Commissioner of Stamps (WA) v L Whiteman Limited [1940] HCA 30

dl by the commissioner in respect of stamp duty as part of the land. of the Supreme Court of Western Australia (Dwyer J.) varied.

Whiteman prior to 15th April 1937 carried on business as xer under the firm name of The Middle Swan Brickworks. April 1937 L. Whiteman Ltd. was incorporated under the

ee, was expressed to be to acquire the business of Lewis Whitemai Comms. On 15th April 1937 Lewis Whiteman made an arrangement wit stoner or the company to sell the assets of his business to it for the sum o

(W.A.) x (a) Stock on hand - bricks oe be .. ~Soig a Mbeki firewood ae oa re 250

• (b) Sundry debtors .. te HA 3 .. 9 425 (c) Plant, including drying sheds .. a -» 6,400 Plant, special .. i 2 i . 3400

(d) Kilns, new yard .. a ve Ed oa 700 - (e) Goodwill .. be ba Bo 26 -» 5,000 (f) All that piece of land comprised in certificate

On 31st March 1939 an instrument of transfer bearing date March 1939 was lodged at the Office of Titles for registration. consideration expressed in the transfer was £2,100, the unimp value of the land. Stamp duty amounting to £21 was paid the but subsequently the Commissioner of Titles referred the ins'

of the Stamp Act 1921-1931 (W.A.). He then assessed duty at £126 on the following consideration : - Land .. ss ee ae ae oa -» £2,100 Plant, including drying sheds _ . .. Be -. 6,400 Plant, special nS BS ue Ne .. 3,400 Kilns, new yard es es ae or 4 700

At the request of the company the commissioner stated a ca for the opinion of the Supreme Court of Western Australia as whether the instrument was properly assessed. It came on } hearing before Dwyer J., who varied the assessment of the con sioner by disallowing, by consent, the assessment on the i "plant, special, £3,400," and disallowing the assessment in respect of brickmaking machinery, £4,040, which formed part of item " plant, including drying sheds, £6,400." Dwyer J. fixed duty at £51 15s. It appeared from the special case and affiday filed on behalf of the parties that portion of the above-mention i machinery had been used in brickmaking by Whiteman on ano

e being brought to the land upon which it was when sold mpany. At the date of the transfer of the business the was bolted to concrete beds in the soil and was easily It was solely used for making bricks, and it was intended clay on the site had been exhausted to remove it elsewhere. is housed in by a wooden and iron erection which, if the ry were removed, would have to be pulled down. It was d by the company that, as the parties had intended to e this machinery, it was not affixed to the soil and was in law Dwyer J. upheld this contention. jal leave, the Commissioner of Stamps appealed to the

for the appellant. By sec. 62 of the Stamp Act 1921- .) " Conveyance on sale " is defined to include an instru- 'of transfer. Sec. 16 of the Act provides for the payment of em duty as set out in the Second Schedule. Duty on a of land under the Transfer of Land Act 1893 (W.A.) is ed at £1 per £100, The consideration for a transfer of land nelude the value of fixtures unless actually severed. Fixtures conveyance without mention therein, and the amount paid must be included in the statement of the consideration. ed to Halsbury's Laws of England, 2nd ed., vol. 20, p. point under discussion here was decided by the Full Queensland in Great Fitzroy Mines Ltd. v. Commissioners (1). The commissioner is not bound by the way in which es regard the machinery, They may regard it as chattels, stamp-duty purposes it is part of the land (Craven v. Geal 'The purpose of the fixing was to complete the use of the

and it was not put there for any enjoyment of the freehold lds v. Ashby & Son (3); Hobson v. Gorringe (4); Crossley s Lid. vy. Lee (5)). The fixtures formed part of the land

. for the respondent. The parties to the transaction led that the machinery was to pass as a chattel. It was easily ble, and, in fact, will be moved when the clay is exhausted. ever intended that it should form part of the land. The re entitled to apportion their consideration. [He referred Commissioners v. Queensland Meat Export Co. Ltd. (6) ;

R. 161, (4) (1897) 1 Ch. 182. 82) VLR. 172. (5) (1908) 1 K.B. 86. (1904) A.C. 466, at p. 472. (6) (1917) A.C. 624.

H.C. or A. Holland v. Hodgson (1).] The test of whether a chattel becom es 1940, part of the soil is: What did the parties intend ?

eon (Gens {Ricu J. referred to Australian Provincial Assurance Co, Tad, sioner or Coroneo (2).]

