Conexa Sydney Holdings Pty Ltd v Chief Commissioner of State Revenue

Catchwords

[2008] HCA 46 Ashgrove Pty Ltd v Commissioner of Taxation (1994) 53 FCR 452[1994] FCA 598 Attorney-General (Cth) v R T Co Pty Ltd (No 2) (1957) 97 CLR 146[1957] HCA 29 Australian Provincial Assurance v Coroneo (1938) 38 SR (NSW) 700 Boensch v Pascoe (2019) 268 CLR 593[1971] HCA 9 Chief Commissioner of State Revenue v Pacific National (ACT) Limited (2007) 70 NSWLR 544[1967] HCA 41 Commissioner of State Revenue v Uniqema Pty Ltd (2004) 9 VR 523[2004] VSCA 82 Eastern Nitrogen v Commissioner of Taxation (2001) 108 FCR 27[2004] HCA 59 Holland v Hodgson (1872) LR 7 CP 328 Kuru v State of New South Wales (2008) 236 CLR 1[2008] HCA 26 Mabo v Queensland [No 2] (1992) 175 CLR 1[1967] HCA 15 Minister of State for the Army v Dalziel (1944) 68 CLR 261[1944] HCA 4 Newcastle-Under-Lyme Corporation v Wolstanton Ltd [1947] Ch 92 North Shore Gas Co Ltd v Commissioner of Stamp Duties (1940) 63 CLR 52[1940] HCA 7 Northern Territory v Collins (2008) 235 CLR 619[2019] NSWCA 141 Stephenson v Thompson [1924] 2 KB 240 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362[2017] HCA 34 TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 241 CLR 576

Judgment (27 paragraphs)

[1]

Mills v Stokman (1967) 116 CLR 61; [1967] HCA 15 Minister of State for the Army v Dalziel (1944) 68 CLR 261; [1944] HCA 4 Newcastle-Under-Lyme Corporation v Wolstanton Ltd [1947] Ch 92 North Shore Gas Co Ltd v Commissioner of Stamp Duties (1940) 63 CLR 52; [1940] HCA 7 Northern Territory v Collins (2008) 235 CLR 619; [2008] HCA 49 Re Lehrer and the Real Property Act 1900-1956 (1960) 61 SR (NSW) 365 Resumed Properties Department v Sydney Municipal Council (1937) LGR (NSW) 170 Risk v Northern Territory (2002) 210 CLR 392; [2002] HCA 23 Smith's Snackfood Co Ltd v Chief Commissioner of State Revenue [2013] NSWCA 470 SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 395 Stamford Property Services Pty Lts v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141 Stephenson v Thompson [1924] 2 KB 240 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 241 CLR 576; [2010] HCA 49 Theo Holdings Pty Ltd v Hockey (2000) 99 FCR 232; [2000] FCA 665 Corporation of the City of Toronto v Consumers' Gas Co (1916) 2 AC 618 Trust Company Limited v Chief Commissioner of State Revenue [2007] NSWCA 255 Union Trustee Co v Federal Commissioner of Land Tax (1915) 20 CLR 526; [1915] HCA 68 Valuer-General v AWF Prop Co 2 Pty Ltd (2021) 65 VR 327; [2021] NSCA 274 Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351; [2004] VSCA 10 Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd [2009] FCA 742 Wik Peoples v Queensland (1996) 187 CLR 1; [1996] HCA 40 Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 Texts Cited: Brendan Edgeworth, Butt's Land Law (7th ed, Lawbook Co, 2017) Janice Gray et al, Property Law in New South Wales, (5th ed, LexisNexis, 2022) K Gray and SF Gray, Elements of Land Law (5th ed, OUP, 2009) P Herzfeld and T Prince, Interpretation (3rd ed, Lawbook Co, 2024) S Ball, "The Jural Nature of Land" (1928) 23 Illinois L Rev 45 Samantha Hepburn and Steve Jaynes, "The Nature and Scope of Rights of Removal" (2013) 2 Property Law Review 123 Category: Principal judgment Parties: Conexa Sydney Holdings Pty Ltd (Appellant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: Philip Solomon and P G Turner (Appellant) Stefan Balafoutis and Tamara Phillips (Respondent)

[2]

Solicitors: Piper Alderman (Appellant) Crown Solicitor for NSW (Respondent) File Number(s): 2024/206555 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2024] NSWSC 628 Date of Decision: 24 May 2024 Before: Richmond J File Number(s): 2023/151288

[3]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[4]

