Benidorm Pty Ltd v Chief Commissioner of State Revenue

Supreme Court of NSW|2019-12-18|Before: Ward CJ

Background

The factual background to the dispute (which is not controversial) may be summarised as follows.
On 1 May 2007, Mr John Phillip Dawson, a solicitor acting on instruction from Mr Robinson (a resident of Guernsey, now deceased), caused Benidorm to be incorporated for the purpose of Benidorm being used as a vehicle for the purchase of the Macquarie Street Apartment. Mr Dawson was the sole director and shareholder in Benidorm.
On 16 May 2007, immediately before entry into the contract for the purchase of the Macquarie Street Apartment by Benidorm, a declaration of trust was executed by Mr Dawson (as the sole director and shareholder of Benidorm), by which Mr Dawson acknowledged that he held his shares in the capital of Benidorm (the Benidorm Shares) as a mere nominee for Mr Robinson absolutely (the First Nominee Declaration).
Benidorm then, on the same day, entered into the contract for the purchase of the Macquarie Street Apartment for the sum of $12,050,000 (the Contract). It is accepted by both parties that Mr Robinson was the "real" purchaser of the Macquarie Street Apartment, having provided the whole of the purchase price to Benidorm, the apparent purchaser. The Contract was duly stamped with ad valorem duty (the First Assessment).
On 31 May 2007, Benidorm (as the trustee) and Mr Robinson (as sole beneficiary) entered into a deed of trust (the First Declaration of Trust) whereby Benidorm declared that it had entered into the Contract for the purchase of the Macquarie Street Apartment at the request, and at the cost, of Mr Robinson and declared that it would hold the title to the Macquarie Street Apartment as trustee for Mr Robinson. The First Declaration of Trust, inter alia, provided as follows: THE TRUSTEE The Trustee hereby declares that the Trustee holds the property in trust for the Beneficiary and hereby agrees that the Trustee will at the request and cost of the Beneficiary convey the land to such person, firm or corporation at such time or times and in such manner and make such applications and execute all such instruments and do all acts and things and otherwise deal with the same as the Beneficiary shall at any time direct. THE BENEFICIARY The Beneficiary will at all times indemnify and keep indemnified the Trustee and in the case of the Company, its successors and assigns and in the case of a person, his legal representatives against all liabilities which the Trustee may incur by reason of the property being acquired and held in the name of the Trustee and in particular (without limiting the foregoing) will pay or cause to be paid the balance of the purchase moneys for the property, and stamp duty and costs for the purchase of the property and all rates, taxes and other outgoings applicable to the property which the Trustee its successors and assigns or his personal representatives may be or become liable to pay in respect of the property.

Relevant provisions of the Duties Act 1997 (NSW)

It is convenient here to set out the relevant provisions of the Duties Act in force at the time the Second Declaration of Trust was executed. At the outset, it is relevant to note that the object of the Duties Act is "to create and charge a number of duties" and that s 8 does so by way of a general charging provision over various dutiable transactions (not instruments) as set out in the section. It is not therefore necessary (or relevant) to look behind the dutiable transaction in question to ascertain why it occurred in a certain way or the motivation for the adoption by parties of a particular structure or course of action (see Commissioner of Stamp Duties (NSW) v Pendal Nominees Pty Ltd (1989) 167 CLR 1 (Pendal Nominees) at 15, per Mason CJ; at 19, per Brennan J (as his Honour then was)).
More specifically, s 8 of the Duties Act concerns the "imposition of duty on certain transactions concerning dutiable property" and charges duty on "a transfer of dutiable property" and certain specifically identified "transactions" including, relevantly at s 8(1)(b)(ii), "a declaration of trust over dutiable property". In terms, the provision is relevantly as follows: 8 Imposition of duty on certain transactions concerning dutiable property (1) This Chapter charges duty on: (a) a transfer of dutiable property, and (b) the following transactions: (i) an agreement for the sale or transfer of dutiable property, (ii) a declaration of trust over dutiable property, (iii) a surrender of an interest in land in New South Wales, (iv) a foreclosure of a mortgage over dutiable property, (v) a vesting of dutiable property by or as a consequence of an order of a court of this or another jurisdiction, whether inside or outside Australia, (vi) the enlargement of a term in land into a fee simple under section 134 of the Conveyancing Act 1919, (vii) a vesting of land in New South Wales by, or expressly authorised by, statute law of this or another jurisdiction, whether inside or outside Australia, (viii) a lease in respect of which a premium is paid or agreed to be paid. (c) (Repealed) […] (2) Such a transfer or transaction is a dutiable transaction for the purposes of this Act. […]
Section 8(3) of the Duties Act then defines "declaration of trust" (and both parties accept that this is an exhaustive definition) as follows: declaration of trust means any declaration (other than by a will or testamentary instrument) that any identified property vested or to be vested in the person making the declaration is or is to be held in trust for the person or persons, or the purpose or purposes, mentioned in the declaration although the beneficial owner of the property, or the person entitled to appoint the property, may not have joined in or assented to the declaration.
Pausing here, it is accepted by the parties that the statutory definition of a declaration of trust (at s 8(3)) is wider than what might be considered a declaration of trust at general law. Certainly, the statutory definition of "declaration of trust" is wide enough to cover a declaration of trust over property that has yet to come into existence (see Chief Commissioner of State Revenue v Platinum Investment Management Ltd (2011) 80 NSWLR 240; [2011] NSWCA 48 (Platinum), which affirmed duty charged on a declaration of trust over shares that did not exist at the time the relevant deed was executed, albeit under the previous revenue legislation).
For present purposes, the issue in contention is whether the definition is wide enough to cover what might be considered a mere acknowledgement (or confirmation) of the operation of the general or, as will be seen, statutory law (say, in the case of a resulting trust). As will be explained below, the Chief Commissioner says that the definition is so wide (otherwise, a real question would arise over the utility of specific provisions such as ss 18(6), 18(6A), 50, 50A, 54 and 55 Duties Act, each of which are directed at specific circumstances which give rise to concessional rates of duty). Benidorm says that it is not.
Also relevant to note (since they are relied upon by Benidorm if it does not succeed on its principal contention in this case) are various relieving provisions contained in the legislation. Section 18 of the Duties Act provides, relevantly, as follows: 18 No double duty (1) If a dutiable transaction is effected by more than one instrument, one instrument is to be stamped with the duty payable on the dutiable transaction and each other instrument is chargeable with duty of $50. Note. Instrument includes a written statement. […] (6) The duty chargeable on a declaration of trust that declares the same trusts as those upon and subject to which the same dutiable property was transferred to the person declaring the trust is $10 if ad valorem duty has been paid on the transfer. (6A) The duty chargeable on a declaration of trust is $50 if the Chief Commissioner is satisfied that: (a) the declaration of trust supersedes another declaration of trust in respect of which duty has been paid and declares the same trusts as were declared under the superseded declaration of trust, and (b) the beneficiary under the declaration of trust is the same as under the superseded declaration of trust, and (c) the dutiable property subject to the declaration of trust: (i) is wholly or substantially the same as the property that was the subject of the superseded declaration of trust at the time of the declaration of the superseded declaration of trust, or (ii) represents the proceeds of re-investment of property that was the subject of the superseded declaration of trust at the time of the declaration of the superseded declaration of trust, or (iii) is property to which both subparagraphs (i) and (ii) apply. […]
It is also relevant to note s 55, which provides that: 55 Property vested in an apparent purchaser (1) Duty of $50 is chargeable in respect of: (a) a declaration of trust made by an apparent purchaser in respect of identified dutiable property: (i) vested in the apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property, or (ii) to be vested in the apparent purchaser upon trust for the real purchaser, if the Chief Commissioner is satisfied that the money for the purchase of the dutiable property has been or will be provided by the real purchaser, or (b) a transfer of dutiable property from an apparent purchaser to the real purchaser if: (i) the dutiable property is property, or part of property, vested in the apparent purchaser upon trust for the real purchaser, and (ii) the real purchaser provided the money for the purchase of the dutiable property and for any improvements made to the dutiable property after the purchase. (1A) For the purposes of subsection (1), money provided by a person other than the real purchaser is taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser. (1B) This section applies whether or not there has been a change in the legal description of the dutiable property between the purchase of the property by the apparent purchaser and the transfer to the real purchaser. Note. For example, if the dutiable property is land, this section continues to apply if there is a change in the legal description of the dutiable property as a consequence of the subdivision of the land. (2) In this section, purchase includes an allotment.
Section 63 provides as follows: 63 Deceased estates (1) Duty of $50 is chargeable in respect of: (a) a transfer of dutiable property by the legal personal representative of a deceased person to a beneficiary, being: (i) a transfer made under and in conformity with the trusts contained in the will of the deceased person or arising on an intestacy, or (ii) a transfer of property the subject of a trust for sale contained in the will of the deceased person, or (iii) an appropriation of the property of the deceased person (as referred to in section 46 of the Trustee Act 1925) in or towards satisfaction of the beneficiary's entitlement under the trusts contained in the will of the deceased person or arising on intestacy, and (b) (Repealed) (c) a transmission application by a devisee who is also the sole legal personal representative, and (d) a declaration by an executor of a will under section 11 of the Trustee Act 1925 if the Chief Commissioner is satisfied that the declaration is consistent with the entitlements of beneficiaries under the trusts contained in the will. […]

Issues

The issues identified by Benidorm as here arising for consideration, which are broadly the same as those raised in the Stubbs Proceeding (see the plaintiff's appeal statement filed 20 June 2019, as refined in Benidorm's opening submissions) are as follows.
First, whether the Second Declaration of Trust constituted a "declaration of trust" within the meaning of the definition of that term in s 8(3) of the Duties Act (referred to by Benidorm as the "declaration of trust issue").
Second, whether, if the Second Declaration of Trust is a declaration of trust under s 8(3) of the Duties Act, it is a "transaction" within the meaning of s 8(1)(b)(ii) of the Duties Act which is liable to duty under s 8(1) of the Duties Act (referred to by Benidorm as the "transaction issue").
Third, whether, if the first two issues are answered in the affirmative, the Second Declaration of Trust is liable to nominal duty: 1. of $10.00 under s 18(6) of the Duties Act because it declares the same trust as the resulting trust under which Mr Robinson acquired the Macquarie Street Apartment on 16 May 2007; 2. of $10.00 under s 18(6) of the Duties Act because it declares the same trust as declared in the First Declaration of Trust; or 3. of $50.00 under s 18(6A) of the Duties Act because: it supersedes the First Declaration of Trust; it declares the same trusts as the First Declaration of Trust declared; the beneficiary in each trust is the same; and the trust property in each trust is the same (referred to by Benidorm as the "superseded trust issue").
Fourth, whether, if the Second Declaration of Trust is a declaration of trust under s 8(3) of the Duties Act and is a dutiable transaction within the meaning of s 8(1)(b)(ii) of the Duties Act which is otherwise liable to duty under s 8(1) of the Duties Act, the Second Declaration of Trust is liable only to nominal duty of $50.00 pursuant to s 63(1)(a)(i) of the Duties Act as a transfer made under and in conformity with the trusts of the Will (referred to by Benidorm as the "transfer under the Will issue").
As explained in due course, the complexity of the above framework of issues is perhaps more apparent than real.

Ownership of the Macquarie Street Apartment in consequence of the death of Mr Robinson

Benidorm's starting position is that (which is not disputed), prior to his death, Mr Robinson was the beneficial owner of both of the Benidorm Shares and the Macquarie Street Apartment, in each case pursuant to a resulting trust of which Mr Dawson was the trustee or nominee by reason of Mr Robinson having paid the purchase price for the Benidorm Shares (the issue price of the shares) and the Macquarie Street Apartment, respectively. In this regard, Benidorm relies on a statutory declaration made by Mr Dawson on 9 June 2015. The respective resulting trusts are referred to by Benidorm as the Shares Resulting Trust and the Apartment Resulting Trust.
Benidorm says that the Shares Resulting Trust arose by operation of law but is evidenced by the First Nominee Declaration. It is said that, to that extent, the Shares Resulting Trust became an express trust in consequence of it having been confirmed in writing. Similarly, it is said that, although the Apartment Resulting Trust arises by operation of law, it is evidenced by and was converted into an express trust by the First Declaration of Trust (and, hence, that, to that extent, the Apartment Resulting Trust is now an express trust in consequence of it having been confirmed in writing).
Benidorm says that the Shares Resulting Trust and the Apartment Resulting Trust are bare trusts because there are no active trust duties on the part of the trustee (Benidorm), apart from the obligation to preserve the trust property and transfer it to the beneficiary when required by the beneficiary (referring to the First Nominee Declaration at [1] and [2] and the First Declaration of Trust at [1]); and therefore that it holds the trust property without any beneficial interest therein (other than that existing by reason of the trustee's office and title as trustee and without any further trust duty to perform, except to convey the relevant property upon demand to the beneficiary or as directed by him or her). It is submitted that, as a result of the two resulting trusts being bare trusts, the beneficiary of each of those trusts (at all material times until his death, being Mr Robinson) has a vested indefeasible and absolute entitlement in the trust property (namely, the Benidorm Shares and the Macquarie Street Apartment).
Upon Mr Robinson's death, his beneficial interest in the Benidorm Shares and the Macquarie Street Apartment pursuant to the two resulting trusts formed part of his real and personal estate.
Benidorm notes that s 44 of the Probate and Administration Act 1898 (NSW) (the Probate Act) provides that, upon the grant of probate of the will of the estate of any person dying after the passing of the Probate Act, all real and personal estate which any such person dies seised or possessed of, or entitled to, in New South Wales shall, as from the death of such person, pass to and become vested in the executor to whom probate has been granted. Benidorm further notes that s 44 of the Probate Act operates retrospectively so that, upon the granting of probate to an executor, the deceased's property vests in the executor as from the death of such person.
Benidorm says that s 44 of the Probate Act therefore operates to cause the executor to whom probate is granted to hold the whole of the legal estate in the property of the deceased. It says that this statutory vesting in the executor (Mr Stubbs) of all of the legal and equitable estate of Mr Robinson as the testator included the beneficial interest in the Macquarie Street Apartment held by Mr Robinson under the terms of the trust over the Macquarie Street Apartment (the Apartment Trust) at the date of his death.
Thus, Benidorm submits that, by the operation of s 44 of the Probate Act, upon the date of the grant of probate (but taking effect retrospectively to the date of death of the deceased) the whole of the real and personal estate of Mr Robinson vested in Mr Stubbs as executor and Mr Stubbs therefore held a proprietary interest in the real and personal estate of the late Mr Robinson, as his legal personal representative, as from 13 September 2013. That real and personal estate of course included Mr Robinson's beneficial interest in the Benidorm Shares and the Macquarie Street Apartment.
Thus, by reason of s 44 of the Probate Act, it is said that: the beneficial interest which Mr Robinson held in the Benidorm Shares pursuant to the terms of the Shares Resulting Trust and the beneficial interest which Mr Robinson held in the Macquarie Street Apartment pursuant to the terms of the Apartment Resulting Trust and Apartment Express Trust each vested in Mr Stubbs as from 13 September 2013 as the executor of the Will.
Benidorm next points to s 47 of the Probate Act which provides that the real estate of every deceased person devising it by will shall be held by the executor according to the trusts and dispositions in the will; and that s 47 is engaged on death of the deceased.
It is submitted by Benidorm that the combined operation of ss 44 and 47 of the Probate Act is that, on the instant of the death of Mr Robinson, the beneficial interest which he held at the date of his death in the Macquarie Street Apartment (but not the legal interest) passed to Mr Stubbs: first, as sole executor under s 44 of the Probate Act; and, second, in the same instant, as sole beneficiary under s 47 of the Probate Act (because s 47 requires the vesting that occurs under s 44 take effect subject to the terms of existing trusts declared by the First Nominee Declaration and the First Declaration of Trust), so that those express trusts relating to the Macquarie Street Apartment ceased to inure for the benefit of Mr Robinson and, henceforth, following his death, they inured for the benefit of Mr Stubbs as the sole beneficiary of the Will.
Therefore, it is submitted by Benidorm that, as from 13 September 2013: Mr Dawson held the Benidorm Shares on an express trust for Mr Stubbs (in lieu of Mr Robinson) pursuant to the First Nominee Declaration; and Benidorm held the Macquarie Street Apartment on an express trust for Mr Stubbs (in lieu of Mr Robinson) pursuant to the First Declaration of Trust. It is said that Mr Stubbs was the beneficiary of the Shares Resulting Trust and also the beneficiary of the Apartment Resulting Trust as from 13 September 2013.
Benidorm argues that, by reason of these facts, no other instrument was either necessary or effective, under the principles of trust law on the creation of express trusts, to vest a beneficial interest in the Benidorm Shares or in the Macquarie Street Apartment in Mr Stubbs as executor; those interests already being so vested in Mr Stubbs as the sole executor (pursuant to s 44 of the Probate Act) and as the sole beneficiary (pursuant to s 47 of the Probate Act) of the Will of Mr Robinson.
It is thus said that, at the time of execution of the Second Nominee Declaration on 29 January 2015, the Benidorm Shares were already held by Mr Dawson upon the trust evidenced by the First Nominee Declaration for Mr Stubbs because the beneficial interest of the late Mr Robinson in the Benidorm Shares was then vested in Mr Stubbs pursuant to ss 44 and 47 of the Probate Act, the vesting having occurred on 13 September 2013.
Accordingly, Benidorm's position is that it was not possible for Mr Dawson to declare an effective further trust over the Benidorm Shares for Mr Stubbs on 29 January 2015, or to "re-declare" the very same trust, because Mr Dawson already held the Benidorm Shares on trust for Mr Stubbs as executor of the Will as from 13 September 2013; and hence there was no available dutiable property which could become the subject of a further (or a re-declared) declaration of trust made by anyone in respect of the Benidorm Shares. Benidorm says that any document executed after the First Declaration of Trust could operate as nothing more than an acknowledgement or confirmation of the original declaration of trust creating the trust and of the requisite trust obligations to bind the trustee to hold the Macquarie Street Apartment upon trust for Mr Robinson, in the first instance, and subsequently, for the benefit of the sole beneficiary of his Will, Mr Stubbs.
In other words, it is said that the beneficial interest in the Benidorm Shares was, on 29 January 2015, already vested in the person in favour of whom the Second Declaration of Trust was expressed to operate (namely, Mr Stubbs) and, at best, all that the Second Nominee Declaration could do was formally to record (in a manner which could have no stamp duty consequences) the historical fact that the beneficial interest of the late Mr Robinson in the Benidorm Shares had already vested in Mr Stubbs as the sole executor of the Will on 13 September 2013. Benidorm thus submits that the Second Nominee Declaration had no possible work to do and, to the extent that it purported to confirm the trust over the property which is the subject of the shares resulting trust, namely, the Benidorm Shares, it was invalid and cannot create any possible liability to ad valorem duty.
To similar effect, Benidorm relies on the fact that the Macquarie Street Apartment was, at the time of the Second Declaration of Trust (that is, 29 January 2015), already held by Benidorm upon the trust evidenced by the First Declaration of Trust for Mr Stubbs (because the beneficial interest of Mr Robinson in the Macquarie Street Apartment was vested then in Mr Stubbs pursuant to ss 44 and 47 of the Probate Act in the two capacities he then held, such vesting having occurred on 13 September 2013).
Again, Benidorm argues that it was not possible, as a matter of equitable doctrine, for Benidorm to declare an effective trust over the Macquarie Street Apartment on 29 January 2015. Benidorm says that, as at 29 January 2015, Benidorm already held the Macquarie Street Apartment on a fixed trust for Mr Stubbs as sole executor of Mr Robinson's estate as and from 13 September 2013, as trustee of the trust under which Mr Stubbs (as sole beneficiary) held a vested and indefeasible interest in the Macquarie Street Apartment, being an interest which would vest in possession the moment title to it is transferred to him by the trustee, Benidorm.
Again, Benidorm argues that the Macquarie Street Apartment was already vested in the person in respect of whom the Second Declaration of Trust was expressed to operate (namely, Mr Stubbs) as at 29 January 2015; and that, at best, all that the Second Declaration of Trust could do was record the historical fact that the beneficial interest which the late Mr Robinson held in the Macquarie Street Apartment had already vested in Mr Stubbs as the sole executor of the Will on 13 September 2013.
Thus, Benidorm says that the Second Declaration of Trust had no work to do as a matter of law, apart from confirming the original declaration of trust made in the First Declaration of Trust and says that, to the extent that it purported to acknowledge or confirm an existing trust over the property which is the subject of the Apartment Resulting Trust (i.e., the Macquarie Street Apartment), it was of no effect as a trust instrument and cannot support any charge to ad valorem duty under the Duties Act.
Benidorm argues that the only person who could validly deal with the beneficial interest in the Benidorm Shares and the beneficial interest in the Macquarie Street Apartment as from 13 September 2013 was Mr Stubbs, he being the only person in whom the beneficial interest in the Benidorm Shares and the beneficial interest in the Macquarie Street Apartment is, and has at all material times, been vested as the legal personal representative of the estate of the late Mr Robinson. It is said that any dealing by another person in relation to real and personal property of the late Mr Robinson, including the beneficial interest in the Benidorm Shares and the beneficial interest in the Macquarie Street Apartment is, therefore, invalid and of no effect.
Benidorm points out that Mr Stubbs, as the legal personal representative of Mr Robinson, was required to deal with the late Mr Robinson's interest in the Benidorm Shares and the beneficial interest in the Macquarie Street Apartment in accordance with the terms of the Will. It is noted that Mr Stubbs is also the sole beneficiary named in the Will. Therefore, it is said that Mr Stubbs, as the executor of the Will, is required to transfer Mr Robinson's beneficial interest in the Benidorm Shares and in the Macquarie Street Apartment to himself (Mr Stubbs) as the sole beneficiary of the Will (by a transmission application made under the Real Property Act 1900 (NSW) and a share transfer form made under the Corporations Act 2001 (Cth) and the constitution of Benidorm).
It is also noted that Mr Stubbs is the only person who has the legal capacity to transfer the late Mr Robinson's interest in the Benidorm Shares and the Macquarie Street Apartment to himself as the sole beneficiary of the Will (whether as a bare trustee of the Benidorm Shares or as the sole director of the corporate trustee, Benidorm, of the Apartment Resulting Trust and the Apartment Express Trust). Benidorm points out that Mr Dawson had no legal capacity to transfer the late Mr Robinson's beneficial interest in the Benidorm Shares or in the Macquarie Street Apartment to Mr Stubbs.

