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[2003] NSWSC 34
mixed. The plaintiff’s motion to confine the issues was refused, directions were made for submissions and further evidence on the nominal-consideration issue, and the defendant was ordered by consent to...
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The judge raised a possible legal issue about nil consideration after the hearing but before delivering judgment. The plaintiff argued that it should not be considered because it had not been part of the defendant's case and might require new evidence. The court decided to hear the issue because judgment had not yet been delivered and any evidentiary disadvantage could be addressed through further evidence, disclosure and questions. This judgment did not decide whether nil consideration is nominal consideration or whether the stamp-duty assessment was correct. It did order, by consent, repayment of the separate $630,367 fine with interest.
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2,007 words · generated 02/10/2026
ISPT Nominees Pty Limited challenged a substantial assessment of ad valorem duty made by the Chief Commissioner of State Revenue. The substantive hearing had taken place on 7 and 8 March 2002. Barrett J had heard evidence and submissions and reserved judgment.
While considering the relevant legislation after the hearing, the judge identified a question that had been mentioned only fleetingly: whether an instrument showing consideration as “nil” was an instrument made for “nominal consideration” (para 1). The judge's Associate raised that issue with the parties by letter dated 16 April 2002, asking questions about the point and whether the court could consider it at that stage (para 2).
The plaintiff then foreshadowed a motion seeking either to confine the issues to those raised before or during the hearing, or to obtain directions about how the additional issue would be considered (para 2). The motion was heard on 7 February 2003. The plaintiff's objections had two main aspects. First, it said the defendant had not relied on the nominal-consideration point in its assessment, correspondence or conduct of the hearing. Second, it said that dealing with the issue might require evidence about the Chief Commissioner's interpretations and practices at the relevant time, and that this material had not been put before the court (paras 4–5).
Barrett J declined to confine the case to the issues previously argued. The judge directed that the additional issue be fully argued and allowed further evidence, discovery and interrogatories as necessary (paras 10–13). The judgment did not decide the underlying question of statutory meaning or the correctness of the stamp-duty assessment.
A separate matter concerned a fine imposed for late payment. The defendant conceded it should not have been imposed and should be refunded with interest. By consent, the court ordered the refund of $630,367, plus interest under s 105 of the Taxation Administration Act 1996 (para 14).
The key procedural consideration was prejudice. Barrett J accepted the defendant's submission that the reason it had not previously raised the nominal-consideration point was not, by itself, a reason to prevent the issue being argued. If the point needed to be addressed to settle the controversy properly, the court could consider it, subject to prejudice to the plaintiff (para 7).
The judge distinguished this situation from a concern about finality of litigation. The judgment had been reserved, but not delivered. The judge said that no principle or rule about the desirability of finality applied in those circumstances (para 6). The court had itself identified the issue while considering the legislation and regarded it as potentially relevant to a full and just determination between the taxpayer and the taxing official (para 6).
The plaintiff's asserted prejudice was more specific than simply having to meet a new argument. On its account, there could be both a question of statutory interpretation and a factual question about what interpretations and practices the Chief Commissioner generally applied at the relevant time. The plaintiff said evidence would be needed on that factual question, and that the existing record did not contain it (para 5).
The court considered that this concern could be managed procedurally. The plaintiff had an affidavit from Mr Brogan that it wished to rely on if the issue proceeded. The judge also recognised that either party might need to provide further evidence, and that discovery or interrogatories might be needed to obtain relevant material (para 8). The directions then provided for the defendant's affidavits and discovery, possible interrogatories by the plaintiff, answers to any interrogatories, reply evidence and exchange of documents to be relied on at the further hearing (para 13).
Thus, the judgment's reasoning is not that a new point can always be raised after a hearing. Its stated basis is narrower: this judgment had not yet been delivered, the court considered the issue potentially relevant, and the prejudice identified could be addressed by giving the parties procedural opportunities to develop the record. The judge also recorded that, apart from the need for possible further evidence, the plaintiff had not identified anything in the hearing to that point as a source of prejudice (para 11).
