Commissioner of Stamp Duties (NSW) v Millar [1932] HCA 63

Commissioner of Stamp Duties (NSW) v Millar [1932] HCA 63

The provisions of sec. 103(1)(b) of the Stamp Duties Act 1920-1924 (NSW), which purported to include in the dutiable estate of a deceased person domiciled and resident outside New South Wales shares in companies incorporated outside NSW, with no share register in NSW but conducting mining business within the State, were in excess of the legislative power of the NSW Parliament; action for refund under sec. 140(3) was not dependent on Commissioner's satisfaction; duty paid due to invalid law could be recovered.

Parties
Defendant/appellant/respondent: The Commissioner of Stamp Duties (New South Wales); Plaintiffs/respondents/appellants: Millar and Another (executrix/executor of Edwin Franks Millar)
Jurisdiction
Australia
Procedural Posture
Appeal / On Appeal From Supreme Court of New South Wales (full Court); Judgment by High Court of Australia
Outcome
Appeal dismissed with costs; cross-appeal allowed with costs.
Legal Topics
Stamp Duties, Death Duties, Territorial Jurisdiction, Refund of Duties, Legislative Power of State Parliament
Constitutional Law Taxation Law Succession/probate Stamp Duties Death Duties Territorial Jurisdiction Refund of Duties Legislative Power of State Parliament

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Parties

The Commissioner of Stamp Duties (New South Wales)

Defendant/appellant/respondent

Millar and Another (executrix/executor of Edwin Franks Millar)

Plaintiffs/respondents/appellants

Procedural Posture

Appeal / On Appeal From Supreme Court of New South Wales (full Court); Judgment by High Court of Australia

Legal Issues

  1. 1 Whether sec. 103(1)(b) of the Stamp Duties Act 1920-1924 (NSW) validly authorised inclusion of certain shares in dutiable estate for death duty
  2. 2 Whether duty paid can be refunded where property wrongly included owing to invalid legislative provision
  3. 3 Whether action for refund depends on satisfaction of Commissioner or mistake in construction of Act

Ratio Decidendi

The provisions of sec. 103(1)(b) of the Stamp Duties Act 1920-1924 (NSW), which purported to include in the dutiable estate of a deceased person domiciled and resident outside New South Wales shares in companies incorporated outside NSW, with no share register in NSW but conducting mining business within the State, were in excess of the legislative power of the NSW Parliament; action for refund under sec. 140(3) was not dependent on Commissioner's satisfaction; duty paid due to invalid law could be recovered.

Court Disposition

Appeal dismissed with costs; cross-appeal allowed with costs.

Orders

  • Appeal by the Commissioner of Stamp Duties dismissed with costs.
  • Cross-appeal by Millar and Another allowed with costs.