The "declaration of trust issue" under s 8(3) of the Duties Act

Section 8(3) of the Duties Act has been set out above. Benidorm argues that the critical document in this case is the Second Declaration of Trust; a standard form declaration of trust in substantially the same terms as the First Declaration of Trust, which created the express trust over the Macquarie Street Apartment following the creation of the Apartment Resulting Trust at the time of acquisition of the Macquarie Street Apartment by Benidorm in 2007.
Benidorm maintains that there can be no issue that the Second Declaration of Trust is a declaration, nor that property in the Macquarie Street Apartment was "vested" in the declarant, Benidorm. It is noted that Mr Stubbs joined in or assented to the declaration made in the Second Declaration of Trust, he being a party to the Second Declaration of Trust and having executed it.
Benidorm says that a critical element in the definition of a "declaration of trust" in s 8(3) of the Duties Act (which it maintains is not satisfied in the present case) is the requirement that the declaration operates to vest the beneficial estate in the property in such a way as to create a trust, that is, a new trust, over the property for the benefit of the beneficial owner by the declarant as the trustee of the trust property. It is said that this is because, in the present case, Benidorm already held the Macquarie Street Apartment upon trust for the benefit of Mr Stubbs in consequence of the creation of the trust in favour of Mr Robinson by the First Declaration of Trust in May 2007 and, upon his death, by the operation of s 44 of the Probate Act to vest a beneficial interest in the Macquarie Street Apartment in Mr Stubbs as sole executor, and subsequently, as sole beneficiary, of the Will.
In this regard, Benidorm identifies the following difficulties with the approach adopted by the Chief Commissioner on this question in the Objection Decision.
First, Benidorm says that although the Second Declaration of Trust refers to the Macquarie Street Apartment as the trust property in Recital A, it refers to the beneficial interest in the Trust as a further category of trust property in Recital D. Further, it is noted that the subject matter of the Second Declaration of Trust is the beneficial interest of the original beneficiary referred to in Recital D rather than the legal and beneficial estate in the Macquarie Street Apartment, which is referred to in Recital A. Benidorm says that this conclusion follows because the legal and beneficial estate in the Macquarie Street Apartment ceased to exist as one concept of property on 31 May 2007 when the original express trust was declared in the deed (the First Declaration of Trust) declaring the Apartment Express Trust, which confirmed the antecedent separation of the legal and beneficial interests in the Macquarie Street Apartment that had arisen on its purchase under the Apartment Resulting Trust.
Second, Benidorm says that the Second Declaration of Trust expressly acknowledges that the vesting of the beneficial interest in the Macquarie Street Apartment in the new beneficiary had already occurred by operation of law under s 44 of the Probate Act upon the death of the original beneficiary (13 September 2013) more than one year before the Second Declaration of Trust was made (in consequence of, first, the death of the original beneficiary, second, the grant of probate of the Will of the original beneficiary, and third, its terms). Reference is made to recitals B and C (and D) of the Second Declaration of Trust, as being relevant for the purposes of interpreting the Second Declaration of Trust (albeit not operative for the purposes of creating trust obligations on the trustee, Benidorm).
Benidorm argues that the Second Declaration of Trust is a mere acknowledgement of the continued operation of a trust created eight years earlier, notwithstanding the change in the identity of the beneficiary of the Trust in consequence of the death of the Original Beneficiary and the succeeding of the new beneficiary to the estate of the original beneficiary under the Will of the original beneficiary, including a beneficial interest of the original beneficiary in the Macquarie Street Apartment under the original trust deed. Benidorm says that this is not the re-declaration of the (same) trust over the Macquarie Street Apartment after the death of the original beneficiary (notwithstanding what it says is the "superfluous addition" of the words "AND DECLARED" after "HEREBY ACKNOWLEDGED" in the heading to the operative provisions of the Second Declaration of Trust). Benidorm maintains that the Second Declaration of Trust merely acknowledges what s 8(1)(b)(vii) of the Duties Act recognises (and that any liability to duty imposed by s 8(1)(b)(vii) is negated by the exemption from duty created by s 65(12) of the Duties Act).
Insofar as the Chief Commissioner relies on the decision in Platinum (see below), Benidorm says that this decision is distinguishable on its facts (being a "future vesting" case accommodated by the second limb of s 8(3) of the Duties Act) and, in any event, Benidorm says that it does not stand for the proposition contended for by the Chief Commissioner. Benidorm says that the second limb of s 8(3) requires a vesting of trust property at general law in the future when the identified trust property as described in the relevant instrument comes into existence (referring to Platinum at [11]-[14], per Campbell JA; and at [104]-[110], per Handley AJA) but that in the present case, no beneficial interest in the Macquarie Street Apartment was, nor could ever be, vested in Mr Stubbs by Benidorm because Benidorm never held a beneficial interest in it (since, from the date of its acquisition in 2007, in consequence of the Apartment Resulting Trust, the beneficial interest resided at all times in the real purchaser, Mr Robinson). It is said that nothing, in the sense of a proprietary interest in the Macquarie Street Apartment, vested in Mr Stubbs at the date of the Second Declaration of Trust and, equally, nothing of a proprietary nature ever vested, nor could have ever vested at some future time, under that instrument.
Insofar as the Chief Commissioner relies on the decision in this Court of Toohey's Ltd v Commissioner of Stamp Duties (1960) 60 SR (NSW) 539 (Tooheys (SC)), Benidorm says it too is distinguishable on its facts. It is noted that in Tooheys (SC) it was held that the words "declaration of trust" in the former definition extended to cases where property was not yet vested in the trustee and also to cases where no presently operative trust is declared (that is, where a future trust is being declared) (see at 545-546 per Walsh, Owen and Clancy JJ). Benidorm says that, accordingly, the statements of principle in Tooheys (SC) can be of no present relevance and the decision says nothing about the existence of, or rationale for, a liability to duty for an instrument which creates no new trust, such as the present case.
Insofar as the Chief Commissioner relies on Pendal Nominees, Benidorm says it too is distinguishable from the present case. It says that is so for three reasons. First, on the basis that the present case is not one where property is "to be vested"; rather, the Macquarie Street Apartment was vested beneficially in Mr Robinson from its acquisition by Benidorm in 2007 and, as from Mr Robinson's date of death, in Mr Stubbs under the Will.
Second, that the present case is not one where a question about the intention to create a trust in the future is involved; rather, at the time when the relevant instruments were signed (namely, 29 January 2015), there was already dutiable property vested in a trustee which was held on trust for a beneficiary, so the new instruments had no work to do (apart from confirming, or acknowledging, the continuing existence of the trust in each case). Thus it is said that Pendal Nominees can have no possible relevance to the present case.
Third, Benidorm argues that Pendal Nominees is not authority for the proposition that an instrument which creates no new trust may nonetheless be charged with duty under s 8(1)(b)(ii) of the Duties Act "if it meets the statutory description of the instrument". In this regard, Benidorm notes that in Pendal Nominees, the relevant legislation was the Stamp Duties Act 1920 (NSW) (the 1920 Act), which imposed duty on instruments and not upon transactions, whereas the Duties Act imposes duty only on transactions and not on instruments. Benidorm argues that in the present case, there is no dutiable transaction that can give rise to duty. As noted above, it says that on the date of the Second Nominee Declaration and the Second Declaration of Trust (namely, 29 January 2015), Mr Dawson and Benidorm respectively held the property in those documents on trust for Mr Robinson and then, on his death, on trust for Mr Stubbs and had done so since 13 September 2013. It is said that it was therefore not possible for those instruments to effect "a dutiable transaction", as is required by s 8 of the Duties Act, when read in the light of s 9 of the Duties Act.
Benidorm points to authority for the proposition that a legally ineffective instrument cannot be subject to a liability for stamp duty, namely, Commissioner of Stamp Duties (Queensland) v Hopkins (1945) 71 CLR 351; [1945] HCA 14 (Hopkins), where Latham CJ said (at 360) that: It is true that, as has often been said, the Stamp Duty Acts impose duties upon instruments and not upon transactions. It is obvious that you can stick a stamp or impress a stamp upon an instrument, but not upon a transaction. But, in order to determine whether an instrument is dutiable, it is nevertheless necessary to ascertain the legal operation of the instrument, i.e., to determine the nature of the transaction which it accomplishes. Thus for example, if a person purported to make a conveyance or settlement of land in which he had no interest whatever, the instrument would not be dutiable as a conveyance or settlement because it would not produce any legal effect whatever in relation to the property with which it purported to deal: see Rich ACJ in Wedge v Acting Comptroller of Stamps (Vict.) (1941) 64 CLR 75, p. 79; Kent v Commissioner of Stamps (1927) QSR 398, p. 408; Alpe, Law of Stamp Duties, 19th ed. (1929), p. 249: "A settlement must effect a disposition of property"; Massereene v Commissioners of Inland Revenue (1900) 2 LR. 138. [Emphasis as per Benidorm's submissions]
Benidorm also places weight on the statement of principle by Rich ACJ in Wedge v Acting Comptroller of Stamps (Victoria) (1941) 64 CLR 75; [1941] HCA 1 (Wedge) at 79 (which was cited in Hopkins as extracted above) as support for the proposition by Benidorm that the relevant instruments in this case (the Second Nominee Declaration and the Second Declaration of Trust) are both legally ineffective instruments, that is, that they could not possibly attract any liability to duty because they achieve no result in trust law either at the date of the relevant instrument or at any future date. Rich ACJ stated: The subject instrument contains no disposition or agreement to dispose of property belonging to the appellant but is merely an acknowledgement or recognition that he is not the absolute owner of the property comprised in the instrument and preserves other trusts or rights affecting it. No new beneficial interest is created in favour of the appellant or anybody else, and the property remains subject to the same trusts as it did before the instrument was executed.
It is noted that, on that basis, the High Court in Wedge set aside the decision of the Full Court of the Supreme Court of Victoria confirming the assessment of ad valorem duty on the instrument in question, which did no more than declare trusts which had already been validly created in the Will of the appellant's late father.
Benidorm argues that the outcome of the facts in Wedge is squarely on all fours with the facts in the present case. It says that Mr Dawson has done no more than confirm that he holds his shares in Benidorm for the benefit of Mr Stubbs and that Benidorm holds the title to the Macquarie Street Apartment on trust for Mr Stubbs consistently with the original first declarations earlier made by them; and that the second tranche of documents purport to achieve what ss 44 and 47 of the Probate Act by their own force had already achieved at the instant of Mr Robinson's death two years earlier on 13 September 2013 (although, as the evidence stands, Mr Dawson was relevantly unaware of that result of the automatic operation of the Probate Act).
It is submitted that, in the present case, the documents which the defendant has assessed to duty do not effect any valid "transactions" whatsoever (since, on the date of these latter two instruments, Mr Dawson and Benidorm respectively already held the property referred to in those instruments upon trust for Mr Stubbs absolutely).
As adverted to in the introduction to these reasons, in its submissions on the hearing before me Benidorm relied on the decision of the Western Australian Court of Appeal decision in Rojoda (WA). There, the Court of Appeal did not deal with the construction of s 11(1)(c) of the Duties Act 2008 (WA) (the Duties Act (WA)) (relevantly, the equivalent to s 8(3) of the Duties Act), the Commissioner having conceded in the Tribunal below that, if it was found that no new trust at general law was created by the deed in question (the 2013 Deed), then there was no "declaration of trust" within the meaning of s 11(1)(c) of the Duties Act (WA). Benidorm relied upon what was said by Buss P and Beech JA in Rojoda (WA) (at [31]) to the effect that the clause there in question, on its proper construction, merely acknowledged or recorded an existing obligation that had arisen under the general law and did not create new trusts in relation to the partnership properties conferring on the partners or their representatives a proprietary equitable interest in the properties that had not previously been held by the partners or their representatives.
Benidorm's contention was that no declaration of trust can arise at general law or under the statute (be it under the Western Australian or the New South Wales definitions of "declaration of trust") unless the instrument creates new beneficial interests in the property over which the putative trust has been declared. It is submitted that there could be no "transaction" embodied in the instrument if there is no creation of a new trust at general law at the time of the vesting of the trust property (the Macquarie Street Apartment) in the trustee (Benidorm), as the case law on the predecessor to s 8(3) of the 1920 Act requires, at the very least, for the characterisation of the instrument in question as a statutory "declaration of trust".
In written submissions for the present hearing, reference was made by Benidorm to an argument raised by the Chief Commissioner in his review of the assessment the subject of the earlier Stubbs Proceeding, as an aspect of his reassessment of the Second Declaration of Trust to Benidorm, which analyses the Second Declaration of Trust as a resettlement of the Trust over the Macquarie Street Apartment; so raising the proposition that the promise of a personal indemnity given by Mr Stubbs (as the new beneficiary of the trust) in favour of Benidorm (as the trustee of the trust) for the trust's liabilities, in addition to that which exists at general law, effected in cl 2 of the Second Declaration of Trust, constitutes a new trust because (quoting Griffiths CJ in Davidson (Collector of Imposts) v Chirnside (1908) 7 CLR 324 (Davidson v Chirnside) at 340-341; [1908] HCA 65): ... any instrument, which on its face purports to be the charter of future rights and obligations with respect to the property comprised in it, and which contain such limitations as are ordinarily contained in settlements, is a settlement or agreement to settle within the meaning of the Schedule [to the Stamps Act 1982 (Vic)], whether those rights could have been established aliunde or not. If a statement of already existing rights is added as a mere incident to the main operation of the instrument, as in the case of the appointment of a new trustee of an existing trust, this condition is not fulfilled, for in such a case the charter would still be the original settlement. [Emphasis as per Benidorm's submissions]
Benidorm contends that this "trust resettlement point" is flawed for four reasons. First, that the Chief Commissioner has not assessed the Second Declaration of Trust as a settlement. It is said that the Second Declaration of Trust could not be liable to duty as a settlement because there is no charge to duty in the Duties Act on a "settlement". It is said that, in order for a "settlement" to become liable to duty, it must be a "transfer of dutiable property" within the meaning of s 8(1)(a) of the Duties Act, but that there is no suggestion that the Second Declaration of Trust involves a transfer of dutiable property by Benidorm to Mr Stubbs (and that any such proposition would be untenable). Benidorm says that the Chief Commissioner is here seeking to rely upon a statement of principle relating to one category of trust transaction (a settlement) to support an assessment of duty for a different category of trust transaction (a declaration of trust); and points out that both categories of transaction are different in the Duties Act.
Second, that the passage italicised in the above quoted passage of Griffiths CJ's judgment is on all fours with the addition of a personal indemnity by Mr Stubbs to that which exists under equitable principles (assuming that cl 2 of the Second Declaration of Trust adds an additional indemnity by Mr Stubbs to that which Mr Robinson gave in cl 2 of the Custodian Agreement), as to which Benidorm relies on Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA 4 at [43]-[51], per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. Benidorm says that, assuming for present purposes there to have been an addition in 2015 of the personal indemnity by the beneficiary to the existing personal indemnity for nominal outgoings on the (unencumbered) Macquarie Street Apartment (rates and taxes) relative to the value of the Macquarie Street Apartment as trust property, this is a clear case of "a mere incident to the main operation of the instrument" (quoting Griffiths CJ in Davidson v Chirnside at 341).
Third, Benidorm refers to the decision of the Full Court of the Federal Court in 2011 in Federal Commissioner of Taxation v Clark (2011) 190 FCR 206; [2011] FCAFC 5 (Clark), where the majority (Edmonds J and Gordon J, her Honour then sitting in the Full Court of the Federal Court of Australia), rejecting a similar argument based on a waiver by the trustee of its general law right of indemnity (as distinct from, in the present case, the suggested addition of a right of indemnity), said (at [82]): [the trustee]'s waiver of its rights to be indemnified out of the CU Trust in respect of liabilities incurred by it in properly discharging its powers and duties as trustee, no more created a new trust estate than it terminated an existing one. At the very most, it may have extinguished a "beneficial interest" in the trust assets which [the trustee] had by virtue of that right: Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360 at 367 per Stephen, Mason, Aickin and Wilson JJ, but even that is not clear … there was no alteration to the terms of the trusts embodied in the Deed of Trust and no exclusion of the right of indemnity under that document by way of amendment. Even if [the trustee]'s beneficial interest in the trust assets was extinguished by the waiver, it did no more than extinguish an interest which ranked in priority to those of the beneficiaries; the beneficiaries' interests are not "encumbered" by the trustee's right': Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 at 247, and in some way altered by the extinguishment.
Fourth, Benidorm submits that the new indemnity point is factually unsound. Benidorm notes that the Apartment Resulting Trust and the Apartment Express Trust (created by the First Declaration of Trust) included a personal indemnity from the beneficiary from inception in each case; noting that the Custodian Agreement, which was made contemporaneously with the First Nominee Declaration and the First Declaration of Trust in 2007 on the same date as the Contract for the purchase of the Macquarie Street Apartment was entered into, includes what in substance is an identical personal indemnity from the beneficiary of the trust as that for which cl 2 of the Second Declaration of Trust provides. As adverted to above, Benidorm says that there is no evidence that the Custodian Agreement was ever cancelled or varied (on 29 January 2015 when the Second Declaration of Trust was entered into, or on any other date), and says that the Custodian Agreement, including the personal indemnity from the beneficiary provided to the trustee in cl 9, continued to operate when the parties entered into the Second Declaration of Trust some eight years later on 29 January 2015.
Thus, Benidorm maintains that there is no merit in the Chief Commissioner's trust resettlement point founded on the addition of the supposedly new personal indemnity given by Mr Stubbs as the beneficiary in cl 2 of the Second Declaration of Trust.

The "transaction issue" under s 8(1)(b)(ii) of the Duties Act

Assuming that the Second Declaration of Trust is found to be a "declaration of trust" within the meaning of s 8(3) of the Duties Act (contrary to Benidorm's submissions on that issue), Benidorm argues that the Second Declaration of Trust must nonetheless qualify as a "transaction" within the meaning of the chapeau to s 8(1)(b) of the Duties Act in order to charge duty on the Second Declaration of Trust as a "declaration of trust over dutiable property" under s 8(1)(b)(ii) of the Duties Act.
Benidorm starts here with the ordinary meaning of the word "transaction" (a term not defined in the Duties Act), noting relevantly that only a "transaction" which has the character of a "declaration of trust" is charged with duty under s 8(1)(b)(ii) of the Duties Act.
Benidorm says that "transaction" as ordinarily understood is "a comprehensive word which includes any dealings with property" (citing Barron (Inspector of Taxes) v Littman [1953] AC 96 (Barron v Littman) at 113 per Lord Nonnand); the operative requirements being: a "dealing" in "property". Benidorm says that the Macquarie Street Apartment is "property", noting that there is no issue that it is "dutiable property" within the meaning of s 11(1)(a) of the Duties Act but says that there is no "dealing" in the Macquarie Street Apartment, by operation of the Second Declaration of Trust, as the word "dealing" is ordinarily understood.
In that regard (though accepting in oral submissions the force of the caution sounded by Leeming JA, among others, as to the use to be made of dictionary definitions (T 7)) reference is made to the definition of "dealing" as "relations; trading: business dealings; conduct in relation to others; treatment: honest dealing" (see The Macquarie Dictionary, 3rd ed, 1997, Macquarie Library). Benidorm says that, in the context employed by Lord Normand in Barron v Littman at 113, "dealing" means "business dealings" in the sense of "trading" (i.e., that there is a requirement for some business dealing, in the sense of trading, in the Macquarie Street Apartment for the Second Declaration of Trust to constitute a "transaction" "over" the Macquarie Street Apartment or in respect of the Macquarie Street Apartment, to employ the language of s 8(1)(b)(ii) of the Duties Act).
Benidorm argues that this interpretation of "transaction" in s 8(1)(b) of the Duties Act is reinforced by the statutory purpose of the Duties Act as articulated by Emmett AJA in Winston-Smith v Chief Commissioner of State Revenue [2018] NSWSC 773 (Winston-Smith), a decision which involved a review of an application for relief from land rich duty charged by Ch 4 of the Duties Act which had been refused under s 163H of the Duties Act by the Chief Commissioner. In particular, it is noted that Emmett AJA said that (at [49]): The purpose of s 163H is to enable a Commissioner to relieve a taxpayer from duty consequences attaching to a relevant acquisition in circumstances where Ch 4 brings within its operation and acquisition that Ch 4 was not intended to capture. The primary purpose of the Duties Act is to tax transactions that result in a change, indirectly, in the underlying practical or economic interest in dutiable property, as distinct from the mere legal or equitable proprietary interest, by providing for duty to be charged on transactions that result in a change of such underlying practical or economic interest, as well as on direct transfers of dutiable property [sic]. The fundamental basis of taxation under the Duties Act, including Ch 4, is a change of the underlying practical or economic interest as well as direct beneficial ownership, whether legal or equitable. [Emphasis per Benidorm's submissions]
Benidorm submits that it is clear from the above passage that this is a statement of statutory purpose of the entire statute, not merely a statement of the statutory purpose of Ch 4 of the Duties Act, because no distinction is drawn between the statutory purpose of Ch 4, on the one hand, and the purpose of the Duties Act as a whole (which involves the imposition of taxation only upon transactions which effect a change of the underlying practical or economic interest in dutiable property), on the other. Benidorm places emphasis on the "the statute-wide status" of the characterisation by Emmett AJA of the Duties Act as a tax on transactions having economic substance and no longer a tax on instruments which lack any real economic substance; and, second, that that statute-wide statement includes Ch 4 (i.e., the land rich duty regime).
Benidorm says that the requirement for a "transaction" which results in a change of "the underlying practical or economic interest" in dutiable property and the requirement for "a change of the ... direct beneficial ownership, whether legal or equitable", in dutiable property means that the Second Declaration of Trust necessarily must effect a positive change in Mr Stubbs' practical or economic interest in the Macquarie Street Apartment in order to qualify the Second Declaration of Trust (assuming that it indeed is a "declaration of trust" within the meaning of s 8(3) of the Duties Act) as a "transaction" over dutiable property which is charged to duty by s 8(1)(b)(ii) of the Duties Act.
Benidorm emphasises that, at the date of the entry into the Deed constituting the Second Declaration of Trust by Benidorm, as trustee, and Mr Stubbs, as beneficiary, of the trust over the Macquarie Street Apartment, Benidorm already held the Macquarie Street Apartment upon a bare trust for the benefit of Mr Stubbs because of the combined operation of the original resulting trust, its confirmation by the First Declaration of Trust as an express trust, the death of Mr Robinson, the terms of Mr Robinson's Will, the grant of probate of the Will and the operation of ss 44 and/or 47 of the Probate Act for the reasons outlined earlier.
Benidorm says that the only practical result in trust law achieved by the Second Declaration of Trust was: first, to confirm Benidorm's liability as the trustee for all the debts and expenses of operating the trust; second, to confirm Benidorm's general law right of indemnity out of the Macquarie Street Apartment as trust property held as trustee; and third, to confirm the existence of a personal indemnity from Mr Stubbs for that liability owed by Benidorm as trustee, which he assumed from Mr Robinson as a term of his succession to Mr Robinson's beneficial interest in the Macquarie Street Apartment (as that was an express term of the Apartment Express Trust from its inception under cl 9 of the Custodian Agreement, all of which Mr Stubbs provided to Benidorm by cl 2 of the Deed).
It is said that, on the interpretation of the word "transaction" (as proffered above), the mere confirmation (or, even if that characterisation of cl 2 is not accepted, the mere addition) of a personal right of indemnity, without more, is not sufficient in trust law to constitute the Second Declaration of Trust a "transaction" in the relevant sense that is required in order to attract a charge to duty in s 8(1)(b) of the Duties Act.
Accordingly, Benidorm submits that even if (contrary to Benidorm's principal case) the Second Declaration of Trust is found to qualify as a "declaration of trust" within the meaning of s 8(3) of the Duties Act, it is not a "transaction" in respect of dutiable property because it is not a transaction constituted by "a declaration of trust over dutiable property" which is charged to duty under s 8(1)(b)(ii) of the Duties Act.

