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[2004] VSC 214
General information, not legal advice.
Supreme Court of Victoria
2004-06-22
HARPER J
Original judgment source is linked above.
[1] The contract for the sale of the allocated places put their number at 132; but that was a mistake. The true figure was 131. Each place was valued for the purposes of the sale at $30,000, giving a total purchase price in relation to the Cumberland allocated places of $30,000 x 131 = $3,930,000.
[2] Again, the contact for the sale of the allocated places mis-stated the number involved. The contact read 127; it should have read 120. The purchase price of those places was therefore $30,000 x 120 = $3,600,000.
[3] As to which, see Schedule 2 of the Duties Act. By clause 4 of that Schedule, the Duties Act applies to instruments first executed on or after 1 July 2001. In this case, the instruments of transfer of the Werribee land (i.e. Glendale) were executed on 12 May 1999; the instrument of transfer of the Wheelers Hill land (i.e. Cumberland) was executed on 21 June 1999.
[4] It is to be noted that under s.63(1) the word "conveyance" is defined to include "transfer", and the expression "real property" to include "any estate or interest in real property".
[5] The emphasis has been added so that the later discussion about the meaning of the word "chattels" may be more easily understood.
[6] Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd [2002] HCA 43; (2002) 76 ALJR 1534 at 1540 per Gleeson C.J. and Gummow, Kirby and Hayne, JJ.
[7] See the Commissioner's Notice of Decision dated 30 August 2001 at para. 10 (Glendale) and his like Notice dated 6 September 2001 at para. 11 (Cumberland).
[8] Ibid, at para. 26 in each case (the Notices contain slight and immaterial differences in their wording; I have quoted from the Glendale Notice).
[14] [2004] VSCA 82 at [21].
[18] [2004] VSCA 82 at para.[22].
[19] Report and valuation by Robert Lister dated 28 November 2002 in relation to Cumberland View Retirement Village & Hostel, p.3 at para.1.5.
[27] Ibid, at para.[7] quoting from Cresswell Nominees Pty Ltd v Commissioner of State Revenue (unreported, VCAT, 7 November 2001 per Nettle QC).
[28] [2002] VSC 171 at para.[9].
[33] See per Griffith C.J. at 400 and per O'connor at 409.
[34] Federal Commissioner of Taxation v. Murry (1998) 193 CLR 605 at 618.
[35] [1919] HCA 12; (1919) 26 CLR 159 at 166-167.
[36] Fraser v City of Fraserville (1917) AC 187 at 194 per Lord Buckmaster.
39] Federal Commissioner of Taxation v Murry (1998) 193 CLR 605 at 620 para. [36], where Gaudron, McHugh, Gummow and Hayne JJ speak of "the two fundamental premises of the law of goodwill, that is to say, that goodwill has no existence independently of the conduct of a business and that goodwill cannot be severed from the business which created it."
[40] Ibid, per Gaudron, McHugh, Gummow and Hayne, JJ at 609 para.[4].
[42] Report and valuation by Robert Lister dated 28 November 2002 in relation to Cumberland View Retirement Village & Hostel, p.i. A relevantly identical passage appears in Mr Lister's valuation of Glendale, again at p. i.
Primelife (Glendale Hostel) Pty Ltd
Commissioner of State Revenue; Primelife
STAMP DUTY - Sale of aged care facilities - Separate contracts for the sale of land, business and allocated places - Whether assessment of duty on transfer of real estate should include amount allowed for goodwill and for allocated places - Goodwill - Australian Rice Holdings Pty Ltd v Commissioner of State Revenue [2004] VSCA 17 and Uniqema Pty Ltd v Commissioner of State Revenue [2004] VSCA 82 followed - Morvic Pty Ltd v Commissioner of State Revenue [2002] VSC 171 considered - Federal Commissioner of Taxation v Murry (1998) 193 CLR 605 applied - Stamps Act 1958, s.63(3) and s.63(4).
(1998) 193 CLR 605
(2002) 76 ALJR 1534
(1906) 3 CLR 393
(1919) 26 CLR 159