HEADNOTE [This headnote is not to be read as part of the judgment] In September 2019, Conexa Sydney Holdings Pty Ltd (the appellant) acquired all the shares in SGSP Rosehill Network Pty Ltd ("Rosehill") for $74,700,000 with provision for adjustments. Rosehill was the owner of a water carrying pipeline which connects a recycled water plant to large industrial sites. A report from KPMG commissioned by the appellant, which was provided to the Chief Commissioner (the respondent), valued Rosehill's unencumbered land holdings and goods at $60,749,000, including $4,110,000 for a freehold property, $46,390,000 for the pipeline, and $10,249,000 for other plant and equipment related to the operation of the pipeline. The Water Industry Competition Act 2006 (NSW) ("WIC Act") provides for ownership of water industry infrastructure and gave Rosehill its "interest" in the pipeline. The issue on appeal was whether the appellant's interest in the pipeline and related infrastructure which it acquired was, as the Commissioner claimed, an interest in land or goods for the purposes of ss 147 and 155 of the Duties Act 1997 (NSW) ("Duties Act"), or whether it was, as the appellant asserted, an indeterminate (and non-dutiable) interest that could not be characterised for Duties Act purposes as either an interest in land or goods. The primary judge, Richmond J, found that the appellant's interest in the pipeline and related infrastructure was an interest in "goods" for the purposes of s 155 of the Duties Act and affirmed KPMG's assessment. The Court held, dismissing the appeal, that the appellant's interest in the pipeline was an interest in land for the purposes of the Duties Act; alternatively, its interest in the pipeline was an interest in goods and not a "novel property right" which was neither an interest in land nor goods. (1) The meaning of "land" depends on the context and purpose of the legislation in which it appears. An "interest in land" within the meaning of s 155 of the Duties Act is not the same as an interest in land at common law: Payne JA, with Ward P, Stern JA and McHugh JA agreeing at [55]-[65]. Risk v Northern Territory (2002) 210 CLR 392; Stamford Property Services Pty Lts v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141 applied. TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 241 CLR 576; [2010] HCA 49 considered. (2) The pipeline and associated infrastructure were affixed to the land and would, ordinarily, be regarded as a fixture and form part of the land. The character of the pipeline as part of the land is not affected by the fact that the pipeline is owned by an entity other than the proprietor of the surrounding land. A statutory right to exclusive possession of a stratum of land occupied by a pipeline may create an interest in that stratum of the land for the purposes of the Duties Act: Payne JA, with Ward P, Stern JA and McHugh JA agreeing at [66]-[84]; Basten AJA at [185]-[190]. Holland v Hodgson (1872) LR 7 CP 328, Chief Commissioner of State Revenue v Pacific National (ACT) Limited (2007) 70 NSWLR 544; [2007] NSWCA 325, Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73 applied. Metropolitan Railway Co v Fowler [1893] AC 416; Clos Farming Estates P/L (rec and mgr appntd) v Easton and Anor [2001] NSWSC 525 considered. (3) Rights with respect to "property" may take different forms depending on the type of property as recognised in the relevant statute. Text, context and purpose of the WIC Act support the conclusion that the interest of the owner of the pipeline conferred by s 64 of the WIC Act is an interest in the stratum of land occupied by the pipeline: Payne JA, with Ward P, Stern JA and McHugh JA agreeing at [85]-[140]. Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53; Union Trustee Co v Federal Commissioner of Land Tax (1915) 20 CLR 526 applied. North Shore Gas Co Ltd v Commissioner of Stamp Duties (1940) 63 CLR 52, Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 1220 CLR 118, Asciano Services Pty Ltd v Chief Commissioner of State Revenue (2008) 235 CLR 602; [2008] HCA 46 and Northern Territory v Collins (2008) 235 CLR 619; [2008] HCA 49, Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59, Epic Energy, Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351; [2004] VSCA 10, Commissioner of State Revenue v Uniqema Pty Ltd (2004) 9 VR 523; [2004] VSCA 82; Valuer-General v AWF Prop Co 2 Pty Ltd (2021) 65 VR 327; [2021] NSCA 274; Chief Commissioner of State Revenue v Shell Energy Operations No 2 Pty Ltd [2023] NSWCA 113 considered. (4) Alternatively, the pipeline and associated infrastructure were an interest in goods. The word "goods" in ss 163K and 155 of the Duties Act extends to any such interests of the kind at issue in that case. The text, context and purpose of the Duties Act suggest that the interest conferred by the WIC Act is not a "novel property right" which exists outside the reach of s 155 of the Duties Act: Payne JA, with Ward P, Stern JA and McHugh JA agreeing at [141]-[167]. Chief Commissioner of State Revenue v Shell Energy Operations No 2 Pty Ltd [2023] NSWCA 113 applied. Australian Provincial Assurance v Coroneo (1938) 38 SR (NSW) 700 at 712, North Shore Gas Co Ltd v Commissioner of Stamp Duties (1940) 63 CLR 52, Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351; [2004] VSCA 10; Attorney-General (Cth) v R T Co Pty Ltd (No 2) (1957) 97 CLR 146, Commissioner of State Revenue v Uniqema Pty Ltd (2004) 9 VR 523; [2004] VSCA 82, Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351; [2004] VSCA 10 considered. Per Basten AJA, Payne JA agreeing at [138] (5) The appellant's purchase of the shares in Rosehill was a "relevant acquisition", and therefore a dutiable transaction, if Rosehill was a "landholder". Rosehill was a landholder if it had a "land holding", being an "interest in land". Land, in legal terms, is a three-dimensional space on, above or under the physical surface of the Earth. Unless otherwise provided by statute, it includes fixtures. The pipeline is a fixture. The space it occupies is land. The owner of that space has an interest in land: [171]-[174], [178]. Water Industry Competition Act 2006 (NSW), ss 6, 146-148; Interpretation Act 1987 (NSW), s 21 (6) Ownership of land describes a jural relationship between a legal person and the physical entity. The owner of a fixture is usually the owner of the land in or on which the fixture stands. The ownership of the pipeline, being "water industry infrastructure", was vested by statute in the constructor, and is therefore owned separately from the land in which it was placed. The appellant subsequently acquired title by a relevant acquisition, which is therefore dutiable: [185]-[189]. Water Industry Competition Act 2006 (NSW), s 64 Toronto Corporation v Consumers' Gas Co (1916) 2 AC 618; North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52; [1940] HCA 7.

[5]

JUDGMENT

WARD P: I agree with Payne JA.
PAYNE JA: In September 2019, Conexa Sydney Holdings Pty Ltd (the appellant) acquired all the shares in SGSP Rosehill Network Pty Ltd ("Rosehill") for $74,700,000 with provision for adjustments. Rosehill was the owner of a water carrying pipeline which connects a recycled water plant to large industrial sites. The pipeline is buried in the ground for its entire length. Much of the pipeline (approximately 95%) is buried under Crown land. A report from KPMG commissioned by the appellant, which was provided to the Chief Commissioner (the respondent), valued Rosehill's unencumbered land holdings and goods at $60,749,000, including $4,110,000 for a freehold property, $46,390,000 for the pipeline, and $10,249,000 for another plant and equipment related to the operation of the pipeline.
The issue in the case was whether the appellant's interest in the pipeline and related infrastructure which it acquired was, as the Commissioner claimed, an interest in land or goods for the purposes of ss 147 and 155 of the Duties Act 1997 (NSW) ("Duties Act"), or whether it was, as the appellant asserted, an indeterminate (and non-dutiable) interest that could not be characterised for Duties Act purposes as either an interest in land or goods.
The primary judge, Richmond J, found that the appellant's interest in the pipeline and related infrastructure was an interest in "goods" for the purposes of s 155 of the Duties Act and affirmed the assessment.
For the reasons which follow, I have concluded that the appellant's interest in the pipeline and related infrastructure which it acquired from Rosehill was an interest in land and the appeal should be dismissed.

