Ansett Transport Industries (Operations) Pty. Ltd. v. Comptroller of Stamps (Vic.)
Judges:Tadgell J
Court:
Supreme Court of Victoria
Tadgell J.
This appeal challenges an assessment of stamp duty made by the respondent on 28 June 1979. The duty assessed was $77,622.20 ad valorem upon a deed of mortgage expressed to be made on 7 June 1979 between the appellant as mortgagor and the Commonwealth of Australia as mortgagee. The deed secured a potential liability of the appellant to indemnify the Commonwealth as a guarantor of debts to be incurred by the appellant up to $21,420,000. The debts were to arise from loans to be obtained by the appellant to finance the proposed purchase in the United States of America of two Boeing 727-200 aircraft; and the deed provided for the assignment by way of mortgage of the two aircraft and for the appellant's right ultimately to obtain a reassignment.
The deed of mortgage was in all relevant respects of the same kind as that which I had to consider in
Ansett Transport Industries (Operations) Pty. Ltd. v. Comptroller of Stamps 80 ATC 4323; (1981) V.R. 35 and that which McGarvie J. had to consider in a case between the same parties reported in 82 ATC 4643; (1983) V.R. 305. The only substantial differences between the terms of the instruments considered in those decisions, and of the one now in question, lie in the dates, money sums and identity of the mortgaged aircraft. I therefore refer, without repeating it, to my summary of the salient features of the deed the subject of my earlier decision: at 80 ATC pp. 4324-4325; (1981) V.R. pp. 36-38.
The respondent assessed the subject deed to duty under Heading XXII of the Third
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Schedule, in association with subdiv. (17) of Div. 3 of Pt. II of the Stamps Act 1958, as it stood in June 1979. I observe in passing that this was before the enactment on 20 May 1980 of Act 9413, which added to the Stamps Act subsec. (4) of sec. 17. McGarvie J. (82 ATC 4643; (1983) V.R. 305) was concerned with sec. 17(4) because the deed in the case before him was executed in the Australian Capital Territory on 8 September 1980, but that provision does not concern me here.An objection to the present assessment was disallowed on the footing that the deed was a mortgage within the meaning of subdiv. (17) and that it had been executed by the appellant in Victoria. The appellant did not seek to argue on this appeal that the deed was not a mortgage within the meaning of subdiv. (17), although the notice of objection had raised the point. It could not have argued it without seeking a reconsideration of the reasons for my decision reported in 80 ATC 4323; (1981) V.R. 35. The appellant did, however, strongly contest the contention that the instrument had been executed by it in Victoria, and that contest gives rise to the first question for decision. A second question was argued because the respondent relied on the fact that, even if the instrument had not been executed in Victoria for registration under sec. 100 of the Companies Act 1961. The submission was that its mere presence here had rendered it liable to stamp duty as assessed. The appellant contested that, too, and on two bases: first, that the Stamps Act does not purport to subject documents of mortgage to duty merely by virtue of their presence in Victoria; and secondly that, if it does purport to do so, the Act is to that extent invalid and should be read down accordingly for much the same reasons that McGarvie J. in his decision in 82 ATC 4643; (1983) V.R. 305 limited the operation of sec. 17(4). This second question will require decision if the appellant succeeds on the first.
I turn, then, to the first question. This is largely one of fact, although it exposes some incidental questions of law.
The instrument in question is of 27 typed pages and begins:
``THIS DEED OF MORTGAGE is made the 7th day of June one thousand nine hundred and seventy nine between -
ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PROPRIETARY LIMITED a company incorporated under the laws of the State of Victoria relating to companies and having its registered office at 489 Swanston Street, Melbourne, in that State (in this deed called `the company') of the one part, and
THE COMMONWEALTH OF AUSTRALIA (in this deed called `the Commonwealth') of the other part...''
The date, ``7th... June'', is handwritten. There follow some recitals, occupying about four pages, and then 17 substantive clauses, a schedule specifically identifying the mortgaged property (the two aircraft) and, on the last page, the testimonium as follows:
``IN WITNESS WHEREOF this deed has been executed as at the day and year it is expressed to be made.