The "same trust issue" under either s 18(6) or 18(6A) of the Duties Act

Benidorm next relies upon s 18 of the Duties Act (that being a relieving provision to prevent double duty being charged on the same transaction). Benidorm contends that this is a double duty case (if the Principal Assessment which is under review is otherwise upheld) because the First Declaration of Trust was charged with duty, in respect of the trust over the Macquarie Street Apartment for the benefit of Mr Robinson, and the Second Declaration of Trust (according to the Chief Commissioner) has been charged with duty, in respect of the trust over the Macquarie Street Apartment for the benefit of Mr Stubbs, despite Mr Stubbs succeeding to Mr Robinson's beneficial interest in the Macquarie Street Apartment under the Will with the benefit of an exemption from duty under s 63(1)(a) of the Duties Act as a transfer of that beneficial interest made under s 8(1)(a) of the Duties Act "in conformity with the trusts contained in the will of the deceased [Mr Robinson]".
Benidorm notes that s 18 relieves a dutiable transaction from the charge to ad valorem duty by charging a specified nominal duty in various factual situations specified in the provision; and that it is only enlivened if the Second Declaration of Trust is otherwise charged with duty.
The first factual situation relied on by Benidorm is that contained in s 18(6) of the Duties Act. If s 18(6) is engaged then the duty charged on the Second Declaration of Trust is $10.00. The requirement in s 18(6) is that the Second Declaration of Trust "declares the same trusts as those upon and subject to which [the Macquarie Street Apartment] was transferred to the person declaring the trust [Benidorm]". The Macquarie Street Apartment was first transferred to Benidorm by the original vendor under the Apartment Resulting Trust. This transfer occurred before the first trust was confirmed by the First Declaration of Trust.
Insofar as the Chief Commissioner's position is that the trusts created by each of the Apartment Resulting Trust ("Trust (No 1)"), the First Declaration of Trust ("Trust (No 2)") and the Second Declaration of Trust ("Trust (No 3)") are not "the same" trusts, within the meaning of s 18(6) of the Duties Act (on the basis that the Chief Commissioner contends that the third trust over the Macquarie Street Apartment (that is, Trust (No 3)) is different to Trust (No 1) and Trust (No 2) because Trust (No 3) contains a personal indemnity from Mr Stubbs in favour of Benidorm); Benidorm says that there is no factual basis for the assertion that Trust (No 3) contains an additional personal indemnity to that which constitutes the terms of the trusts in Trust (No 1) and Trust (No 2). Benidorm maintains that Trust (No 1) and Trust (No 2) contain both the general law right of indemnity of Benidorm out of the trust property which is the Macquarie Street Apartment and also the same personal indemnity from the beneficiary that Trust (No 3) contains. Benidorm says that the only factual difference is that the identity of the beneficiary providing the personal indemnity is different.
Benidorm argues that cl 2 of the Second Declaration of Trust does no more than confirm Mr Stubbs' succession under the Will to that term of the Apartment Resulting Trust and Apartment Express Trust over the Macquarie Street Apartment created by the First Declaration of Trust that flows from his succession to the beneficial interest of the deceased in trust property of an express trust which includes cl 9 of the Custodian Agreement as one of its terms. Benidorm says that the personal indemnity given in cl 9 of the Custodian Agreement gives it a general right of indemnity, which every trustee of an express trust has (subject to the contrary terms of the trust instrument), as well as the beneficiary's personal indemnity from, and Benidorm has those parallel rights of indemnity under, all three trusts.
Benidorm maintains that the giving by Mr Stubbs of his personal indemnity to Benidorm in addition to that given by Mr Robinson, which remained alive and in force under cl 9 of the Custodian Agreement and which he assumed from Mr Robinson under the Will, "no more involves the creation of a new trust over the [Macquarie Street] Apartment than the waiver of the general law right of indemnity did in Clark".
It is noted that an express trust is complete when a trust obligation attaches to trust property requiring the trustee in whom the trust property is vested to hold the trust property on trust for a named beneficiary or a charitable purpose. Benidorm says that a new express trust is not created merely because an incidental aspect of a trust obligation is deleted (as occurred in Clark) or is confirmed (as occurred in this case with the confirmation of the original beneficiary's personal indemnity, or alternatively, if that characterisation is not upheld, then added to the existing personal indemnity in cl 9 of the Custodian Agreement by cl 2 of the Second Declaration of Trust).
Accordingly, assuming (contrary to Benidorm's cases under s 8(3) and under s 8(1)(b)(ii)) that the Second Declaration of Trust is found to be a "declaration of trust" over the Macquarie Street Apartment which qualifies as a "transaction" in respect of the Macquarie Street Apartment, Benidorm contends that it is only charged with duty of $10.00 under s 18(6) of the Duties Act.
Alternatively, Benidorm relies on s 18(6A) of the Duties Act, which charges duty of $50.00 where the Court is satisfied that the Second Declaration of Trust: first, supersedes the First Declaration of Trust; second, declares the same trusts as the First Declaration of Trust declared; third, involves the same beneficiary as the First Declaration of Trust involved; and, fourth, involves the same dutiable property as the First Declaration of Trust involved.
Benidorm understands there to be no issue as to the first and fourth of the above requirements (the superseding of the first trust and the same trust property being involved in each of the First Declaration of Trust and the Second Declaration of Trust, namely, the Macquarie Street Apartment). As to the second requirement (the same trust being created by each instrument), Benidorm says that it is answered in this case for the reasons outlined above in relation to the application of s 18(6) of the Duties Act. As to the third requirement (i.e., for the same beneficiary), Benidorm understands the Chief Commissioner's position to be that Mr Stubbs is not the "same" as Mr Robinson. In that regard, while accepting that (factually and literally) that proposition is correct, Benidorm argues that the requirement in s 18(6A) of "sameness" is not the same person but the same beneficiary (and says that the distinction is critical on the facts of this case).
Benidorm contends that s 18(6A) is to be interpreted purposively, involving a statutory purpose of avoiding double duty arising from a declaration of trust made to give effect to a gift in a will of a beneficial interest held in the trust property by the deceased. It is contended that if this statutory purpose is applied in this case then Mr Stubbs is the same beneficiary as Mr Robinson because Mr Stubbs has succeeded to the whole of Mr Robinson's estate in New South Wales.
On a purposive approach to statutory interpretation, and assuming "the same trust" argument that is maintained above for the purposes of s 18(6) of the Duties Act is upheld, Benidorm contends that the four elements for the nominal charge to duty of $50.00 on the Second Declaration of Trust specified in s 18(6A) of the Duties Act are here present.

The "transfer under the will issue" under s 63(1)(a)(i) of the Duties Act

Finally, Benidorm relies on s 63(1)(a)(i) of the Duties Act (but only in the event that its cases under ss 8(3), 8(1)(b)(ii), 18(6) and 18(6A) are not upheld). As excerpted above, s 63(1)(a)(i) charges duty of $50.00 upon: a transfer of dutiable property by the legal personal representative of the deceased person to a beneficiary being: (i) a transfer made under and in conformity with the trusts contained in the will of the deceased person.
Benidorm contends that the Second Declaration of Trust effected the transfer of Mr Robinson's beneficial interest in the Macquarie Street Apartment under the Trust over it (the Apartment Resulting Trust and the Apartment Express Trust which was created by the First Declaration of Trust).
Benidorm says that, because that beneficial interest is dutiable property (it is an interest in land in New South Wales within the meaning of s 11(1)(a) of the Duties Act), the Second Declaration of Trust satisfies the test of a "transfer of dutiable property" in the first limb of the chapeau to s 63(1)(a)(i) of the Duties Act. Benidorm contends that the transfer in question that is made under the Second Declaration of Trust is made by Mr Stubbs, in his capacity as executor of the Will, to himself, in his capacity as a sole beneficiary of the Will. It is said that so much follows because Mr Stubbs is a party to the Second Declaration of Trust and, by its terms, he has bound the trustee, Benidorm, which is also a party to the Deed embodying the Second Declaration of Trust, to hold the Macquarie Street Apartment henceforth upon trust for his benefit rather than upon trust for the benefit of Mr Robinson. Accordingly, Benidorm submits that the second limb of the chapeau to s 63(1)(a)(i) of the Duties Act is satisfied in this case.
Insofar as the Chief Commissioner takes issue with the second of those propositions, and contends that Benidorm (rather than Mr Stubbs) is the "transferor" of the beneficial interest in the Macquarie Street Apartment from Mr Robinson to Mr Stubbs which was effected by the Second Declaration of Trust, Benidorm argues that this approach is fundamentally flawed when one has regard to the fact that Benidorm never held a beneficial interest in the Macquarie Street Apartment from the moment of its acquisition by Benidorm, at the behest of and on behalf of Mr Robinson, and that Benidorm certainly could not have held the Macquarie Street Apartment beneficially at the date of the Second Declaration of Trust. It is said that Benidorm could never have held the Macquarie Street Apartment beneficially at any date because Benidorm acquired the Macquarie Street Apartment as apparent purchaser for Mr Robinson as its real purchaser (and points out, though without suggesting any estoppel would here arise, that the original purchase documents were stamped by the Chief Commissioner on that express basis).
Benidorm also notes that the First Declaration of Trust was stamped with nominal duty because it declared an express trust over the Macquarie Street Apartment which, from its original acquisition, was already held upon a resulting trust for the benefit of Mr Robinson by Benidorm. It says that there could not possibly have been a transfer of the beneficial interest in the Macquarie Street Apartment by Benidorm to Mr Stubbs effected by the Second Declaration of Trust because, in its capacity as an apparent purchaser, Benidorm never held (and nor could it have possibly held under principles of resulting trusts), the beneficial interest in the Macquarie Street Apartment from the start.
It is noted that the requirement of s 63(1)(a)(i) of the Duties Act is that the transfer is made in conformity with the trusts contained in the Will of the deceased person. Benidorm points to the fact that Mr Robinson gifted his entire estate to Mr Stubbs, which included Mr Robinson's beneficial interest in the Macquarie Street Apartment under each of the Apartment Resulting Trust and the Apartment Express Trust created by the First Declaration of Trust. It is said that the transfer of that beneficial interest from the late Mr Robinson to Mr Stubbs was made, accordingly, in conformity with the trusts in the Will written by Mr Robinson; and, in the result, the Second Declaration of Trust is chargeable with duty of $50.00 under s 63(1)(a)(i) of the Duties Act.

