Commissioner of State Revenue v Lend Lease Development Pty Ltd

The High Court has allowed the appeals in several related matters on duties payable on land. Following sales of various parcels of land in Melbourne’s Docklands, the Commissioner of State Revenue assessed the stamp duty payable on those parcels based on the value of the land as well as additional amounts that the developers had agreed to pay to VicUrban in return for infrastructure development. The VSCA allowed Lend Lease’s appeal, holding that the additional amounts were not subject to stamp duty because they were not consideration for the sale of the land or an encumbrance on that sale: the development agreement could not be ‘blurred’ with together with the payment for the land.

The appeal to the High Court turned solely on the question raised by s 20(1)(a) of the Duties Act 2000 (Vic): what is ‘the consideration … for the dutiable transaction (being the amount of a monetary consideration or the value of a non-monetary consideration)’ for each of the dutiable transactions? The Court unanimously held that the Commissioner could assess the stamp duty on specific land sale contracts as well as those made under development agreements, assessed as single, integrated and indivisible transaction. The Court held that nothing turned on whether the land was developed or undeveloped when it was transferred: while its condition would affect its market value (relevant to s 20(1)(b)), the Commissioner made the assessment under s 20(1)(a) ‘on the basis that, in these cases, the consideration “for” the transfer was greater than the market value of the Land in its then condition’ (at [44]). In examining consideration ‘for’ the transaction, the court looks to what was received by the vendors that would cause them to transfer to the purchaser, as stipulated in the agreement between them ([49]). Contrary to the Court of Appeal, the High Court held that what was received was the payment of the total sum owed for each stage of the development: ‘Each transaction of transfer was a “single, integrated and indivisible” transaction. It was not to be divided as it was by the Court of Appeal’ (at [62]). The Court then evaluated each of the particular assessments and held that the Commissioner was correct in including each in assessing the stage and land payments. (Two matters relating to the ‘Grand Plaza Retention Amount’ are to be reassessed by the Commissioner: see [66].)

High Court Judgment [2014] HCA 51 10 December 2014
Result Appeal allowed (appeals in M78/2014 and M81/2014 allowed in part and remitted to the Commissioner for assessment)
High Court Documents Lend Lease
Full Court Hearings [2014] HCATrans 243  5 November 2014
[2014] HCATrans 242  4 November 2014
Special Leave Hearing [2014] HCATrans 185 15 August 2014
Appeal from VSCA [2013] VSCA 207  15 August 2013
Trial Judgment, VSC
[2012] VSC 108 28 March 2012
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.