[6]

Relevant Facts

In 2009, the NSW government established the Rosehill Water Recycling Scheme with approval under the Environmental Planning and Assessment Act 1979 (NSW). The Recycling Scheme was a public-private partnership under the NSW Government's Metropolitan Water Plan and aimed to deliver recycled water to southwest Sydney.
Pursuant to agreements executed in August 2008, AcquaNet Sydney Pty Ltd and Rosehill, both subsidiaries of Jemena Ltd, were the entities designated to construct and execute the pipeline project. Rosehill was the asset-holding entity and owned the pipeline.
The pipeline requires two reservoirs to operate, one in Rosehill on land leased by Rosehill from Shell Company of Australia Ltd and the other in Woodville located on land leased by Rosehill from Parramatta City Council.
Much of the pipeline (estimated at 95.37 percent) travels under Crown land. The remainder of the pipeline travels underneath privately owned land. The only land owned by Rosehill that the pipeline traverses is a Fairfield property where the pipeline originates.
As at the acquisition date, aside from that ownership interest, Rosehill's rights in respect of the lands where the pipeline lay were various. For part, Rosehill held certain registered leases, and a registered sub-lease, over privately-owned land where other portions of the pipeline were located. Over other private lands containing the pipeline, Rosehill held registered easements, access rights agreements and/or licences.
The characterisation of Rosehill's rights in the case of the Crown lands through which the vast bulk of the pipeline travels is at the heart of this case.
The parties agreed on the following characteristics of the pipeline: 1. The pipeline is approximately 19 kilometres in length and is buried in the ground. 2. The pipeline is designed to provide a permanent means of water carriage. 3. There are three reservoirs and two pumping stations along the pipeline. 4. Rosehill constructed the pipeline and in order to do so either laid it in an open trench, over which the displaced soil was replaced, or used directional boring through abandoned gas mains pipes. 5. Where road surfaces or footpaths were disturbed in the process of laying the pipeline, they were restored and returned to use as roads and footpaths once the pipeline was installed. 6. The pipeline was connected to a recycled water plant in Fairfield which was developed and operated by Veolia Water Australia Pty Ltd under a plant agreement. The Fairfield plant is located at 2 East Parade, Fairfield. The pipeline runs to the boundary between Yennora and Old Guildford, it then divides into two branches which comprise the remainder of the pipeline. 7. The shorter of these branches travels west-north-west to the suburb of Smithfield and connects to the Marubeni power station. The longer branch travels through Old Guildford, Granville, Rosehill and Camellia where it eventually connects to Boral and CSR plants.

[7]

The share sale agreement

On 30 September 2019, the appellant (known at the time as WUA Sydney Holdings Pty Ltd) acquired the entirety of the issued share capital of AcquaNet and Rosehill pursuant to a share sale agreement exchanged on 25 June 2019. The vendors were Jemena Limited and SGSP (Australia) Assets Pty Ltd.
Clause 4 of the share sale agreement provided that the purchase price was $74,700,000 with provision for adjustments. The conditions for completion required that AcquaNet enter into a termination deed with Veolia in respect of the plant operation agreement. Pursuant to the termination deed, AcquaNet paid Veolia approximately $57 million. Upon payment, the plant agreement, under which the pipeline was connected to the Fairfield plant developed and operated by Veolia, was terminated and all of Veolia's rights, title and interest in the Fairfield plant assets were transferred to AcquaNet.

[8]

The litigation

On 20 December 2019, the appellant's representatives made a submission to the Commissioner regarding the assessment of duty on the transaction the subject of the share sale agreement. An estimated duty liability of $1,275,160 was paid to the Commissioner, consisting of $233,957 (described as being in respect of the surrender by Veolia to AcquaNet of the Fairfield Sub-Lease) and landholder duty of $1,041,203. The submission also noted that the appellant had commissioned KPMG to undertake an independent valuation of the land holdings and other assets of Rosehill, and that the appellant was not in a position to provide a finalised statement.
On 22 June 2020, the appellant provided a valuation report ("KPMG Report") to the Commissioner along with a landholder acquisition statement. The KPMG Report identified the purchase consideration for both AcquaNet and Rosehill as $70.4 million, with approximately $60.8 million attributed to the market value of the shares in Rosehill. The KPMG Report stated that the fair value of the Fairfield property was $4,110,000, and the fair value of Rosehill's plant and equipment was $56,639,000 consisting of $46,390,000 for "piping" and $10,249,000 attributed to the remainder.
On 21 March 2022, the respondent issued a Duties Notice of Assessment which assessed the appellant as liable for landholder duty in the sum of $3,326,497. This assessment was based on the KPMG Report.
On 20 May 2022, the appellant objected to the assessment with reasons provided on 31 August 2022. On 23 March 2023, the respondent disallowed this objection, after which the appellant brought proceedings before the Supreme Court for review pursuant to s 97(1)(a) of the Taxation Administration Act 1996 (NSW).
The primary judge affirmed the assessment and dismissed the Amended Summons: Conexa Sydney Holdings Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 628.

[9]

Primary judgment

The primary judge concluded that Rosehill's interest in the pipeline was not an interest in land but comprised goods for the purpose of s 155(1) of the Duties Act, and the appellant failed to discharge its onus of proof that the unencumbered value of the pipeline at the time of the acquisition was less than the amount on which the assessment was based, being $46,390,000.
At the outset, the primary judge observed that the word "interest" in s 147 of the Duties Act is capable of many meanings depending on the context in which it is used. When the term "interest" is used in the phrase "interest in land", it is regarded as referring to a proprietary right in the land and not a mere personal right.
The primary judge found that the answer to the question of whether the pipeline is an interest in land lies in the effect of s 64 of the Water Industry Competition Act 2006 (NSW) ("WIC Act"). The primary judge held that the words in s 64 are designed to negate the position which would arise under common law, which is that where chattels are affixed to the land so as to become fixtures they form part of "the land" and are owned by the owner of "the land". Section 64 vests ownership of the thing or things comprising the water industry infrastructure in the person identified irrespective of whether that person owns the land in, on, under or over which the thing or things are situated. The primary judge found that s 64 also "treats the thing or things which comprise water industry infrastructure as items of property separate from the land in, on, under, or over which they are situated": at [70].
In addition to the language of s 64, the primary judge gave three other reasons why on its proper construction s 64 has the effect of causing the things comprising the water industry infrastructure to retain their character as chattels despite their affixation to the land.
First, there is a general principle that a statutory provision which vests in a person ownership of items that would otherwise be fixtures does not merely by virtue of conferring that right of ownership in the item confer an interest in "the land" itself: referring to Newcastle-Under-Lyme Corporation v Wolstanton Ltd [1947] Ch 92 at 103; Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118 at 127 and 133-4 ("North Shore Gas (No 2)"); Asciano Services Pty Ltd v Chief Commissioner of State Revenue (2008) 235 CLR 602; [2008] HCA 46 at [27]-[31]; Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228 at [75] and [163].