The judgment does not set out a prior body of case law or a general procedural test drawn from other authorities. No earlier judgments are cited in the supplied text. It therefore does not support a detailed account of a “before” state of the law beyond the particular procedural concern before Barrett J: whether the court should entertain an issue raised after the hearing and while judgment was reserved.
The court's stated approach in this case was to assess whether the issue appeared relevant to properly determining the dispute and then focus on prejudice. The judge did not treat the defendant's failure to raise the point earlier as decisive. Nor did the judge treat finality as a bar before judgment had been given (paras 6–7).
The “after” position established by this judgment is procedural and case-specific. The court allowed submissions on the nominal-consideration point and authorised further evidence and related information-gathering steps as necessary (paras 10–13). It did not decide what “nominal consideration” means, whether nil consideration falls within that expression, or how s 73(2A) applies to the transfers in question. Those matters were left for the further hearing.
The judgment refers to s 9 of the Taxation Administration Act 1996 in describing the plaintiff's argument about interpretations and practices generally applied by the Chief Commissioner at the time the tax liability arose (para 5). It also refers to s 73(2A) in the discovery direction, which concerns the expression “nominal consideration” in relation to the transfers (para 13). The statutory text itself is not reproduced in the judgment supplied here, and the court did not determine those substantive statutory questions in this decision.
The judgment also makes a discrete order under Pt 31 r 2 for separate determination of the fine-refund question (para 14). The text records the defendant's concession and the parties' consent to the refund; it does not explain the wider operation of that rule.
At paragraph 6, Barrett J said: “I do not regard any principle or rule as to the desirability of finality of litigation as applying.” In context, this explains why the court did not refuse to consider the issue merely because the hearing had concluded. The judgment had not yet been delivered, and the court itself had identified the point while considering the legislation.
At paragraph 7, the judge said: “The real issue here is prejudice.” This is the central organising idea in the reasons. The defendant's earlier failure to raise the point was not treated as enough, on its own, to prevent the point being argued. The court instead asked whether allowing it would unfairly disadvantage the plaintiff, and whether that disadvantage could be addressed.
At paragraph 8, the judge accepted that further material could be needed, including the plaintiff's affidavit from Mr Brogan and possibly discovery and interrogatories. The plain-English point is that procedural fairness did not require the court to exclude the issue if the parties could be given an opportunity to assemble and answer relevant evidence.
At paragraph 10, the judge stated: “The proper course here is to allow what I have called the ‘nominal consideration’ point to be fully agitated.” “Fully agitated” means that the parties could make legal submissions and, where needed, put on evidence concerning the issue. The judge expressly left the question of further evidence open and said both parties should have an opportunity to adduce it if required.
Paragraph 13 shows how that decision was implemented. The defendant had to file affidavits and provide discovery about relevant interpretations and assessment practices in force in 1995. The plaintiff could serve up to 30 interrogatories within the specified period, and could file reply evidence after those steps. The directions are specific to this proceeding, rather than a general timetable applicable to other cases.
Finally, paragraph 14 records that the fine issue was dealt with separately. The court ordered, by consent, repayment of $630,367 and interest. This was distinct from the unresolved dispute about the substantive stamp-duty assessment.
This decision is most directly relevant to a procedural situation with these features: the hearing has concluded; judgment has been reserved but not delivered; the court identifies a potentially relevant issue while considering the law; and one or more parties say that addressing the issue could cause prejudice because the evidence has not been prepared on that basis.
The judgment particularly illustrates a claimed evidentiary disadvantage. The plaintiff said it might need evidence about the Chief Commissioner's interpretations and practices at the relevant time, rather than simply needing to answer a new legal argument. The court's response was to allow a process for evidence, discovery and interrogatories (paras 5, 8 and 13).