Chief Commissioner's submissions

The Chief Commissioner submits that: the Second Declaration of Trust falls within the statutory definition in s 8(3) of the Duties Act; none of the identified concessional provisions applies; and the decision to assess and impose ad valorem duty is correct and should be upheld.
The Chief Commissioner points to authorities for the proposition (with which Benidorm does not cavil) that the statutory definition of "declaration of trust" is wider than that at general law and also for the contention that it is not necessary for the declaration of trust to convey or settle the beneficial interest in the beneficiary (the latter proposition being one which Benidorm maintains is contrary to authority on the meaning of the statutory definition, contrary to the text of the definition and contrary to the interpretation of the predecessor to that definition given to it by the majority of the Court of Appeal in Chief Commissioner of Stamp Duties (NSW) v ISPT Pty Ltd (1998) 45 NSWLR 639 (ISPT) see below). In the Chief Commissioner's submission, a declaration of trust that merely confirms or acknowledges the position at general law is nonetheless dutiable (assuming it otherwise satisfied the statutory definition).
As to the authorities relied upon by the Chief Commissioner for the above propositions (to which Benidorm has responded in its submissions as referred to above), the Chief Commissioner refers, first, to the decision of the Full Court of this Court in Tooheys (SC) (the result in which was affirmed by the High Court in Tooheys Limited v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602; [1961] HCA 35 (Tooheys (HC)). In Tooheys (SC), the Court (constituted by Owen, Clancy and Walsh JJ) held that a deed entered into by the relevant company with trustees in order to establish a pension fund for its employees was a declaration of trust within the meaning of the 1920 Act, notwithstanding that, at the time that the deed was executed and presented to the Commissioner of Stamp Duties, no property or money had been vested in the trustees and no members had been admitted.
Second, the Chief Commissioner refers to Crowther v Commissioner of Stamp Duties (NSW) [1978] 1 NSWLR 82 (Crowther), where Sheppard J, then sitting in this Court, held that a declaration of trust in which it was acknowledged and declared that land was held on trust for a company which was not yet in existence when the contract for sale of the land was exchanged, but which had been incorporated by the time of completion of the purchase, fell within the description of "declaration of trust" under the 1920 Act (see at 88-89). His Honour considered that the legislature "intended to catch instruments which were no more than declaratory of an existing position".
Third, reference is made to DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431; [1982] HCA 14 (DKLR), where the High Court held that a declaration of trust executed by DKLR in respect of certain land prior to the memorandum of transfer to DKLR in respect of the land fell within the relevant definition. Mason J, as his Honour then was, said (at 454-455): In other circumstances the general rule might require us to narrow the category of instruments falling within par. (2), confining it to declarations effective on their execution to create trusts. But the express references in par. (2) of the statutory description to property "to be vested" and which "shall be held" make it clear that the operation of the paragraph cannot be so limited.
Brennan J (as his Honour then was) said (at 471-472): Instruments which have no legal operation as well as instruments which are effective declarations of trust are brought to charge by par. (2) if their terms answer the statutory description. It is not necessary to enquire as to the likelihood of the property becoming vested in the declarant, or as to the intentions or expectations of the declarant or of the person in whom the property is presently vested. It follows that an instrument which declares that property comprised in the instrument shall be held in trust by the declarant is chargeable, for unless the property comprised in the instrument is presently vested in the declarant, it must be property to be vested in him. Construing par. (2) in this way, the terms of the instant declaration answer the statutory description and the instrument is brought to charge accordingly. It is a curious, perhaps an unjust, consequence of this construction that duty is charged upon an instrument which is devoid of legal effect at the time when it is executed and which may fail in its intended purposes and so remain devoid of legal effect.
Fourth, the Chief Commissioner relies upon Pendal Nominees, to which I have referred above, where the question was whether a deed of sale by which the trustee of a unit trust agreed to purchase shares in a company (which shares were to be held by Pendal Nominees, a wholly owned subsidiary of the trustee, as nominee for the trustee) was assessable as a declaration of trust. The relevant provision of the deed provided that on completion share transfers in favour of Pendal Nominees were to be delivered and Pendal Nominees was to hold such shares as nominee for the trustee of the unit trust.
Section 3(b) of the 1920 Act provided (in materially the same terms as s 18(6) of the Duties Act) that "[a]ny such instrument as aforesaid by which ... the trusts declared are the same trusts as those upon or subject to which the same property was conveyed to the person declaring the trust by an instrument duly stamped with ad valorem duty under this Act ...".
The taxpayer had argued both at first instance and in the Court of Appeal that because the relevant part of the clause in the sale deed had no operative effect and did no more than articulate an obligation imposed by the general law, duty was not chargeable. In the High Court, the taxpayer argued that the clause was merely declaratory of the general law (see as summarised by Mason CJ at 8; 13). Mason CJ said (at 12-13) (with Brennan J, as his Honour then was, agreeing) that: In the present case, however, the common law proposition contended for could have relevance only indirectly, in so far as it relates to the question whether the second part of cl.1.4 is for stamp duty purposes "distinct" from the sale provision. It could not operate directly because par.(3)(b) (among other provisions) now extends over the field or part of the field covered by the suggested common law rule. Attention was not directed to this provision at first instance and the argument did not require consideration in the Court of Appeal. It must be concluded, as counsel for the respondents conceded before us, that the suggested rule could not operate in these circumstances without depriving par.(3)(b) of all meaning. It is therefore not necessary to decide whether the common law rule in fact exists or what may be its scope.
Mason CJ went on to hold (at 13) (Brennan and Toohey JJ agreeing) that: It is not necessary to consider whether the sale deed amounts to a declaration of trust in the ordinary sense of that expression, so long as it falls within the terms of the description of "Declaration of Trust" in the Second Schedule of the Act: D.K.L.R. Holding Co. (No. 2) Pty. Ltd. v. Commissioner of Stamp Duties (N.S.W.) (1982) 149 C.L.R. 431, at pp. 437, 454-455, 471-472.
Mason CJ said (at 19) that: While this may appear to some an arbitrary conclusion, given that a minor reorganization [sic] of the transaction or documentation may have produced a different result, the legislature has clearly created a wide ad valorem charging provision and some relatively narrow exceptions. In these circumstances, to extend the application of those exceptions on the basis of a supposed legislative policy against the imposition of double duty would not only undermine s.17(1), but would do considerable violence to the language employed under the heading "Declaration of Trust" and may have undesirable consequences for the interpretation of other parts of the legislation.
The Chief Commissioner says that, while the document under consideration in Pendal Nominees contained other covenants, so that it could not be said to be ineffective, that does not detract from the primacy of the statutory definition. It is noted that the similar observations to the above were echoed, albeit in a different statutory context, by Beaumont and Sackville JJ (Jenkinson J agreeing) in Walsh Bay Developments Pty Ltd v Commissioner of Taxation (Cth) (1995) 31 ATR 15 at 25.
Fifth, the Chief Commissioner refers to Platinum, where it was held that the relevant deed contained a declaration of trust liable for ad valorem duty on the value of the "Consideration Shares" to be allocated as part of the relevant transaction. Handley AJA there said (at [85]-[86] and [90]) that: The definition of declaration of trust includes instruments which will take effect when property is vested in the declarant. In such cases vesting can only occur, and the trusts can only take effect, when existing property becomes vested in the declarant and bound by the instrument. When these events must occur in the future there is no compelling reason for holding that the general language of the definition does not apply where the identified dutiable property must come into existence on or before that future vesting. The first limb of the definition ("vested ... in the person making the declaration") can only apply to property in existence when the instrument is first executed. The second limb ("to be vested") can only apply to property in existence when vesting occurs. The property to be vested must be identified when the instrument is first executed, but there is no requirement in terms that it then be in existence. … I am confirmed in my conclusion by Tooheys' case where ad valorem duty was payable although the trust property had not vested and did not exist when the instrument was first executed.
The Chief Commissioner argues that the above authorities demonstrate that it is not necessary to look behind the declaration of trust to determine whether there has been, or will be, a conveyance or settlement of property in the beneficiary as a result of the declaration; rather, all that is necessary is that the statutory definition (which, he says, is deliberately cast wide and unfettered), is satisfied.
I interpose here to note that, as to the above authorities, Benidorm says that, apart from Crowther, these are concerned with the futurity of vesting under the second limb of the predecessor definition to s 8(3) of "declaration of trust" - pointing to the references to "already completely constituted" in Tooheys (SC); to "to be vested" and "shall be held" in DKLR; and to "at the time when it is executed" in DKLR, and "when the instrument is first executed" in Platinum. As to Crowther, Benidorm maintains that the decision was wrongly decided and should not be followed. It is submitted that Sheppard J misconstrued the earlier decisions cited for the proposition that "the legislature intended to catch instruments which were no more than declaratory of an existing position" and erred in making the statement relied upon here by the Chief Commissioner. Benidorm submits that Crowther should not be followed by this Court. I return to this submission shortly.
The Chief Commissioner further maintains that the existence of specific and varied relieving provisions tends against a narrow construction of the defined expression "declaration of trust" in s 8(3) of the Duties Act (noting that Benidorm itself relies, in the alternative, on some of these exemptions: namely ss 18(6), 18(6A) and 63(1)(a)(ii) of the Duties Act; though the Chief Commissioner does not accept that those exceptions apply here).
It is submitted by the Chief Commissioner, by way of example, that if it were necessary for the declaration of trust to convey or settle the beneficial interest in the property in order to bring a transaction to duty, then the utility of s 55 of the Duties Act (which provides for a concessional rate of duty to be charged on a declaration of trust made by an apparent purchaser in respect of dutiable property vested in the apparent purchaser upon trust for the real purchaser who provided the money for the purchase) would be called into question. It is submitted that in the circumstances contemplated by s 55 of the Duties Act, it is obvious that the apparent purchaser already holds the property on a resulting trust for the real purchaser. In the Chief Commissioner's submission, an interpretation that avoids such a result is to be preferred (referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) (at [71]).
As to the submission that the existence of relieving provisions tends against a narrow construction of s 8(3) of the Duties Act, Benidorm submits that this involves a misconception about the principal charging provision in Ch 2 of the Duties Act (s 8) founded on a misunderstanding of the operative verb "vested" (which is the past tense of the transitive verb "to vest") and the equitable doctrine of resulting trusts.
To the extent that Benidorm relies on some general law proposition or principle that, in order to be chargeable to duty, a declaration of trust must do more than simply declare or confirm or acknowledge the position under the general law, the Chief Commissioner says that such proposition or principle has been repeatedly rejected (referring to Pendal Nominees per Mason CJ at 13 and Crowther at 88, following Tooheys (SC)). The Chief Commissioner says that it has been overtaken by the relieving provisions in the Duties Act, relevantly sections such as ss 18(6), 18(6A) and 55. It is submitted that if, as Benidorm contends, there must be a conveyance or settlement (or future conveyance or settlement) then these exemptions would have little and in some cases no work to do.
The Chief Commissioner says that his submission in this regard is not undermined by the existence of s 163H of the Duties Act (which empowers the Chief Commissioner with a broad relieving "just and reasonable" discretion with respect to landholder duty). It is said that, had Parliament intended to confer on the Chief Commissioner a broad discretion to alleviate any potentially harsh operation of Ch 2 of the Duties Act, it could easily have done so. Accordingly, the Chief Commissioner submits that the decision of this Court in Winston-Smith dealing with the application of the broad, "just and reasonable" discretion conferred on the Chief Commissioner by s 163H with respect to landholder duty, is distinguishable and does not assist Benidorm. (Benidorm maintains that the Chief Commissioner here misconstrues the citation by Benidorm of this decision.)
The Chief Commissioner submits that the Second Declaration of Trust falls within the statutory definition of "declaration of trust" in s 8(3) of the Duties Act and is therefore dutiable pursuant to Ch 2 of the Duties Act on the basis that the Second Declaration of Trust satisfied the following six integers: was a declaration; that identified property (namely, the Macquarie Street Apartment); that "vested" the property; that vested the property in the person making the declaration (Benidorm); that the property is or is to be held in trust; and that it is or is to be held in trust for the person mentioned in the declaration (Mr Stubbs). Accordingly, it is submitted that the statutory definition is satisfied and the Second Declaration of Trust is dutiable (unless a concession applies).
As to the proper analysis of the First Declaration of Trust, the operation of the Probate Act, and the Second Declaration of Trust, the Chief Commissioner says that the First Declaration of Trust was dutiable as a declaration of trust notwithstanding that it was preceded by the resulting trust created on the purchase of the Macquarie Street Apartment by Benidorm, as apparent purchaser, on behalf of Mr Robinson as real purchaser. The Chief Commissioner says that it is of no moment that Benidorm did not need to do anything in order to convey or settle the beneficial interest in Mr Robinson; the First Declaration of Trust was a dutiable transaction and a concession applied (ss 8(3) and 55 of the Duties Act).
The Chief Commissioner maintains that on the death of Mr Robinson, and by operation of s 44 of the Probate Act, the beneficial interest in the Macquarie Street Apartment came to be vested in Mr Stubbs, as executor; and accepts that that statutory vesting is not subject to duty (referring to s 65(12) of the Duties Act).
As to the Second Declaration of Trust that was then executed, the Chief Commissioner says that this is a trust in favour of Mr Stubbs. The Chief Commissioner says that s 47 of the Probate Act does not, from the instant of Mr Robinson's death, confer the beneficial interest in the Macquarie Street Apartment in Mr Stubbs, as beneficiary. Rather, that while s 47 of the Probate Act provides that the executor takes the property "according to the trusts and dispositions of such will", the Will provides that the "remainder of the estate" (after payment of just debts and funeral and testamentary expenses) goes to Mr Stubbs absolutely.
Reference is made to the observation of Santow J, as his Honour then was, in Stokes v Churchill; Estate of Fryer (1994) NSW ConvR 55- 694 (Fryer), that: The interest of a beneficiary in an unadministered estate confers no beneficial interest in any particular item of property but rather a right, by way of a chose in action, capable of being invoked for the proper administration of the estate; see Commissioner of Stamp Duties (Queensland) v Livingston [1965] A.C. 694.
Reference is also made to the observation of Buss P in Fremantle Lawyers Pty Ltd v Sarich (2019) 54 WAR 113; [2019] WASCA 48 (Sarich) (at [211]) that: A beneficiary under a will acquires upon the testator's death a right to have the deceased estate administered in accordance with the executor's duties. However, neither the legal nor the equitable ownership of the property the subject of a devise or bequest vests in the beneficiary at the time of the testator's death. The reason is that, prior to the administration of the deceased estate, no specific property is capable of constituting the subject property of any trust in favour of the beneficiary. At that stage it could not be identified what part or parts of the deceased estate would need to be realised for the purposes of administration. Accordingly, the beneficiary does not have a proprietary interest in each of the assets which are the subject of the devise or bequest. See Commissioner of Stamp Duties (Qld) v Livingston [(1964) 112 CLR 12 at 18, 27]. Although Livingston was concerned with the residuary estate under a will, the observations by the Privy Council apply with equal force to specific devises or bequests. See Official Receiver in Bankruptcy v Schultz [(1990) 170 CLR 306 at 312 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ)].
The Chief Commissioner says that, in any event, the most that could pass to the executor under the Probate Act is the beneficial interest held by Mr Robinson prior to his death; whereas what Benidorm has declared is a trust over is the whole of the legal estate (citing DKLR per Gibbs CJ at 442).
Accordingly, it is submitted that the Second Declaration of Trust is not merely confirmatory of the position after operation of the Probate Act.
In any event, the Chief Commissioner contends that even if the Second Declaration of Trust is merely confirmatory of the position after operation of the Probate Act, the Second Declaration is nevertheless dutiable as a declaration of trust.
Responding to the matters raised by Benidorm in its submissions, the Chief Commissioner says the following.
First, as to the correct construction of s 8(3) of the Duties Act, the Chief Commissioner cavils with the proposition (see Benidorm's submissions at [64]), that a "critical ingredient" in the definition of declaration of trust is that the declaration operate "to vest the beneficial estate in the property in such a way as to create a trust, that is, a new trust, over the property for the benefit of the beneficial owner by the declarant as the trustee of the new property". The Chief Commissioner says that nowhere in s 8(3) of the Duties Act is there found a requirement that the declaration of trust operate "to vest" a beneficial estate in property in such a way as to create a "new trust".
Second, as to the submission (see Benidorm's submissions at [67]) that the Second Declaration of Trust is a mere acknowledgment of the continued operation of a trust created eight years earlier, notwithstanding the change in the identity of the beneficiary of the Trust, the Chief Commissioner cavils with that characterisation. The Chief Commissioner submits that the First and Second Declarations of Trust are different trusts, referring to the observation of Edmonds and Gordon JJ in Clark at [88] as to the essential indicia of the existence of a trust (their Honours there citing J D Heydon & M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, LexisNexis Butterworths, 2006) at [1-04]-[1-10]). The Chief Commissioner says that, unlike the circumstances in Clark, here, upon the death of Mr Robinson there was severance of the object of the trust.
As to the submission by Benidorm (see Benidorm's submissions at [68]-[69]), seeking to distinguish the application of Platinum by construing the definition at s 8(3) of the Duties Act as containing two limbs and the argument that the first limb requires a trust to come into existence immediately on the declaration, whereas the second limb "requires a vesting of trust property at general law in the future when the identified trust property … comes into existence", the Chief Commissioner says that the definition of "declaration of trust" is, on its proper construction, not amenable to separation into limbs, each of which is given different spheres of operation. The Chief Commissioner accepts that the definition applies to different types of cases (as acknowledged by Handley AJA in Platinum who considered the two "limbs" in s 8(3) of the Duties Act). However, he argues that that is no basis for the artificial creation of different spheres of applications for those "limbs". It is noted that that is not the language used by the statute and it is submitted that there is no textual or contextual support to read, or redraft, the definition as constituting two separate "limbs". The Chief Commissioner says that this would be entirely inconsistent with Crowther.
The Chief Commissioner says that, consistent with well-established principles of statutory construction, the definition is to be read as a coherent whole; and that his construction is both consistent with the language of s 8(3) of the Duties Act and the structure of the Duties Act (that being, to cast wide the dutiable net and provide relief from duty in the form of precisely identified and expressly legislated concessions or exemptions to duty).
As to Benidorm's reliance on Hopkins, Wedge, Winston-Smith and Rojoda (WA) (see Benidorm's submissions at [76]-[80]) in support of the proposition that a legally ineffective instrument is not liable to stamp duty, the Chief Commissioner submits that neither Hopkins nor Wedge is supportive of Benidorm's submission because each concerns the operation of quite different legislative provisions (which I do not here reproduce) not in effect at the time that the Second Declaration of Trust was made. Further, the Chief Commissioner says that: Hopkins and Wedge are concerned with settlements which require a transfer of ownership; to the extent that Benidorm seeks to rely on what is said by Latham CJ in Hopkins at 360 (see Benidorm's submissions at [76]), his Honour was there dealing with an example and the legal effect of the instrument is not a relevant consideration in applying the statutory definition (referring to Tooheys (SC) and Pendal Nominees); and the Stamp Duties Act 1894 (Qld) (considered in Hopkins) contains a separate definition of "Declaration of Trust" which was not considered in that case.
The Chief Commissioner says that, ultimately, all that is required is the satisfaction of the statutory definition in the Duties Act for a transaction to be brought to duty; and that to the extent that there is a general law obligation or principle which says that such a transaction is not to be brought to duty that is overtaken by the specific relieving provisions of the Duties Act.
As to Benidorm's reliance on Winston-Smith, the Chief Commissioner argues, first, that Emmett AJA's reference to the policy of the Duties Act must be read in light of the fact that his Honour was considering a broad "just and reasonable" discretionary relieving provision and not a specific charging provision which must be read in light of the express reliving provisions that may apply to it such as s 18(6), 18(6A) and 55 of the Duties Act. It is said that a broad discretion of the type found at s 163H would be unnecessary if the Duties Act, as contended by Benidorm, were to be construed by reference to a change in the underlying practical and economic interest in dutiable property.
Second, the Chief Commissioner notes that, while Emmett AJA's comments upon "the primary purpose of the Duties Act", his Honour does not indicate that his articulation is the only purpose of the Duties Act. It is said that the purpose of Ch 2 gains colour from, for example, the provisions relating to double duty contained in s 18 of the Duties Act. The Chief Commissioner refers, by way of example, to s 18(1) of the Duties Act which operates to charge nominal duty in circumstances where a "dutiable transaction is effected by more than one instrument". It is said that this demonstrates the scheme of Ch 2 - namely bringing to duty all "dutiable transactions" but only charging one lot of duty in certain identified instances. Similarly, it is said that s 50 of the Duties Act, dealing with cancelled agreements, means that an "agreement for the sale or transfer of dutiable property that is cancelled is not liable to duty"; thus, where a transaction has not resulted in a change in the interest in the dutiable property, duty will not be charged. The Chief Commissioner says that the above examples demonstrate that the purpose of the Duties Act, insofar as it concerns Ch 2, finds its expression in bringing to duty "a transfer of dutiable property" and precisely identified "transactions" and the application of equally precisely identified series of exemptions to duty.
Third, it is noted that Emmett AJA, given that he was there concerned with Ch 4, did not consider the meaning of the word "transactions" as it is found in s 8(1)(b) of the Duties Act.
In these circumstances, the Chief Commissioner submits that the purpose articulated by his Honour in Winston-Smith does not support Benidorm's contention as to the meaning of "transaction" in s 8(1)(b) of the Duties Act.
As to Rojoda (WA), the Chief Commissioner maintains that it is distinguishable (noting that the concession made by Chief Commissioner of Western Australia in those proceedings is not made in the present proceeding). In any event, it is noted that the concession there made was not to the effect that a declaration that did not convey or settle property on the beneficiary could not satisfy the statutory definition.
Next, the Chief Commissioner maintains that the Second Declaration of Trust is not legally ineffective or invalid but says in any event that the scope of the legal or operative effect of the instrument (or transaction) is not decisive of whether or not it is chargeable to duty. The Chief Commissioner says in this regard: first, that the purpose of the transaction as identified by Mr Stubbs is to keep the property in Benidorm's name; second, that the Second Declaration of Trust is a record to avoid any uncertainty of ownership and potential future litigation; and, third, that, "at the very least", the Second Declaration of Trust, once stamped, has evidentiary value and is an admissible record of its content.
Further, the Chief Commissioner says that, akin to the circumstances in Pendal Nominees, the Second Declaration of Trust: is executed by both the Trustee and the New Beneficiary and contains obligations of each of them; employs mandatory, directory and anticipatory language (thus speaking to it being more than merely an acknowledgement of the general law); contains an undertaking by the trustee to hold the property on the same trusts as the First Declaration of Trust (and went beyond the general law in expressly agreeing to act as directed by the beneficiary and in agreeing to execute all instruments); as well as containing an agreement by the beneficiary himself to indemnify the trustee and to pay for all outgoings (going beyond a trustee's lien or right to be recouped or exonerated, there referring to Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360; [1979] HCA 61 (Octavo v Knight) at 367, per Stephen, Mason, Aiken and Wilson JJ; and Harvey v Barton (No 4) [2015] NSWSC 809); contains express indemnities (noting that the New Beneficiary expressly undertook obligations that go beyond the general law so far as indemnities are concerned; and in the case of a transfer, agreed to a prior or simultaneous discharge of moneys owed or owing); and articulated an express mechanism for transfer.
It is noted that Benidorm declared that it held the entire legal estate for Mr Stubbs; whereas it is said that the Probate Act did not, at the date of Mr Robinson's death, vest the beneficial interest in the Macquarie Street Apartment in Mr Stubbs as beneficiary under the will. Consequently, it is submitted that the Second Declaration of Trust is not a "mere record" of general law obligations.
As to Benidorm's contentions in relation to "transactions" (see Benidorm's submissions at [92]-[95]), namely that: the definition of "transaction" when used in its ordinary sense has the operative requirements of a "dealing" in "property" (Benidorm's submissions at [94]); and the word "dealing" means "business dealing in the sense of trading" and because there is no "business dealing in the sense of trading" in the Macquarie Street Apartment by the operation of the Second Declaration of Trust there is no transaction (Benidorm's submissions at [94]-[95]); and the contention that this "interpretation of transaction in s 8(1)(b) of the Duties Act is reinforced by the statutory purpose of the Act" enunciated by Emmett AJA in Winston-Smith, the Chief Commissioner says as follows.
It is noted that the Duties Act uses the plural "transactions" and that the word is found within the phrase "the following transactions". It is submitted that s 8(3) of the Duties Act does not require the "elaborate exercise" of attempting to divine meaning from the ordinary or general meaning of a different word; rather, that the meaning of "transactions" is to be ascertained from the text and context of the section of the Duties Act in which it appears. In that regard it is noted that the word in its plural appears: within a chapter titled "Chapter 2 Transactions concerning dutiable property"; within a section titled "Imposition of duty on certain transactions concerning dutiable property" (emphasising the word "certain"); and where the charging provision, s 8(1), "charges duty on a transfer of dutiable property and the following transactions" and goes on to identify a series of itemised transactions one of which is a "declaration of trust" (emphasising the word "following").
It is submitted that, from its context, it is apparent that the expression "transactions" is defined by what follows; i.e., that the list following the use of the word "transactions" identifies what are the transactions. It is submitted that that context is a powerful indication that there is no need to go beyond s 8(1) of the Duties Act itself to ascertain the meaning of the word "transactions"; particularly when the "transactions" that the section is concerned with charging duty on are set out in s 8(1)(b)(i) to (viii) of the Duties Act. It is said that, where Parliament has specifically identified "the following transactions" and, pertinent to these proceedings, provided a definition of the transaction in question (s 8(3) of the Duties Act), Benidorm's construction (which seeks to put gloss on the word by requiring a "business dealing in the sense of trading") should not be accepted. It is said that the general meaning of transaction (or dealing) is no basis for either a fetter or gloss on the specific meaning given to the word "transactions" as it appears in the context of s 8(1)(b) of the Duties Act.
Reference is made to the observation by Colvin J in Fair Work Ombudsman v Spotless Services Australia Ltd [2019] FCA 9 that (at [19]): In considering the text used, there are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts: XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532 at [19]. Where the issue concerns the meaning of a compendious phrase then the expression must be construed as a whole within the sentence in which it is expressed: Collector of Customs v Agfa- Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389.
The Chief Commissioner submits that Benidorm is not entitled to the concessional rate of duty under s 18(6) of the Duties Act because the trust created by the Second Declaration of Trust (to which he refers as the Stubbs Trust) is not the same trust created by the First Declaration of Trust (to which he refers as the Robinson Trust), citing Clark at [87] and [88].
The Chief Commissioner says that, while Mr Stubbs as legal personal representative has, in effect, stepped into the shoes of the deceased by virtue of the Will and the Probate Act, it is Mr Stubbs as beneficiary under the Will that is the beneficiary under the Stubbs Trust. It is said that there is no sense in which he, in that capacity, fills the shoes of Mr Robinson; i.e., Mr Stubbs is not the same beneficiary as that under the Robinson Trust.
Accordingly, it is submitted that the Second Declaration of Trust "does not declare the same trusts as those upon and subject to which the same dutiable property was transferred to the person declaring the trust" (i.e., the Stubbs Trust is not the same as the Robinson Trust) and therefore s 18(6) of the Duties Act does not apply.
Furthermore, it is noted that s 18(6) of the Duties Act requires that ad valorem duty to have been paid on the transfer to Benidorm; however, here duty was only paid on the agreement for sale (not the transfer), and accordingly it is said that s 18(6) of the Duties Act is not engaged.
Thus, the Chief Commissioner submits that Benidorm is not entitled to the concessional rate of duty under s 18(6A) of the Duties Act because the Second Declaration of Trust does not declare the "same trust", and the beneficiaries under the Robinson Trust and the Stubbs Trust are different (referring to s 18(6A)(a) and (b) of the Duties Act).
The Chief Commissioner submits that Benidorm is not entitled to the concessional rate of duty under s 63(1)(a)(i) of the Duties Act; because that section deals with the transfer of dutiable property by the legal personal representative of a deceased person to a beneficiary under a will; whereas, here, there is no transfer by Mr Robinson's personal legal representative to the beneficiary. It is said that there is no transfer by the personal legal representative. Further, it is said that the section applies only to transfers, not declarations of trust. Accordingly, the Chief Commissioner contends that s 63(1)(a)(i) of the Duties Act is not engaged.
As to the submission by Benidorm (see Benidorm's submissions at [119]), that the transfer is made by Mr Stubbs in different capacities, the Chief Commissioner says that the mere fact that Mr Stubbs is recorded as a party to the Second Declaration of Trust does not mean that Mr Stubbs made the declaration of trust.
In conclusion, the Chief Commissioner says that the High Court in Pendal Nominees (approving Tooheys (SC)) held that the question to be asked and answered is not whether the putative "declaration of trust" has any legal effect; but whether it answers the statutory definition. It is submitted that the Second Declaration of Trust falls within the statutory definition in s 8(3) of the Duties Act and that none of the identified exemptions applies so as to impose a concessional amount of duty.