THE COMMON SEAL OF
ANSETT TRANSPORT INDUSTRIES
(OPERATIONS) PROPRIETARY LIMITED
was hereunto affixed in the presence of
(SEAL)
(R.L. Cooper) Director
(F. Pascoe) Director
(Graeme J. McMahon) Secretary
SIGNED, SEALED AND DELIVERED on behalf of
THE COMMONWEALTH OF AUSTRALIA by
ALBERT RICHARD GRAHAM PROWSE,
(A.R. Prowse)
First Assistant Secretary,
Revenue Loans and Investment Division,
Department of the Treasury, and being the duly appointed Delegate of the
Treasurer of the Commonwealth in the presence of -
(Witness)''
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The common seal of the appellant was affixed to the document and to a duplicate in the presence of two directors and a secretary on 31 May 1979 in Melbourne, where the appellant has its principal head office. The secretary, Mr. McMahon, gave evidence that on 4 June 1979 he arranged that the instrument be parcelled up together with a number of other documents relative to the transaction and sent by the appellant's own air service to Canberra, there to be collected by a servant of the appellant and delivered to a Commonwealth officer. That was evidently done and the deed of mortgage was executed on behalf of the Commonwealth by the Treasurer's delegate, Mr. A.R.G. Prowse, in Canberra on 7 June 1979, when the date was filled in on the first page. Afterwards, the document somehow found its way back to Melbourne for registration under the Companies Act and it was then that the respondent insisted that it be stamped ad valorem.
The appellant's primary submission was that the instrument to which its seal was affixed in Melbourne had had no legal effect until it was executed on behalf of the Commonwealth in Canberra. That being so, it was argued, the document was no more dutiable than the document with which McGarvie J. was concerned in his decision in 82 ATC 4643; (1983) V.R. 305, and for the same reason as that which his Honour assigned, namely that it had no relevant connection with Victoria. There was an alternative submission for the appellant that the instrument was of no effect as its deed until (at the earliest) it was delivered into the hands of the Commonwealth and that, since this also occurred in Canberra, the same result should follow.
Plainly, the circumstances in which the appellant came to seal the document and to send it away to Canberra are relevant to the question whether those acts of the appellant constituted the document its deed. The surrounding circumstances were these. The appellant had been negotiating for some time before May 1979 for the purchase of the two aircraft and associated parts and equipment. The acquisition involved the appellant's borrowing money in the United States, and the lenders required the Commonwealth's guarantee of repayment of principal and payment of interest. In 1978 the Commonwealth Parliament passed two Acts specifically authorising the Commonwealth Treasurer to give the necessary guarantees on the Commonwealth's behalf. These were the Airline Equipment (Loan Guarantee) Act 1978 (No. 18 of 1978), which authorised the Treasurer to give a guarantee or guarantees of the appellant's debts not exceeding U.S.$10,300,000 in respect of the purchase of one aircraft, and the Airline Equipment (Loan Guarantee) Act (No. 2) 1978 (No. 161 of 1978) which authorised the Treasurer to give a guarantee or guarantees of the appellant's debts not exceeding U.S.$11,120,000 in respect of the other aircraft. Act No. 18 of 1978 provided, in sec. 5, that:
``For the purpose of the protection of the financial interests of the Commonwealth, the Treasurer shall not give a guarantee [under the Act] unless -
- (a) the Treasurer is satisfied that the terms and conditions of the borrowing are reasonable;
- (b) where the borrowing consists of, or includes, the issue of instruments - the issue of those instruments, and the form of those instruments, has been approved by the Treasurer;
- (c)...
- (d)...
- (e) such other conditions as the Treasurer thinks necessary are fulfilled.''
Act No. 161 of 1968 contained similar provisions, although there were verbal differences not now relevant.
A so-called credit agreement providing for the loans to the appellant, to be made and repaid in the United States, was ultimately executed there on 14 June 1979. Before the loans could be obtained pursuant to it, the Commonwealth's guarantee had to be obtained; and before that could be obtained the mortgage, the subject of this appeal, had to be given. The appellant had long before advised the Commonwealth of the sums for which guarantees would be required, for these had had to be incorporated in the authorising legislation.