It is important not to overstate the decision. It does not establish, on the text provided, that a court must always entertain a new issue after a hearing, or that a party's late-raised argument will always be permitted. The judge's reasons emphasise relevance to determining the controversy and whether prejudice can be addressed. The decision also does not decide any substantive question about nominal consideration or stamp-duty liability.
For legal practitioners and compliance professionals, the relevant comparison is therefore procedural rather than substantive: whether judgment has been delivered, who raised the additional issue, why it appears relevant, what evidence would be needed to address it, and whether a fair opportunity to respond can be provided. Those considerations reflect the reasoning in this judgment; the text does not provide a comprehensive test for other circumstances.
The supplied judgment contains no citations to later cases, and the material provided does not include any later decisions discussing or applying ISTP Nominees Pty Ltd v Chief Commissioner of State Revenue. Later judicial treatment therefore cannot be established from this source alone.
The decision itself identifies no earlier precedent as the basis for its reasoning. The “precedentRelationships” field is consequently empty: no cited case is recorded as applied, distinguished, followed, or treated in another specified way.
The decision's significance in the supplied text is its explanation of how Barrett J handled the particular application before him, not evidence of how subsequent courts have used it. Any account of later treatment would require sources beyond the judgment supplied here.
The principal substantive question left open was whether an instrument expressing consideration as “nil” was made for “nominal consideration”. Barrett J directed that this point be argued but did not decide it in this judgment (paras 1, 10 and 12).
The judgment also did not decide whether s 9 of the Taxation Administration Act 1996 applied to the substantive dispute, or what the Chief Commissioner's relevant interpretations and assessment practices were. The plaintiff's account of the possible factual issue appears at paragraph 5; the directions for obtaining material about practices in force in 1995 appear at paragraph 13. The court described further evidence concerning s 9 as conditional, “if it applies” (para 10).
Nor did the judgment determine whether the substantive stamp-duty assessment was correct. The proceedings remained open for a further hearing after the parties completed the directed evidentiary steps (para 13). The fine was resolved separately by consent, but that order did not resolve the main tax dispute (para 14).
The judgment does not address the broader limits, if any, on a court raising an issue of its own motion after a hearing. It explains why Barrett J considered the issue appropriate to entertain here: judgment had not been delivered, the point appeared relevant, and the plaintiff's identified evidentiary concern could be accommodated. It should not be read as resolving questions not addressed in the reasons.
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CITATION : ISTP Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 34 HEARING DATE(S) : 07/03/02, 08/03/02, 07/02/03 JUDGMENT DATE : 7 February 2003 JURISDICTION: Equity JUDGMENT OF : Barrett J DECISION : Directions made for determination of further question
CATCHWORDS : PROCEDURE - question raised by judge after judgment reserved and before judgment delivered - whether question should be entertained LEGISLATION CITED : Taxation Administration Act 1996 PARTIES : ISPT Nominees Pty Limited - Plaintiff Chief Commissioner of State Revenue - Defendant FILE NUMBER(S) : SC 1976/01 COUNSEL : Mr J.T. Gleeson SC/Mr M.Richmond - Plaintiff Mr L.G. Foster SC/Dr H.G. Sorensen - Defendant SOLICITORS : Freehills - Plaintiff Mr I.V. Knight, Crown Solicitor - Defendant
1076/01 - ISPT NOMINEES PTY LTD v CHIEF COMMISSIONER OF STATE REVENUE
1 In these proceedings, the plaintiff contests its liability to pay a substantial amount assessed by the defendant as ad valorem duty under the stamp duties legislation. After I had heard the evidence and submissions and reserved my decision in March last year, and upon considering the relevant legislation, it occurred to me there emerged from that legislation one matter that had been mentioned only fleetingly in the course of the hearing, but which seemed to me to be of significance to the proper determination of the issues between the parties. The matter goes to the meaning of "nominal consideration" and whether an instrument in which the consideration is shown as "nil" is one made for "nominal consideration". 