Benidorm's reply submissions

As to the Chief Commissioner's reliance on the existence of relieving provisions as tending against a narrow construction of s 8(3), as noted earlier, Benidorm maintains that this involves a misconception of s 8 (founded on a misunderstanding of the operative verb "vested").
Benidorm emphasises that the operative word which informs the definition of "declaration of trust" in s 8(3) is the verb "vest" and says that identified property must be "vested" at the date of the declaration of trust (or it must be "vested" at some future time) which identified property is at the date of the instrument, or will be at some point in time in the future be, held upon trust for the person or persons mentioned in the instrument as the beneficiary of the property. Benidorm says that there must be a vesting of dutiable property in a second person effected by the first person who is declaring the trust. Benidorm submits that the role of the verb "vest" is pivotal to the operation of both limbs of the definition in s 8(3): the first limb, which is concerned with a "vesting" at the time of the instrument declaring the trust by virtue of the terms of that instrument; and the second limb, which is concerned with a vesting at some future point in time when the relevant dutiable property becomes vested in the declarant.
Benidorm invokes the dictionary definitions of "vest", when employed as a verb (as it is in the definition of "declaration of trust" in s 8(3)), namely to "furnish [a] person with ... property ... [or] confer formally on him an immediate fixed right of present or immediate possession of vested interests, rights, etc. (possession of which is established in a person by right or by long association and usually gives rise to expectation of gain)" or "to invest or endow (a person, etc.) with something, especially with powers, functions, etc. ... to pass into possession; to devolve upon a person as possessor; place or settle something (especially property, rights, powers, etc.) in the possession or control of someone".
Insofar as the Chief Commissioner contends (in his submissions at [42] - see at [128] above) that in the circumstances contemplated by s 55 "it is immediately obvious that the apparent purchaser already holds the property on a resulting trust for the real purchaser" before the declaration of trust is made (arguing that if it was necessary for the declaration of trust to convey or settle the beneficial interest in the property in order to bring a transaction to duty then the utility of s 55 would be questionable), Benidorm says that the premise for the Chief Commissioner's contention about the role of the resulting trust (that "the apparent purchaser already holds the property on a resulting trust of the real purchaser") is "an erroneous point of reference".
In that regard, Benidorm says that it is wrong to say that the declaration cannot possibly "vest" anything in the real purchaser in consequence of the mere existence of a resulting trust; and that this involves an erroneous understanding of "vest", as "vest" is ordinarily understood. Benidorm says that nothing in the trust property which is the subject of a resulting trust ever "vests" in a beneficiary who is the real purchaser unless and until such time as a court of equity formally recognises the trust, and "vests" the trust property in him or her, or the trustee formally acknowledges (by a declaration of trust) the beneficial interest in the trust property held by the real purchaser, and thereby "vests" the property in the beneficiary (the real purchaser).
Benidorm refers to Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 (Calverley v Green) and maintains that the proposition that (where a purchase money resulting trust arises) it is incorrect to contend that from the moment that the apparent purchaser completes the purchase the property is automatically "vested" in the real purchaser, without more. Rather, Benidorm says that what the real purchaser has, until a court of equity declares a resulting trust in his or her favour (or alternatively, the apparent purchaser executes a declaration of trust declaring the existence of the resulting trust), is a mere equity to approach a court of equity and seek a declaration of right as to the existence of the resulting trust, by proving that he or she paid all the purchase money for the property and also by proving that there was no common intention that the presumed resulting trust was negated by the presumption of advancement. It is submitted that a declaration of right (with a consequent vesting order in the real purchaser) is what operates to "vest" property in the real purchaser if the resulting trust is recognised by the court; and that, if the resulting trust is recognised by an apparent purchaser in a declaration of trust, that declaration of trust operates to vest what is otherwise vested by a court order.
In this case, Benidorm contends that the First Declaration of Trust made by Benidorm in favour of Mr Robinson operated formally to recognise the existence of the resulting trust and converted it into an express trust of the Macquarie Street Apartment in favour of Mr Robinson. Benidorm says that that first declaration was properly assessed to duty because (as the Chief Commissioner accepts) it operated to "vest" a beneficial interest in the Macquarie Street Apartment in Mr Robinson for the purposes of s 8(1)(b)(ii) of the Duties Act (that being a "declaration of trust" within the meaning of the definition in s 8(3) of the Duties Act) albeit that it was subject to an exemption from ad valorem duty under s 55 of the Duties Act (the apparent purchaser exemption).
Benidorm maintains that the Second Declaration of Trust did not "vest" Mr Robinson's beneficial interest in the Macquarie Street Apartment in Mr Stubbs on 29 January 2015 (when Benidorm executed it) because: first, the Macquarie Street Apartment was vested in Mr Stubbs by the Will (because, Benidorm contends, the Will gifted the entire estate to Mr Stubbs after the payment of all the estate's debts, funeral and testamentary expenses) and by the Probate Act (which effected the vesting on Mr Robinson's death); and second, Benidorm had nothing beneficial left to vest in, or by, the Second Declaration of Trust.
As to the Chief Commissioner's submissions in relation to the operation of the Probate Act, Benidorm emphasises the wording of s 44 and maintains that, as both the sole executor of and sole beneficiary under the Will, from the moment of Mr Robinson's death, Mr Robinson's entire estate and interest in the Macquarie Street Apartment (under the original resulting trust over it and under the express trust over it created by the First Declaration of Trust) became vested in Mr Stubbs as executor of the Will by the operation of s 44. Further, Benidorm again emphasises that there was no beneficial interest remaining in Benidorm to "vest" in Mr Stubbs by the Second Declaration of Trust.
It is said that, although Mr Stubbs held the beneficial interest in the Macquarie Street Apartment at the date of the Second Declaration of Trust in his capacity as executor of the Will, he otherwise held it subject to the terms of the Will and the equitable obligation to hold it upon trust for himself, not only because of the Will but because he was obliged to hold it on trusts of the Will due to the operation of s 47 of the Probate Act, which provides that the original vesting in him occurred subject to the Will.
Benidorm submits that this analysis is confirmed by the statement of Bell, Nettle, Gordon and Edelman JJ in Boensch v Pascoe [2019] HCA 49; (2019) 375 ALR 15 (Boensch v Pascoe) at [87] that "property held by a bankrupt will not vest in the bankrupt's trustee in bankruptcy if the bankrupt does not have any interest in the property" (emphasis in original) (i.e., that, as Benidorm had vested Mr Robinson's beneficial interest in the Macquarie Street Apartment in Mr Robinson under the First Declaration of Trust, and as Mr Stubbs had succeeded to that interest in the Will on Mr Robinson's death, there was no beneficial interest remaining in Benidorm which was available to "vest" in Mr Stubbs in the Second Declaration of Trust).
Insofar as the Chief Commissioner has relied on the cited authorities on the 1920 Act to dispute Benidorm's contention as to the definition in s 8(3), Benidorm responds as follows.
First, Benidorm maintains that neither Pendal Nominees nor Tooheys (SC) supports the proposition that an instrument which merely declares, acknowledges or confirms an existing trust over property satisfies the definition of "declaration of trust" in the 1920 Act, noting that the concern in each of those cases was with the distinction between the concept of a current vesting of property on trust by virtue of the instrument, under the first limb of the definition, and future vesting, under the second limb of the definition. Benidorm says that these decisions are not authority for the proposition that the definition is satisfied irrespective of whether the instrument operates to vest property in the beneficiary at all, presently or in the future, as the Chief Commissioner contends. Benidorm seeks to distinguish DKLR on the same basis.
Second, Benidorm argues that the Chief Commissioner's interpretation of the definition in s 8(3) (under which the mere confirmation or acknowledgement of an existing trust satisfies the definition) involves "rewriting the definition". In particular, it is said that this approach gives the verb "vested" or "to be vested" (which Benidorm maintains is pivotal to the operation of the definition from its terms, noting that it is used twice in the provision) no work whatsoever to do. Benidorm cites Project Blue Sky in furtherance of this submission. It is submitted that if a trust already exists then by definition the trust property is already "vested" in the declarant as trustee of the trust for the benefit of the beneficiary of the trust.
Third, Benidorm reiterates its submission that Sheppard J was "plainly wrong" in Crowther when his Honour said (at 88) that "the legislature intended to catch instruments which were no more than declaratory of an existing position" and when he relied on Tooheys (SC) as authority for that proposition. Benidorm says that this Court should not follow Crowther for three reasons: first, it is submitted that no previous authority supports this broad interpretation of the definition in s 8(3); second that, again, this interpretation rewrites the definition of "declaration of trust" by giving the verb "vested" no work whatsoever to do; and third, that Sheppard J erred as to the nature of a resulting trust and the meaning of "vest".
Benidorm maintains that it is apparent that the declaration of trust in Crowther "vested" the land in the company because the company was the real purchaser and the beneficiary of the land under the resulting trust which arose as from the date of its purchase; that, until the declaration of trust was made by Mr Crowther on 27 September 1971, all the company had was a mere equity to apply to a court of equity for a declaration as to the existence of the resulting trust and a consequential order vesting the land in it; and that that mere equity "clearly disappeared" on 27 September 1971 when Mr Crowther, as apparent purchaser of the land, "vested" the land in the company by formally declaring a trust over the land in favour of the company and thereby formally bestowing the beneficial interest in the land on the company under the ordinary meaning of "vest". Benidorm contends that this is precisely what occurred in this case on 31 May 2007 when Benidorm vested a beneficial interest in the Macquarie Street Apartment in Mr Robinson under the First Declaration of Trust.
Benidorm says that the declaration of "an existing position" is not what occurred in Crowther; rather, a mere equity to enforce the resulting trust was converted into an express trust which had been declared in writing by the trustee and which thereby "vested" the property in the corporate beneficiary.
As to the citation by Benidorm of Winston-Smith (see Benidorm's submissions at [96]-[99]), Benidorm disavows any reliance upon this decision in order to broaden the width of the exempting provisions in Ch 2 of the Duties Act; rather, Benidorm says it relies on Winston-Smith to establish the centrality of the requirement for a" transaction" which effects some event of economic substance (being a change in a legal or beneficial interest in dutiable property) for the purposes of engaging s 8(1)(b) in all of its limbs. Benidorm contends that all of its limbs must pass the threshold test of a "transaction", as the word "transaction" is ordinarily understood (in the absence of any statutory definition of that noun), in order for the relevant transaction to be considered as satisfying the relevant test for one or more of the limbs to s 8(1)(b) (in this case, the definition of a "declaration of trust" in s 8(3) of the Duties Act via s 8(1)(b)(ii)).
Benidorm identifies one of the fundamental differences between its approach to the operation of s 8 of the Duties Act and that of the Chief Commissioner as being the emphasis which Benidorm places on the transactional nature of the Duties Act and the pivotal role of the requirement for a "transaction", as it is ordinarily understood, in order to engage the charge to duty imposed in s 8(1)(b). In this regard, Benidorm goes so far as to submit that the Chief Commissioner, "whilst paying lip service" to the Duties Act as a transactional taxing statute, proceeds to focus on authorities on the 1920 Act (namely, Tooheys (SC), Crowther, DKLR and Pendal Nominees) which analyse the predecessor definition of "declaration of trust" in the context of a statute which, it is said by Benidorm, taxed instruments without any regard to their status as a transaction and which did not require any outcome of economic substance.
Benidorm maintains that the Chief Commissioner's analysis of the Second Declaration of Trust (referring to his submissions at [46]) is erroneous because there is no vesting of any dutiable property in Mr Stubbs effected by the instrument. Benidorm says this (wrongly) treats Mr Stubbs' beneficial interest in the Macquarie Street Apartment as a beneficiary under the Will as a separate and distinct estate or interest in the Macquarie Street Apartment to his beneficial interest in the Macquarie Street Apartment as executor of the Will. It is noted by Benidorm that Hope JA in DKLR enunciated the proposition (repeated in the High Court in Boensch v Pascoe) that a beneficial interest in property is not a separate estate or interest "carved out of' the property" (in this case, the Macquarie Street Apartment); rather it is merely a body of equitable obligations which are grafted onto (or, in the terminology of the High Court, "impressed upon") the legal estate (in this case, held by Benidorm). It is said that, in this case, the equitable obligations are impressed upon the equitable estate or interest held by Mr Stubbs as executor of the Will by the terms of the Will requiring all the estate debts and expenses to be paid first; and that there is no separate proprietary existence for stamp duty purposes. Reference was made in this regard to the extra-judicial remarks of White J, as his Honour then was, in "The Nature of a Beneficiary's Equitable Interest in a Trust" [2007] New South Wales Judicial Scholarship 12.
As to the Chief Commissioner's submissions in relation to the operation of the Probate Act, Benidorm notes that the Chief Commissioner accepts that the liability of the First Declaration of Trust to nominal duty under s 55 was because it was a declaration of trust made by an apparent purchaser in favour of a real purchaser. Benidorm contends that the First Declaration of Trust "vested" a beneficial interest in the Macquarie Street Apartment in trust for Mr Robinson; and says that it is also agreed that the "vesting" in Mr Stubbs as the executor of Mr Robinson's beneficial interest in the Macquarie Street Apartment occurred from the moment of Mr Robinson's death by operation of s 44 of the Probate Act.
Benidorm cavils with the proposition of the Chief Commissioner (in his submissions at [49(c)]) that "the Second Declaration of Trust is a trust in favour of Mr Stubbs". It is submitted that the vesting in Mr Stubbs of Mr Robinson's beneficial interest in the Macquarie Street Apartment from the moment Mr Robinson's death on 13 September 2013 necessarily precludes any later vesting by Benidorm of the same beneficial interest in the same trust property in the same beneficiary.
Benidorm says that the distinction, which it is said is, sought to be drawn by the Chief Commissioner between Mr Stubbs' status as the executor of the Will (in which capacity a beneficial vesting is conceded by the Chief Commissioner) and Mr Stubbs' status as the beneficiary of the Will (in which capacity a vesting is said by the Chief Commissioner to have been achieved by the Second Declaration of Trust, thereby creating a new trust in favour of Mr Stubbs in his capacity as the beneficiary of the Will) is contradictory with other submissions put by the Chief Commissioner and is contradicted by what is then said by the Chief Commissioner about Livingston and Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45 (Schultz), as applied in Fryer and Sarich.
In this regard, Benidorm maintains that it is common ground that: Mr Robinson's beneficial interest in the Macquarie Street Apartment was vested in Mr Stubbs from the moment of Mr Robinson's death by the operation of s 44 of the Probate Act (referring to the Chief Commissioner's submissions at [49(b)]); Mr Robinson's beneficial interest in the Macquarie Street Apartment that was vested in Mr Stubbs as executor (again, referring to the Chief Commissioner's submissions at [49(b)]), but was vested subject to the terms of the Will requiring him to hold it on trust for himself as the beneficiary of the Will under s 47 of the Probate Act pending administration of the estate being completed (referring to the Chief Commissioner's submissions at [49(d)]); and that Mr Stubbs' beneficial interest in the Macquarie Street Apartment, as beneficiary, will only cease to be affected by cl 4 of the Will when the administration of the estate has been completed (referring to the Chief Commissioner's submissions at [49(e)], [49(f)]).
Benidorm says that the administration of the estate was not complete at the date of the Second Declaration of Trust on the available evidence (and says that, if not agreed, then at the very least this cannot be seriously disputed).
Benidorm contends that any declaration of trust subsequent to the First Declaration of Trust could only vest a beneficial interest in the Macquarie Street Apartment in Mr Stubbs to the extent that it had not already been vested in him by the operation of s 44 of the Probate Act and the First Declaration of Trust; and contends that the Second Declaration of Trust could not operate to override or interfere with the operation of the principle enunciated in Livingston and Schultz on the beneficial interest in the Macquarie Street Apartment vested in Mr Stubbs under ss 44 and 47 of the Probate Act. Benidorm notes that the principle enunciated in those cases characterises Mr Stubbs' interest as beneficiary in the estate property as a mere right to the due administration of the estate pending completion of the administration and conversion of that right at the date of completion of the administration into a specific beneficial interest in the Macquarie Street Apartment.
Benidorm argues that the submissions made by the Chief Commissioner confuse the concept of the vesting of a beneficial interest in property in Mr Stubbs with a change in character of that vested interest long after that vesting has occurred. Benidorm says that, in the Chief Commissioner's submissions (at [49(c)]), the Chief Commissioner treats the Second Declaration of Trust as the vesting of the beneficial interest in the Macquarie Street Apartment in Mr Stubbs, on the date of the Second Declaration of Trust or at an unidentified future date, possibly upon completion of administration of the estate (namely, that what is here asserted is a second vesting in Mr Stubbs in his capacity as beneficiary of the Will). Benidorm says that such an approach is wrong in principle; that there has been and there can only ever be, one vesting of the beneficial interest in the Macquarie Street Apartment in Mr Stubbs; and that this vesting occurred on 13 September 2013 when Mr Robinson died (referring to the Chief Commissioner's submissions at [49(b)] as conceding this vesting).
It is said that Mr Robinson is the person who vested (and the only one who could have ever vested) that beneficial interest in his Will; that he did so by dying; and that the Macquarie Street Apartment was, on that date, vested in Mr Stubbs as executor of the will under s 44 of the Probate Act. It is said that that vesting occurred subject to the Will, gifting the beneficial interest in the Macquarie Street Apartment to Mr Stubbs after all the debts, funeral and testamentary expenses of the estate are paid, because of the operation of s 47 of the Probate Act upon that vesting.
Benidorm maintains that, as from the death of Mr Robinson, Mr Stubbs held Mr Robinson's interest in the Macquarie Street Apartment beneficially upon trust for himself; that the Macquarie Street Apartment was vested in Benidorm for Mr Stubbs' benefit in two capacities (as executor and beneficiary); and that, in due course, upon the administration of the estate, the former capacity of executor, in which capacity Mr Stubbs held the beneficial interest in the Macquarie Street Apartment, would cease to exist and the nature of his second ownership capacity, as beneficiary, would change in character from a mere equity represented by a right to due administration of the estate into a specific beneficial interest in the Macquarie Street Apartment. It is submitted that no further vesting of estate property occurs, can occur or needs to occur when the administration is complete, as the vesting had already occurred on the death of Mr Robinson.
Benidorm argues that the operation of ss 44 and 47 the Probate Act, informed by the principles enunciated in Livingston and Schultz (as to the timing of completion of administration of the estate and the postponement of the conversion of the beneficial interest in the will into a specific interest in estate property), "do the rest without any role at all for the Second Declaration of Trust because there was nothing left to vest by Benidorm as the declarant of the deed".
It is submitted that, not only is there no need for "Benidorm to intervene and override those statutory and doctrinal regimes for the treatment of the beneficial interest in the [Macquarie Street] Apartment vested in Mr Stubbs from the moment Mr Robinson's death by the machinery of the Second Declaration of Trust", there is "no power in Benidorm to override them".
Benidorm maintains that the Chief Commissioner is in error in his characterisation of the change in nature of the beneficial interests held by Mr Stubbs in the Macquarie Street Apartment following Mr Robinson's death, by treating them as separate and distinct beneficial interests in the Macquarie Street Apartment, requiring a separate vesting in Mr Stubbs of title for each estate or interest, as it changes in nature over time, by the trustee, Benidorm, in order for Mr Stubbs to maintain his beneficial interest in the Macquarie Street Apartment. It is submitted that the Chief Commissioner's analysis has Benidorm purporting to vest in Mr Stubbs the beneficial interest in the Macquarie Street Apartment when Benidorm held no such interest; rather, that Mr Robinson held that interest in equity from the moment the Macquarie Street Apartment was purchased under the resulting trust and in law from the moment that interest was formally "vested" in him as its beneficiary by the First Declaration of Trust.
Reference is again here made to the statement of principle by the High Court in Boensch v Pascoe (see at [4]): The answer is informed in part by recognition of the fundamental nature of an equitable interest as something that "is not carved out of a legal estate but impressed upon it" ... Where the legal estate in the property held on trust by the bankrupt passes to the trustee of the estate of the bankrupt, it passes with all of the equitable interests that were impressed on it when it remained in the hands of the bankrupt: equitable interests of the bankrupt as well as equitable interests of the beneficiaries of the trust. [Emphasis as per Benidorm's submissions.]
It is said that once Mr Robinson's beneficial interest in the Macquarie Street Apartment was vested in Mr Robinson on 31 May 2007 by the operation of the First Declaration of Trust and, subsequently, by Mr Robinson vesting it in Mr Stubbs as his executor on 13 September 2013 on the death of Mr Robinson, by the operation of s 44 of the Probate Act (agreed facts referring to the Chief Commissioner's submissions at [49(a)] and [49(b)]), albeit "impressed" with the trust obligations imposed by cll 4 and 5 of the Will to hold that beneficial interest in the Macquarie Street Apartment upon trust for the payment of the estate debts, funeral and testamentary expenses and, thereafter, hold it on trust for Mr Stubbs, the property in the Macquarie Street Apartment was already vested in Mr Stubbs for all purposes. It is said that once that vesting had occurred, subsequent events will change the nature of the trusts "impressed" upon the trust property by extinguishing the trust obligation imposed by cl 4 of the Will and then permitting the trust obligation in cl 5 of the Will to be performed; but that the mere performance of trust obligations by Mr Stubbs, as executor of the Will, does not involve the "vesting" of property in him at each stage of the process in which the nature of the trust obligations impressed upon his vested beneficial interest in the trust property changes as those events occur.
As adverted to above, reference is made to the extra-judicial observation (see at [7]) of White J, as his Honour then was, to the effect that to overlook the remarks of Hope JA in the Court of Appeal in DKLR is a "recipe for error"; Benidorm saying that here that error is to treat, first, the beneficial interest in the Macquarie Street Apartment held by Mr Robinson between the date of acquisition of the Macquarie Street Apartment by Benidorm on trust for Mr Robinson and the date of the First Declaration of Trust in 2007 in consequence of the vesting of that beneficial interest in Mr Robinson under the First Declaration of Trust (concurrently with the acquisition of the Macquarie Street Apartment by Benidorm), and second, the beneficial interest in the Macquarie Street Apartment held by Mr Stubbs between the date of death of Mr Robinson (in consequence of the terms of the Will, the grant of probate of the Will to Mr Stubbs and the operation of s 44 of the Probate Act upon that beneficial interest) and the date of the Second Declaration of Trust in 2015, as being separate and distinct estates or interests in dutiable property represented by that beneficial interest in the Macquarie Street Apartment.
Benidorm maintains that the reality is that that beneficial interest is nothing more than a series of trust obligations "impressed" upon the legal estate in the property held by Benidorm until the death of Mr Robinson and, thereafter, by Benidorm as to the legal estate and Mr Stubbs as the holder of the beneficial interest in his capacity as executor of the Will, with Mr Stubbs as the ultimate beneficiary of both of trusts from the date of death of Mr Robinson. It is submitted that the moment the Chief Commissioner treated these changing beneficial interests as separate and distinct interests in land he committed the error warned against by Hope JA in DKLR and by the High Court in Boensch.
Benidorm says again that there are no successive vestings of a beneficial estate or interest in the Macquarie Street Apartment because there could be no further vesting of that beneficial interest in it once it had been vested in the ultimate beneficiary in 2007 under the First Declaration of Trust notwithstanding that there are outstanding trust obligations impressed on that beneficial interest.
Insofar as the Chief Commissioner contends that the First Declaration of Trust created a trust in favour of Mr Robinson and that the Second Declaration of Trust created a new trust in favour of Mr Stubbs (referring to the Chief Commissioner's submissions at [56]-[57]), citing Clark as authority, Benidorm says that the error in this analysis is to treat the right to due administration and its status as a mere equity in Mr Stubbs (as distinct from a specific beneficial interest in gifted estate property), pending completion of administration the estate (as enunciated in Livingston and Schultz), as separate estates or interests in the gifted property which vest, first, at the start of the administration of the estate (i.e., date of death of Mr Robinson), and, second, after completion of administration of the estate. Benidorm says that it is no more than one of the obligations "impressed" on that beneficial interest in the Macquarie Street Apartment that Mr Stubbs succeeded to on Mr Robinson's death which bind him, as executor of the Will, to hold it on the terms of the Will until administration has been completed.
Benidorm says that this is the error that was made in ISPT, namely failing to recognise that the beneficial estate or interest which there passed to ISPT was "the concatenation of rights, enforceable in equity against Coles Myer Property Investments both as vendor and as sole unit holder, which ISPT obtained in respect of the property under the ... trust deed".
Benidorm reiterates its position that Mr Stubbs is both the executor of the Will (and thereby sub-trustee to Benidorm in respect of the trust over the Macquarie Street Apartment) and is also the sole beneficiary of the Will; that, at the moment when administration of the estate is complete, the vesting in Mr Stubbs of Mr Robinson's beneficial interest in the Macquarie Street Apartment, which had occurred back at the date of death of Mr Robinson on 13 September 2013, merely changes in nature because the trust obligation imposed on Mr Stubbs in cl 4 of the Will disappears by virtue of his due performance of it and, thereupon, the next obligation in cl 5 of the Will takes effect.
Benidorm contends that the Second Declaration of Trust does no more than record, in the sense of acknowledging or confirming, these factual (terms of the Will and death of Mr Robinson), statutory (operation of ss 44 and 47 of the Probate Act) and doctrinal (postponement of performance of the trusts for administration of the estate impressed upon Mr Stubbs' beneficial interest in the Macquarie Street Apartment until the administration is complete in consequence of Livingston and Schultz) aspects of his beneficial ownership of the Macquarie Street Apartment since 2013.
Hence, Benidorm maintains that the Second Declaration of Trust (i.e., the deed) vests nothing in Mr Stubbs because Benidorm had nothing left in it to vest in him after it made the First Declaration of Trust.
As to the contention made by the Chief Commissioner that, to the extent that the Second Declaration of Trust merely declares an existing state of affairs it is nonetheless liable as a declaration of trust within the meaning of the statutory definition in s 8(3) because an instrument which merely does so satisfies the definition of declaration of trust without any requirement actually to "vest" trust property in the named beneficiary or to otherwise effect a transaction involving a change in economic substance in respect of that property (referring to the Chief Commissioner's submissions at [21]-[39]), Benidorm reiterates its submission that Crowther should not be followed and is plainly wrong; and emphasises that the other authorities cited are not authority for this proposition as they are concerned with distinguishing between the future vesting of trust property and an existing vesting of property at the time of, and by the terms of, the instrument.
Insofar as the Chief Commissioner (see at [59]-[61]) challenges the interpretation of the statutory definition of declaration of trust in s 8(3) as involving two separate limbs (one involving a present vesting property in the named beneficiary and the other involving a future vesting of trust property, if and when the property comes into existence or if and when the property is ultimately vested in the declarant as trustee, by the trust declared in the instrument), Benidorm adheres to its interpretation of the definition by reference to, first, the clear terms of the text of the definition (requiring the verb "vested" or "to be vested" to be satisfied in respect of identified property); and second, the case law cited above and the authorities cited by the Chief Commissioner in his submissions (at [22]-[23], [26]-[38]).
As to the Chief Commissioner's criticism of Benidorm's citation of Hopkins and Wedge (on the ground that they were concerned with different legislation), Benidorm says, first, that it cites these authorities as statements of general legal principle in respect of trust law rather than for their interpretation of repealed stamp duty provisions; and second, that the Chief Commissioner himself relies on authorities which (other than Platinum), are decisions on the predecessor definition in the 1920 Act. Benidorm notes its submission that the Duties Act is a regime for charging duty on transactions whereas the repealed 1920 Act is a statute which charged duty on instruments irrespective of whether the instrument ever effected a transaction.
As to the submission by the Chief Commissioner (at [68]-[69]), in effect that the statement of statutory purpose by Emmett AJA in Winston-Smith is limited to the discretion to relieve from liability in s 163H of the Duties Act, Benidorm's response is that such a submission is contrary to the terms of what Emmett AJA enunciated in WinstonSmith and also contrary to the Chief Commissioner's own concession as to the statutory purpose of the Duties Act (referring to the Chief Commissioner's submissions at [14] and [15]).
In response to the Chief Commissioner's submissions (at [71]-[76]), to the effect that the Second Declaration of Trust is not legally ineffective or invalid as a trust instrument, Benidorm says as follows in respect of the matters put forward by the Chief Commissioner in support of submissions for legal effectiveness or validity: keeping trust property in the name of the trustee of an existing trust is not a transaction or an event known to trust law (cf the Chief Commissioner's submissions at [72]); it being an agreed fact, there was no uncertainty about the terms or effect in law or under the Duties Act of the First Declaration of Trust (cf the Chief Commissioner's submissions at [73]); if a second deed states what the first deed states, its evidentiary value is either negligible or nonexistent (cf the Chief Commissioner's submissions at [74]); even if the deed uses mandatory or directory language (see the Chief Commissioner's submissions at [75 (b)]), it creates no new legal or equitable rights in, or obligations on, the parties to the deed (and in that sense, Benidorm says that the deed cannot constitute a transaction within the meaning of the Duties Act "or anything meaningful as a matter of trust law"); the indemnity given by the new beneficiary was already in existence and did not cease to exist when the Second Declaration of Trust was made (cf the Chief Commissioner's submissions at [75(c)][75(d)]); and an express mechanism for the transfer of trust property at the end of the trust (cf the Chief Commissioner's submissions at [75(e)]) is unnecessary because the obligation to transfer exists in trust law as an aspect of every bare trust and because it was already provided for in cl 1 of the First Declaration of Trust.
Benidorm says that the Custodian Agreement made on 31 May 2007 contemporaneously with the making of the First Declaration of Trust did not cease to exist as a term of the trust for the Macquarie Street Apartment and was not revoked by the Second Declaration of Trust. Benidorm says that the Second Declaration of Trust did no more than confirm the existence of that ongoing right of indemnity from the beneficiary. It is said that the new beneficiary necessarily assumed that term of the trust from the original beneficiary as an aspect of succeeding to the deceased's interest in the trust property (and that the High Court decision in Boensch v Pascoe puts this proposition beyond doubt).
In any event, Benidorm says that none of the attributes of the Second Declaration of Trust which are relied on by the Chief Commissioner in his submissions at [75] answers the requirement for a present or future vesting of property in the beneficiary by the operation of the instrument.
Benidorm cavils with the proposition (see the Chief Commissioner's submissions at [76]) that the Probate Act did not vest the beneficial interest of Mr Robinson in the Macquarie Street Apartment in Mr Stubbs as the beneficiary of the Will (reiterating its argument that the Will and ss 44 and 47 of the Probate Act operated to vest the Macquarie Street Apartment in Mr Stubbs for all purposes on the date of Mr Robinson's death). Benidorm maintains that the Will and the Probate Act vested the Macquarie Street Apartment beneficially in Mr Stubbs as the executor of the Will and it did so subject to the terms of the Will, requiring him to hold it on trust for himself pending administration of the estate being completed by the payment of estate debts, funeral and testamentary expenses before it could be held unconditionally for his benefit by the trustee of the express trust over it, Benidorm, and by himself as the executor of the Will without cl 4 of the Will impressed upon it. It is said that, contrary to the Chief Commissioner's submissions (at [76]), Benidorm did not, in consequence of its execution of the Second Declaration of Trust, vest Mr Robinson's beneficial interest in the Macquarie Street Apartment in Mr Stubbs as beneficiary of the Will.
As to the Chief Commissioner's submission (at [79]) that the meaning of "transactions" is to be ascertained from the text and context of the definition of "declaration of trust" in s 8(3), Benidorm contends that this is wrong. It is noted that the word "transactions" appears in the text of (and is said to be central to the operation of) s 8(1)(b) but does not appear in the text of the definition of "declaration of trust" in s 8(3). Bendiorm says that, accordingly, it has nothing to do with construing that definition. It is submitted that the existence of a declaration of trust does not arise for consideration unless and until the instrument satisfies the threshold requirement of a "transaction"; that is, unless it effects some change in beneficial interest in the dutiable property involving a change in its economic substance (citing Emmett AJA in Winston-Smith). Benidorm maintains that the requirement to find a "transaction" is necessarily an antecedent enquiry to the enquiry into whether that transaction is a "declaration of trust" within the meaning of the definition in s 8(3) of the Act.
As to the Chief Commissioner's contention (in his submissions at [80]-[82]) that "transactions" takes its meaning from the instances of it given in s 8(1)(b) (i)-(viii), Benidorm submits that this approach involves treating the threshold requirement for a "transaction" as having been satisfied because the definition of an assumed transaction in the listed categories of it has been satisfied without the requirement to test whether the instrument indeed effects a transaction. It is submitted that statutory context means ascertaining whether something which has been concluded to be a transaction is one of the listed categories (that is, examples) of transaction; it does not mean that something which is not a transaction becomes a transaction merely because it is listed as an example of it. It is submitted that assuming that what is listed as an example of a transaction is a transaction merely because the instrument satisfies the definition of that listed item is a "fundamentally flawed" approach to statutory interpretation. Benidorm maintains that the relevant instrument must be a "transaction", as ordinarily understood and defined in the authorities cited, in order to satisfy s 8(1)(b); and that an instrument is not a transaction merely because it happens to be a "declaration of trust".