Before the appellant's seal had been affixed to the deed of mortgage on 31 May 1979 there had also, naturally enough, been discussions between the appellant and the Commonwealth as to what the document should say. The appellant had, over many years, been arranging
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borrowings of money dependent on Commonwealth guarantees and both it and the Commonwealth were used to the procedure. Mr. McMahon said in evidence that in this case a series of drafts of the deed had gone backwards and forwards between the appellant and its solicitors in Melbourne and the relevant Commonwealth officers. Sometimes verbal alternations to a draft were agreed by telephone and a fresh draft incorporating them was prepared. At length, the appellant was satisfied that the last formulation prepared by it or its solicitors, or by them in combination, reflected what had been agreed by reference to earlier drafts and by telephone, and it was sealed as I have indicated and sent to Canberra. Speaking of the procedure, Mr. McMahon said in cross-examination:``We didn't send drafts backwards and forwards every time there were minor word changes. Often the word changes were corrected by telephone and it was the responsibility of our solicitor in Melbourne to incorporate these changes. The final draft of the document when it went forward would have been that which was finally agreed by telephone conversation and then had gone forward to the Commonwealth for final agreement on their part... As far as we were concerned it was considered to be the final draft of the agreement... It was the agreement that we considered we had made but which had not at that time been seen by the Commonwealth and therefore had not been approved by the Commonwealth...''
Mr. McMahon also said:
``It was always my understanding that the document, after being finalised here in Melbourne as to drafting, following a series of conversations by telephone which followed again meetings in Canberra, that the documents, after final preparation, would be forwarded to Canberra for the Treasury representatives and the Crown Solicitor's representatives to read and peruse same and provided that they were happy with it they would prepare a brief to go to the Treasury, who would then provide authority for the document to be signed. Now on several occasions in the past, on similar transactions we have had, documents sent to Canberra which weren't satisfactory were subsequently returned again and so it was clearly my understanding that this document, when it went forward, would be subject to further perusal by the Commonwealth officers and then executed by them if satisfactory.''
Mr. Kotler, the appellant's solicitor who had been responsible for the matter, confirmed in evidence what the secretary had said. He swore that on 4 June he had asked Mr. McMahon to deliver the company delivery envelope addressed to the Commonwealth Crown Solicitor, with a covering letter, containing ``the two parts of the deed of mortgage sealed by the company'' and some other associated documents. Mr. Kotler said that the procedure involved was such that, before the lenders would advance money to the appellant they needed to get various documents, including the Commonwealth guarantee; and the Commonwealth would not sign the guarantee ``unless it has received, you know, the security and then executed the mortgage and there is the Crown Solicitor's opinion, and all the paraphernalia that goes with it and basically we have to sign the mortgage on the understanding that the rest will follow''. Mr. Kotler went on to say that on about 8 June 1979 he received from the Commonwealth Crown Solicitor parts of the mortgage deed executed by Prowse, by which he said he meant the original and duplicate original of the document, both of which had been sealed by the appellant. Having received them, he arranged for their registration under the Companies Act, which involved having them stamped. Having done that, he returned the original to the Commonwealth in Canberra and retained the duplicate original at the appellant's office in Melbourne, where it remains.
In his first affidavit Mr. McMahon swore that:
``The Commonwealth of Australia requested the company to execute and the company agreed to execute the instrument which is the subject of this appeal.''
In using the word ``execute'' he probably meant ``seal''. In his second affidavit he swore that:
``When the instrument [sc. the subject deed] was executed it was my understanding and intention that it would be of no effect until it was delivered to the Commonwealth of Australia for final approval and execution by the Treasurer and the Treasurer had given the guarantees contemplated by the credit agreement. Further, it was my understanding
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and intention that the instrument would be of no effect should there be no borrowing made under the credit agreement for any reason whatsoever...''
Mr. McMahon had also sworn that, so far as he was aware from discussions with the other persons who witnessed the affixing of the common seal of the appellant to the instrument, they had had the same understanding as he. I excluded this, however, as hearsay.
