Commissioner of State Revenue v Uniqema Pty Ltd [2004] VSCA 82

Court of Appeal (Vic)|2004-05-18|Before: ORMISTON, PHILLIPS and CALLAWAY, JJ.A.

For the reasons stated the appeal must be dismissed. Pursuant to the judge's order the matter must be remitted to the Commissioner, but of course any further

assessment must be made in light of the reasons of this Court[51], although it is not necessary to make any further order to that effect.

I agree that the appeal should be dismissed for the reasons given by the presiding judge.

[1] In simple terms, the principal material processed has been tallow, and the main products manufactured have included oline, glycerine, sterine and distilled fatty acids.

[2] The apparent difference in duration is less significant than it might appear in that the stated period of the agreement was the "period of supply", which began nine months later, on 30 September 1993 and was to run 14½ years from the "first repayment date" under a finance agreement.

[3] Covering the 14 certificates of title.

[6] Vendor and purchaser were each companies related to different large public companies.

[7] Excluding the works erected by Co-Gen, with which the contract of sale did not purport to deal, although the appellant contends they were fixtures: see below.

[8] At that time the principal products manufactured were candles.

[11] Gaudron, McHugh, Gummow and Hayne, JJ., Kirby, J. dissenting.

[13] As was said in Hepples v. Federal Commissioner of Taxation [1992] HCA 3; (1992) 173 C.L.R. 492 at 519 per Dawson, J, cited in Murry at 611 para.[12].

[16] At 235, cited in Murry at 613, and also by Dixon, C.J., Williams, Fullagar and Kitto, JJ. in Box v. Commissioner of Taxation [1952] HCA 61; (1952) 86 C.L.R. 387 at 396-397.

[17] It was also Lord Lindley who to my knowledge first said that "goodwill is inseparable from the business to which it adds value" (ibid.).

[19] 30 F 2d (2nd Cir.) 219 at 221-222 (1929).

[21] See esp. at 614-615 paras.[20]-[23].

[35] To be more precise, there were three sales staff who had offices at the premises, but they were only a small proportion of the total sales staff and it seems that no orders were directed to those offices.

[37] The word is, after all, derived from an old French form of "cattle", as all dictionaries note.

[38] S.63 in essentially its final form (though often added to and amended) was inserted by s.8(1) of the Stamps (Further Amendment) Act 1983.

[39] In the bill a mere 32 lines (less than a page) separated the two references to "chattels".

[41] It is not clear why only the plural is defined in this way. The second meaning gives the legal meanings of "chattels personal" and "chattels real".

[42] See esp. Haque v. Haque (No. 2) [1965] HCA 38; (1965) 114 C.L.R. 98 and cf. Nygh on Conflict of Laws in Australia (6th ed., 1995) pp.477-482.

[44] [1999] 99 A.T.C. 5229; [2001] A.T.C. 4152 (F.C.).

[47] See esp. Dunn Pty. Ltd. v. Ericsson Pty. Ltd. (1979) 2 B.P.R. 9241 (N.S.W. C.A.); National Dairies and the authorities discussed in Butt on Land Law (4th ed.) pp.303-309 and Bradbrook, MacCallum & Moore: Australian Real Property Law (3rd ed.) pp.586-590.

[48] A different course may have been taken if the outcome had been adverse to the Commissioner.

[49] In strictness there are two states in which similar provisions concerning "property" may be found, but they are applicable only to certain kinds of agricultural leases: see s.26 of the Landlord and Tenant Act 1935 (Tas.) and s.155 of the Property Law Act 1974 (Qd.).

51] The differences are so slight that no variation to the order is called for, although the order for remitter might have been better expressed by saying: "according to law".

A number of issues are raised by this appeal concerning the proper interpretation of the former Stamps Act 1958 ("the Act"), in particular as to the nature of goodwill, its effect on the value of real property transferred and whether it is, in itself, a "chattel" within the meaning of the Act, as well as the characterisation of certain items of plant and equipment alleged to have been attached as fixtures to part of the land by a tenant under an obligation to provide steam and electricity to the principal manufacturing business carried on upon the land. The appeal arises out of a largely successful appeal by the respondent to the Trial Division in which Pagone, J. found against the appellant Commissioner on each of the issues just referred to: see [2002] VSC 157.

The next alternative contention put by the Commissioner was that the goodwill could be described as a chattel within the meaning of s.63(3)(a) of the Act so as to form part of the real property for the purpose of that section. The learned judge held that the expression "chattels" in that section was confined to corporeal property and thereby declined to follow a decision of Harper, J. in Australian Rice Holdings Pty. Ltd. v. Commissioner of State Revenue[36], a decision which was the subject of an appeal argued immediately after the present appeal. The latter appeal was allowed shortly before argument resumed in the present appeal on other issues: see [2004] VSCA 17. For this purpose it may be conceded that goodwill is property and that, within the meaning of the relevant paragraph of s.63, it was "held or used in connection with the business carried on or in connection with the real property".

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