The "declaration of trust issue"

As outlined above, the principal issue for determination is the so-called "declaration of trust issue", being whether the Second Declaration of Trust constituted a "declaration of trust" within the meaning of the definition of that term in s 8(3) of the Duties Act. I have extracted above that statutory definition.
It is accepted that the Second Declaration of Trust is a declaration and that property in the Macquarie Street Apartment was "vested" in the declarant, Benidorm. However, as has been noted above, Benidorm says that a critical element in the statutory definition is the requirement that the declaration operates to vest the beneficial estate in the property in such a way as to create a trust (that is, a new trust) over the property for the benefit of the beneficial owner by the declarant (either at the point in time of the impugned declaration or in the future).
In this regard, Benidorm's principal position is that it already held the Macquarie Street Apartment upon trust for the benefit of Mr Stubbs in consequence of the creation of the trust in favour of Mr Robinson (by the First Declaration of Trust in May 2007) and, upon his death, by the operation of the relevant provisions of the Probate Act (as sole executor, and subsequently, as sole beneficiary, of the Will).
In considering Benidorm's position and that of the Chief Commissioner on this issue, it is necessary to answer two anterior issues.
First, the breadth of the definition in s 8(3) - specifically, does the definition embrace mere acknowledgments of existing trusts (contra a declaration of a trust that comes into existence upon, and as a consequence of, that declaration or a declaration of a trust that is to come into existence at some future time as a consequence of that declaration) or, put slightly differently, declarations of trust that have no legal effect beyond acknowledging that which already exists?
Second, and following on from the first, does the declaration here fall within that definition as elucidated?
I consider each of these anterior issues in turn.

The relevant scope of the s 8(3) definition: "acknowledgment" of trust?

