62 The sale agreement recording the price of $165,000 was admitted into evidence without objection. The operation of s29 of the Stamp Duties Act was not raised until addresses. On the face of the section and the authorities in relation thereto (see for example the decision of Hodgson, CJ in Eq., in The Official Trustee and Bankruptcy v D'Jamirze and ors (1999) NSWSC 1249 and the cases there cited) the sale agreement was not "duly stamped" and thus may not be relied on here for any purpose, seemingly regardless of the fact that there was a lack of intent on Mr Pilgrim's part to defraud the revenue. However, the exception to the distinguishing of Alexander v Rayson [1936] 1 KB 169 to which I earlier referred concerns the observations there made about the passing of property under an unlawful agreement. The judgment in that respect provided (at p.185):
This distinction between an action brought to enforce an unlawful agreement and one brought to assert a right of property already acquired under such an agreement is further illustrated by Taylor v Chester (1869) LR 4 QB 309. The defendant in that case was the keeper of a brothel and as such had supplied wine and supper to the plaintiff "for the purpose of being consumed there by the plaintiff and divers prostitutes in a debauch there, to incite them to riotous, disorderly, and immoral conduct." When the debauch was over there followed in due course the reckoning. Being unable or unwilling to pay it at once, the plaintiff deposited with the defendant the half of a 50l. note as security. He subsequently repented of this action, and instituted proceedings against the defendant for the purpose of obtaining the return of the half bank note. It was held that he was not entitled to recover. The property in the half note had passed to the defendant, and in spite of the illegality of the agreement under which it had passed, the defendant was entitled to keep it. As was said by Parke B. in Scarfe v Morgan (1838) 4 M & W 270, 281 in a passage quoted by Hannen J. in the course of the argument: "if the [illegal] contract is executed, and a property either special or general has passed thereby, the property must remain." The plaintiff, on the other hand, could not maintain his action without asserting and relying upon the unlawful agreement. He could not, to use the language of Mellor J. in delivering the judgment of the Court, recover without showing the true character of the deposit; and that being upon an illegal consideration, to which he himself was a party, he was precluded from obtaining "the assistance of the law" to recover it back.