[10]

Conclusion of the primary judge

The KPMG Report (which it will be recalled was provided by the appellant to the Commissioner) stated the fair value of the pipeline to be $46.39 million based on its current use within an ongoing water treatment business. The appellant agreed that if the pipeline's value was to be assessed as part of a going concern, its value would match the KPMG report's figure. A separate expert report from a Mr Collins assessed the value of Rosehill's right to remove and sell the pipeline as "nil". That report was excluded from evidence and there was no appeal brought on this topic. In the absence of evidence challenging the KPMG Report's valuation, the primary judge upheld the valuation of $46.39 million. Accordingly, the primary judge affirmed the assessment and dismissed the appellant's Amended Summons.

[11]

Grounds of appeal

By Notice of Appeal filed 19 August 2024, the appellant raised six grounds of appeal: 1. The trial judge erred in concluding that his Honour was bound by the reasoning in Chief Commissioner of State Revenue v Shell Energy Operations No. 2 Pty Ltd (2023) 116 ATR 337; [2023] NSWCA 113 at [120]-[126] to conclude that the water-carrying pipeline in which the appellant acquired an interest on the acquisition date (the Pipeline) was "goods" for the purposes of section 155(1) of the Duties Act 1997 (NSW) (the Duties Act). 2. The trial judge erred in concluding that "goods" in section 155(1) of the Duties Act has a meaning wider than tangible moveables, or chattels personal other than choses in action. The trial judge should have concluded that (subject to the express exclusions in section 163K of the Duties Act) "goods" in section 155(1) means tangible moveables, or chattels personal other than choses in action. 3. The trial judge erred in concluding that statutory severance of "ownership" of tangible items affixed to land alters the status of such items from "land" to "chattels" and "goods". The trial judge should have concluded that such statutory severance merely identifies who in law stands in an ownership relation to the tangible items. 4. The trial judge erred in concluding that a "legal severance" of tangible items from land to which they were earlier affixed has the same effect, of causing the tangible items to become "goods", as a physical severance of tangible items from land to which they were earlier affixed. The trial judge should have held that the effect of a "legal severance" is a matter of statutory construction to be determined in accordance with the principles in Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 1220 CLR 118 and Asciano Services Pty Ltd v Chief Commissioner of State Revenue (NSW) (2008) 235 CLR 602; [2008] HCA 46. 5. The trial judge erred in concluding that the Pipeline in which the appellant acquired an interest on the acquisition date gained the status of a "chattel" and "goods" by the operation of section 64 of the Water Industry Competition Act 2006 (NSW) (the WIC Act). The trial judge should have followed North Shore Gas Co Ltd v Commissioner of Stamp Duties (1940) 63 CLR 52 to conclude that, notwithstanding the operation of section 64 of the WIC Act, the Pipeline lacked the status of a "chattel" or "goods" as of the acquisition date. 6. The trial judge erred in concluding that, in acquiring an interest in the Pipeline on the acquisition date, the appellant acquired an interest in "goods" for the purposes of section 155(1) of the Duties Act.

[12]

Notice of contention

On 16 September 2024, the respondent filed a Notice of Contention contending that: 1. The trial judge: (a) should have found that the Pipeline was a "land holding" of Rosehill for the purposes of ss 147 and 155(1) of the Duties Act 1997 (NSW) (the Duties Act); or, alternatively (b) should have found that the parts of the Pipeline that were buried in the land which Rosehill owned or leased were a "land holding" of Rosehill for the purposes of ss 147 and 155(1) of the Duties Act, and the parts of the Pipeline that were not a "land holding" were "goods" for the purposes of s 155(1) of the Duties Act; or, alternatively (c) was correct to find that the Pipeline was "goods" for the purposes of s 155(1) of the Duties Act.

[13]

Consideration

The principal question raised in this case is whether, when the appellant acquired the share capital in Rosehill on 30 September 2019, it thereby acquired "land holdings" within the meaning of s 155 of the Duties Act, as the Commissioner submitted, or whether the interest in the pipeline was a "novel property right" which was not subject to duty under the Duties Act, as the appellant claimed. I will first address the dispositive issue of whether the appellant acquired an interest in land for the purposes of ss 147 and 155(1) of the Duties Act.

[14]

Submissions

The appellant submitted that s 64 of the WIC Act does not "support a conclusion that the pipeline is 'land' within the meaning of the Duties Act". It was submitted that s 64(3), which was only added in 2009 to s 64, does not reflect an intention of the Parliament that ownership of water industry infrastructure under s 64(1) constituted an interest in land. Such an inference, the appellant argued, finds no footing in the terms or the legislative history of s 64.
As to the legislative purpose of s 64 of the WIC Act, the appellant submitted that it was to protect the investment outlay made by a private sector entity which installed water industry infrastructure on, in or under another's land. Section 64 operates as a legal device of "constituting novel property rights to confer legal protection of an economic interest" against the owner of such land. In other words, s 64 prevents landowners from being entitled to the advantage of the water industry infrastructure and guards against the investor losing its economic investment in the infrastructure asset.
The appellant submitted that to protect that investment it was unnecessary for Parliament to deem the investor's statutory ownership of the water industry infrastructure to be an interest in "land" - and nothing in the terms of the WIC Act as originally enacted, or as amended in 2009 or 2011, indicates otherwise.
The appellant submitted that the respondent had failed to show how "[a]n underground pipeline is a 'tenement' or 'hereditament'" and that, as a matter of law, the pipeline is thus a land holding of the landholder. It was submitted that to say that a pipeline can be the subject of an estate or interest, and can be inherited, says nothing about whether this pipeline is a "land holding" in New South Wales. It was submitted that the principles established by North Shore Gas (No 2), Asciano and Northern Territory v Collins (2008) 235 CLR 619; [2008] HCA 49 demonstrate that Rosehill's ownership of the pipeline was not intended to create an interest in land. Such reasoning, it was submitted, is "fallacious" and has been consistently rejected by the High Court: per Windeyer J in North Shore Gas (No 2).
The respondent submitted that the WIC Act provides for ownership of water industry infrastructure and it is common ground that it gave Rosehill its "interest" in the pipeline. To establish that ownership of the pipeline is an interest in "land" within the meaning of the Duties Act, the respondent relied on three propositions.