In reliance on all that evidence counsel for the appellant submitted that the proper conclusion is that the deed had had no effect as the appellant's deed until it had been executed by the Commonwealth. Until then, it was argued, the appellant had retained a power to recall it. The sealing and delivery to the Commonwealth were, on that footing, said not to have amounted to effective execution of the instrument at all, the intention having been that the appellant should not be bound unless and until the Commonwealth had also bound itself by accepting and executing it and given the guarantee. Counsel for the appellant was careful to say, on this branch of his argument, that delivery to the Commonwealth was not of an escrow, for he recognised that to make such a concession would have been to acknowledge that there was no power to recall the instrument:
Alan Estates Ltd. v. W.G. Stores Ltd. (1982) 1 Ch. 511 at p. 526, per Sir Denys Buckley, and the cases there cited; pace Lord Reid in
Wm. Cory & Son Ltd. v. I.R. Commrs. (1965) A.C. 1088 at p. 1108, whose statement to the opposite effect seems now to be generally regarded as having been made per incuriam. The argument for the appellant was that, so far as it was concerned, there was no effective delivery of the instrument (in terms of execution) before the Commonwealth executed it, and especially that no execution and transmission of it by the appellant to the Commonwealth constituted such delivery. The point made was that the instrument was really only an offer addressed to the Commonwealth and that no obligation of any kind was created by it until it had been accepted by the Commonwealth's execution of it. It was submitted that the terms of the authorising legislation, which prohibited the Treasurer from giving a guarantee unless satisfied that the terms of the appellant's borrowing were reasonable, and unless he had approved the form of the instruments involved, conduced to the conclusion that the appellant should be presumed not to have intended to bind itself before the Commonwealth did so. The alternative argument was that, if the document was to be regarded as the appellant's deed, it did not become so until delivered to the Commonwealth, and that it was not delivered (in terms of execution) until it was handed over to the Commonwealth Crown Solicitor in Canberra.
I do not consider this analysis to be correct. An initial matter to be resolved is whether the instrument sealed on behalf of the appellant was, when it was sealed, treated by it as a deed or merely as a contractual or potentially contractual document. The distinction was referred to by Lord Denning M.R. in
Vincent v. Premo Enterprises (Voucher Sales) Ltd. (1969) 2 Q.B. 609 at p. 619 as follows:
``A deed is very different from a contract. On a contract for the sale of land, the contract is not binding on the parties until they have exchanged their parts. But with a deed it is different. A deed is binding on the maker of it, even though the parts have not been exchanged, as long as it has been signed, sealed and delivered...''
The same distinction was interestingly discussed in the present context by Sir Frederick Pollock, in a preface to vol. 29 of the Revised Reports, by way of a comment on
Doe v. Knight (1826) 5 B. & C. 671, which is also reported in that volume at p. 355.
The appellant's solicitor did refer to ``parts'' of the instrument but it is clear that he did not use that expression, in the usual conveyancer's sense, as referring to a part and a counterpart of an instrument intended to be exchanged between the parties who had executed them. I believe he actually conceded this in answer to me, although his concession does not appear in the transcript of his evidence. There was no contemplation by the parties that there was to be an exchange between them before the instrument became binding, and counsel for the appellant did not contend otherwise. The case was therefore different from
Eccles v. Bryant & Pollock (1948) Ch. 93 and from the position considered by Helsham C.J. in Eq. in
Hooker International Developments Pty. Ltd. v. Trustees of the Christian Brothers (1977) 2 N.S.W.L.R. 109, which was the subject of considerable reference before me. Nor, I think, is it appropriate to regard the instrument sealed
ATC 4109
by the appellant merely as an offer under seal submitted to the Commonwealth for acceptance or rejection, destined to flower into a contract if accepted but to wither and die if rejected or withdrawn before its acceptance. The document cannot be realistically considered in isolation from the transaction of which it formed part. On 31 May 1979, when the document was sealed, the appellant's board resolved also to appoint attorneys to execute the credit agreement that was ultimately executed on 14 June. A copy of the unexecuted credit agreement was sent to Canberra on 4 June, as one of the various associated documents, along with the deed of mortgage, as a necessary preliminary to the expected execution of the credit agreement. The evidence indicates clearly enough that when the sealed deed of mortgage was sent to Canberra it was sent upon the understanding, and with a confident expectation by the appellant, that the Commonwealth would promptly execute it, as indeed the Commonwealth did. The terms of the authorising legislation are by no means inconsistent with this conclusion. I do not consider that the affixing of the appellant's seal can be regarded as having been done idly, superfluously or as a piece of supererogation, as it would have been had the document been sent as a mere revocable offer and not as the deed of mortgage it purported to be. In my opinion the evidence reveals that the seal was affixed as part of a process of the de facto execution of the instrument as a deed (cf.,F.C. of T. v. Taylor (1929) 42 C.L.R. 80 at p. 88) and not as an offer. There was no evidence by way of a minute of the appellant's board or otherwise which tended to suggest that the instrument was sealed otherwise than as a deed. Nor, for example, was the covering letter with which it and the other documents had been sent to Canberra tendered for the purpose of showing that it had been executed otherwise than as a deed. I think the evidence on the matter is really all one way.
