Contract for sale of land-Specific performance Defect in title as to portionCompensation-Hardship.-The defendant

entered into a written contract for the sale of a pastoral property of 8,700 acres to the plaintiff. Of this area, 1,700 acres was poor land and belonged some to his son and some to his daughter, neither of whom concurred in the sale or would allow the defendant to make title to the area. The defendant had told the plaintiff that he would not sell his good country without selling his bad country also. The defendant in fact would not have sold his own land if he had not thought he was in a position to sell the 1,700 acres. In a suit by the plaintiff for specific performance of the contract or of so much thereof as the defendant was competent to perform with compensation in respect of so much thereof as he was incapable of performing. Held, that the facts did not disclose any hardship upon the defendant which should lead the Court in the exercise of its discretion to refuse to decree specific performance with compensation. Gall v. Mitchell (24 S.R. 503; 41 W.N. 116) reversed. GALL v. MITCHELL, 41 W.N. 161. [High Court.]

Breach of contract-Goods to be sold at a valuation-Specific performance-Measure of damages-Sale of Goods Act 1895, s. 4.-The plaintiff claimed from the defendant specific performance for an agreement for the sale of a drapery establishment, and alternatively for damages. The defendant granted to H. a seven days' option to purchase in the following form:- I herewith give Mr. H. an option of my business at K., stock and fittings to go at valuation, ingoing £50, and to pay the usual commission.' H. arranged with the plaintiff to purchase and the plaintiff paid to the defendant's husband a deposit and received a receipt in the following form:-" Received from T. W. D. the sum of £10 through Mr. C. H. as deposit on the purchase of K. stock, fixtures, fittings and ingoing, subject to any objection to the transfer of lease being raised by the owner of the property. Valuators and an umpire were appointed. The valuators commenced the valuation, but could not agree. The defendant prevented the umpire being called in, and the valuation was, therefore, not completed. Held, that specific performance could not be decreed, and that the plaintiff's only remedy was in damages. Specific performance of a contract for sale at a val. uation will not be decreed where valuation has not been made, unless the thing to be valued is subsidiary to the main purpose of the contract. DONALDSON v. PUDDEY 1924 W.A.L.R. 34. [Western Australia.]

Mortgage Right of redemption-Agreement to finance-Option to purchase-Specific performance.-See MORTGAGE, col. 326.

Specific performance of executory contract -Evidence-Severable term.-See SALE OF GOODS, col. 391.

Contract for sale of land-Time of the

Estate duty-Exemption-Gifts for "religious, scientific, charitable or public educational purposes "What are "charitable purposes "Whether annuity given by will is taxable as part of estate-AssessmentValue of annuity-Regulation prescribing rate of interest-Ultra vires.-Sect. 8 of the Estate Duty Assessment Act 1914-1916 provides that " (1) subject to this Act, estate duty shall be levied and paid upon the value, as assessed under this Act, of the estates of persons dying after the commencement of this Act. (5) Estate duty shall not be assessed or payable upon so much of the estate as is devised or bequeathed or passes by gift inter vivos or settlement for religious, scientific, charitable or public educational purposes." Held, by Isaacs, Rich and Starke, JJ. (Knox, C.J. and Higgins, J. dissenting), that in sub-s. 5 the expression "charitable purposes," is not used in its technical legal sense, but in its popular sense as meaning the relief of wants occasioned by lack of pecuniary means, and covering the relief of any form of necessity, destitution or helplessness, including spiritual destitution or need, which excites the compassion or sympathy of men and appeals to their benevolence for relief; and, therefore, that a gift of a fund to provide prizes for competitions in physical, mental or moral excellence, without regard to the pecuniary of the competitors, was not for charitable purposes within the meaning of the subsection. Held, also, by Isaaas Rich and Starke, JJ., that in that subsection the expression " public educational purposes" connotes training or teaching either bodily or mental. Held, further, by Knox, C.J., Isaacs, Higgins, Rich and Starke, JJ., that a gift of an annuity by a testator is a gift of part of his estate, and accordingly is taxable under s. 8 in respect of its value according to a valuation, taking into account the fact, if it exists, that the annuity is defeasible. Reg. 33 (1) of the Estate Duty Regulations 1917 provides that “ (1) Whenever it is necessary for the purpose of the Estate Duty Assessment Act "to calculate the value of a life interest or an interest for a period certain in an estate, the value shall be calculated in accordance with the appropriate value of one pound per annum shown in any standard set of tables for calculation of values on a four and a half per centum basis." Held, by the whole Court, that the regulation is ultra vires, the power conferred by s. 50 of the Estate Duty Assessment Act to "make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or per

means

mitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act." Held, also, by the whole Court, that the value of an annuity should, for the purposes of the Estate Duty Assessment Act, be ascertained as a matter of fact. CHESTERMAN v. FEDERAL COMMISSIONER OF TAXATION, 32 C.L. R. 362. [High Court.]