2 Through my Associate, I wrote to the parties on 16 April 2002 asking three questions, the first two being about this "nominal consideration" point and the last being whether the substantive questions on the "nominal consideration" point were questions to which the court was entitled to have regard at this point. After some correspondence between the parties' solicitors and my associate, the plaintiff foreshadowed on 3 July 2002 the filing of a notice of motion seeking a declaration that the issues to be determined in the proceedings be limited to those raised by the pre-trial correspondence, written submissions filed at the conclusion of the hearing on 8 March 2002 and oral submissions put to the court in the course of the hearing on 7 and 8 March 2002. In the alternative, the plaintiff sought certain directions regarding consideration by the court of the matter raised. 3 There was some ongoing difficulty in finding a date convenient to all concerned to deal with the foreshadowed notice of motion, but it has been filed in court today and I have now heard it. Mr Gleeson SC read two affidavits of his instructing solicitor in support of the motion. 4 Mr Gleeson's principal contention that the issue raised in my Associate's letter should not be entertained has, I think, two essential bases. First, it is said the defendant, in maintaining its claim for stamp duty, never took the nominal consideration point and, furthermore, in correspondence in which the plaintiff sought, by way of request for particulars of disallowance of the plaintiff's objections to the relevant tax assessment or demand to know whether the "nominal consideration point" would be taken, the answer was that the point was not considered relevant because the instrument was outside the particular charging provision on other grounds. Also, the matter was not taken up by the defendant at any stage before or during the hearing. The defendant, it is submitted must be confined accordingly, as must the issues to be determined by the court. 5 The second basis is that the plaintiff would suffer prejudice if the court were to entertain the "nominal consideration" question. On the view the plaintiff takes of matters, upholding of the defendant's assessment to ad valorem duty depends upon his having acted in conformity with s.9 of the Taxation Administration Act 1996 which requires that any re-assessment of tax be made in accordance with interpretations and practices generally applied by the defendant at the time the tax liability arose. That being so, the plaintiff says, there will be a question whether a consideration expressed as "nil" was, according to interpretations and practices at the relevant time, "nominal consideration". That question, according to the plaintiff, will exist side by side with the question of law as to whether, as a matter of interpretation, "nil" is "nominal consideration". There will, accordingly, be a need, as the plaintiff sees it, for evidence in order to address the question of fact as to the interpretations and practices of the defendant at the relevant time. There being before the court, at this stage, no evidence on this, the plaintiff will suffer prejudice if the "nominal consideration" issue is pursued. I shall consider these two bases of objection of the plaintiff in turn. 6 First, as to the proposition that the defendant should be confined to the issues foreshadowed, raised and argued already, I must say that I am conscious of the fact that we are dealing here with the correct interpretation and application of a statute by a public official. I do not regard any principle or rule as to the desirability of finality of litigation as applying. Judgment has not yet been given. It was the court itself, having reserved its decision and embarked upon a consideration of the legislation, that saw fit to raise the matter as one which appeared to be relevant to a full and just determination of the issues between the taxing official and the taxpayer. 7 I accept the submission of Mr Foster SC for the defendant that the real issue here is prejudice: the reasons why the defendant, in making the relevant demand for duty and in later correspondence, did not raise the nominal consideration point is essentially unimportant. If the matter needs to be addressed to enable the controversy between the parties to be properly settled by the court, then it should be, subject to questions of prejudice. I must say that that is the view I take. The court has raised the matter. The defendant now wishes to see it agitated. The fact that the defendant was not previously of that disposition is not enough to prevent the point being agitated. 8 On the subject of prejudice, Mr Gleeson for the plaintiff points to the need for him to introduce evidence of practices and interpretations of the Chief Commissioner at the relevant time. He has an affidavit of Mr Brogan which he believes deals with that to a large extent, but he did not read it earlier because there was no need to do so. He would want to read that affidavit if the matter progressed and he may also wish to have discovery and to administer interrogatories to obtain further factual material about the Chief Commissioner's practices and interpretations at the relevant time. That, it seems is to me, is something that can and should be accommodated in an appropriate way. Indeed, to the extent that either party would see a need to put on further evidence to deal with that factual issue (and I note that the defendant has foreshadowed a relevance objection to the affidavit of Mr Brogan) then the opportunity to do so can and should be given. So too should there be an opportunity for such discovery and interrogatories as are needed. 