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High Court of Australia |
CROWTHER v. COMMISSIONER OF STAMP DUTIES (N.S.W.) [1964] HCA 5; (1964) 109 CLR 377
Stamp Duties (N.S.W.)
High Court of Australia
Dixon C.J.(1), McTiernan(2), Kitto(3), Taylor(4) and Windeyer(5) JJ.
CATCHWORDS
Stamp Duties (N.S.W.) - Property wrongly included in dutiable estate - Duty paid thereon - Recoverability - Mistake in construction of Act - Duty paid by instalments - Period of limitation of action for recovery - Plea alleging contradictory facts - Demurrer - Stamp Duties Act, 1920-1959 (N.S.W.), s. 140 (1) (3) (4).*
HEARING
Sydney, 1963, March 28, 29;DECISION
1964, February 25.2. The facts to be collected from the pleadings are set out in detail in the judgment of Taylor J., which I have had the benefit of reading and in the reasoning of which I agree. (at p382)
3. The essential question raised by the first plea is the nature of the cause of the overpayment. Is it correct that the cause of the Commissioner's wrongly including the estate of A.J. Annabel deceased in the dutiable estate of his daughter, Vera Madeline Crowther, was a mistake on his part in the construction of the Stamp Duties Act? Giving the widest meaning to the word "construction", I cannot see that it was such a mistake. It was due to a misunderstanding of the operation of s. 29 of the Wills, Probate and Administration Act, 1898 (N.S.W.). I agree entirely with the judgment of Herron C.J. on this point and, in particular, I agree in the following statement of his Honour:- "In the present case the Commissioner's essential mistake was as to the true effect of s. 29 of the Wills, Probate and Administration Act, 1898. He was also mistaken in thinking that the fiction which its provisions create applied to the Stamp Duties Act at all. Section 29, on the facts of this case, created no right in property which became part of the estate of Vera Madeline Crowther. The Commissioner erroneously thought that it did. This was not due to a misconstruction of s. 102(1)(a) or as to the meaning of property, but to a misunderstanding of the law relating to wills expressed in the Wills, Probate and Administration Act" (1962) 80 WN (NSW), at p 980 . (at p383)
4. The second plea does not extend to the whole action, but to a large sum, parcel of the money claimed. Section 140(4) provides that no such action or suit shall be brought after the expiration of three years from the date of payment. The second plea alleges that the action was brought in respect thereof after the expiration of three years from certain respective dates of payment therein set out. I agree that the demurrer to this plea should be allowed for the reasons given by Taylor J. I have had the advantage of reading the judgment of Windeyer J. and I agree in his observations. (at p383)
5. For the foregoing reasons I think that the appeal should be allowed. (at p383)
McTIERNAN J. I agree with the reasons prepared by Windeyer J. in this case. I would allow the appeal. (at p383)
KITTO J. I have had an opportunity of reading the judgment prepared by my brother Taylor. I agree that for the reasons he states the appeal should be allowed and there should be judgment for the plaintiff on both demurrers. (at p383)
TAYLOR J. The claim in the action out of which this appeal arises was for an amount of 12,631 pounds 3s. 4d., being the amount of death duty paid to the respondent by reason of the wrongful inclusion in the dutiable estate of Vera Madeline Crowther, deceased, of assets to the value of 78,256 pounds 0s. 0d. The action was brought pursuant to s. 140(3) of the Stamp Duties Act and it was brought by the executor of the deceased's will after the decision of the Full Court in Perpetual Trustee Co. (Ltd.) (Blyth Estate) v. Commissioner of Stamp Duties (1962) SR (NSW) 108; (1960) 78 WN 672 (at p384)
2. The first defence sought to be raised in the action was, in substance, that the assets in question had been wrongly included by reason of a mistake on the part of the respondent in the construction of the Stamp Duties Act and a second defence was that part of the moneys claimed, namely 9,282 pounds 12s. 9d., had been paid more than three years prior to action brought. These defences the respondent endeavoured to raise by his first and second pleas respectively but each of the pleas was the subject of a demurrer. By majority the Full Court overruled the demurrer to the first plea and, thinking it unnecessary, therefore, to deal with the demurrer to the second plea, ordered "that there be no judgment" in respect of that demurrer. (at p384)
3. Consideration of the appeal requires examination of the pleadings in the
action and it is first of all important to go to the
declaration and see what
allegations it contained. These allegations were to the effect that:
1. The deceased, Vera Madeline Crowther, died on 25th February 1951 leaving
an estate upon which death duty was payable.