Debenture Agreement for surrenderWhether an agreement for conveyance of property.-A company issued a series of debentures for the purpose of securing

the repayment of money lent to it. The debentures contained the usual clauses, and, in addition, a clause providing that a holder might direct the company to issue to him fully paid up shares in exchange for his debenture, provided that he signed an agreement framed in a form provided by the company. An agreement of this nature was entered into between a debenture holder and the company. On a special case stated :Held, that such agreement was not an agreement for the conveyance of any property by the debenture holder within the meaning of ss. 41 and 65 of the Stamp Duties Act 1920, and was, therefore, liable only to the fixed duty of one shilling. ENGLISH ELECTRIC Co. OF AUSTRALIA LTD. v. STAMP DUTIES COMMISSIONER OF 24 S.R. 321; 41 W.N. 84. [New South Wales.]

Gifts inter

Death duty Estate duty vivos Right of executors to recover duty or deduct from benefits taken under will. In his lifetime a testator had taken out life policies in favour of three of his children and had paid premiums thereon up to the date of his death. The respective premiums were repayable to his estate in the event of a child's death under the age of 21 years, and there was a right of surrender by the testator or his personal representatives in certain events. Within three years and within one year prior to his death he made certain gifts to his wife and aunt R.; practically the whole of the latter's gift were expended in maintaining herself soon after receipt. These gifts inter vivos had been assessed as part of the testator's dutiable estate and his executors had paid probate and estate duty thereon. Held, that s. 120 (1) of the Stamp Duties Act 1920, in the above circumstances, had no application to the premiums on the life policies, and that the executors could not recover either probate or estate duty out of the moneys secured on such policies. Held, further, in respect of the gifts inter vivos to the wife and R. (1) that, in the case of probate duty the executors had no right in personam against the recipients and no statutory charge for the duty paid, nor had they any right to deduct the duty paid nor had they any right to deduct such duties from any benefit receivable under the will or codicil, and that the executors merely had a right to recover such duty out of the property in question, if still in existence, by appropriate proceedings; and (2) that, in the case of estate duty, executors have no A.A.D., 1924 14

right, in personam, against any person and no statutory charge. Their right is limited to a right, after paying the duty to obtain the benefit of the charge given by the Act to the Crown, so as to secure practical indemnification. Harper v. Harper (1922 V.L.R. 512) followed. PERPETUAL TRUSTEE CO. LTD. v. ADAMS, 24 S. R. 87; 40 W.N. 158. [New South Wales.]

Probate duty-Reduction in favour of children-Assets of testator in Western Australia and elsewhere-Bequest not specific-When reduction of duty can be claimed -Administration Act, 1903 ss. 86, 88.-Where children of the testator claim by virtue of the proviso to s. 87 of the Administration Act 1903 a reduction of duty on a legacy given to them by the testator, the benefit of such reduction can be obtained only when it is necessary for the executors, either by reason of the provisions of the will or by reason of other circumstances, to resort to the Western Australian property of the testator in order to pay the legacy. It is for the executors to prove that the duty is subject to a reduction, and where they fail to show that the legacies are necessarily payable either wholly or in part out of the proceeds of the property in Western Australia, the reduction in duty cannot be secured. COMMISSIONER OF STAMPS V. NICHOLSON & VINCENT, EXECUTORS OF R. P. VINCENT 1923 W.A.L.R. 136. [Western Australia.]