[15]

Construction of the Duties Act and the WIC Act

Whether the appellant's interest in the pipeline and associated infrastructure at the acquisition date is an "interest in land" or "goods" or an indeterminate (and non-dutiable) interest depends on the construction of the Duties Act and the WIC Act.
The critical question here of whether Rosehill's ownership of the pipeline is an interest in land for the purposes of the Duties Act involves answering the following questions: 1. What is an interest in land within the meaning of the Duties Act? 2. What is the nature of the appellant's interest in the pipeline recognised or conferred by the WIC Act? 3. Is the interest identified in answer to question (2) an interest in land within the meaning of the Duties Act?
There was no dispute about the relevant principles of statutory construction which involves consideration of text, context and purpose. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, Kiefel CJ, Nettle and Gordon JJ said: [14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (footnotes omitted)

[16]

Duties Act

Chapter 4 of the Duties Act imposes landholder duty on the acquisition of an interest in a private landholder. Section 155(1) of the Duties Act charges duty on the "unencumbered value of all land holdings and goods of the landholder in New South Wales". Section 155 provides: 155 How duty is charged on relevant acquisitions - private landholders (1) If an acquisition statement that discloses a relevant acquisition in a private landholder does not disclose any other acquisitions during the statement period, duty is chargeable, at the general rate, on the amount calculated by multiplying the unencumbered value of all land holdings and goods of the landholder in New South Wales (calculated at the date of acquisition of the interest acquired) by the proportion of that value represented by the interest acquired in the relevant acquisition. (2) If a relevant acquisition results from the aggregation of the interests of associated persons, the reference in subsection (1) to the interest acquired includes a reference to any interests acquired by associated persons on the same date. (3) If an acquisition statement disclosing a relevant acquisition in a private landholder also discloses one or more other acquisitions during the statement period, duty is chargeable, at the general rate, on the aggregate of amounts severally calculated, in the manner provided by subsection (1), in respect of each interest required to be disclosed in the statement. (4) Duty payable under this section is to be reduced by the sum of the duty paid or payable under this Act in respect of an acquisition, during the statement period, by the person or any associated person of an interest in the same landholder, but only in proportion to the extent to which the duty paid or payable is attributable to the amount of the duty payable under this section. (5) Duty payable under this section is to be reduced by the sum of the amounts severally calculated, in accordance with the following formula, in respect of each acquisition of an interest in the landholder made by the person, or an associated person, during the statement period - where - A is the unencumbered value of the land holdings and goods in New South Wales of the landholder at the time the acquisition was made, and B is the unencumbered value of all property of the landholder at that time, and C is the sum of - (a) the duty under this Act paid or payable in respect of - (i) a dutiable transaction in relation to the units or shares acquired, or (ii) a capital reduction or a rights alteration under Part 3 of Chapter 3 by which an interest in the landholder was acquired, or (iii) an allotment of shares under Part 5 of Chapter 3 by which an interest in the landholder was acquired, and (b) any duty of a like nature so paid or payable under a law of another Australian jurisdiction. (6) If a relevant acquisition is made owing to the aggregation of the interests of associated persons, but the Chief Commissioner is satisfied that the associated persons acquired their respective interests independently, the Chief Commissioner may assess and charge duty on each separate acquisition without aggregating the interests of the person who made it with the interests of associated persons. (7) Duty is not chargeable under this section on the acquisition of an interest in a landholder that is required to be disclosed in an acquisition statement if the acquisition is an exempt acquisition. (8) This section is subject to Part 3.

[17]

An interest in land within the meaning of the Duties Act

The question is whether and, if so, how the pipeline held by Rosehill is encompassed in the phrase "all land holdings and goods" of Rosehill, being the landholder. The meaning of this phrase must be ascertained from the text, context and purpose of the Duties Act. The extent to which general law principles are applied to ascertain this meaning must also be informed by the statutory context of s 155(1) of the Duties Act.
In Risk v Northern Territory (2002) 210 CLR 392; [2002] HCA 23 at [26]-[36], Gleeson CJ, Gaudron, Kirby and Hayne JJ explained, as with the meaning of any word, the meaning of "land" depends on the context and purpose of the legislation in which it appears. Gummow J also observed at [83] that the question of whether the seabed and waters above the ground are "land" in the context of particular legislation must be resolved by "regard to the text of the statute as a whole, and the subject, scope and purpose of the statute and against the legislative history and antecedent circumstances".
As Leeming JA explained in Stamford Property Services Pty Lts v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141: [26] … "Land" is a term which is familiar in ordinary language, and which bears a number of quite distinct legal meanings. In Scully v Leichhardt Council (1994) 85 LGERA 109 at 110 Pearlman CJ noted that: "The word 'land' is a word of general meaning. It does not of itself suggest any specific limitation of size or measurement or any specifically identifiable area, such as is suggested by the word 'allotment'. It is necessary, then, to consider the context in which the word appears, and the scope and purpose of the relevant statutory provisions, in order to determine how the word 'land' is to be construed." The primary judge cited that passage with approval. I respectfully agree with its aptness.
The concepts of an "interest" in land, "land holdings" and "land" are non-exhaustively defined in the Duties Act. As to the term "land holdings", s 147(1) of the Duties Act provides: 147 What are the "land holdings" of a landholder? (1) For the purposes of this Chapter, a land holding is an interest in land other than the estate or interest of a mortgagee, chargee or other secured creditor, subject to this section. (2) An interest in land is a land holding of a unit trust scheme only to the extent that the interest is held by the trustee of the unit trust scheme in its capacity as trustee of the scheme, by a custodian of the trustee of the unit trust scheme in its capacity as custodian or by a sub-custodian of the custodian of the trustee of the unit trust scheme in its capacity as sub-custodian. (3) An interest in land is not a land holding of a company if the company holds the land on trust, but only if the company is not a beneficiary of the trust. (4) This section is in aid of, but does not limit, the operation of any provision of this Chapter providing for constructive ownership of interests. Note. In relation to interests in land, see also clause 4 of the Dictionary.