2. The respondent, on 7th May 1952, assessed the said duty upon the basis
that the value of the deceased's estate for the purposes
of the Act was 9,291
pounds, that the amount of duty payable thereon was 587 pounds 1s. 8d. and
that this amount was duly paid by
the appellant to the respondent.
3. Thereafter one, Arthur John Annabel, the father of the deceased, died on
18th August 1952 leaving an estate upon which duty
was payable pursuant to the
Act, that the respondent assessed duty upon his estate upon the basis that the
value of his estate for
the purposes of death duty was 78,256 pounds and the
amount of death duty payable thereon was 17,687 pounds.
4. By his last will and testament the said Arthur John Annabel gave devised
and bequeathed the whole of his real and personal estate
of whatsoever kind
and wheresoever situate to his wife Louisa Ethel Annabel and in the event of
his said wife predeceasing him he
gave devised and bequeathed the whole of his
real and personal estate to the deceased Vera Madeline Crowther.
5. The said Louisa Ethel Annabel and the deceased, Vera Madeline Crowther,
predeceased the said Arthur John Annabel but at the
time of the death of
Arthur John Annabel there was living a son of the said deceased Vera Madeline
Crowther.
6. Thereupon the respondent in purported exercise of the powers conferred
upon him by the Stamp Duties Act, and claiming that,
by reason of the events
which had happened as hereinbefore set forth and by virtue of the operation of
s. 29
of the Wills, Probate
and Administration Act, 1898 (as amended), the
estate of the said deceased, Vera Madeline Crowther, should
for the purposes
of assessment
and payment of death duty be deemed to include the estate of the
said Arthur John Annabel, issued
on 21st February 1955 a further
assessment to
the appellant of duty payable in the estate of the said deceased, Vera
Madeline Crowther.
This assessment was for the
sum of 15,822 pounds 18s. 7d.
by way of additional duty and by the assessment the defendant included
in the
dutiable estate of the
said lastmentioned deceased the whole of the value of
the estate of the said Arthur John Annabel.
7. Thereupon the appellant paid to the defendant by way of such additional
duty (and interest) the following sums of money on the
dates set forth:
January 7th 1955 2,500 pounds 0 08. After the making of such payments the respondent varied the said assessment and refunded to the appellant the sum of 4,378 pounds 0s. 1d. being the amount of duty and interest paid by the plaintiff in excess of duty and interest lawfully chargeable on the basis that the estate of the said Arthur John Annabel was properly included in the estate of the said deceased Vera Madeline Crowther.
June 2nd 1955 2,500 pounds 0 0
November 8th 1955 3,400 pounds 0 0
November 11th 1957 4,000 pounds 0 0
September 15th 1958 2,293 pounds 14 5
September 24th 1958 2,215 pounds 8 2
4. The ninth allegation was apparently included in the declaration because
the pleader felt some doubt whether the onus rested upon
the appellant to
prove that the inclusion of the assets in question was not due to any mistake
in the construction of the Act but
there can be no doubt that the onus of
proving the affirmative of this proposition lay upon the Commissioner if he
wished to escape
liability (see per Jordan C.J. in Ochberg v. Commissioner of
Stamp Duties (1949) 49 SR (NSW) 248, at p 253; 66 WN 113, at p 115 .