Stars [Counsel referred to secs. 16 and 31 of the Stamp dct 1921

v 1931.] L. Warren eee Dunphy, in reply. Under sec. 31 (6) of the Stamp Act 1921.

the commissioner can find out what was the true consideration [He referred to Halsbury's Laws of England, 2nd ed., vol. 28, p. 46 The argument of the respondent was put in the Great Fitzroy (3) and was there rejected. If the appeal succeeds, the duty s be £92.

Ricu A.C.J. This is an appeal by special leave from an order of Dwyer J., made on originating summons, by which the assessme made by 'the appellant on a transfer of land from Lewis Whi to the respondent was varied by disallowing the assessment of on the item " brickmaking machinery, £4,040." The reasons of t learned judge are not incorporated in the transcript; whene reasons are given, they should be put in the transcript for the b of the appeal court. I understand, however, that in this case the learned judge decided the matter in chambers and that in Australia it is not the practice to give reasons in chamber mat

The material upon which the order was made consisted of a stated by the appellant for the opinion of the Supreme Court Western Australia, and the affidavits of Messieurs Dunphy, Unmach

that a transfer of certain land and other assets was made to t respondent, and amongst such assets was machinery, portion which was suitable to brickmaking and valued by Whiteman £4,040. In making his assessment the commissioner considered that this item passed to the respondent as part of the land. The reg dent, however, contends that the machinery was all of a chat nature and the only consideration upon which duty is chargeable i that set out in the instrument, namely, the sale value of the lan

The question in the case stated was whether the commissio assessment was correct.

The facts on which the appellant relies are that the machi was bolted to concrete bases and was used for making bricks fi

(2) (1938) 38 S.R. (N.S.W.) 700; 55 W.N. (N.S.W.) 246. (3) (1913) Q.S.R. 161.

No doubt, when the clay is exhausted the machinery will be from its present position, but in the meantime it is affixed land and is essentially being used for the better enjoyment of 'land. Even if the machinery is affixed, the respondent contends e intention of the parties is required to pass it as land and facts show that it was not the intention of the vendor and that the machinery should be sold as fixtures or as part soil, but it was intended that it should be sold as chattels. | "the circumstance to show intention is the degree and object -annexation which is in itself apparent and thus manifested

" (Hobson v. Gorringe (1) ). his case the parties have manifested their intention as to the and object of the annexation by bolting the machinery to ete bases and enclosing the machinery in sheds which must if the machinery is removed, the object being to use the ery for transforming clay found on the land into bricks. As d Lindley said, "the purpose for which the machines were and fixed seems to me unmistakable ; it was to complete e the buildings as a factory. It is true that the machines be removed if necessary, but the concrete beds and bolts for them negative any idea of treating the machines when movable chattels" (Reynolds v. Ashley & Son (2) ). The thorities are collected in a convenient form in Australian Pro- il Assurance Co, Ltd. v. Coroneo (3); North Shore Gas Co. Ltd. iss of Stamp Duties W. S.W.) (4); Great Fitzroy Mines

That required the commissioner to assess it as land. It

'that he was entitled to examine the instrument to ascertain

the consideration set out in the instrument was the real ration for the sale.

order that I suggest is that so much of the order of Dwyer J.

g the commissioner's assessment on the item " brick-

loner be restored. That would increase the duty from ds, to £92. Pursuant to the undertaking given on the applica- ing special leave, the commissioner will pay the costs of

S B93. (8) (1938) 38 S.R. (N.S.W.), at p. M4) A.C, 466, at p. 472. 712,

ed Comanis- SIONER OF Stamps (W.A.) v. L. Warremax Lap.

H.C. or A. Srarke J. I agree and have nothing to add except this. ee parties ask the commissioner to state a case, he should si Comms. the facts clearly and explicitly for the opinion of the cou stoner or has not done so in this case, and all parties have submitted wa) which they agreed should be looked at. If they had not v we might not have looked at them.

Appeal allowed by setting aside so much of the ord Dwyer J. as disallowed the assessment of " brickmaking machinery, £4,040" and in liew restoring the commissioner's assessment of such Matter remitted to the commissioner to be dealt accordance with this order. Pursuant to order on grant of special leave commissioner to pay the cost the appeal. 4

Solicitor for the appellant, 2. A. Dunphy, Crown Solici Western Australia. Solicitors for the respondent, Unmack & Unmack.