Having come to that conclusion I must consider when the instrument first became effective as the appellant's deed, it being common ground that it did at some stage do so. The instrument did not become binding as the appellant's deed before it was ``delivered'' in the sense that an effective deed must be delivered by its maker. As I have indicated, counsel for the appellant submitted that delivery in this sense occurred at the earliest when the sealed instrument was put into the Commonwealth's hands in Canberra. For the respondent, on the other hand, the submission was that the instrument was fully executed upon its having been sealed for, by sealing it, the appellant demonstrated that it intended to be bound. An alternative argument for the respondent was that the appellant's dealing with the instrument in Victoria, by sending it off to Canberra after sealing it, showed its intention to be bound, and therefore amounted to delivery in Victoria before it reached the Commonwealth. The respondent also relied in this connection upon sec. 51A(1)(a) of the New South Wales Conveyancing Act 1919-1954, as applied and modified at 30 April 1979 in the Australian Capital Territory by the Law of Property (Miscellaneous Provisions) Ordinance 1958, the law of the deed having been expressed in it to be that of the Australian Capital Territory. This enactment is equivalent to sec. 74(1) of the Property Law Act 1958 and provides (in part) that:
``(1) In favour of a purchaser in good faith -
- (a) a deed shall be deemed to have been duly executed by a corporation aggregate if its seal is affixed thereto in the presence of and attested by its clerk, secretary or other permanent officer or his deputy, and a member of the board of directors... of the corporation...''
The well known judgment of Blackburn J. in
Xenos v. Wickham (1867) L.R. 2 H.L. 296 at p. 312, confirmed that:
``... no particular technical form of words or acts is necessary to render an instrument the deed of the party sealing it. The mere affixing of the seal does not render it a deed; but as soon as there are acts or words sufficient to show that it is intended by the party to be executed as his deed presently binding on him, it is sufficient. The most apt and expressive mode of indicating such an intention is to hand it over, saying: `I deliver this as my deed;' but any other words or acts that sufficiently shew that it was intended to be finally executed will do as well. And it is clear on the authorities, as well as the reason of the thing, that the deed is binding on the obligor before it comes into the custody of the obligee, nay, before he even knows of it; though, of course, if he has not previously assented to the making of the deed, the obligee may refuse it.''
ATC 4110
In the same case Lord Cranworth observed, at p. 323, that:
``... the efficacy of a deed depends on its being sealed and delivered by the maker of it; not on his ceasing to retain possession of it. This, as a general proposition of law, cannot be controverted. It is not affected by the circumstance that the maker may so deliver it as to suspend or qualify its binding effect. He may declare that it shall have no effect until a certain time has arrived, or till some condition has been performed, but when the time has arrived, or the condition has been performed, the delivery becomes absolute, and the maker of the deed is absolutely bound by it, whether he has parted with the possession or not. Until the specified time has arrived, or the condition has been performed, the instrument is not a deed. It is a mere escrow.''
In
Macedo v. Stroud (1922) 2 A.C. 330 at p. 337, Viscount Haldane, speaking for the Judicial Committee of the Privy Council, said:
``That a deed may be validly executed, even though it remains in the custody of the person who made it or his agent, appears from what was laid down in Doe v. Knight 5 B. & C. 671. It is no doubt true that a deed may be delivered on a condition that it is not to be operative until some event happens or some condition is performed. In such a case it is until then an escrow only.''
More recently, in Vincent v. Premo Enterprises (Voucher Sales) Ltd. (1969) 2 Q.B. 609 at p. 619, Lord Denning M.R. continuing in the passage from which I have already quoted in part, above, said:
``... `Delivery' in this connection does not mean `handed over' to the other side. It means delivered in the old legal sense, namely, an act done so as to evince an intention to be bound. Even though the deed remains in the possession of the maker, or of his solicitor, he is bound by it if he has done some act evincing an intention to be bound, as by saying: `I deliver this my act and deed'. He may, however, make the `delivery' conditional: in which case the deed is called an `escrow' which becomes binding when the condition is fulfilled.''