This
position was accepted by the respondent who, treating the ninth allegation as
immaterial, affirmatively alleged in his first
plea that the value of the
property in question had been included by reason of a mistake in the
construction of the Act. But the
plea goes further and it is necessary that it
should be set out in full: - "The defendant by Raymond James McKay his
attorney says
that to the extent to which property was wrongly included in the
dutiable estate of Vera Madeline Crowther deceased the said property
was so
included in the said dutiable estate by reason of the Commissioner's mistake
in the construction of the Stamp Duties Act,
1920, as amended, to wit - that
the property so included or the deceased's right thereto constituted 'property
of the deceased which
is
situate in New South Wales at his death . . . to
which any person becoming entitled under the will . . . of the deceased'
within
the meaning of s. 102(1)(a) of the said Act, and accordingly for the
purpose of the assessment and payment of death duty should be
deemed part of
the estate of the deceased and the defendant further says that no order of the
Court under s. 124 of the said Act
has been made authorizing or directing any
refund or repayment of duty". It will be seen that what this plea sought to do
was to
invoke the protection of the words in s. 140(1) - "but (except in
accordance with an order of the Court under section one hundred
and
twenty-four) no refund shall be made in respect of any property wrongly
included in the dutiable estate of any person whether
dying before or after
the passing of the Stamp Duties (Amendment) Act, 1931 by reason of any mistake
in the construction of this
Act". (at p386)
5. Upon the hearing of the appeal the contention was raised by the appellant that the right to enforce a claim for repayment by action or suit pursuant to sub-s. (3) of s. 140 was not in any way restricted by the latter part of sub-s. (1) which is quoted above. It was sought to found this argument upon the decisions in Commissioner of Stamp Duties (N.S.W.) v. Millar [1932] HCA 63; (1932) 48 CLR 618 and Ochberg v. Commissioner of Stamp Duties (1943) 43 SR (NSW) 189; 60 WN 114 where it was held that it was not necessary to establish, in order to enforce a claim for repayment of duty under the sub-section, that it had been proved to the satisfaction of the Commissioner that property had been wrongly included in the dutiable estate of a deceased person. But these decisions rest upon considerations which find no place in the present problem. Clearly enough, what may be enforced by action or suit is "the repayment of duty provided for in sub-section one" and the obligation to repay duty wrongly charged for which provision is made by that sub-section does not extend to cases where property has been wrongly included in the dutiable estate by reason of any mistake in the construction of the Act. Indeed, the sub-section explicitly provides that except in accordance with an order of the Court under s. 124, no refund shall be made in such a case. (at p387)
6. As far as the first plea is concerned it is, therefore, necessary to see whether it truly alleges that the inclusion of the assets in question in the dutiable estate of the deceased was by reason of any such mistake. In terms, of course, this is just what the opening phrase of the plea does. But the plea goes on to specify the alleged mistake and unless the mistake so specified appears as a mistake in the construction of the Act the plea must be regarded as demurrable. Nagle J., who was one of the majority in the Full Court, apparently saw some deficiencies in the plea and indicated that, since the facts were not in dispute and the parties had sought the opinion of the Court on questions which would have the effect of determining the action, he did not intend "to investigate fully the strict questions raised by the demurrer". But the difficulty involved in approaching the case in this way was that nothing was known of the facts relating to the alleged mistake other than those alleged in the plea and which must be taken to have been admitted for the purposes of the demurrer. Nevertheless, in the result he held that the demurrer should be overruled because the Commissioner had mistakenly read in s. 102(1) of the Stamp Duties Act the words "at his death" not to mean "an actual death but to include a fictional death after a notional prolongation of life by virtue of s. 29 of the Wills, Probate and Administration Act". This form of expression was taken from the reasons of Jacobs J. in Perpetual Trustee Co. (Ltd.) (Blyth Estate) v. Commissioner of Stamp Duties (1962) SR (NSW) 108, (1960) 78 WN 672 when, in discussing the proposition, then abandoned, that the assets in question in that case had been caught by s. 102(1) of the Act, the learned judge said: "In my view the argument that the property was brought to duty under s. 102(1) was properly abandoned. Section 102(1) could only apply if in that sub-section the words 'at his death', where used to describe the situation of the property, were read as referring not to the actual death but to a fictional death after a notional prolongation of life by virtue of s. 29 of the Wills, Probate and Administration Act" (1962) SR (NSW), at p 114; (1960) 78 WN, at p 676 . It may be observed in passing that the assessment complained of in this case issued more than five years before judgment was given in Blyth's Case (1962) SR (NSW) 108; (1960) 78 WN 672 and the observations quoted provide no ground for concluding that the respondent made any such mistake. It is, at least, as likely that the respondent thought that certain observations made in In re Scott (1901) 1 QB 228 were fully applicable. I mention, for instance, those of Stirling L.J. where he expresses the view that the effect of s. 33 of the Wills Act was to provide that in certain cases there should be "a posthumous addition to the property of a deceased person" (1901) 1 QB, at p 239 . But, however this may be, the reasons of both members of the Full Court who constituted the majority proceed by a process of rationalization to establish that the respondent must have made a mistake in the construction of the Act. I am by no means convinced that this must have been so or that any error other than a mistake as to the effect of s. 29 of the Wills, Probate and Administration Act was involved or, for that matter, that any attention was paid by the respondent to the words - "at his death" - in s. 102(1). But whatever the true explanation may have been the course which their Honours took resulted in a decision of the relevant fact without any evidence as to what had actually occurred. To my mind the question for decision was, and could only have been, whether the plea alleged facts which, if established, would show that the respondent had made a mistake in the construction of the Act and that it was by reason of that mistake that the assets in question were wrongly included in the dutiable estate of the deceased. To my mind the plea failed to do this. The mistake alleged is that "the property so included or the deceased's right thereto constituted property of the deceased" which was "situate in New South Wales at his death". But this allegation does not allege a mistake in the construction of the Act. The allegation, in terms, would be supported by proof that the respondent mistakenly thought that the effect of s. 29 of the Wills, Probate and Administration Act was to create a right, or rights, which, upon the true construction of s. 102(1), might be said to constitute property of the deceased which was so situate at her death. Indeed, the plea rather suggests that this was so in that it speaks of the property so included "or the deceased's right thereto". The allegation is consistant also with other possibilities such as a mistake in the application of as distinct from any mistake in the construction of the Act. In the circumstances it is, I think, idle to speculate as to the character of the mistake which, in fact, led to the erroneous inclusion of the assets in question in the deceased's estate. What that mistake was is, of course, a matter to be proved by evidence but that can be done only after issues of fact have been raised by a plea which unequivocally alleges that the respondent's mistake was a mistake in the construction of the Act. In my view the first plea fails to do this and it should be held to be demurrable. (at p389)
7. The second plea was based upon sub-s. (4) of s. 140 of the Stamp Duties Act which provides that "No such action or suit shall be brought after the expiration of three years from the date of payment". In terms, the plea is limited to a specified part of the amount claimed, namely 9,282 pounds 12s. 9d., but the plea goes on to show how this amount is made up. It represents a proportionate part of the first four instalments - totalling 12,400 pounds, though in the plea the total is said to be 12,500 pounds - alleged by the declaration to have been paid by the appellant after taking into account the refund of 4,378 pounds which the declaration admits was made by the respondent following the variation of the assessment in 1959. But the effect of the plea is to allege that all but 3,348 pounds 10s. 7d., being the difference between the sum of 9,282 pounds 12s. 9d. and the amount claimed, namely 12,631 pounds 3s. 4d., was paid more than three years before action brought. But admittedly, as alleged by the declaration, two sums totalling 4,509 pounds 2s. 7d. were paid within that period. The discrepancy may be accounted for, no doubt, by the fact that the respondent has sought to appropriate the amount refunded in 1959 proportionately to the six instalment payments including those paid within three years before the action was brought. In other words, the respondent has taken the view that he has already refunded approximately 1,160 pounds of the last two instalments. If this be correct, then the claim for repayment of those two instalments may be met by a plea of payment to that extent. But it is no answer to assert, as the plea distinctly does, that all but 3,348 pounds of the amount claimed was paid more than three years before action brought when at the same time the plea so plainly admits that the last two instalments totalling 4,509 pounds were paid within that period. (at p389)
8. It was also contended that the second plea was demurrable upon broader grounds. This contention proceeded as follows. The period after the expiration of which an action may not be brought to recover duty wrongly paid pursuant to sub-s. (3) of s. 140 is expressed by sub-s. (4) as "three years from the date of payment". The right of action which is given by the former sub-section is to enforce "the repayment of duty provided for in sub-section one" and the repayment provided for in that sub-section is the repayment of "the death duty paid in respect of" the property wrongly included in the dutiable estate. Literally, therefore, the expression in sub-s. (4) - "three years from the date of payment" - means three years from the date of the payment of the death duty paid in respect of the property wrongly included. But, it is pointed out, the section, no doubt, contemplates one assessment and one payment so that in such a case the whole of the duty assessed, including that wrongly charged, will be paid on the same date. But difficulties must arise when the amount due and payable pursuant to an assessment is discharged by a series of payments on account of the total amount and it is found after the expiration of three years from the earlier payments on account that property has been wrongly included in the dutiable estate. When in those circumstances, it is asked, was the duty "in respect of such property" paid? The duty as assessed constitutes a single debt and it is said that it would be impossible by the application of any known principle to identify any particular payment or