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| | | NCAT Legal Bulletin Issue 9 of 2018
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
The latest issue feature case summaries of recent decisions from the High Court of Australia and NSW Court of Appeal , including: - Commissioner of State Revenue v Placer Dome Inc [2018] HCA 59, regarding a buyer’s liability to pay ad valorem duty when acquiring an entity of which the underlying value is principally derived from land; and
- Attorney General for New South Wales v Gatsby [2018] NSWCA 254, which found that NCAT is not a “court of a State”.
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| Commissioner of State Revenue v Placer Dome Inc [2018] HCA 59
5 December 2018 - Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ
In brief: The High Court unanimously allowed an appeal from the WA Court of Appeal, upholding an assessment by the Commissioner of State Revenue that Placer Dome Inc (“Placer”) was a “listed land-holder corporation” within the meaning of Div 3b of Pt IIIBA of the Stamp Act 1921 (WA), and that Barrick Gold Corporation (“Barrick”) was liable to pay ad valorem duty in respect of its acquisition of Placer.
Part IIIBA of the Stamp Act ensures that the buyer of an entity will be subject to ad valorem duty if the entity's underlying value is principally derived from land. Duty is payable on the acquisition of an entity that is a “listed land-holder corporation” – relevantly, an entity entitled to land in WA with an unencumbered value of not less than $1 million, and where at least 60% of the value of all of its property is land. The duty is calculated by reference to the value of the land and chattels in WA to which the entity was entitled.
The Court held that Barrick had failed to establish that the value of Placer's land, as a percentage of the value of its property, did not meet the 60% threshold. Placer was a land-rich company, which had no material property comprising legal goodwill; which, for legal purposes, was held to comprise those sources which added value to a business by attracting custom. Custom remained central to the concept of legal goodwill. Barrick's contention that goodwill was synonymous with the “added value” concept of goodwill, or “going concern” value, was rejected.
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| | The NSW Court of Appeal publishes a regular bulletin containing summaries of its latest decisions of interest. Find below links to several such decisions from recent bulletins.
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| Attorney General for New South Wales v Gatsby [2018] NSWCA 254
CONSTITUTIONAL LAW – The federal judicature – The nature and extent of judicial power – State tribunal invested with power to make an order terminating a residential tenancy agreements under s 87 of the Residential Tenancies Act 2010 (NSW) – whether tribunal was exercising judicial power in making such an order
CONSTITUTIONAL LAW – The federal judicature – Exclusive and invested jurisdiction – proceedings before State tribunal involved matter between residents of different States – whether tribunal was a “court of a State” invested with federal jurisdiction to determine the matter pursuant to Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)
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| Nationwide News Pty Ltd v Vass [2018] NSWCA 259
DEFAMATION – offers of amends – where defendant made offer of amends pursuant to Pt 3, Div 1 of the Defamation Act 2005 (NSW) including offer of compensation and stated offer was “open to be accepted until commencement of the trial, unless withdrawn in writing” – where plaintiff made offer of compromise pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 20.26, seeking damages in greater amount than compensation in offer of amends – where offer of amends not expressly withdrawn – where plaintiff accepted offer of amends prior to trial – whether offer of compromise constituted rejection of offer of amends – whether offer of amends validly accepted
STATUTORY INTERPRETATION – whether Pt 3, Div 1 of the Defamation Act 2005 (NSW) departs from the general law of offer and acceptance
STATUTORY INTERPRETATION – whether intersection between statutory schemes established by Pt 3, Div 1 of the Defamation Act 2005 (NSW) and offer of compromise provisions in UCPR Pt 20, Div 4
WORDS AND PHRASES – “withdrawn” – Defamation Act 2005 (NSW), s 16
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