transferred to her and after she was entitled to possession and enjoyment, was a lease by the trustee as a matter of business which she was authorized to grant under the trust or which she could refuse to grant if she thought fit. It was contended for the Commissioner (3) that Currie transferred to his wife (Jessie Currie) his whole unencumbered estate and interest in certain lands by way of voluntary conveyance according to stated trusts for her and her children, at the same time stipulating that she should out of the estate so transferred grant to him and his partner, Andrew William Smith, a lease for seven years of the property in question.

Dealing with the third contention first. I agree that if at the time that Currie transferred to his wife, Jessie Currie, his whole unencumbered estate and interest in the land by way of the voluntary conveyance in question there was a stipulation that she should, out of the estate so transferred, grant to him and his partner, Andrew William Smith, a lease for seven years of the property in question or any other less important benefit, then the case would fall within sec. 49 (2) (B) as amended. My brother Isaacs holds that there was such a stipulation; but after carefully considering the facts set out in the case stated and the documents attached as part of the case, I fail to see the proof of any such stipulation or of any agreement or condition binding on her to grant any lease to the settlor or the settlor and his partner. It was optional with the trustee, Jessie Currie, who was not bound by any arrangement made between Archibald Currie and his partner, to give or refuse to give the lease in question. The settlement authorized but did not compel her to grant any lease to himself and his partner. This Court is bound by the facts set out in the case stated and the documents attached as part of the case. The settlement is the only document or arrangement Jessie Currie was a party to. That settlement and the transfers gave to her his whole unencumbered estate and interest free of any condition or stipulation whatever not contained in the settlement or transfer.

As to the first contention, the Supreme Court held that the real nature of the transaction was in substance a settlement of the reversion upon a lease for seven years to the partnership, and that at the time the settlement was executed the partnership firm of Currie and Smith was already in possession and occupation of the property under an agreement for a lease for seven years which was binding on the settlor. The Supreme Court also held: "In this case the gift was not a gift of an estate in possession—it was a gift of a reversionary interest only." I do not agree, for the reasons already mentioned in dealing with the third contention, that the gift was in this case a gift of a reversionary interest only. I also hold that the agreement by the settlor for a lease to himself and his partner (referred to in the case stated) was not legally binding and certainly was not binding in any way on Jessie Currie or a charge on the land.

As to the second contention, I have come to the conclusion, on the facts stated in the case and on the documents attached thereto, that Currie transferred to his wife his whole unencumbered estate and interest in the lands in question as an estate in possession free from any legal encumbrance or any condition or stipulation binding on her not set out in the settlement or transfers in question, and that on 4th August 1896 she was legally free to grant or to refuse any lease she thought fit or any request made by the settlor to grant him any benefit affecting the property transferred.

For the reasons mentioned I hold that sec. 49 (2) (B) as amended does not apply, and that the appeal so far as that claim is concerned should be dismissed.

The only other question to decide is whether the settlement is a settlement as to which duty must be paid under sec. 58 (1)—question 3 in the case stated. Sec. 58 is as follows: "(1) Within six months after the death of any person who has executed a settlement containing any trust to take effect after his death, or within such further time as the Commissioner may allow, notice of such settlement shall be lodged by the trustee thereof or by some person interested thereunder, together with a declaration specifying the property thereby settled and the value thereof, and duty shall thereupon be payable on such value at the rates specified in the Third Schedule hereto." In this case there was a trust in the settlement—a very important one—which did take effect on the death of the donor, but the Supreme Court decided that under the settlement in question the trusts could have taken effect before his death. The settlement provided that the rents and profits should be paid to his daughters and not to his wife after death of either of them the said Archibald Currie or Jessie Currie. As the Supreme Court pointed out[45]:—"If Jessie Currie had died in his lifetime, the trusts in favour of the children would have come into operation at once. His death therefore was not a necessary condition precedent to, and was not an essential factor in, the effectuation of the dispositions in favour of his children." The Court added as its opinion[46]:—"The section does not refer to trusts which may or may not take effect in a settlor's lifetime but only contemplates trusts which cannot do so." We do not think that "the settlement in this case comes within it." The donor died before his wife; the trust took effect on his death. The question is an important one, and "is one of construction primarily of the words of the section and then of those of the instrument sought to be brought within its reach." The section in question uses the words "of any person who has executed a settlement containing any trust to take effect after his death." The settlement did contain a trust to take effect after his death and which did take effect after his death, and I see no reason why this Court should not hold that the settlement is one which falls within the section. If it is held that the section does not apply if the trust could possibly take effect before the donor's death, a donor, AB, could evade liability to duty by constituting a trust to take effect "after the death of either of them the said AB or CD his grandson." I have had the privilege of reading the judgment of my brother Higgins on this ground, and I agree with him, and for the reasons he has given, that the property in question is taxable under sec. 58, and that the appeal should be allowed on that ground.

