Vicinity Funds v Commissioner [2024] VSC 658
This case is about duties payable on transfer of Myer sites in Melbourne. Each site was subject to a 299 year lease, with rent of $1pa. Duty was payable on the greater of consideration and unencumbered value7. Were the leases an ‘encumbrance’? Answer ‘no’.
Parliament is generally presumed to be aware of prior decisions bearing on new provisions8. The principles (at [111]) stress the need for caution on old cases decided in different settings. It was accepted, however, that the meaning of ‘encumbrance’ adopted in the past for stamp duty purposes9 applied equally to the new duties legislation. An ‘encumbrance’ includes mortgages and charges, but not leases.
This principle is from Episode 115 of interpretation NOW!
Footnotes:
7 ss 20(1) & 22(1) of the Duties Act 2000 (Vic).
8 Electrolux [2004] HCA 40 [161], Fortress [2015] HCA 10 [15], E8.
9 Commissioner of State Revenue v Bradney Pty Ltd (1996) 34 ATR 233.