[18]

Water Industry Competition Act 2006 (NSW)

In 1994, the Council of Australian Governments ("COAG") endorsed a framework of initiatives for the water industry to run over a seven-year period. In 2003, COAG agreed to refresh its 1994 water reform agenda by developing a new National Water Initiative ("NWI"). The NWI was agreed as the national blueprint for water reform to provide greater certainty for the water industry and provide long-term benefits for the environment.
In NSW, in 2006, the Water Industry Competition Bill 2006 (NSW) was introduced. The Minister explained in the second reading speech: … the Water Industry Competition Bill and the Central Coast Water Corporation Bill, that together initiate reform of the water and wastewater industries in New South Wales for the benefit of consumers, the economy and the environment. The improvement of the governance of water systems is the aim of both bills which, once enacted, provide for the improved running of water systems, more straight forward decision making and access arrangements. Ultimately, these will enable more recycling and improved water security, which are imperative during drought.
At the heart of the case are sections 63 and 64 of the WIC Act which originally provided: 63 Charges for placement of water industry infrastructure No annual or other periodic or special charge is payable by a licensed network operator to a local council or roads authority in respect of any water industry infrastructure located in a public reserve or public road or in respect of the space in a public reserve or public road that is occupied by any such infrastructure. 64 Ownership of water industry infrastructure (1) A licensed network operator is the owner of its water industry infrastructure, whether or not the land in, on or over which it is situated is owned by the network operator. (2) A licensed network operator's water industry infrastructure is not to be taken in execution of any judgment against a person other than the network operator under any process of a court.
The Explanatory Note to the Water Industry Competition Bill 2006 explained: Clause 63 prevents local councils and roads authorities from imposing charges on a licensed network operator in relation to water industry infrastructure that is located in a public road or public reserve. Clause 64 provides that a licensed network operator retains ownership of its water industry infrastructure that is located in or under land that it does not own.

[19]

North Shore Gas cases

In North Shore Gas (No 1), the issue was whether gas pipes could be classified as "goods, wares, and merchandise" for the purpose of a stamp duty exemption in the Stamp Duties Act 1920-1933 (NSW). The High Court held that they could not. Manly Gas Co had statutory rights to lay and remove gas pipes, but the enabling statute, The Manly Gas-light and Coke Company (Limited) Act of 1884, did not address ownership of the pipes.
The Commissioner argued that the pipes constituted land. The majority of the High Court agreed, holding that the pipes were part of the land. Dixon J reasoned that the pipes' fixation, permanence, and integration with the soil meant they were inseparable from the land they displaced, forming a space that constituted land: at 67-8. Although the relevant statutory rights allowed removability, these qualities were insufficient to alter the pipes' classification as land. McTiernan and Rich JJ concurred.
In North Shore Gas (No 2), the High Court addressed a different question, whether the statutory rights to lay and maintain pipes conferred an interest in land for statutory compensation purposes - that was said to be "the only relevant question": at 125. The Court held that the statutory rights did not grant such an interest. The joint judgment emphasised that the mere exercise of a statutory right to lay and remove gas pipes did not vest the gas company with an interest in the land. Windeyer J suggested that while the pipes themselves might be considered land, the statute did not confer an interest in that land.
The reasoning in these cases was based the specific statutory frameworks being addressed. The same can be said of a case relied upon in North Shore Gas No 2, namely Newcastle-under-Lyme Corporation, where statutory rights to lay and remove pipes did not confer an interest in the land they occupied by reason of the lack of a clear statutory intention to do so.
These authorities differ from the current case in critical respects. The Duties Act contains a quite different statutory framework and taxing power to that considered in the North Shore Gas cases. Section 64 of the WIC Act expressly recognises and protects the continuing ownership of the pipeline infrastructure. The WIC Act in general and s 64, in particular, recognises and protects an ownership right. The owner of the pipeline enjoys a statutory priority in relation to that stratum of land occupied by the pipeline, over the owner of the Torrens land surrounding the pipeline. I do not accept the appellant's submission that in the present case if the land over which the pipeline travelled was resumed for a public purpose the value of the company would be destroyed but it would have no claim against the acquiring authority for that loss of an interest in land pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).

[20]

Asciano

The High Court's decision in Asciano followed an appeal from this Court's decision in Pacific National and addressed issues relating to the characterisation of a rail infrastructure access agreement under the Duties Act.
In Pacific National, the Commissioner argued that an access agreement granting Pacific National rights to use rail infrastructure was subject to lease duty, which applied to agreements conferring a "right to use land". The rail infrastructure was owned by Rail Access Corporation, though situated on land owned by the State Rail Authority. The Chief Commissioner contended that certain infrastructure, such as tunnels and drainage works, constituted "land" in their own right separate from the underlying land.
The Court of Appeal agreed with this interpretation, with Hodgson JA (with whom Ipp JA agreed) observing that features like cuttings, drainage works, and tunnels are either configurations of land or so integrated into land as to be indistinguishable from it. This conclusion was consistent with the reasoning of Basten JA and affirmed that fixed infrastructure can be characterised as land even when statutory provisions create separate ownership of the infrastructure and the underlying land.
By the time the case reached the High Court in Asciano, the characterisation of the rail infrastructure as land was no longer in issue. The taxpayer by that stage had conceded a use of land was involved in its freight operations: at [5]. The issue for the High Court was whether the access agreement itself was the mechanism "by which" the taxpayer acquired the right to use land. The High Court upheld the Court of Appeal's decision, concluding that the relevant agreement conferred the right to use land.
The appellant in the present case relied heavily upon certain remarks in Asciano concerning whether the rail access legislation at issue in that case conferred an "interest in land". The appellant relied on the finding that that "no greater rights or interests should be taken as conferred upon the undertakers of a statutory right or duty than are necessary for the fulfilment of the object of the statute"(at [27]). So much must of course be accepted, but these observations do not affect the correct characterisation of the rights or interests conferred under s 64 of the WIC Act for the purposes of s 155 of the Duties Act. The legislation in Asciano did not include provisions equivalent to s 64 of the WIC Act, nor did the legislation in Asciano provide that the rights of rail access overrode the indefeasibility of title of an owner of land. The legislative context in Asciano thus differs significantly from that of the WIC Act.

