Australia, Aug. 26 -- New South Wales Land and Environment Court issued text of the following judgement on July 25:

1. The interesting question at the heart of these proceedings concerns the nature of the transaction that occurred when the plaintiff, who was the executor of her mother's deceased estate, entered into a contract with herself to acquire a property that was owned by her in her capacity as executor. The parties agree that, one way or another, a 'transaction' within the meaning of s 8(1)(b) of the Duties Act 1997 (NSW) occurred upon execution of the contract. The dispute is as to whether that transaction was a 'surrender of an interest in land' by the other beneficiaries within the meaning of s 8(1)(b)(iii), as the plaintiff contends, or an 'agreement for the sale or transfer of dutiable property' within the meaning of s 8(1)(b)(i), as the defendant contends. The parties accept that if the transaction was neither of these things, it was nevertheless within the scope of s 8(1)(b)(ix) and dutiable on that basis.

2. The difference between the parties' competing primary positions is best understood by reference to the uncontroversial facts which give rise to the dispute.

3. The plaintiff's mother, Robin Shand, died in 2022. She was survived by four children, including the plaintiff. Mrs Shand had made a last will and testament on 6 August 2019 (the Will) which nominated the plaintiff as executor. Probate of Mrs Shand's estate was granted to the plaintiff on 29 September 2022.

4. After providing for some specific gifts and subject to some matters I will mention below, the residue of Mrs Shand's estate was to be held on separate testamentary trusts for the benefit of each of her children and their respective families. One of these testamentary trusts was to be established for the plaintiff and her family. That trust was to receive 27.3% of the residue of the estate.

5. One of the assets of the estate was a house in Bondi Junction (the Property), which was owned unencumbered. On 15 December 2022, the plaintiff caused a transmission application to be lodged, as a result of which she became the registered proprietor of the Property. The transmission application identified the applicant as being the plaintiff in her capacity as executor.

6. The plaintiff appointed a real estate agent for the purpose of marketing the Property for sale at a public auction. An auction was held on 3 October 2023 and the plaintiff was the winning bidder. The same day, she executed a standard form contract for the sale of land in which she was identified as both vendor and purchaser (the Contract). Where the Contract identified the plaintiff as purchaser, it did so as 'Fiona Campbell Shand (in her personal capacity)'. The purchase price was $5,010,000 and time for completion was 19 January 2024.

7. Completion seems to have occurred in accordance with the Contract. On 19 January 2024, the plaintiff caused a transfer to be lodged, in which she was identified as both vendor and purchaser. Although there was no evidence about this, I was informed that the plaintiff paid the whole of the purchase price.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1983e8a2b8e7913068c71c5d)

Disclaimer: Curated by HT Syndication.