Trust for use of residence for limited periodPower of trustees to insure Stamp duties Act, 1920 No. 47, s. 114-Estate Duty Assessment Act, 1914 No. 22, s. 35-Death DutyResidue primary fund-Different disposition -Estate Duty. By his will a testator made various pecuniary bequests and directed that none of the legacies should be free of probate, estate or other duty except those to his wifə (and other persons specified). He then made specific devises on trust for his four children, By his codicil, which revoked portion of his will, he devised his residence upon trust to permit his wife and his children to reside therein for the term of two years after his decease. He gave his residuary real and personal estate upon trust to pay various annuities including annuities to his wife and aunt R. and after the latter's death to her daughter, and to divide the ulitmate residue among his children. And he declared that the foregoing annuities, and a certain bequest in his will to his trustee B., should be free of probate, estate or other duty. The testator's will was executed before, and the codicil after the date of the Stamp Duties Act, 1920. The executors had insured the residence against fire. Held, that the trustees were justified in insuring the residence. Held, further, that in respect of the annuities, legacies and specific devises given by the will and codicil (a) probate duty thereon payable out of residue, except in the case of legacies, not exempted from liability for duty by the testator, which must pay their proportion of the duty, and (b) estate duty thereon should be treated on the principle

was

laid down in O'Neill v. Coffill (20 S.R. 264) and Brown v. Brown (22 S.R. 106). PERPETUAL TRUSTEE COY. LTD. V. ADAMS, 24 S. R. 87; 40 W.N. 158. [New South Wales.]

on

66

Reconstruction of company Voluntary winding-up-One agreement for sale of merchandise for certain price by the company to new company-Further payment of other moneys by new to old company-Allotment of shares in new company to members of old company Second agreement by old company to transfer to new company goodwill, contracts, etc.-Two instruments constituting one agreement-" Conveyance on sale "" Agreement for sale of property which does not consist solely of merchandise "' -The Stamp Acts 1894-1918, ss. 49, 54 (1.) (b) (ii).-The Stamp Acts 1894-1918,, provided by s. 54 (1) Any contract or agreement (b) for the sale of any estate or interest in any property except. (ii.) solely of any goods, live stock, wares, or merchandise; shall be charged with the same ad valorem duty to be paid by the purchaser as if it were an actual conveyance sale of the. property contracted or agreed to be sold Pursuant to resolutions duly passed and confirmed, a company incorporated in New South Wales went into liquidation for the purpose of reconstruction. The resolutions authorised the company and the liquidator to enter into two agreements with the appellants (a new company, of which the liquidator was authorised to procure registration under s. 261 of the Companies Acts of 1863-1913). The two agreements were entered into on the same day. The operative part of the first agreement provided that the new company should purchase as on a specified date all merchandise" of the old company for £54,121, and should also receive £6,484 10s. from the old company, and that every member of the company should be entitled to shares in the new company proportionate to his share-holding in the company. By the second agreement, the operative parts provided that the new company should, as on the same specified date, at the price of £6,206 10s. 8d., take over the gookwill of the company, its leases, trade marks, ete., pending contracts, etc., and other specified property, that the new company should purchase certain real property and certain personal property at specified prices; and of these payments a part was payable to the liquidator, and for the balance the members of the company received shares in the new company. Held, the first instrument was chargeable with the same duty as a conveyance or transfer on sale of property. Per McCawley, C.J. Assuming the instrument to be an agreement for sale, it was not an agreement for the sale solely of merchandise within the meaning of s. 54 (1) (b) (ii). Per Shand, J. That the instrument formed part of a wider agreement, the terms of which were contained in the two instruments read together, and that the whole agreement related to the property which did not consist solely of merchandise, and that the duty had been properly assessed

by the commissioner. HOOPER AND HARRISON (QUEENSLAND) LTD. v. COMMISSIONER OF STAMP DUTIES, 1924 S.R. (Q.) 102. [Queensland.]

conversion

Settlement-Creation of trust for sale and Will. By his will a testator gave, devised and bequeathed all his real and personal estate to his executors and trustees, upon trust to pay the rents, profits and income thereof to his wife during her life, and from and after her decease in trust for his children living at his death, in equal shares. The will contained no power of sale and investment. The executors and trustees obtained probate of the will, and subsequently an indenture was executed, to which the parties were the trustees, the widow and the children, who survived the testator. By that indenture the widow and the children authorised and empowered the trustees, as executors and trustees of the will, to sell, call in and convert the whole or any part of the testator's real and personal estate, to invest the proceeds, and to hold them and the securities representing them upon trust to pay the annual income thereof to the widow during her lifetime; and it was also agreed between the widow and the children that after the death of the widow the children should be entitled to the whole of the real and personal estate in equal shares as tenants in common. Held, that the instrument was а settlement" within the definition of that word in s. 2 of the Stamps Act 1894 to 1918 of Queensland, and was chargeable with ad valorem duty as a settlement, and not with a fixed duty as an agreement under seal. Chaille and Others v. Commissioner of Stamps Duties (1924 Q.W.N. 1) reversed. СомMISSIONER OF STAMP DUTIES v. CHARLOTTE ANN CHAILLE, 30 A.L.R. 434. [High Court.]

