1923. February 7. March 7. Shand J. Lukin J. O'Sullivan J. [IN THE FULL COURT.] CITY OF BRISBANE v. COMMISSIONER OF STAMPS. Stamp duty" Conveyance on sale"-Compulsory taking by Local Section 13 of The City of Brisbane Improvement Act of 1916, provides: "The Council may, without complying with this Act, enter into an agreement to take any estate or interest of any person in any land required, and in such case the compensation to be paid may be either agreed upon or left to be determined under this Act ". Held, that an instrument, executed in pursuance of the provisions of s. 13, whereby land is transferred to the City of Brisbane in consideration of an amount of money agreed upon as the compensation therefor, is not liable to stamp duty as a conveyance on sale." SPECIAL CASE. This was a special case stated by the Commissioner of Stamp Duties for the opinion of the Supreme Court under the provisions of The Stamp Acts, 1894 to 1918. The Council of the City of Brisbane (hereinafer called "the Council") is a local authority under The Local Authorities Ad, 1902-1920. On and prior to 15th May, 1921, the Queensland Deposit Bank and Building Society Limited was the owner of the A lands, and on the said 15th May, 1922, notice of resumption of those lands was duly published by the Council under the provisions of The City of Brisbane Improvement Act of 1916, and they became absolutely vested in the Council under that Act, and on 17th October, 1922, the Society duly presented a claim for compensation under the Act. On or about 24th January, 1922, the Society purchased the B lands. On the eighth February, 1922, the Council sent a letter to the Under Secretary to the Home Secretary as follows:-I have the honour to inform you that the Council of the City of Brisbane, at a meeting held on the 6th February current, resolved that it was desirable and necessary under the provisions of The City of Brisbane Improvement Act of 1916, to take for street improvement purposes the whole of . (the B lands) The Council has set out upon a general scheme of city improvement . by the widening of the main arteries of traffic, and this resumption being part of that scheme, I am directed to make application for the approval of His Excellency the Governor in Council for the taking of the land aforesaid by the Council in the prescribed manner. as On 14th February, 1922, the Society, by its solicitors, sent a letter to the Under Secretary to the Chief Secretary which (inter alia) contained the following:-" Understanding by an account of the Council's meeting, in the press, of the Council's intention to resume (the B lands), our clients waited on his worship the Mayor, and in the course of discussion offered to treat with the Council for the sale to the Council of such an area of land. would enable the widening of Adelaide Street to a further width of 14 feet. His worship the Mayor advised, we understand, that the Council were not prepared to treat with our clients for the purchase of this 14 feet, but intended to compulsorily resume the whole area We desire, on behalf of our clients, to protest against the attempted exercise by the Council of the powers conferred on it under The City of Brisbane Improvement Act of 1916 in this manner, and we ask that approval of the Governor-in-Council be not given to the City Council taking such land, as provided by s. 3 of The City of Brisbane Improvement Act of 1916 We respectfully submit that should the Council make application for such approval that our clients be given an opportunity of being further heard before such application is dealt with." During and after the month of February, 1922, certain negotiations took place between the Council and the Society, and in consequence thereof no further action was taken with regard to either of the abovementioned letters, and the Council did not publish any notice of resumption under the said Act, but the Council acting under s. 13 of the said Act, without complying with the Act, entered into an agreement to take all the estate and interest of the Society in the B lands, and further agreed with the Society that the compensation to be paid for the B lands and also in settlement of the claim of the Society in respect of the A lands should be £33,000, which sum was paid by the Council to the Society. Of the sum of £33,000 £14,000 was paid. as compensation for the B lands. The Governor-in-Council has never approved, under s. 3 of The City of Brisbane Improvement Act, 1916, of the taking of the said lands by the Council. F.C. CITY OF BRISBANE V. COMMISSIONER OF STAMPS. F.C. CITY OF BRISBANE V. COMMISSIONER OF STAMPS. On 28th April, 1922, the Society executed an instrument, being a Memorandum of Transfer in Form W., which is the form prescribed by the Real Property Acts for the transfer of land under those Acts. In the Memorandum of Transfer it was stated that the Society, being the registered proprietor of the B lands, in consideration of the sum of £33,000 paid to it by the Council (and including compensation for the A lands resumed by the Council) and pursuant to the provisions of s. 13 of The City of Brisbane Improvement Act of 1916, transferred those lands to the Council. The Commissioner of Stamp Duties assessed the duty on the said instrument at the rate prescribed by The Stomp Act, 18941918, to be chargeable