For the reasons below, I have concluded that the definition in s 8(3) does not encompass mere acknowledgments of existing trusts. That is to say, in order to come within the definition, the impugned declaration must do something more than, in the sense of having legal effect beyond, merely acknowledging the position subsisting at the time of the impugned declaration.
It is convenient first to consider Rojoda (WA) (and the subsequent decision of the High Court on appeal in Rojoda (HC)). In that case, the Commissioner of State Revenue had imposed duty upon the declarations of trust made between the partners, and their successors in title, of two dissolved partnerships that had not yet been wound up. The deeds, relevantly, provided that freehold titles registered in the names of two partners, which were part of the partnership property, be held on trust for the former partners or their representatives in fixed shares according to their partnership shares.
As Benidorm has observed, the Court of Appeal of Western Australia in Rojoda (WA) was not called upon to, and did not, determine the proper construction of s 11(1)(c) of the Duties Act (WA) (that provision, it will be recalled, being the equivalent to s 8(3)) because the Commissioner of State Revenue had conceded in the Tribunal below that, if it were found that no new trust at general law was created by the impugned deed, then there was no relevant "declaration of trust". It was in that context that Buss P and Beech JA relevantly said (at [31]): [31] Against this background, cl 3 of each of the 2013 Deeds, on its proper construction, merely acknowledged or recorded an existing obligation of Maria that had arisen under the general law. Clause 3 did not create new trusts in relation to the Partnership Properties conferring on the partners or their representatives a proprietary equitable interest in the properties that had not previously been held by the partners or their representatives.
As I have adverted to above, at the time of the hearing before me, the High Court had granted special leave to the Commissioner of State Revenue (leave was granted on 17 May 2019) and had heard argument on the appeal (on 6 and 7 November 2019). The High Court had reserved its decision. That decision was handed down, while judgment was still reserved in the present case, on 18 March 2020 (see Rojoda (HC)). Quite properly, Counsel for Benidorm, with the concurrence of Senior Counsel for the Chief Commissioner, drew the decision to my attention, highlighting the perceived relevant passages. Neither party sought to make submissions on the import of that decision for the present case (leaving it to me to form my own view as to this).
Bell, Keane, Nettle and Edelman JJ, in a joint judgment, described the question at the heart of the appeal in Rojoda (HC) as being the nature of the interest of partners in partnership property (see at [1]). The answer to that question was critical to the disposition of the appeal because the respondent's central submission was that the deeds merely confirmed the existing position in relation to the partnership property of the dissolved partnerships (and, in that way, that the property was already, that is at the time of the impugned declarations, held on trust for the partners in fixed shares).
The majority found for the Commissioner of Revenue and allowed the appeal. As to the issue which I am presently considering, their Honours relevantly said (at [42]) that: [42] Although the relevant operative clause of each of the 2013 Deeds provided that Maria "confirms" that she held the freehold titles of each partnership on trust in the relevant proportions for each former partner or their successors, those "confirmations" of fixed trust had a substantive effect. They extinguished the unique equitable rights of the partners under the partnership trusts and created new fixed trusts. …
Their Honours said (see at [46]ff) that the reasoning of the Court of Appeal (whereby the conclusion that the impugned deeds had created new trusts was avoided on the basis that, as a consequence of the general dissolution of each of the partnerships in circumstances where the "practical certainty" was that liabilities would be discharged from current assets, then equity would regard as done that which ought to be done and would treat the freehold titles as held on fixed trusts according to the shares of each partner) involved "a misapplication of the equitable maxim".
Their Honours said (at [48]) that "[t]he use of the equitable maxim in the manner in which it was deployed by the Court of Appeal was unnecessary to give effect to any right or duty recognised by equity. Instead, by creating rights under a fixed trust it was (i) inconsistent with equitable principles incorporated in the Partnership Act which concern the position of external creditors and (ii) contrary to the respective partnership agreements".
While appreciating that their Honours did not opine specifically on the precise ambit of the meaning of "declaration of trust" (and were not strictly called upon to do so, the issue before their Honours being as to the effect of the relevant deed in a partnership context), it is apparent that their Honours' analysis clearly encompassed (or did not exclude) at least the possibility that the statutory definition would not capture a mere acknowledgment of an existing trust (such a construction being a central premise to, or reason for, the submissions of each party). That said, I accept that this can go no higher than implication and inference because their Honours did not expressly or specifically consider the proper construction, and ambit, of the statutory definition.
In contrast, Gageler J in his dissenting judgment did opine on the scope of the definition of "declaration of trust" (specifically, whether the definition embraces a mere acknowledgment of a subsisting state of affairs and which otherwise has no legal effect or consequence).
After a review of the relevant statutory provisions, academic contributions, and authorities, Gageler J observed (at [94]-[96]): [94] Turning to the circumstances of the present case, two facts are critical. The first is that, at the time of execution of the SIC Deed and the AMS Deed, the SIC Partnership and the AMS Partnership had been dissolved. The second is that the value of the partnership property of each of those partnerships was sufficient to discharge the debts and liabilities. That is to say, the partnerships were solvent. [95] In those circumstances, the proportionate share of each partner in the totality of the surplus assets of the SIC Partnership and the AMS Partnership was calculable in accordance with the SIC Deed of Partnership and the AMS Deed of Partnership. The proportionate share of each partner in the totality of the surplus assets of each partnership as then so calculable was also the proportionate share of each partner in each item of partnership property, which included the totality of the beneficial interest in each parcel of land held on trust for the partnerships by Maria Scolaro. [96] The proportionate share of each partner in the beneficial interest in the real property as in fact so calculated was correctly stated in cl 1 of each of the SIC Deed and the AMS Deed. The proportionate shares thereafter specified in respect of former partners and testamentary beneficiaries of former partners in cl 3 of each of the SIC Deed and the AMS Deed did no more than reflect the proportionate share of each partner as subjected to the testamentary dispositions effected by cl 2 and cl 3A. [Footnotes omitted.]
Critically, for present purposes, his Honour then said (at [97]): [97] … [b]y 'confirm[ing]' the respective shares of the former partners and testamentary beneficiaries of former partners in the land held on trust by Maria Scolaro for the SIC Partnership and the AMS Partnership respectively, cl 3 of each of the SIC Deed and the AMS Deed did no more than acknowledge the legal position that had then come to exist: that Maria Scolaro held the land in trust for the former partners and beneficiaries in the specified shares by operation of law. She did not declare a new trust. She therefore did not by that confirmation engage in a dutiable transaction. [Emphasis added.]
Further, (at [99]) his Honour said that: [99] T]he conclusion that the critical clause in each of the SIC Deed and the AMS Deed did no more than acknowledge the legal position that had come to exist on dissolution of the SIC Partnership and the AMS Partnership does not depend on anticipation of steps yet to occur in the course of the winding up. It does not depend on a distorted application of the maxim that equity regards as done that which ought to be done. It relevantly involves nothing more than recognising, as ascertainable and as ascertained, the fixed share that each partner on dissolution of each solvent partnership had as a tenant in common in the beneficial interest in the land held on trust for the partnership determined in accordance with the statutorily prescribed hypothesis, all of the integers required for the application of which were then known. [Emphasis added.]
As can be seen, in these passages (read in the context of his Honour's ultimate conclusion as to the disposition of the appeal), Gageler J recognised that a purported "declaration of trust" that does no more than acknowledge the legal position that had already come to exist is not, relevantly, a "declaration of trust".
In this regard, while I bear in mind the admonitions of Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 (at [134]-[135]), I respectfully conclude that his Honour's observations are "seriously considered" dicta and that they bear directly on (and are instructive as to the issue in) this matter (contra not "only 'indirectly' on the matter").
Quite apart from the precedential force (or otherwise) of Gageler J's reasoning in Rojoda (HC), I am respectfully of the opinion that his Honour's construction of the statutory language is the correct one. In this regard, it is convenient next to consider, as relevant, those authorities which the parties have relied upon in their submissions before me, particularly the applicability (or otherwise) of what I will describe as the 'future vesting' decisions. I say this because, to my mind, there is a clear demarcation to be made between purported declarations of trust that, in substance, do no more than 'acknowledge' the legal position prior to the purported declaration and those which have the legal effect of creating a trust (at the instant of the declaration or at some later time). I see that the statutory definition encompasses the latter, but not the former, situation.
As to the decision of the Court of Appeal in Platinum, I accept Benidorm's submission that Platinum was a 'future vesting' case which, again, as is tolerably clear from the statutory language of "to be vested", is accommodated by s 8(3) (and see Campbell JA at [7]-[14] and Handley AJA at [83]-[86], [104]-[110], the latter expressly analysing s 8(3) by reference to its two limbs). Otherwise, I see nothing in the reasoning in Platinum that militates against the construction which I here prefer regarding instruments that merely acknowledge that which already exists.
As to the decision of the Full Court of this Court in Tooheys SC, I see that the present case is distinguishable therefrom and that the principles there articulated do not apply to the present situation. As will be recalled, that case concerned the question whether a deed entered into by the brewing company with certain trustees was a declaration of trust within the meaning of the 1920 Act. Relevantly, at the time that the deed was executed and presented to the Commissioner of Stamp Duties, no property or money had yet vested in the trustees and no members had been admitted. The relevant legislative provision referred to "[a]ny instrument declaring that any property vested or to be vested in the person executing the same is or shall be held in trust for the person or persons or purpose or purposes mentioned therein notwithstanding that the beneficial owner or persons entitled to appoint such property may not have joined therein or assented thereto".
Walsh J, writing for the Full Court (Owen, Clancy and Walsh JJ), said as follows (at 545-546): …the description of an instrument contained in par. (2) under the heading "declaration of trust" in the schedule is not so phrased as to be confined to declarations which create or which evidence a trust which is already completely constituted in such a way that property is then irrevocably subjected to the trust, and that the trusts are thenceforth immediately enforceable. Because of the inclusion of the words "vested or to be vested" and the words "is or shall be held in trust", the description extends to cases where no property is as yet vested in the proposed trustee, and extends to cases in which no trust presently operative is declared. Thus it extends, in my opinion, to instruments which would not be classified, in the ordinary language on an equity lawyer, as being declarations of trust. The question is not, therefore, whether this deed is, in the ordinary sense of the term, a declaration of trust, but whether it satisfied the statutory description. It is only to be expected that this description would go beyond the ordinary sense of the term, since "ordinary" declarations of trust are included in the definition of "conveyance" and are thus chargeable without recourse to the provisions now under consideration. [Emphasis added]
To my mind, the words which I have emphasised by way of italicisation in the above passage are significant. This is because the inclusion of those words indicates that, even where the declaration of trust only "purports" to create a trust or merely evidences a trust already completely constituted, the declaration may still have the effect of irrevocably subjecting the trust property to the trust and thereby making enforceable that which was until that declaration not yet enforceable. That is to say, the declaration of trust in such a situation does more than merely acknowledge the legal position which has already come to exist.
Walsh J did ultimately find that the deed there subjected to duty was a relevant "declaration of trust". However, this was because, generally speaking, the declaration there under consideration effected a 'future vesting'. On appeal, the High Court affirmed the decision of the Full Court, agreeing with Walsh J that the deed was a declaration of trust (though the Court was divided as to whether an exemption applied with the majority of Dixon CJ, Taylor and Windeyer JJ holding that the exemption did not apply such that the deed was liable to duty).
As to the decision of High Court in DKLR, again a 'future vesting' case, the following observations must be made. First, to my mind, Mason J (as his Honour then was) was cognisant of the need carefully and precisely to identify the limits to the statutory definition, finding that the definition extended to declarations as to a 'future vesting' because the statute expressly provided for that operation (see at 454) (that is, the 'second limb' of the definition leaves no doubt as to this). Second, while Brennan J (as his Honour then was) did recognise that (see at 471), "[i]nstruments which have no legal operation as well as instruments which are effective declarations of trust are brought to charge by par. (2)", his Honour there immediately qualified that proposition by emphasising that, for the former to fall within the definition, the terms of the impugned declaration must "answer the statutory description".
The point in the present case is that, to my mind, a declaration that does no more than acknowledge precisely that which already exists does not answer that description. In this regard, his Honour's later remarks (at 472) that "it]t is a curious, perhaps an unjust, consequence of this construction that duty is charged upon an instrument which is devoid of legal effect" must be understood in the context of the case (being one of a purported 'future vesting'). Specifically in this respect, it is important to consider his Honour's words immediately following that observation: "… at the time when it is executed and which may fail in its intended purposes and so remain devoid of legal effect" (emphasis added). That is to say, when his Honour was describing the potentially unjust result, his Honour clearly had in mind the circumstance where an instrument purports to effect a 'future vesting' which later fails (contra a mere acknowledgment). In my opinion, this indicates that this is what his Honour had in mind, when making the earlier remarks in relation to "[i]nstruments which have no legal operation… [being] brought to charge…" (again, contra a mere acknowledgment of the state of affairs persisting at the time of the impugned declaration).
As to the decision of the High Court in Pendal Nominees, also a 'future vesting' case and concerned with the now superseded 1920 Act, I consider that that case is also readily distinguishable and the principles there articulated do not here apply. In demonstrating how and why this is so, it is necessary briefly to recount the facts of that case.
In Pendal Nominees, the question was whether a deed of sale, by which the trustee had agreed to purchase shares in a company and which shares were to be held by Pendal Nominees (a wholly owned subsidiary of the trustee) as nominee for the trustee, was assessable as a declaration of trust. The relevant provision of the deed provided that, upon completion, share transfers in favour of Pendal Nominees were to be delivered and Pendal Nominees was to hold such shares as nominee for the trustee of the unit trust. At first instance and in the Court of Appeal, the taxpayer had argued that because the relevant part of the clause in the deed did no more than articulate an obligation imposed by the general law, duty was not chargeable. On a similar footing, in the High Court, the taxpayer argued that the clause was merely declaratory of the general law (see as summarised by Mason CJ at 8, 13).
Mason CJ, and with whom Brennan J and Toohey J agreed, affirmed his Honour's earlier observations in DKLR (which I have considered above). The High Court held that the purported declaration was dutiable.
The reason that I consider Pendal Nominees to be distinguishable from the present (and that the principles there articulated do not have direct application here) is that I see a material difference between the situation where, as in Pendal Nominees, by force of an agreement (or otherwise) a party is obliged, by effect of the general law, to declare a trust and the situation where the trust (purportedly) declared already, by operation of the general law or otherwise, already exists in the form so declared and, thereby, the impugned declaration of trust does no more than acknowledge that fact.
The former situation involves, at some point or another (that is, at the instant of the declaration or later), a declaration of trust that has the legal consequence of effecting the creation of a trust (and, as in Pendal Nominees, the making of that declaration may be obliged by force of the agreement which is, for that reason, brought to duty). The latter situation does not.
To my mind, the former situation clearly falls within the statutory description (whether that be, and it need not be here considered let alone decided, at the point in time of the agreement pursuant to the second limb or, instead, at the point in time of the eventual declaration of trust); whereas the latter situation, I think, does not.
As to the particular passages of the judgment of Mason CJ on which the Chief Commissioner here relies (see above), those passages relate to provisions concerning the imposition of 'double duty' and are not in my opinion squarely of relevance to the present issue which I am here considering. However, I do consider the issues vis-à-vis alleged imposition of 'double duty', as relevant, later in these reasons.
As to the decision in Crowther, where Sheppard J held that a declaration of trust that was "no more than declaratory of the position which had previously existed" was nevertheless captured by the statutory definition, it must be recalled that that decision concerned the predecessor definition in the, since repealed, 1920 Act (a statute which, it is said, charged duty on instruments, irrespective of whether the instrument ever effected a transaction whereas the Duties Act is a regime for charging duty on transactions).
Crowther concerned liability for duty on a declaration of trust bearing the date 10 May 1971 but executed by Mr Crowther on 27 September 1971. The document declared that Mr Crowther held certain land upon trust for a family company, Warley Pty Ltd. That property had been acquired by Mr Crowther on 10 May 1971. The evidence showed that Mr Crowther had originally intended that title to the land would be taken in the name of Warley Pty Ltd. However, at the relevant time, Warley Pty Ltd had not been formed. Warley Pty Ltd was not incorporated until 1 April 1971. Mr Crowther contended that the impugned declaration fell within the following provision of the 1920 Stamp Duties Act: (3) Any such instrument as aforesaid by which … (b) the trusts declared are the same trusts as those upon or subject to which the same property was conveyed to the person declaring the trust by an instrument duly stamped with ad valorem duty under this Act.
This would have had the consequence that only nominal duty was payable. Sheppard J did not accept this submission on the basis that (see at 86) "… no trusts are declared in the contract of sale nor in the transfer giving effect to it … par. (3) (b) is limited to cases where there has been a conveyance of property to a person in trust for another or other persons, with the result that the trust is declared in the contract or conveyance. I think that this situation arises because of the use of the words 'upon or subject to which the same property was conveyed to the person declaring the trust'" (conferatur King v Denison (1813) 1 Ves & B 260 at 272, 273). This reasoning is not inconsistent with my reasoning here. However, such reasoning is not dispositive of the issue which I am presently considering.
Mr Crowther alternatively contended that the impugned declaration fell within the following provision of the 1920 Act: (1) Any instrument declaring that a person in whom property is vested as the apparent purchaser thereof holds the same in trust for the person or persons who have actually paid the purchase-money therefor."
This would also have had the consequence that only nominal duty was payable. To this, the Chief Commissioner submitted that the impugned declaration did not fall within the paragraph because: first, the plaintiff was not the apparent purchaser of the land (he was the real purchaser); and second, the plaintiff, not Warley Pty Ltd, had actually paid the purchase-moneys (albeit that, for the balance due at completion, an indebtedness was created upon payment pursuant to which Warley Pty Ltd became obliged to repay the plaintiff). Sheppard J accepted at least the first of those submissions and indicated an inclination to accept at least part of the second (see at 88). Again, this reasoning is not inconsistent with my reasoning here but it is not dispositive of the issue which I am presently considering.
Sheppard J then turned to consider whether the impugned declaration fell within the provisions of par (2) which provided as follows: (2) Any instrument declaring that any property vested or to be vested in the person executing the same is or shall be held in trust for the person or persons or purpose or purposes mentioned therein notwithstanding that the beneficial owner or person entitled to appoint such property may not have joined therein or assented thereto.
In disposing of that issue, Sheppard J found that (at 88): … [f]or reasons already given, I am satisfied that the land was held upon trust for the company as from 10th May, 1971, that is, some four months or a little more prior to the execution of the declaration of trust. The declaration of trust was, therefore, no more than declaratory of the position which had previously existed" [emphasis added].
His Honour then said (at 88-89), "[i]n my opinion, the words from the paragraph which I have quoted above show that the legislature intended to catch instruments which were no more than declaratory of an existing position" (emphasis added).
In support of this conclusion, Sheppard J cited the judgment of Walsh J in Tooheys (SC). I have already considered the import of the respective Tooheys decisions to the issue now before me.
The facts of Crowther are, to my mind, distinguishable from the present. This is, not least, on the basis that there the impugned declaration, in effect, confirmed Mr Crowther's earlier declaration of trust which had itself had the consequence of vesting the beneficial interest in Warley Pty Ltd; whereas, here, the declaration has, at least Benidorm contends, done no more than acknowledge the state of affairs which had come to exist by operation of the Probate Act. In this way, it may be seen that the force of his Honour's dicta is not as great as may first appear and for which the Chief Commissioner here contends.
To the extent that his Honour's construction applies to the definition contained in the present statutory regime, I consider it to be inconsistent with the reasoning of Gageler J in his Honour's dissenting judgment in Rojoda (HC) which (for the reasons set out above) I consider should be followed. Therefore, to the extent that Crowther would otherwise be applicable, and to the extent that Sheppard J's statements extend in the manner contended for by the Chief Commissioner, I respectfully disagree and decline to follow this decision.
In this regard, I should say that some of Benidorm's submissions, in relation to the company in Crowther being the "real purchaser" of the land, do not sit comfortably with Sheppard J's disposition in that case. To that extent, I do not accept those submissions.
That said, I do see some force to the Chief Commissioner's submission, relying on Project Blue Sky, that the existence of specific varied relieving provisions tends against a narrow construction of s 8(3). However, upon closer scrutiny, I think the better view is that the narrower construction of s 8(3) which I here prefer does not render otiose those relieving provisions (or, at least those on which Benidorm relies and which have been the subject of submissions before me). Indeed, to the contrary, I consider that the construction of s 8(3) which I prefer sits comfortably with the other provisions of the statute and accords with the principles of statutory construction enunciated by the High Court in Project Blue Sky.
As to each of s 18(6), s 18(6A) and s 63(1)(a)(ii), for reasons to which I will shortly come, in my opinion none of these provisions is applicable. In short, as to s 18(6) this is because the provision is only engaged when an earlier transfer has been subject to duty. Relevantly, that transfer and any later declaration of trust (that is, any later declaration captured by the language of the provision) each has separate and independent legal effect; that is, in lay terms, the transfer and the declaration of trust do different things. In this way, it can be seen that the narrower construction of s 8(3) does not render this provision without any operation. As to s 18(6A), the narrower construction of s 8(3) still leaves s 18(6A) with work to do and does not otherwise render the provision without any operation. As to s 63(1)(a)(ii), this provision, like s 18(6), relates to transfers. A transfer of property and a declaration of trust are not the same thing. In this way, it cannot be said that the narrower construction of s 8(3) renders this provision without any operation.
As to s 55, which I have extracted earlier, the Chief Commissioner says that, if it were necessary for the declaration of trust to convey or settle the beneficial interest in the property in order to bring a transaction to duty, then the utility of s 55 would be questionable. In this regard, the Chief Commissioner says that, in the circumstances contemplated by the section, it is obvious that the apparent purchaser already holds the property on a resulting trust. With all due respect, I consider that this submission mischaracterises the doctrine of resulting trusts. To demonstrate how and why this is so, it is again illustrative to identify what, if anything, is the legal consequence of such a (later) declaration of trust.
In this regard, the Chief Commissioner's submission proceeds on the footing that the later declaration of trust has no legal consequence and merely acknowledges the (resulting) trust which already exists. However, in my opinion this is not so; rather, the later declaration of trust states, or confirms, the force of a legal presumption which, prior to any such declaration of trust, could be rebutted and the non-existence of the trust found on the facts. In this way, it can be seen that such a later declaration of express trust has legal consequence and does more than merely acknowledge that which already exists. Accordingly, s 55 is left with clear work to do: it accommodates, in the sense of rendering non-dutiable, the later declaration of a trust that would otherwise only be presumed. This is so whether one conceives of the presumption as a presumption of the existence of a resulting trust or as a presumption that there has been a declaration of trust (to which see J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) at [12-10]). I see nothing in the decision of the High Court in Calverley v Green, a case on which Benidorm here relies, that is necessarily inconsistent with this.
I accept that there are some statements in Calverley v Green which indicate that the trust arises at the time of purchase and which therefore, it might be argued, do not sit comfortably with the analysis here - see, for example, Gibbs CJ (at 252) where his Honour says that "[t]he extent of the beneficial interests of the respective parties must be determined at the time when the property was purchased and the trust created" and the statement of Mason and Brennan JJ (at 262) that "[t]The evidentiary material from which the court might have drawn an inference as to the intention of the parties included their acts and declarations before or at the time of the purchase, or so .immediately after it as to constitute a part of the transaction. Evidence of those acts and declarations were admissible either for or against the party who did the act or made the declaration, but any subsequent declarations would have been admissible only as admissions against interest". Nevertheless, on balance I consider that the decision is conformable with the conclusion I have reached.
For these reasons, while I certainly accept the Chief Commissioner's submission that the definition of "declaration of trust" is wider than that at general law (noting that this was not disputed by Benidorm) and while I also accept the Chief Commissioner's submission that the authorities he has referred to demonstrate that it is not necessary to look behind the declaration (and, instead, all that is necessary is that the statutory definition, which, as he says, is cast wide and unfettered, is satisfied), the problem I have with the Chief Commissioner's position is that I cannot accept that a declaration which does no more than acknowledge that which already exists satisfies the statutory definition. In this regard, each of the authorities (other than, perhaps, Crowther) on which the Chief Commissioner here relies is distinguishable and the principles there articulated do not here have direct application or have the force which the Chief Commissioner contended before me. Indeed, I would go so far as to say, as I hope I have identified in these reasons, that the reasoning in some of those authorities supports the construction which I here prefer.
Further, this construction, to my mind, is also supported by the language used in the statute and finds textual and contextual support. It does not involve, in the language of the submissions of the Chief Commissioner, the "read[ing], or redraft[ing]" of "the definition as constituting two separate 'limbs'".
In any event, and notwithstanding that submission, I note that several of the authorities (considered above) have clearly recognised that the statutory definition encompasses, or may at least be fairly described as encompassing, two "limbs" (that is, either a vesting or a future vesting of the trust) with some of those authorities using that exact language.
That said, to the extent that Benidorm urges a construction that (in order to come within the statutory definition) a declaration must vest the beneficial interest (at the time of the declaration or later), I consider that this puts the proposition too high and fails to identify precisely that which engages the s 8(3) definition. Indeed, as the Chief Commissioner in my opinion correctly contends, nowhere in s 8(3) is there found a requirement that the declaration of trust operate "to vest" a beneficial estate in property in such a way as to create a "new trust". Rather, the operative question is whether the impugned declaration of trust has a legal consequence, or consequences, beyond merely acknowledging that which already exists.
The distinction between these two constructions may, in a small number of cases, be significant. For example, pursuant to s 18(6A), a declaration of trust that does no more than vary covenants of an existing trust (and, relevantly, does not, in terms, "vest" the beneficial interest in anyone other than the person whom already holds the beneficial interest) might fall within the s 8(3) definition (though, might then come within the, or another, relieving position). To my mind, this is consistent with the concept of the trust because, in such a case, the bundle of rights represented by the label 'beneficial interest' are being effected and, thereby, the declaration is doing more than merely acknowledging that which already exists. In this way, it can be seen that the latter of the two constructions which I have just postulated is wider than that urged by Benidorm. Nevertheless, I should say that nothing turns on this analysis for present purposes.