payments on account with such duty. But in the present case no such difficulty arises for each and every one of the payments was on account of duty in respect of property wrongly included. Nevertheless, it is said, until the last payment had been made it could not be said that the date of payment had arrived. In this way the appellant seeks to assimilate "the date of payment" to the date upon which the claim for the duty wrongly charged is finally discharged. I find it impossible to accept this argument. True enough, difficulties may arise where an assessment which includes duty wrongly charged is paid by instalments but it is possible that they may be resolved by adopting the view that there is no over-payment of duty, and therefore no right to any repayment, until an amount in excess of the duty properly chargeable has been paid. However, no such difficulty presents itself in this case. Each payment was a payment of duty wrongly assessed and the appellant might at any time during the currency of the payments have enforced his right to a refund of the amount paid up to that time provided his action was brought within three years from the date of the payment or payments in respect of which a refund was claimed. To my mind, this is the effect of sub-s. (4) and the expression "date of payment" should be read as a reference to the date of any payment of duty wrongly charged and in respect of which the right to a refund is sought to be enforced. (at p391)
9. In my view the order of the Supreme Court should be set aside and judgment entered for the plaintiff on both demurrers. (at p391)
WINDEYER J. This is an appeal from a judgment upon demurrers to two pleas to the declaration. I need not repeat all the facts out of which the question has arisen, which are set out in the declaration. The cause of action was founded upon s. 140 of the Stamp Duties Act (N.S.W.), as amended, the plaintiff's claim being that, by virtue of that section, he is entitled to enforce by action a repayment by the Commissioner of Stamp Duties of death duty that he, as executor of the estate of Vera Madeline Crowther, deceased, was wrongly required to pay. The Commissioner makes two defences by the pleas in question. One is that the section precludes him making a refund as the over-payment of duty arose from his, the Commissioner's, wrongful inclusion of certain property in the dutiable estate of the deceased, and this he says came about by reason of a mistake he made in the construction of the Act. The other matter of defence is that, as to part of the moneys now sought to be recovered, the action was not brought until after the expiration of three years from the date of payment, and that therefore such part is, by reason of s. 140(3), not recoverable. As the questions arise upon demurrer, it is necessary to go at once to the pleadings. (at p391)
2. First, as to the declaration: the count is not framed in a simple form claiming a debt due to the plaintiff under the statute. For the purpose, doubtless, of obtaining admissions of facts necessary to raise a point of law, and probably to invite a demurrer, the count sets forth at length the events giving rise to the cause of action. It follows a pattern common in actions at law in New South Wales. That is to say, it consists of one sentence of enormous length without punctuation or paragraphs. This style persists, although the Common Law Procedure Act does not require it, because before that Act it was the ordinary form of pleadings, indeed of most legal instruments, deeds and statutes in particular. In 1877 Sir James Fitzjames Stephen said in introduction to his Digest of the Criminal Law, "Acts of Parliament are framed upon the model of deeds, and both deeds and statutes were originally drawn under the impression that it was necessary that the whole should form one sentence. It is only by virtue of the provision contained in 13 & 14 Vict. c. 21 s. 2 that a full stop can be inserted into an Act of Parliament at all". Parliament has now abandoned the habit. Pleaders persist in it. This fondness for old models does no harm if the style be consistently and carefully followed throughout. At the worst it looks inartistic to-day, and it is left to judges in contested cases, as this case shows, to set out separately the allegations of the declaration that together are said to constitute the cause of action. In this instance, however, the structure of the declaration is not harmonious. The count commences in common form. After the appropriate words that the plaintiff sues the defendant "for that", there appear three pages of allegations of facts. These are sometimes separated by writing the word "AND" in capital letters. The only uncertainty in this part of the count seems to be that it alleges that the plaintiff paid certain sums set out as "additional duty" claimed by the defendant; but goes on to refer to the defendant having amended his assessment and refunded to the plaintiff a sum "being duty and interest paid by the plaintiff in excess of duty and interest lawfully chargeable". There had been no allegation of any payments having been made by way of interest. (at p392)