Appeal allowed. Question answered as follows: "Duty is payable on the said property under the provisions of the Stamp Duties Act 1898." Costs in High Court and Supreme Court to be paid by respondents.

Solicitor for the appellant, J. V. Tillett, Crown Solicitor for New South Wales.

[1] (1911) A.C. 386.

[2] (1911) 2 K.B. 688.

[3] (1911) 2 K.B. 688.

[4] (1926) 1 D.L.R. 29.

[5] [1914] HCA 79; (1914) 19 C.L.R. 197.

[6] (1925) A.C. 208.

[7] (1905) A.C. 176, at pp. 204-205.

[8] (1926) A.C. 101.

[9] [1915] HCA 80; (1915) 20 C.L.R. 663.

[10] (1881) 19 Ch. D. 233.

[11] (1915) A.C. 318, at p. 326.

[12] (1894) A.C. 150, at p. 158.

[13] (1910) 1 Ch. 529.

[14] (1911) 1 Ch. 361.

[15] (1887) 12 App. Cas. 544, at p. 556.

[16] [1824] EngR 33; (1824) 3 B. & C. 298.

[17] (1824) 3 B. & C., at pp. 304-305.

[18] (1824) 3 B. & C., at p. 305.

[19] (1824) 3 B & C., at p. 307

[20] (1816) 1 Mer. 327.

[21] [1841] EngR 849; (1841) 2 Q.B. 212, at p. 217.

[22] (1895) 1 Q.B. 99.

[23] (1911) 2 K.B. 688.

[24] (1911) 2 K.B., at p. 700.

[25] (1906) 8 F. 579.

[26] (1906) 8 F., at p. 595.

[27] [1912] HCA 7; (1912) 13 C.L.R. 503.

[28] (1900) A.C., at p. 126.

[29] (1912) 13 C.L.R., at pp. 515-517.

[30] (1912) 12 S.R. (N.S.W.) 249.

[31] (1884) 11 V.L.R. 13; 6 A.L.T. 107.

[32] (1885) 6 N.S.W.L.R. (Eq.) 22.

[33] (1891) A.C. 248, at p. 254.

[34] [1840] EngR 1082; (1840) Cr. & Ph. 31.

[35] (1840) 12 A. & E. 210, at p. 227.

[36] (1882) 8 P.D. 79, at p. 89.

[37] (1903) 29 V.L.R. 82; 25 A.L.T. 7.

[38] (1900) 29 V.L.R. 89; 21 A.L.T. 231.

[39] (1909) V.L.R. 250; 30 A.L.T. 207.

[40] [1910] HCA 47; (1910) 11 C.L.R. 87

[41] (1909) V.L.R. 250; 30 A.L.T. 207.

[42] (1914) V.L.R. 540; 36 A.L.T. 73.

[43] (1914) V.L.R., at p. 543; 36 A.L.T., at p. 75.

[44] (1900) 29 V.L.R. 89; 21 A.L.T. 231.

[45] (1927) 28 S.R. (N.S.W.), at p. 206.

[46] (1927) 28 S.R. (N.S.W.), at p. 206.

High Court of Australia

Commissioner of Stamp Duties (NSW) v Thomson [1927] HCA 57; (1927) 40 CLR 394 (10 December 1927)

HIGH COURT OF AUSTRALIA