The "declaration" of trust in the Second Declaration of Trust

Having identified above what I consider to be the relevant ambit of the s 8(3) definition, it is necessary now to determine whether the effect of the Second Declaration of Trust brings the transaction within the meaning of a "declaration of trust". That is, more specifically, did the Second Declaration of Trust have an effect beyond merely acknowledging that which had already come to exist?
To answer that question, it is necessary to consider the relevant provisions of the Probate Act.
Section 44 of the Probate Act provides, relevantly, as follows: 44 Real and personal estate to vest in executor or administrator (1) Upon the grant of probate of the will or administration of the estate of any person dying after the passing of this Act, all real and personal estate which any such person dies seised or possessed of or entitled to in New South Wales, shall as from the death of such person pass to and become vested in the executor to whom probate has been granted or administrator for all the person's estate and interest therein in the manner following, that is to say: (a) On testacy in the executor or administrator with the will annexed. (b) On intestacy in the administrator. (c) On partial intestacy in the executor or administrator with the will annexed. […]
Section 47 of the Probate Act provides as follows: 47 Real estate to be held upon trusts of will Subject to the provisions of this part, the real estate of every such deceased person devising such estate by the person's will, shall be held by the person's executor to whom probate has been granted, or the administrator with the will annexed, according to the trusts and dispositions of such will.
The following key facts must be borne in mind: first, Mr Robinson died on 13 September 2013; second, by the Will, Mr Robinson appointed Mr Stubbs as his sole executor and beneficiary; third, on 6 December 2013, the grant of probate of the Will issued in Guernsey; fourth, on 23 December 2014, the grant of probate was resealed in this Court; fifth, on 29 January 2015, Mr Dawson executed the Second Nominee Declaration and, on behalf of Benidrom, the Second Declaration of Trust.
Accordingly, having regard to the operation of the Probate Act and the fact that Mr Stubbs was the sole executor of Mr Robinson's Will, the question is whether the events (or perhaps "transaction(s)") of 29 January 2015 did anything more than acknowledge that which had already occurred upon the grant of probate (by operation of the relevant provisions of the Probate Act).
To my mind, and for reasons that broadly follow those of Gageler J in Rojoda (HC) (albeit in a different context, I accept), the answer to this question is "no". This negative answer does not rest on any strained application of the maxim that "equity regards as done that which ought to be done" or otherwise. Instead, it simply follows from the operation of s 44 of the Probate Act.
I am fortified in this conclusion when one turns to the statements of principle, and result, in Wedge. As Benidorm here relies upon, Rich ACJ there said (at 79): … The subject instrument contains no disposition or agreement to dispose of property belonging to the appellant but is merely an acknowledgement or recognition that he is not the absolute owner of the property comprised in the instrument and preserves other trusts or rights affecting it. No new beneficial interest is created in favour of the appellant or anybody else, and the property remains subject to the same trusts as it did before the instrument was executed.
It must, again, be noted that the High Court there allowed the appeal from the Supreme Court of Victoria and, in so doing, set aside the assessment of ad valorem duty on the instrument in question (which did no more than declare trusts which had already been validly created in the Will of the late father of the appellant).
Relatedly, though not precisely the same as the preceding, I see force to the proposition that, in the matter before me, no beneficial interest in the Macquarie Street Apartment was (nor could ever have been) vested in Mr Stubbs by Benidorm because Benidorm did not hold the beneficial interest in it since (at least) from the time of the First Declaration of Trust (or, perhaps, the acquisition in consequence of the Apartment Resulting Trust, it matters not) the beneficial interest was held at all times by Mr Robinson.
In this regard, I accept that the words "AND DECLARED" after "HEREBY ACKNOWLEDGED" in the heading to the operative provisions of the Second Declaration of Trust are, in the words of Benidorm, "superfluous addition". This is because the words used in the relevant instrument are not determinative; after all, a taxpayer cannot avoid liability to pay duty by simple semantic device. In this regard, the observations of Latham CJ in Hopkins (at 360) and Rich ACJ in Wedge (at 79) (on which Benidorm relies in submissions - see above) are apt.
Further, I accept that Mr Dawson's ignorance of the operation of the relevant provisions of the Probate Act is of no moment. That is to say, this does not change the fact that the Second Declaration of Trust, in effect, had no work to do and had no legal consequence.
Having said these things, it is necessary also to consider the Chief Commissioner's submissions on this aspect of the dispute.
As to the Chief Commissioner's submission that the First Declaration of Trust was dutiable (with a concession applied per ss 8(3) and 55) notwithstanding that it was preceded by the Apartment Resulting Trust and that Benidorm did not need to do anything in order to convey or settle the beneficial interest in Mr Robinson, I do not see where this submissions takes the matter. This is for no less than two reasons.
First, the impugned transaction here relates to the Second Declaration of Trust and the treatment of the First Declaration of Trust, which is of a materially different character (concerning the purported declaration of an express trust over that, and on terms, circumscribed by an earlier resulting trust), is of limited, if any, assistance (at least as regards disposition under the "declaration of trust" issue). This is not least because disposition under a relieving provision, or exemption from duty, is a different matter (which I come to in due course).
Second and relatedly, as I have previously indicated, the declaration of an express trust in the circumstances in which the First Declaration of Trust was made does more than simply acknowledge the resulting trust (that is, 'confirming' the Apartment Resulting Trust).
As to the Chief Commissioner's submission that s 47 of the Probate Act does not confer the beneficial interest in the Macquarie Street Apartment in Mr Stubbs as beneficiary and instead provides that the executor takes the property "according to the trusts and dispositions of such will" (with the Will providing that the "remainder of the estate" goes to Mr Stubbs absolutely), I do not see how this changes the disposition of this issue. I say this for the following reasons.
Before his death, Mr Robinson held the beneficial interest in the Macquarie Street Apartment pursuant to, or as confirmed by (again, it matters not), the First Declaration of Trust; then, upon the grant of probate following Mr Robinson's death and by operation of the provisions of the Probate Act, the beneficial interest vested in Mr Stubbs.
This might be dispositive if, as the Chief Commissioner also submits, Benidorm did, in consequence of its execution of the Second Declaration of Trust, vest Mr Robinson's beneficial interest in the Macquarie Street Apartment in Mr Stubbs as beneficiary of the Will. However, I do not accept that proposition, which it seems to me proceeds on an incorrect identification of the, so to speak, relevant legal relationship.
To explain why this is so it is important to identify the two planes of legal relationship here at play. The first is the relationship of beneficiary and trustee of the interest in the Macquarie Street Apartment under the trust. That is a relationship between Mr Robinson (and, later, Mr Stubbs) and Benidorm, respectively. The second is the relationship between executor and the creditors of, along with those with other interests in, Mr Robinson's estate. The issue here concerns the first of those relationships. However, at least some of the submissions for the Chief Commissioner focus on the second.
That this is so is revealed by some of the authorities on which the Chief Commissioner relies; for example, the reliance placed by the Chief Commissioner on the decision of Santow J in Fryer. While it is certainly true that Mr Stubbs is the sole beneficiary of Mr Robinson's estate, the issue here concerns Mr Stubbs' rights against Benidorm as trustee, and his rights to the beneficial interest in the Macquarie Street Apartment, under the trust over the Macquarie Street Apartment; it does not concern an estate beneficiary's rights, as a beneficiary, against Mr Stubbs, as executor (putting aside the fact that this is, in practical terms, a right against himself). The former relationship is a plane removed from the latter. The same can be said of the Chief Commissioner's reference to the reasoning of Buss P in Sarich (at [211]).
The dispositive point is that, as is the core distinction between executors and trustees, the property that comes to the executor by reason of that office comes in full ownership. That is, it comes without distinction between legal and equitable interests (whereas, a trust is premised on a duality of legal and equitable ownership). As was said by Swinfen Eady LJ in Re Blow [1914] 1 Ch 233 (at 246), "[a]n executor is not an express trustee for the residuary legatees or next of kin".
This difference was explained by the High Court in Schultz as follows (at 312): [P]rior to administration of the deceased estate, there is no specific property capable of constituting the subject property of any trust in favour of the beneficiary. It could not be said at that stage what part or parts of the testator's property would need to be realized for the purposes of administration. So It was held that the beneficiary does not have a proprietary interest in each of the assets which are the subject of the devise or bequest such that he or she can say "this is mine" or "this belongs to me".
In this regard, I see force to Benidorm's submission that the distinction drawn by the Chief Commissioner between Mr Stubbs' status as executor (in which capacity the Chief Commissioner seemingly concedes a beneficial vesting) and his status as the beneficiary of the Will is contradictory and, for the reasons here explained, fails to identify the relevant plane of legal relationship. This is further exposed if one considers an apparent implication, or effect, if the Chief Commissioner's submission (that Benidorm in consequence of its execution of the Second Declaration of Trust vested the beneficial interest in the Macquarie Street Apartment in Mr Stubbs as beneficiary of the Will whereas the Probate Act had only vested that interest in Mr Stubbs as executor) were to be accepted. This apparent implication is as follows: the Second Declaration of Trust could have had the consequence of circumventing the due administration of the estate (including, Mr Stubbs' obligations as executor to satisfy payment of estate debts, funeral and testamentary expenses before he could take the interest unconditionally for his benefit) by effectively vesting in Mr Stubbs the beneficial interest in the Macquarie Street Apartment absolutely at a time when, if and where the estate were not yet fully administered, Mr Stubbs held the beneficial interest subject to the due administration of other estate interests.
The Second Declaration of Trust did not (and could not) do that. Again, the Second Declaration of Trust operated on the distinct and separate plane of legal relationship, being Mr Stubbs' relationship as beneficiary (under the trust) to Benidorm as trustee of that trust. In this regard, I consider that the distinction advanced by the Chief Commissioner in his submissions does some violence to what is said in, amongst other authorities, Livingston and Schultz.
I cannot accept the Chief Commissioner's submission (said to be dispositive irrespective of my determination of preceding submissions) that the most that could pass to Mr Stubbs under the Probate Act is the beneficial interest held by Mr Robinson prior to his death; whereas what Benidorm has declared is a trust over the whole of the legal estate. In this regard, it is instructive to consider the passage, to which the Chief Commissioner refers, of the judgment of Gibbs CJ in DKLR (relevantly at 442). His Honour there, relevantly, said: It was next submitted on behalf of the appellant that even if the case fell within par. 2 no duty was payable, because the property comprised in the declaration was no more than the bare legal estate, or, alternatively, that the consideration for the declaration should be regarded as the transfer of the land and that there was therefore full consideration for the declaration. Neither of these arguments is correct. The property comprised in the declaration of trust was the entire property in the land in question. Before the transfer was executed 29 Macquarie was the legal owner of the land; it had the whole right of property in the land, but had no separate equitable estate in it, for its equitable estate was absorbed in the legal estate. Assuming, as we must, for the purposes of the case, that there was an effective transfer of the fee simple to D.K.L.R., the latter company then became obliged to hold the land for the benefit of 29 Macquarie. However, the property as to which the trust was declared - the property comprised in the declaration - was the whole right of property in the land, and not the bare legal estate, for it was not until the declaration of trust became operative that any separate equitable estate was created. 29 Macquarie did not transfer to D.K.L.R. the bare legal estate; indeed it could not declare itself a trustee for itself, and then transfer the bare legal estate to another. [Emphasis added.]
In DKLR, 29 Macquarie was the registered proprietor of certain land. The directors of 29 Macquarie later resolved to request that DKLR act as trustee for it of the land. The directors then approved the declaration, adding that DKLR would hold only the legal estate and that 29 Macquarie would be retaining the beneficial ownership. The directors of DKLR then resolved that that company execute the declaration of trust. The directors of 29 Macquarie then resolved that the company "affix its seal to a transfer of the bare legal estate". The declaration of trust was then executed on behalf DKLR. A memorandum of transfer from 29 Macquarie to DKLR was then executed.
As can be seen, the facts of DKLR are very different to the present proceeding: DKLR concerned the transfer of real property previously not subject of any trust and a subsequent declaration of a trust; meanwhile, and at risk of belabouring the point, the present proceeding concerns the vesting in the executor of the interests of a deceased estate consequent upon the grant of probate of an already persisting beneficial interest under an already persisting express trust. In this way, it can be seen that the dichotomy sought to be drawn in the present case between the beneficial interest held by Mr Robinson prior to his death, on the one hand, and the interest under a trust over the whole of the legal estate which Benidorm has declared, on the other, is a false dichotomy: they are, relevantly, the same thing.
Once this is appreciated, the disposition of this issue is, at least in some respects, answered by the Chief Commissioner's own acceptance, in submissions, that on the death of Mr Robinson, and by operation of s 44 of the Probate Act, the beneficial interest in the Macquarie Street Apartment came to be vested in Mr Stubbs as executor (the Chief Commissioner in this regard accepting, by reference to s 65(12) of the Duties Act, that that statutory vesting is not subject to duty).
Similarly, as to the legal consequence (or otherwise) of the Second Declaration of Trust, the Chief Commissioner's own submissions go some way in disposing of the issue. Relevantly, the Chief Commissioner submitted that the transaction as identified by Mr Stubbs is to keep the property in Benidorm's name and that the Second Declaration of Trust is a record to avoid any uncertainty of ownership and potential future litigation (noting, in this regard, that the Second Declaration of Trust, once stamped, is "at the very least" of evidentiary value and is an admissible record of its content).
That is to say, on this submission (which, I readily accept, was only one of many submissions many of which were put in the alternative), the Second Declaration of Trust had no legal consequence other than confirming, and constituting evidence of, that which had already come to exist by operation of the Probate Act. In that particular regard, the dutiable treatment of express declarations confirming resulting trusts (as to which, see above) should here be recalled. For the avoidance of doubt, the distinction between these two circumstances is as follows: the former does no more than evidence (in the sense of acknowledging) that which had already come to exist by operation of the Probate Act; whereas the latter has legal effects beyond merely evidencing (in the sense of acknowledging) the resulting trust (in that it confirms that which would otherwise only, as a matter of law, be presumed).
I do not accept the submission that the Second Declaration of Trust does more than merely acknowledge the general law because I consider that this proceeds from the wrong point of reference. That this is so is illuminated when one considers the comparisons, between the rights and obligations under the Second Declaration of Trust and those under the general law, which the Chief Commissioner attempts to draw out in order to make good this submission.
The salient comparisons postulated in furtherance of this submission were as follows: first, the Second Declaration of Trust employs mandatory, directory and anticipatory language; second, the Second Declaration of Trust contains an undertaking by the trustee to hold the property on the same trusts as the First Declaration of Trust (it is said, thereby, going beyond the general law in expressly agreeing to act as directed by Mr Stubbs and in agreeing to execute all instruments); third, the Second Declaration of Trust contained an agreement by Mr Stubbs himself to indemnify the trustee and to pay for all outgoings (it is said, going beyond a trustee's lien or right to be recouped or exonerated); fourth and similarly, the Second Declaration of Trust contains express indemnities (noting that Mr Stubbs expressly undertook obligations that go beyond the general law so far as indemnities are concerned and, in the case of a transfer, agreed to a prior or simultaneous discharge of monies owed or owing); and fifth and finally, the Second Declaration of Trust articulated an express mechanism for transfer.
As can be seen, and taking for example the Chief Commissioner's reference to Octavo v Knight which is cited in support of the third of those comparisons, the Chief Commissioner here compares the putative rights and obligations under the Second Declaration of Trust to those rights and obligations that arise according to the general principles of trust law. I consider, however, that the correct point of reference is the question whether the rights and obligations under the Second Declaration of Trust precisely correlate with those which Mr Stubbs held following the operation of the Probate Act. That requires comparison between the First Declaration of Trust and the Second Declaration of Trust. Relevantly, those rights and obligations precisely correlate; and, again, they are rights and obligations which had already vested, by operation of the Probate Act, in Mr Stubbs. It is not necessary in this context to consider other cases where the "capacity" issue has been raised (see, for example, Rinehart v Rinehart [2020] NSWSC 68 at [197]ff).

Conclusion

For the above reasons, I have concluded that the Second Declaration of Trust did not constitute a "declaration of trust" within the meaning of the definition of that term in s 8(3) of the Duties Act.
As adverted to in the "Background" section of these reasons, the remaining three issues identified by Benidorm arise only if I had found that the Second Declaration of Trust did constitute a "declaration of trust". Nevertheless, and in the event that I am wrong in the disposition of that issue, I turn now to consider those three issues.
The first is whether the Second Declaration of Trust is a "transaction" within the meaning of s 8(1)(b)(ii) of the Duties Act (again, referred to by Benidorm as the "transaction issue").

The "transaction issue" under section 8(1)(b)(ii)

As noted, this issue is whether, if the Second Declaration of Trust is a declaration of trust under s 8(3), it is a "transaction" within the meaning of s 8(1)(b)(ii). This issue can be readily disposed of, in my opinion. However, before doing so, I note that Benidorm's description of this issue is perhaps an imprecise description of the dispositive point.
To my mind, it is tolerably clear from the statutory provision that the word "transaction" in s 8(1)(b) does not itself have any operative effect. Instead, the word "transaction" is employed as a simple classificatory device capturing those specific legal events, as enumerated in the list that follows the chapeau, which are chargeable with duty under the Chapter. Put differently, and to adopt the language of the Chief Commissioner's submission which I here accept, the word "transaction" in s 8(1)(b) is defined by what follows it. It is therefore unnecessary to consider the ordinary or other meaning of the word "transaction". It is also unnecessary to consider the statutory purposes of the Duties Act, as identified in Winston-Smith and elsewhere, or to reach for the contention that Emmett AJA's observations regarding s 163H underlie the entire statute and thereby the word "transaction" in s 8(1)(b) has independent operative effect. This, I consider, is the answer to Benidorm's position on this issue and it is fatal thereto.
I now turn to consider whether the Second Declaration of Trust is liable to nominal duty under either of s 18(6) or s 18(6A) (again, referred to by Benidorm as the "superseded trust issue" and "the same trust issue").

The "superseded trust issue" under either s 18(6) or s 18(6A)

As noted, this issue is whether, if the preceding two issues were answered affirmatively, the Second Declaration of Trust is liable to nominal duty: (i) of $10.00 under s 18(6) because it declares the same trust as the resulting trust under which Mr Robinson acquired the Macquarie Street Apartment on 16 May 2007; (ii) of $10.00 under s 18(6) because it declares the same trust as declared in the First Declaration of Trust; or (iii) of $50.00 under s 18(6A) because it supersedes the First Declaration of Trust, declares the same trust(s) as the First Declaration of Trust declared, the beneficiary in each trust is the same and the trust property in each trust is the same.
I reject each of those propositions for the following reasons.
As I have noted in my summary of the factual background to this dispute, on 27 June 2007 the sale of the Macquarie Street Apartment was completed. Ad valorem duty of $783,994.00 paid on the Contract. This is particularly relevant to the disposition of the issue here being considered because of the requirement in sub-s (6) that ad valorem duty have been paid on the relevant transfer.
Similarly, and as also noted in my summary of the factual background to this dispute, the First Declaration of Trust was determined to be liable for nominal duty of $50.00 pursuant to s 55(1)(a) of the Duties Act. This is of particular relevance to the disposition of the issue here being considered because of the requirement in sub-s (6A) that duty have been paid on the relevant (superseded) declaration of trust. Pausing here, I note that the requirement under sub-s (6A) is not a requirement that the relevant duty have been assessed on an ad valorem basis.

Section 18(6)

As can be readily discerned, sub-s (6) is only engaged if ad valorem duty has been paid on the relevant "transfer". In this regard, and as I have just noted, in the present case ad valorem duty was not paid on the transfer - it was paid on the Contract. Therefore, as the Chief Commissioner here submits, sub-s (6) may not be engaged for this reason (and I note, in this respect, s 9 of the Duties Act).
In any event, for the reasons to which I now turn, I am not persuaded that the First Declaration of Trust and the Second Declaration of Trust declare the same trust(s). For this reason, s 18(6) is not here engaged.

Section 18(6A)

The application, or non-application, of sub-s (6A) is more difficult. This is because the sub-section is engaged where the relevant 'earlier duty' was charged on the earlier trust, not an earlier transfer; and, as I have noted, here a nominal duty was paid on the the First Declaration of Trust.
At the outset, I understand that it is common ground between the parties that that the Second Declaration of Trust supersedes the First Declaration of Trust; and that the Second Declaration of Trust involves the same dutiable property as the First Declaration of Trust. Rather, as can be appreciated, there are two critical issues here contested as regards the engagement or non-engagement of s 18(6A). These issues are as follows.
First, whether the trust declared by the declaration of trust (here, the Second Declaration of Trust) is the same trust(s) as were declared by superseded declaration of trust (here, the First Declaration of Trust).
Second and relatedly, whether the beneficiary under the declaration of trust (here, Mr Stubbs) is the same as under the superseded declaration of trust (here, Mr Robinson).
I do not accept (for the reasons which I have indicated in my disposition of the "declaration of trust" issue) the Chief Commissioner's submission that the dispositive point is some purported distinction between Mr Stubbs taking the beneficial interest in the Macquarie Street Apartment as executor while taking the same beneficial interest later as beneficiary under the Will. As I have indicated, to my mind, such a submission focuses on an erroneous point of reference: no declaration of trust by Benidorm could affect Mr Stubbs' duties as executor of the Will and his rights as beneficiary under the Will and, thereby, alter the 'capacity' in which the beneficial interest under the trust vested in Mr Stubbs.
Meanwhile, I see some force, generally for the reasons which I have given in my determination of the "declaration of trust" issue (and I note that that reasoning can apply here even in the event that I am wrong in my determination of the "declaration of trust" issue), in Benidorm's submission that cl 2 of the Second Declaration of Trust does no more than confirm, or acknowledge, the succession under the Will of Mr Stubbs to that term of the (existing) trust over the Macquarie Street Apartment created by the First Declaration of Trust.
However, I have considerable difficulty accepting that the trust declared by the First Declaration of Trust has the same beneficiary as that declared by the Second Declaration of Trust. The beneficiary of the former was Mr Robinson. The beneficiary of the latter is Mr Stubbs.
In this regard, I also have some difficulty accepting that the trust declared by the First Declaration of Trust is the same trust as that declared by the Second Declaration of Trust. This is not least because the object (that is, the beneficiary) of the trust(s) is a different person.
In one sense, it can be conceived that Mr Robinson and Mr Stubbs are the 'same' beneficiary. One might reason to that conclusion (and, indeed, as I understand the thrust of Benidorm's submissions to be) as follows: Mr Robinson (as beneficiary) held a bundle of rights as against Benidorm (as trustee) vis-à-vis the subject property of the trust; and Mr Stubbs has come to occupy Mr Robinson's position as beneficiary and, thereby, now holds exactly those same bundle of rights vis-à-vis the subject property of the trust.
Having said this, I think that arguments of this kind necessitate artificiality and straining of theoretical concepts which does no little violence to the words used, as properly construed, in the statute.
This difficulty is not met by reaching for a purposive construction whereby it is said that s 18(6A) must be construed in order to avoid the imposition of 'double duty' arising from a declaration of trust made to give effect to the disposition under Mr Robinson's Will. I think this not least because the legislature has made specific provision in relation to deceased estates under s 63 and elsewhere; further still, a purposive approach is not a licence to ignore the plain meaning of the words used. Again, I do not see how such a rule of statutory interpretation, if applied here, can be legitimately deployed to make Mr Stubbs the same beneficiary as Mr Robinson.
For these reasons, I have concluded that neither para (6A)(a) nor para (6A)(b) is here satisfied, with the consequence that s 18(6A) does not here apply. There was a change of beneficiary upon the death of Mr Robinson; that change in beneficiary was effected by the relevant provisions of the Probate Act.

The "transfer under the Will issue" under s 63(1)(a)(i)

The final issue concerns whether, if the Second Declaration of Trust is a declaration of trust under s 8(3) that it is a dutiable transaction within the meaning of s 8(1)(b)(ii) and is otherwise liable to duty, the Second Declaration of Trust is liable to nominal duty of $50.00 pursuant to s 63(1)(a)(i) as a transfer made under and in conformity with the trusts of the will of the late Mr Robinson. I have extracted the terms of s 63 earlier in these reasons.
I can readily accept, as Benidorm submits, that the Second Declaration of Trust was made (or, at least, seems to have been thought necessary) to give legal effect to Mr Robinson's testamentary wishes.
However, to my mind, Benidorm's submissions on this issue must be rejected for at least the following two reasons. First, contrary to Benidorm's submissions, the Second Declaration of Trust was (purportedly) a declaration of trust (albeit one that, for the above reasons, does not fall within the statutory definition under s 8(3)). It was not a transfer.
Pausing here, I ought to note that Benidorm indicated in submissions that it did not understand that the Chief Commissioner cavilled with Benidorm's position that this was a transfer. However, as adverted to above, the Chief Commissioner has put a submission that the Second Declaration of Trust was not a transfer. For the avoidance of doubt, I accept the Chief Commissioner's submission.
Second, in any event, the Second Declaration of Trust (whether one characterises it, as a matter of law, as a declaration of trust or a transfer) was not made by the legal personal representative (here, Mr Stubbs) of the deceased (here, Mr Robinson). Rather, it was made by Mr Dawson. In this regard, I accept the Chief Commissioner's submission that, contrary to Benidorm's position that the "transfer" is made by Mr Stubbs in different capacities, the mere fact that Mr Stubbs is recorded as a party to the Second Declaration of Trust does not mean that Mr Stubbs made the declaration of trust.
Otherwise, to the extent that Benidorm says that because the beneficial interest is dutiable property then ipso facto the Second Declaration of Trust satisfies the test of a "transfer of dutiable property", I do not accept this submission. The nature of the interest the subject of the transaction does not determine the legal characteristic of that transaction.
It is, in these circumstances, unnecessary to consider whether the Second Declaration of Trust vested the interest in Mr Stubbs in his capacity as executor, his capacity as beneficiary, both capacities, or if anything turns on any such distinction (though, as to this, see my brief observation at [312] above).

Conclusion

Ultimately, notwithstanding the level of complexity to which some of the submissions here descended, the difficulties in this matter are perhaps more chimerical than real. Mr Robinson was the beneficiary under the trust which existed over the Macquarie Street Apartment. Upon his death, the relevant provisions of the Probate Act were engaged. Those provisions operated to vest, in accordance with his Will, the beneficial interest in the Macquarie Street Apartment under that trust in Mr Stubbs. That had the consequence of effecting a change in the beneficiary and, in effect, created a new and different trust. The Second Declaration of Trust did no more than acknowledge that fact.
For the above reasons, Benidorm's claim should be allowed. I see no reason not to make the ordinary order as to costs.

Orders

Accordingly, I make the following orders: 1. The defendant's assessment dated 6 March 2019 ("the Principal Assessment"), which assessed a deed made on 29 January 2015 between the plaintiff (as trustee) and Derek Stubbs (as beneficiary) described as "Declaration of Trust by Nominee" with ad valorem duty, be revoked pursuant to s 101(1)(a) of the Taxation Administration Act 1997 (NSW). 2. The defendant repay any duty paid under the Principal Assessment with interest pursuant to s 101(1)(e) of the Taxation Administration Act 1997 (NSW). 3. The defendant pay the costs of this proceeding pursuant to s 101(1)(e) of the Taxation Administration Act 1997 (NSW) and s 98 of the Civil Procedure Act 2005 (NSW).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2020

Taxation Administration Act 1997(NSW)

Stamp Duties Act 1894(Qld)

Stamp Duties Act 1920(NSW)

Stamps Act 1982(Vic)

Duties Act 1997(NSW)ss 8, 9, 11, 18, 50, 54, 55, 63, 652, 163H

Stokes v Churchill; Estate of Fryer (1994) NSW ConvR 55- 694 Toohey's Ltd v Commissioner of Stamp Duties (1960) 60 SR (NSW) 539 Tooheys Limited v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602; [1961] HCA 35 Walsh Bay Developments Pty Ltd v Commissioner of Taxation (Cth) (1995) 31 ATR 15 Wedge v Acting Comptroller of Stamps (Victoria) (1941) 64 CLR 75; [1941] HCA 1 Winston-Smith v Chief Commissioner of State Revenue [2018] NSWSC 773 Texts Cited: J D Heydon & M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, LexisNexis Butterworths, 2006) J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) Justice R White, "The Nature of a Beneficiary's Equitable Interest in a Trust" [2007] New South Wales Judicial Scholarship 12 The Macquarie Dictionary (3rd ed, 1997, Macquarie Library) Category: Principal judgment Parties: Benidorm Pty Ltd (Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: C Bevan with I Sethi (Plaintiff) R Seiden SC with S Kanagaratnam (Defendant)

Judgment

HER HONOUR: Before me for hearing in December last year was an application by the plaintiff, Benidorm Pty Ltd (Benidorm), for review of a Notice of Assessment of Duty dated 6 March 2019 (the Assessment) issued by the defendant, the Chief Commissioner of State Revenue (Chief Commissioner).
The Assessment assessed for ad valorem duty a deed made on 29 January 2015 between Benidorm (as trustee) and Derek Stubbs (as beneficiary) (the Second Declaration of Trust), by which Benidorm declared that it held certain property (a penthouse apartment on Macquarie Street, Sydney, to which I will refer as the Macquarie Street Apartment) as nominee on trust for Mr Stubbs. The principal question for determination in the present proceeding is whether the Second Declaration of Trust constituted a dutiable transaction, which turns on whether it falls within the statutory definition of "declaration of trust" pursuant to s 8(3) of the Duties Act 1997 (NSW) (Duties Act). If so, then the question then arises as to whether any exemption or concession (under ss 18(6), 18(6A) or 63(1)(a)(i) of the Duties Act) applies.

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