3. Then, without even the warning of a capital letter, the count takes a sudden turn, at least in grammar, if not in substance. It goes on: "and the plaintiff says that the estate of Arthur John Annabel has been wrongly included by the defendant in the estate of the said deceased for the purposes of assessment of duty and that such inclusion was not by reason of any mistake by the defendant in the construction of the Stamp Duties Act, 1920 (as amended) and that the amount paid by the plaintiff to the defendant as aforesaid in respect of such duty is repayable by the defendant to the plaintiff in accordance with the said Act and the plaintiff has requested the defendant to refund the said sum but the defendant has refused so to do . . . ". How is that to be understood? The pleader obviously did not regard what is there said as an element in the cause of action, for all that preceded it was introduced by the words "sues the defendant for that"; and to say "for that . . ." and then "and the plaintiff says . . .", suggests that the essentials of the cause of action were fully stated first and that the second matter is additional. It may have been intended either as an additional averment of fact, in which case it could, if material, properly have a place in the count, or as a submission or conclusion of law, in which case strictly it would not. The latter reading seems the more correct. Moreover, if the statement that "such inclusion was not by reason of any mistake by the defendant in the construction of the Stamp Duties Act" be an averment of fact, the first plea would, it seems to me, be an argumentative and inapt traverse of it. The parties, it was said, treated this part of the declaration as an averment of fact, but as immaterial because it negatived what was properly a ground of defence. But does that really overcome the difficulty? There is no doubt that a relevant fact providing a defence, the onus of which is on the defendant, need not be negatived in the declaration. But if this be done, does not the plaintiff have to prove the negative if the allegation be traversed? However that may be, in this case no objection was taken to the form of the declaration. The demurrer is to the pleas. They are to be construed in the light of the facts stated in the declaration, which for this purpose must be taken to be admitted. (at p393)
4. So understood, the first plea is, I consider, demurrable. It is true that it commences with a categorical assertion of a mistake by the Commissioner in the construction of the Stamp Duties Act. But it does not allege in what way he was mistaken as to any matter of construction of that Act. What it does is to state that he made a mistake. And it is apparent that his mistake was as to the effect of s. 29 of the Wills, Probate and Administration Act, 1898-1954, not as to the construction of the Stamp Duties Act. It was contended that he had misconstrued s. 102(1)(a) of the Stamp Duties Act. That section makes the dutiable estate of a deceased person include all property which is situate in New South Wales at his death. The argument was that the Commissioner thought that, for some reason, s. 29 of the Wills, Probate and Administration Act - which in the circumstances to which it refers, prevents the lapse of a devise or bequest by enacting that it shall take effect as if the death of the devisee or legatee had happened immediately after the death of the testator - somehow had the effect of enlarging, for duty purposes, the estate of the deceased devisee or legatee. But all that the Stamp Duties Act in its relevant provision speaks of is "property" of the deceased "at his death". The meaning of those words is not in doubt. The Commissioner did not misunderstand them. He did not mistake their meaning. He only mistakenly thought that something was within their denotation when it was not. And he made that mistake by assuming that the Wills, Probate and Administration Act had the effect of making certain property answer to a description that it does not. I entirely agree with what Herron A.C.J. said on this aspect. The Commissioner's error, he said, "was not due to a misconstruction of s. 102(1)(a) or as to the meaning of property, but to a misunderstanding of the law relating to wills expressed in the Wills, Probate and Administration Act" (1962) 80 WN (NSW), at p 980 . (at p393)
5. As to the second plea: it also is, I think, demurrable. I agree with what my brother Taylor has written about it in his judgment, which I have had the advantage of reading. I do not accept the appellant's argument that the period of limitation that s. 140(3) enacts, runs only from the date of payment of the whole amount of duty assessed. When duty is paid by instalments, it seems to me that the three-year period must run from the date of each payment. What, on a proper accounting, is the amount that the Commissioner is now liable to pay cannot, I think, be ascertained precisely on the material before us. And we do not have to decide it. It seems from the declaration that there was some element of interest in the sums paid. But we have no precise details. It is not apparent on what basis the Commissioner could have considered he was entitled to interest except by a complete misunderstanding of the Wills, Probate and Administration Act. The provision for interest as from six months from the death of the deceased in s. 121 of the Stamp Duties Act could have had no application to the duty erroneously claimed in this case, for the father of the deceased (Mrs. Crowther) did not himself die until eighteen months after she did. There may be some difficulties in relying on s. 140 for the recovery of interest improperly claimed by the Commissioner. But no such point was raised, nor could it be on this demurrer. And quite obviously the Commissioner could not have interest on the basis that a debt was not paid when no debt was due. (at p394)
6. I would add that, as the declaration was founded on s. 140, we do not have to consider whether or not s. 124 and s. 140 of the Stamp Duties Act have entirely superseded other remedies that, in some cases, the common law would provide. The analogy of the condictio indebiti of the civil law to which the learned Chief Justice of New South Wales referred and the common law action for money had and received are thus beside the point. In Mason v. New South Wales [1959] HCA 5; (1959) 102 CLR 108 I stated what I consider to be the law in cases of unlawful exaction by colour of office. I do not think it has any application to the matter before us. I would allow the appeal. (at p394)
ORDER
Appeal allowed with costs. Order of the Supreme Court set aside and in lieu thereof order that judgment be entered for the plaintiff on both demurrers.
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