[21]

Epic Energy

In Epic Energy, the Western Australian Court of Appeal considered the effect of statutory provisions conferring ownership of pipelines that would otherwise be a fixture. The central issue was whether gas pipelines and associated infrastructure owned by the taxpayer were "land" for the purposes of s 76AP(2) of the Stamp Act 1921 (WA). The term "land" was defined in s 76(1) as (a) any estate or interest in land; and (b) anything fixed to the land including anything that is, or purports to be, the subject of ownership separate from the ownership of the land.
The Court found that the pipelines, as a consequence of s 57 of the Petroleum Pipelines Act 1969 (WA) and s 40(a) of the Dampier to Bunbury Pipeline Act 1997 (WA), did not constitute "land" under paragraph (a) of the definition in s 76(1) of the Stamp Act. McLure P, with whom Buss and Murphy JJ agreed, explained that the appellants' entitlement to the pipelines as "land" depended on statutory provisions, not general law, which treats fixtures as part of the real property. Section 57 of the Petroleum Pipelines Act preserved the pipelines status as personal property even when attached to land, making them independent of land ownership. This interpretation was supported in s 40(a) of the Dampier to Bunbury Pipeline Act which states that pipelines "do not become part of the land".
However, the pipelines were "land" within the meaning of paragraph (b) of s 76(1) because the taxpayer had an interest in the land to which the pipelines were affixed (and hence the pipeline was something affixed to land that is subject of ownership separate from ownership of the land).
The decision of the WA Court of Appeal in Epic Energy does not establish a general principle about whether or when a statutory provision recognising ownership of items that would otherwise be fixtures confers an "interest in land". Instead, the case concerns the interpretation of specific Western Australian legislation. The infrastructure legislation in Epic included a provision stating that pipelines "do not become part of the land, regardless of whether they are in the nature of a fixture" (emphasis added). This is an important point of distinction from this case. Section 64 of the WIC Act recognises and protects the ownership of water industry infrastructure. Section 64 of the WIC Act is consistent with the conclusion that such ownership includes an estate or interest "in land" as it grants a statutory priority to the owner of the pipeline in respect of the stratum of land occupied by the pipeline, despite the provisions of s 42 of the Real Property Act.

[22]

Victorian cases on landlord/tenant legislation

In the course of argument, three Victorian decisions were referred to: Vopak, Uniqema, and Valuer-General v AWF Prop Co 2 Pty Ltd (2021) 65 VR 327; [2021] VSCA 274. On analysis, those cases do not support the appellant's claim here. Each case interpreted s 28(2) of the Landlord and Tenant Act 1958 (Vic) which provided that fixtures erected by a tenant would remain the tenant's property and could be removed during the tenancy.
In these cases, the relevant fixtures were excluded from the land for stamp duty or fire levy purposes, with the courts describing such fixtures as "chattels". To the extent that these cases are relevant, they support the Commissioner's alternative argument that the pipeline should be classified as "goods" under the Duties Act.

[23]

Shell Energy (No 1)

In Shell Energy (No 1), this Court considered whether three power stations could be characterised as goods: see above at [12]-[13]. Shell Energy (No 1) is not authority for whether or not ownership of the pipeline in the present case is an "interest in land" as the argument that the interest in the power stations could be characterised as an interest in land was not properly advanced: [86] Before addressing this argument, it should be noted that another argument would appear to be open that even if the vesting orders did vest all the assets listed in the relevant annexures in Green State Power and then in GSP, nonetheless those interests remained "land holdings" for the purposes of the Duties Act. For example, it could have been argued that even if they were not fixtures in the eyes of the general law, nonetheless the physical affixation of the power stations to the land meant that GSP's interests in the power stations were interests in land for the purposes of the Act. That argument was not run. The Commissioner seemed to accept that if the vesting orders operated to vest the power stations in Green State Power and then in GSP then the power stations no longer constituted land holdings for the purposes of the Duties Act. The Commissioner did submit that "even if GSP owns all rights to the Power Stations, they remain properly characterised as an interest in land". But that sentence was part of the submissions on Ground 1 relating to the construction and effect of the vesting orders.

[24]

Conclusion on whether the appellant acquired an "interest in land" within the meaning of ss 147 and 155 of the Duties Act

The term "land holdings" employed in s 155 is defined in s 147(1) of the Duties Act to mean "an interest in land other than the estate or interest of a mortgagee, chargee or other secured creditor" (subject to currently immaterial exceptions). That definition invokes general law notions by use of the phrase "an interest in land". But the term remains to be construed purposively and in the context of the Act. As a statutory notion, it is not necessarily limited by general law concepts.
The words "interest" and "land" are non-exhaustively and broadly defined in the Duties Act. As to "interest", the Duties Act expressly provides for its inclusion of certain interests which are not ordinarily proprietary interests in land. On its correct construction, an "interest" in land under the Duties Act includes the rights conferred by s 64 of the WIC Act. Those rights permit the transfer of ownership of the pipeline and are effective to prevent any affectation of the rights to occupy the stratum on the land where the pipeline has been laid. The WIC Act grants the appellant the rights to control, exploit, use or enjoy, and alienate that pipeline in the stratum on the land where the pipeline has been laid.
The ownership rights granted by s 64 of the WIC exist in express priority to all of the estates and interests in the surrounding land. The rights granted by s 64 of the WIC Act are properly described as an interest in land within the meaning of ss 147 and 155 of the Duties Act. Since writing the above, I have read in draft the reasons of Basten AJA on this issue. I agree with his Honour's additional reasons.
It follows that the notice of contention should be upheld and the appeal should be dismissed.