Tasmania

Probate duty-Testator domiciled in Tasmania-Assets in other Australian States and New Zealand-Succession duty paid in New Zealand-Deduction from duty payable in Statute Construction.Sect. 55 of the Deceased Persons' Estates Duties Act 1915, provides that where the commissioner is satisfied that in any part of His Majesty's dominions other than this State, duty-not being duty payable under any Commonwealth Act is payable by reason of a death occurring after the commencement of this Act in respect of any property situate therein and passing on such death, he shall allow a sum equal to the amount of that duty to be deducted from any duty payable under this Act in respect of that property on the same death. In this section property passing on the death' includes property passing either immediately on the death or after any interval either certainly or contingently and either originally or by way of substitutive limitations." For the purposes of the Act, the property of a person domiciled in Tasmania includes personalty wherever situate, s. 6 (11). A testator domiciled in Tasmania left property in New Zealand in respect of which his executors paid succession duty under the local statute. They claimed to be

allowed to deduct the amount of duty so paid from the duty payable under the above Act. The Commissioner refused to allow the deduction on the ground that duty which might be deducted under s. 55 did not include succession duty. Held, on appeal, that the Commissioner was in error and that the deduction claimed should be allowed. In re PITT COBBETT'S ESTATE, 1922 Tas. L.R. 34. [Tasmania.]

Probate duty-Partnership Valuation of deceased partner's interest-Partnership deed -Construction-The Deceased Persons' Estates Duties Act 1916.-A partnership originally consisted of three partners of whom D. I. was the senior partner. The partnership deed by cl. 21 provided for the valuation of the interest of any partner withdrawing or ceasing from any cause contained in any of the clauses thereof to be a partner. Clause

22 provided for the disposal of the shares of the junior partners in the event of death and incorporated cl. 21. Clause 24 contained directions for the disposal of the share of the senior partner on his death but did not refer to cl. 21. Clause 27 was an expulsion clause and incorporated cl. 21 by reference. On the death of the senior partner the Commissioner of Taxes valued the partnership assets including goodwill and assessed the interest thereon of the deceased; his personal representatives objected that the value of such interest fell to be determined according to cl. 21 of the deed. Held, on appeal, founded on the objection that on the true construction of the partnership deed, cl. 21 extended to the case of a partner ceasing to be a partner on death. COMMISSIONER OF TAXES v. INGLES, 1922 Tas. L.R. 54. [Tasmania.]

February, 1921, the respondent signed four transfers of shares of a total nominal value of £1,000 in a limited liability company whose regulations were contained in Table A of the Companies Act 1908. The transfers were by way of gift. The transfers were lodged by the respondent's solicitors with the Deputy Commissioner of Stamps on the 17th February, 1921, for stamping. At that date the transfers had not been registered in the books of the company or delivered to the transferees. The Deputy Commissioner proposed to value the shares to ascertain whether they were liable for gift duty, whereupon respondent's solicitors wrote asking for their withdrawal as they had not been completed by delivery. The transfers were therefore returned. On the 7th April, 1921, the transfers were again presented for stamping, and were duly stamped, and subsequent to that date they were handed to the transferees and duly registered in the books of the company. Subsequently, but on some date prior to the 27th March, 1922, the respondent made a further gift of £1,000. Held, that the gifts of the shares were not complete until at least the transfers were handed to the respective transferees, and that the gifts were liable to gift duty by virtue of s. 46 (1) (b) of the Death Duties Act 1921, Todd v. Commissioners of Stamp Duties, (1923 N.Z.L.R. 528; G.L.R. 223) reversed. COMMISSIONER OF STAMPS v. TODD, 1924 N.Z.L.R. 345. [New Zealand.]