on a “conveyance on transfer on sale of property", and such duty amounted to the sum of £105. The Council was dissatisfied with the said assessment and contended that the said instrument was exempt from duty. The questions submitted for the decision of the Court were:— (1) Is the instrument chargeable with any and what duty under The Stamps Acts, 1894 to 1918. (2) How should the costs of this special case be borne and paid? Wassell and Douglas for the appellant: The City of Brisbane Improvement Act of 1916 allows the Council of the City to take land, to deprive owners of their interest in land required by the Council, in one of two ways: First, by formal notice of resumption, vide ss. 3 to 12; and second, by agreement under s. 13. It is admitted by the Commissioner that if the taking is done pursuant to ss. 3 to 12, stamp duty is not payable. In each case there is a dispossession from which the owners cannot escape; compensation must be paid, but compensation is different. from price. The exercise of a transaction made pursuant to s. 13 is not a bargain and sale. The instrument in this case is a conveyance, but not a conveyance on sale. The consideration payable was compensation money, not price. On the taking of land the rights of the owner changed to a claim for compensation under the Act-Spencer v. The Commonwealth (1)-which is determined by the Land Court in the manner stated in ss. 17 to 22, if the parties do not agree upon the amount. The Act does not demand a compulsory sale by the owner, but gives power to the Council to dispossess the owner on (1) 1907, 5 C.L R. 418. 66 The payment of compensation. The compensation is not a debt, instrument were a conveyance on sale," indicating Webb S.-G. and Byth for the respondent: The instrument transfers land to the Council in consideration of a sum of money, it is a conveyance on sale. The owner was forced to sell-the land could have been compulsorily taken under ss. 3 to 12; it was not so taken, but was taken by agreement under s. 13, and the instrument giving effect to the agreement attracts duty as a "conveyance on sale." The Stamp Acts, 1892-1918, s. 49. Commissioners of Inland Revenue v. Glasgow and South-Western Railway Co. (11), Attorney-General v. Seccombe (12), AttorneyGeneral v. Felixstowe Gas Light Co. (13). C.A.V. SHAND J. The facts of this case are fully set out in the special case and need not be recapitulated. Annexure A to the special (1) 1918, 25 C.L.R. 325, at p. 347. (2) 1921, St. R. Qd. 283. (3) 1878, 48 L.J.Q.B. 128, at p. 132. (4) 1887, 6 N.Z.L.R. 411. (5) 1915, 20 C.L.R. 531. (6) [1914] A.C. 765. (7) [1892] A.C. 150. (8) [1922] 1 A.C. 417, at p. 423. 532. (10) 1882, 22 Ch D. 143, at p. 149. (12) [1911] 2 K.B. 688, at p. 703. F.C. CITY OF BRISBANE V. COMMISSIONER OF STAMPS. Shand J. F.C. CITY OF BRISBANE V. OF STAMPS. Shand J. case, on the face of it, certainly appears to be a copy of a conveyance on sale effectuated by means of an ordinary COMMISSIONER memorandum of transfer in the form prescribed by the Real Property Acts. But, to quote the words of Lopes L.J., in Great Western Railway Company v. Commissioners of Inland Revenue (1), it is an established rule in cases under the Stamps Acts that the substance of the transaction is alone to be looked at in determining the question whether an instrument is liable to stamp duty." What, then, was the substance of the transaction to which the memorandum of transfer was intended to give Admittedly the memorandum was intended to transfer to the appellants certain lands taken by them under the provisions of s. 13 of The City of Brisbane Improvement Act of 1916, (hereinafter called the "Act".) By the Act the appellants are empowered, with the approval of the Governor-in-Council, to take, in pursuance of the provisions of the Act, any lands within the area of the City which they by resolution declare to be required by them. (See section 3). Before taking the land they are required to deposit in the Town Hall plans of the lands proposed to be taken, and a list of the names of the owners and occupiers of such lands. And the plans so deposited are to be open to public inspection. (See section 6.) A notice of resumption declaring that the lands have been taken by them, together with a list of the lands is, with the approval of the Governor-in-Council, to be published in the Gazette and in two newspapers circulating in the City, and is to be served on the owner of the lands or his agent. (See section 7). And upon the publication of such notice of resumption, the lands therein described are by force of the Act to become absolutely vested in the appellants for an estate in fee simple in possession, free from encumbrances of any description, and the estate, right and interest, whether legal or equitable, of every person entitled to the whole or any part of the lands, is to be deemed to have been converted into a claim for compensation under the Act. (See section 8). The appellants are required to deliver to the Registrar of Titles a copy of the notice of resumption within ninety days of its publication, and thereupon the Registrar of Titles is required to register the lands in their name and to issue a certificate of title therefor. (Section 12). Up to this point, then, the Act deals with the taking of land (1) [1894] 1 Q.B. 507, at P. 513. |