Hart v Federal Commissioner of Land Tax [1913] HCA 4; (1913) 15 CLR 545 (20 February 1913)

HIGH COURT OF AUSTRALIA

Hart Appellant; and The Federal Commissioner of Land Tax Respondent.

H C of A

20 February 1913

Griffith C.J., Barton and Isaacs JJ.

Waterhouse, for the appellant.

Dobson, for the respondent, was not called on.

Griffith C.J.

Under sec. 38 of the Principal Act joint owners of land, whether legal or equitable, are treated as a single person and assessed jointly, so that only one deduction of £5,000 is allowed from the unimproved value of the joint estate. But, by an addition made to that section by the Act of 1911, certain privileges are conferred on joint equitable owners who claim under a settlement of earlier date than 1st July 1910, or the will of a testator who died before that date. In the present case there is no will and no deed of settlement. The beneficiaries are the next of kin of the former owner, who died intestate before 1st July 1910. It is suggested that in such a case the beneficiaries are substantially in the same position as persons who take under a settlement or will. Of course, such persons do not in fact claim under a will. How can it be suggested that they claim under a settlement?

The settlement spoken of in the Act is evidently an instrument made before 1st July 1910 by which shares are given to several persons, relatives of the settlor.

It is difficult to give reasons for the obvious. It is enough to say that it is impossible to bring the case of intestacy under the word "settlement."

In construing a taxing Act you cannot speculate as to the general intention of the legislature. The Act imposes certain liabilities upon joint owners, and makes a specific exception in certain specified cases only. The appellant in this case cannot bring himself within the exception. One deduction only of £5,000 can therefore be allowed, and the question submitted must be answered accordingly.

Barton J.

I am entirely of the same opinion, and it is unnecessary to add words.

Isaacs J.

I quite agree, and will quote a few words of a very eminent Judge, which, I think, are relevant to the construction of the word "settlement." In Attorney-General v. Glossop[1] Collins M.R., dealing with the English Finance Act, and a question arising thereon, said:—"The Acts have been framed by draftsmen acquainted with conveyancing terms, and they must in the nature of things be addressed to a large extent to a section of the public familiar with those terms; and I do not think that it would be right or possible, in dealing with the provisions of the Finance Acts, to ignore altogether the technicalities of conveyancing, and to disengage one's mind entirely from all acquaintance with the technical terms which conveyancers use, and in which likewise to some extent the draftsmen of Acts of Parliament couch the provisions which they frame."

Now, the word "settlement," as used in the Act, primarily connotes an instrument which is executed by a person called the settlor, and under which, broadly speaking, several persons would take successive interests in the ownership or enjoyment of property. There is nothing in the context to countervail that primary signification. There are other words which have been referred to by the learned Chief Justice in the clause itself, which, so far from detracting from the primary meaning to which I have referred, strengthen it. In addition to that, if the argument addressed to us by the appellant were correct, a will would be included within the meaning of "settlement." But the legislature, by expressly referring to wills, show that they did not consider that wills would be so included. The express additional reference to wills indicates that the legislature did not intend them to be already dealt with under the term settlement. If so, à fortiori, the case of an intestacy does not come within that term.

I therefore agree with the opinion expressed by my learned brothers.

Appeal dismissed with costs.

Solicitors, for the appellant, Ritchie & Parker, Launceston.

Solicitors, for the respondent, Dobson, Mitchell & Alport, Hobart.