Crowther v Commissioner of Stamp Duties [1964] HCA 5

Crowther v Commissioner of Stamp Duties [1964] HCA 5

The Commissioner's first plea was demurrable because, although it asserted a mistake in the construction of the Stamp Duties Act, the mistake specified did not unequivocally allege such a mistake and was consistent with a mistake about the operation of s. 29 of the Wills, Probate and Administration Act or a mistake in application rather than construction of the Stamp Duties Act. The second plea was also demurrable because it asserted that all but £3,348 10s. 7d. of the claim was paid more than three years before action, while admitting that the last two instalments totalling £4,509 2s. 7d. were paid within three years; although the limitation period under s. 140(4) runs from each payment,...

Jurisdiction
Australia
Procedural Posture
Appeal in an Action to Recover Death Duty Paid Under the Stamp Duties Act / Appeal From the Full Court of the Supreme Court of New South Wales on Demurrers to Two Pleas
Outcome
Appeal allowed with costs.
Legal Topics
['death Duty Refund' 'wrongful Inclusion of Property in Dutiable Estate' 'mistake in Construction of Statute' 'demurrer' 'limitation Period for Statutory Repayment Action']
['taxation' 'stamp Duties' 'probate and Wills' 'civil Procedure'] ['death Duty Refund' 'wrongful Inclusion of Property in Dutiable Estate' 'mistake in Construction of Statute' 'demurrer' 'limitation Period for Statutory Repayment Action']

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Procedural Posture

Appeal in an Action to Recover Death Duty Paid Under the Stamp Duties Act / Appeal From the Full Court of the Supreme Court of New South Wales on Demurrers to Two Pleas

Legal Issues

  1. 1 ['Whether the wrongful inclusion of the estate of Arthur John Annabel in the dutiable estate of Vera Madeline Crowther was by reason of a mistake in the construction of the Stamp Duties Act so as to preclude a refund under s. 140(1).' "Whether the Commissioner's first plea sufficiently alleged facts showing a mistake in the construction of the Stamp Duties Act." 'Whether s. 140(4) barred recovery of part of the amount claimed because payments had been made more than three years before action brought.' 'How the three-year period in s. 140(4) applies where duty wrongly assessed was paid by instalments.']

Ratio Decidendi

The Commissioner's first plea was demurrable because, although it asserted a mistake in the construction of the Stamp Duties Act, the mistake specified did not unequivocally allege such a mistake and was consistent with a mistake about the operation of s. 29 of the Wills, Probate and Administration Act or a mistake in application rather than construction of the Stamp Duties Act. The second plea was also demurrable because it asserted that all but £3,348 10s. 7d. of the claim was paid more than three years before action, while admitting that the last two instalments totalling £4,509 2s. 7d. were paid within three years; although the limitation period under s. 140(4) runs from each payment,...

Court Disposition

Appeal allowed with costs.

Orders

  • ['Order of the Supreme Court set aside.' 'Judgment entered for the plaintiff on both demurrers.']