Commissioner of State Revenue v Lam & Kym Pty Ltd

[2004] VSCA 204

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Stamp Duty
2. › Real property
3. › Declaration of trust
4. › Whether real property vested in trustee becoming subject to new trust by reason of declaration of trust by that trustee
5. › Whether declarant must hold beneficial interest
6. › Stamps Act 1958 (Vic), s 64A(3)
1. Trusts
2. › Declaration of trust
3. › Trustee's power of appointment
4. › Whether instrument executed in exercise of power of appointment capable of constituting declaration of trust
5. › Methods of creation of express trusts
6. › Distinction between transfer and declaration
1. Trusts
2. › Discretionary trusts
3. › Nature of trustee's interest
4. › Whether trustee of discretionary trust holds sufficient interest to make declaration of trust
5. › Distinction between legal and equitable interests

Quick Take

A trustee of a discretionary trust who declares that trust property will be held on new trusts for a more limited class of beneficiaries executes a 'declaration of trust' within s.64A(3) of the Stamps Act 1958 (Vic), attracting stamp duty, notwithstanding that the trustee holds no beneficial interest and acts in exercise of a power of appointment. The methods of creating a trust (transfer and declaration) are exhaustive but are distinct from the source of power pursuant to which a trust is created; exercise of a power of appointment is a source of authority, not a separate method of creation.