[25]

"Goods" within the meaning of s 155 of the Duties Act

Despite the conclusions I have reached on the cross-appeal, which are dispositive, in accordance with Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12] and Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8], I will address the grounds of the notice of appeal on the alternative basis that was relied upon by the Commissioner, namely that the pipeline is "goods" within the meaning of s 155 of the Duties Act.
The assumption underlying this part of the judgment is that I am wrong in my construction that s 64 of the WIC Act confers an interest in land. I am unable to conclude, even on this basis, that the interest conferred by the WIC Act is for the purposes of the Duties Act a "novel property right" which exists outside the reach of s 155 of the Duties Act.
The only definition of "goods" in the Duties Act is found in s 163K which excludes certain items from the definition of "goods" of a landholder: 163K Goods of a landholder (1) In this Chapter - goods does not include the following - (a) goods that are stock-in-trade, (b) materials held for use in manufacture, (c) goods under manufacture, (d) goods held or used in connection with land used for primary production, (e) livestock, (f) a registered motor vehicle, (g) a ship or vessel. (2) For the purposes of this Chapter, goods are goods of a landholder if the landholder has any interest in the goods, other than an interest as mortgagee, chargee or other secured creditor. (3) Goods are goods of a unit trust scheme only to the extent that the interest in the goods is held by the trustee of the unit trust scheme in its capacity as trustee of the scheme, by a custodian of the trustee of the unit trust scheme in its capacity as custodian or by a sub-custodian of the custodian of the trustee of the unit trust scheme in its capacity as sub-custodian. (4) Goods are not goods of a company if the interest the company has in the goods is held on trust and the company is not a beneficiary of the trust.
This definition, by way of exclusion, is telling. "Goods", in context, is a very broad concept. On the face of the definition items which would under the common law be fixtures, if not for some reason caught as interest in land, are capable of being described as goods. As the second reading speech quoted at [95] above makes clear, the statutory purpose was to align the tax treatment of transactions involving land with those involving goods, thereby applying landholder duty to acquisitions of both land and goods.

[26]

Conclusion and proposed orders

For the foregoing reasons I have concluded that the following orders should be made: 1. Appeal dismissed. 2. Appellant pay the respondent's costs of the appeal.
STERN JA: I agree with Payne JA.
McHUGH JA: I agree with Payne JA.
BASTEN AJA: The straightforward question raised by this appeal is whether the appellant is liable for duty on a transaction which involved the purchase of shares in the owner of water industry infrastructure, including a 19-kilometre pipeline in Sydney. Pursuant to Ch 4 of the Duties Act 1997 (NSW) the transaction was dutiable if the appellant acquired an interest in a "landholder". [1]
Chapter 2 of the Duties Act provides for duty to be payable on "a transfer of dutiable property": s 8(1)(a). Dutiable property includes "land in New South Wales": s 11(1)(a). This case did not deal with a transfer of dutiable property or other transaction within Ch 2; rather, it fell within Ch 4, headed "Acquisition of interests in landholders", and imposing duty on "the acquisition by a person of a significant interest in a landholder". [2] Acquiring a significant interest in a landholder is a "relevant acquisition" for the purposes of s 148. The appellant's purchase of the share capital of the vendor was a relevant acquisition: the only issue was whether the acquisition was of shares in a "landholder".
The term "landholder" is defined, relevantly, as a company that has "land holdings" in NSW with a minimum threshold value: s 146(1). The question was whether the vendor had "land holdings". Relevantly, a landholding is "an interest in land" other than a security interest: s 147(1). Each of the terms "interest" and "land" is defined in the Dictionary to the Duties Act, definitions which operate for the purposes of the whole Act, pursuant to s 6. Those definitions are: interest includes an estate or proprietary right. land includes a stratum.
Neither definition is exhaustive, but it is uncertain whether each is intended to be expansive, or merely to "make it clear that certain potentially arguable matters are within it." [3] The term "stratum" is not defined, but "strata lot" is, being defined to mean a lot within the meaning of the Strata Schemes Development Act 2015 (NSW). The term stratum is not so constrained: it refers to divisions of space, usually in a horizontal plane. It addresses one characterisation of land, not as a physical entity, but as a jural concept.

[27]

Endnotes

Duties Act, ss 148, 149(1)(a).
See Note to s 145.
P Herzfeld and T Prince, Interpretation (3rd ed, Lawbook Co, 2024) at [3.70]; Corporate Affairs Commission (South Australia) v Australian Central Credit Union (1985) 157 CLR 201, 206-207 (Mason ACJ, Wilson, Deane, Dawson JJ); [1985] HCA 64.
K Gray and SF Gray, Elements of Land Law (5th ed, OUP, 2009) at [1.2.10] (emphasis in original).
Trust Company Ltd v Chief Commissioner of State Revenue [2007] NSWCA 255 at [49].
Gray and Gray at [1.3.3].
B Edgeworth, Butt's Land Law (7th ed, Lawbook Co, 2017) at [5.20]; Hall v Busst (1960) 104 CLR 206 at 218 (Dixon CJ); [1960] HCA 84.
Mabo v Queensland [No 2] (1992) 175 CLR 1 at 51 (Brennan J); 88-89 (Deane and Gaudron JJ); 194 (Toohey J); [1992] HCA 23 ("Mabo [No 2]".
Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53, 69 at [38] (Gleeson CJ, Gaudron, Kirby and Hayne JJ); [85]-[86] (Gummow J).
Butt's Land Law, p 42, referring to S Ball, "The Jural Nature of Land" (1928) 23 Illinois L Rev 45.
(1944) 68 CLR 261, 276; [1944] HCA 4.
(1992) 175 CLR at 48.
Ibid.
Wik Peoples v Queensland (1996) 187 CLR 1 at 77 (Brennan CJ); [1996] HCA 40.
(1916) 2 AC 618 at 624 (Toronto Corporation).
(1940) 63 CLR 52 at 69-70; [1940] HCA 7.
See Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118; [1967] HCA 41, dealing with a similar issue under the Public Works Act 1912 (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: 27 February 2025

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