9 I should record that Mr Foster has indicated that grounds of possible objection to Mr Brogan's affidavit based on s.81 of the Taxation Administration Act will not be pursued by the defendant. 10 The proper course here is to allow what I have called the "nominal consideration" point to be fully agitated. To the extent that it involves a question of statutory interpretation or a question of law, then the parties can make their respective submissions. Indeed, written submissions have already been forwarded to my Associate. To the extent that there needs to be further evidence to cater for anything arising under s.9 of the Taxation Administration Act, if it applies, each party should have an opportunity to adduce evidence. At this stage, Mr Gleeson has indicated that he will wish to read Mr Brogan's affidavit and Mr Foster has foreshadowed a relevance objection as I have said, which can be dealt with in due course. I am prepared to make whatever directions are sensible to ensure that neither party suffers prejudice by way of inability to adduce further evidence going to this matter. 11 I should also record my understanding that apart from the question of further evidence to which I have referred, the plaintiff did not point to anything that had happened in the course of the hearing to date as a source of prejudice should the "nominal consideration" point be argued. 12 I decline to make the declaration in paragraph 2 of the plaintiff's notice of motion filed in court today, that is, the declaration that the issues to be determined be determined confined in the way I have described. I will receive submissions on what I call the "nominal consideration" point (or "additional issue"), that is, the question raised in paragraphs 1 and 2 of my Associate's letter of 16 April 2002. New evidence will be received as necessary. [Counsel addressed on the question of directions] 13 I make the following directions: 1. The court notes that the affidavit of Mr Brogan is read by the plaintiff and constitutes the further evidence on which the plaintiff currently intends to rely in relation to the additional issue. 2. The defendant is to file and serve any affidavits on the additional issue within 14 days. 3. By the same date, the defendant is to provide discovery of all documents bearing upon the issue of legal interpretations and assessment practices generally applied by the Chief Commissioner in relation to the matter whether the transfers in question would satisfy the requirements of s.73(2A) insofar as that section uses the expression "nominal consideration", being interpretations and practices in force in 1995 (whether such documents were created in 1995 or at some other time), including but not limited to technical training manuals and technical procedure instructions. 4. The plaintiff may, if so advised, within 7 days after receiving the defendant's affidavit or affidavits and discovery, administer one or more interrogatories not exceeding 30 in number relevant to the additional issue, with liberty to the defendant to apply on 48 hours notice. 5. Such interrogatories, if any, are to be answered within 7 days thereafter. 6. The plaintiff is to file any evidence in reply on the additional issue within seven days after completion of the above steps. 7. Each party is to notify the other of, and provide copies of, documents to be relied upon at the further hearing. 8. The parties are at liberty to approach my Associate for a further date to conclude the hearing. 14 There remains the issue of the fine for late payment of duty which, regardless altogether of the substantive outcome, the defendant now concedes should not have been imposed and should be refunded with interest. I deal with that as follows: 1. Pursuant to Pt 31 r 2, order that the question in paragraph 4 of the summons filed on 29 March 2001 be determined separately from any other question in the proceedings, insofar as the question in paragraph 4 raises the issue of refund of a fine imposed by the defendant. 2. By consent, order that the defendant refund the amount of $630,367 paid by the plaintiff by way of fine pursuant to s.104 of the Taxation Administration Act 1996, together with interest pursuant to s.105 of the Taxation Administration Act 1996. **********
Last Modified: 02/12/2003 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.
ISTP Nominees Pty Ltd
Chief Commissioner of State Revenue
The plaintiff’s motion to confine the issues was refused, directions were made for submissions and further evidence on the nominal-consideration issue, and the defendant was ordered by consent to refund the $630,367 fine with interest.