Death Duties-" Value "of dutiable estate -Debenture-Shares in private company having articles restricting alienation of shares-Company under control of deceased and, after his death, of his executors-Effect of restrictions in determining value of sharesDeath Duties Act 1909, s. 6.-1. Part of the dutiable estate of a deceased person consisted of a debenture issued by a private company, over which the deceased, in his lifetime, had complete control, and over which, after his death, his executors had complete control, The assets of the company were more than sufficient to pay all the debts of the company and to repay its capital. Held, that the sum which a possible purchaser might give for the debenture in the open market was really no guide as to its value in the hands of the executors. In re Alfred Louisson (deceased (unreported) see note 1924 N.Z.L.R. 338) followed. 2. In attempt. ing to ascertain what is to be regarded as the normal earning capacity of any company the business results of an exceptionally bad year cannot fairly be taken into account. 3. The deceased held shares in a private company, the articles of association which contained restrictions with regard to the alienation of shares ; but the executors of the deceased, if they so desired, could have removed the restrictions by altering the articles. Held, that such restrictions could not be taken into consideration in determining the value of the shares, but that their value should be determined by reference to the value of the company's assets. AttorneyGeneral v. Jameson (1904 2 Ir. R. 644;

There

of the mortgaged land was not £11,500, but the Commissioner of Stamp Duties assessed the full stamp duty on £11,500, and declined to ascertain the amount of duty according to the value of the mortgaged land. was a covenant in the mortgage deed: "That the owner would perform and observe all the covenants on his part in a deed of mortgage of even date therewith for further securing the moneys thereby secured, and a declaration,' "that these presents are collateral with deed of mortgage of even date herewith securing the same principal moneys as are secured hereby and made between the parties hereto." Held, that with these statements and the production of the collateral deed no more information was required to enable the Commissioner to proceed to make the necessary apportionment, and that therefore the Commissioner must apportion the value of the land. ST. MARK'S PARISH TRUST BOARD v. MINISTER OF STAMP DUTIES, 1924 G.L.R. 183. [New Zealand.]

Death Duties Act 1909 Gift duty-Separation deed between husband and wifeLump sum for maintenance paid-Whether a gift and exempt from duty.-Under a deed of separation between a husband and a wife the husband agreed to pay her a lump sum for her future maintenance and support in lieu of annual payments, upon condition that she should not compel her husband to live with her, and it was to be a separation by consent. She was not to sue him for any money for her maintenance or make him liable for debts which she might contract, and it recited the usual terms and conditions of a separation deed. The plaintiff sued the husband for gift duty on the lump sum paid, the Commissioner having certified that the gift was not entitled to exemption from duty under s. 101 of the Finance Act 1915. Held, that the lump sum paid was not a gift and

that the plaintiff was not entitled to recover. COMMISSIONER OF STAMPS v. PEARCE, 1924 G.L.R. 338. [New Zealand.]

Gift duty-Gift of land under the Land Transfer Act-Purchase money paid to vendor by donor and transfer received and registered by him-Whether a gift of the purchase money or of the land. The donor, B., now deceased, being minded to make a gift to his wife, agreed in writing to purchase certain land under the Land Transfer Act for £10,350. A deposit was paid and on the agreed day for completion the balance of the purchase money was paid by the purchaser to the vendor, in cash, but at the purchaser's request the vendor executed a memorandum of transfer to the wife of the purchaser. The purchaser received the transfer and registered it and thereupon his wife became the registered proprietor of the legal fee simple of the land. The purchaser, as donor, duly paid gift duty computed on the sum of £6,745, being the Government valuation of the land at the date of the gift. the Commissioner having claimed to assess the gift duty as on the value of £10,350, being the actual purchase money. Held, that the gift was a gift of land assessable on the basis of the valuation of the land under the Valuation of Land Act 1908. PUBLIC TRUSTEE v. COMMISSIONER OF STAMP DUTIES, 1924 G.L.R. 558. [New Zealand.]

Construction-Provision to be made "in equity"-Acts Interpretation Act 1908, s. 6 (i). The cardinal rule for the construction of legislative language is that the words of an Act of Parliament which are not applied to any particular science or art are to be construed as they are understood in common language. The Native Land Amendment and Native Land Claims Adjustment Act 1922, s. 52, empowered the Native Land Court to inquire and determine what (if any) provision ought in equity to be made towards the support of one N.H. (an aged aboriginal native relative of one R.K.) out of the estate of R.K. Held, that the words in equity were used in a popular and not a technical sense, and meant simply fairness." In re RANGI KEREHOMA, N.Z.L.R. 1007; G.L.R. 480. [New Zealand.]

66

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1924