These passages show that the actual handing over of the instrument to the Commonwealth Crown Solicitor in Canberra was by no means necessary to complete the process of its formal execution by way of delivery if, before that was done, the appellant otherwise evinced an intention to be bound. Whether there was such an intention is purely question of fact - a jury question: Xenos v. Wickham (supra) at p. 309, per Piggott B. That the appellant did evince such an intention in Victoria is, I think, clear. In my opinion it did so by deciding to transmit the document to the Commonwealth, by parcelling it up and arranging to have it sent by air to Canberra. All this was done in Victoria and I accordingly conclude that the instrument was both sealed and delivered as a deed in Victoria. That is to say, I think it had all the characteristics of an executed instrument when it was in Victoria and before it was handed over to the Commonwealth in Canberra. I reach this conclusion without resort to sec. 51A(1)(a) of the Conveyancing Act 1919-1954 of New South Wales, so far as it is applicable in the Australian Capital Territory.
Of course, the possibility existed that the Commonwealth would, for some reason, decline to execute either the deed of mortgage or the guarantee, and it is fair to conclude that in either of those events the appellant would not have regarded itself as bound by the deed of mortgage. But that is not a reason to suppose that it was not executed (sc. sealed and delivered) by the appellant in Victoria. The possibility I have mentioned, and the understanding and intention of Mr. McMahon referred to in the passage from his second affidavit that I have set out, are readily accommodated by treating the instrument as having been delivered as an escrow. ``When a deed between parties is executed by one of them it is a question of fact whether he delivered it absolutely in the first instance, or conditionally, with the intent that it should not take effect as his deed until the other parties had also executed it. (See per Creswell J. in Cumberledge v. Lawson.)'': F.C. of T. v. Taylor (supra), at pp. 88-89.
``In order to constitute the delivery of a writing as an escrow; it is not necessary it should be done by express words, but you are to look at all the facts attending the execution, - to all that took place at the time, and to the result of the transaction; and therefore, though it is in form an absolute delivery, if it can reasonably be inferred that it was delivered not to take effect as a deed
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till a certain condition was performed, it will nevertheless operate as an escrow:''
Bowker v. Burdekin (1843) 11 M. & W. 128 at p. 147 per Parke B.
Upon these principles I think it would be unreasonable, for the reason I have indicated, to infer that the appellant's delivery of the instrument (by way of execution) was intended to be unconditional. The more rational inference is that the appellant did not intend to be bound by the deed of mortgage until the Commonwealth executed it (thereby acknowledging the appellant's right to a re-assignment of the mortgaged property) and gave the guarantee. It might also be reasonable to infer the additional condition that the mortgage was only to have effect if the loans to the appellant were made. All these contingencies, however, happened, and they had happened at the time the instrument was assessed to stamp duty. The burden of the authorities is that, when the conditions of an escrow are satisfied, so that it becomes an immediately operative deed, it takes effect as between the parties to it as from its delivery in escrow:
Governors and Guardians of the Foundling Hospital v. Crane (1911) 2 K.B. 367 at p. 377, per Farwell L.J.; F.C. of T. v. Taylor, supra, at p. 86 per Isaacs J., at pp. 87-88 per Rich, Starke and Dixon JJ., and the cases there cited, especially
Perryman's case (1599) 5 Co. 84a;
Security Trust Corporation v. Royal Bank of Canada (1976) A.C. 503 at p. 517, per Lord Cross of Chelsea; Alan Estates Ltd. v. W.G. Stores Ltd. (1982) 1 Ch. 511. In the last-mentioned case the Court of Appeal, by a majority, declined to follow (and, semble, effectively overruled on the point) the decision of Walton J. in
Terrapin International Ltd. v. I.R. Commrs. (1976) 1 W.L.R. 665, which raised for decision the correct date for assessment of stamp duty payable on a document originally delivered as an escrow. The judgment of Sir Denys Buckley in the Alan Estates case, at p. 527, indicates that the time when the deed of mortgage, delivered in escrow, first had some legal effect was when it was so delivered. This, as I have held, was in Victoria. Counsel for the appellant conceded that if the deed of mortgage had been executed (i.e. sealed and delivered) in Victoria, it was dutiable under the Stamps Act 1958. He did not, of course, contend that the deed was an escrow, as I have found it was, and I think I should not fairly take his concession to extend to documents executed in Victoria in escrow. Nevertheless, the conclusion appears to me to be inescapable (if I am right so far) that the deed of mortgage was, within the meaning of sec. 30 of the Stamps Act, ``executed'' in Victoria and nowhere else. The fact that when it was executed in Victoria its operation was conditional appears to me not to have affected its liability for stamp duty as a mortgage once its delivery had become unconditional, given that (as between the parties to it) it ultimately achieved the status of an effective deed as at the time of its original delivery.
For these reasons I conclude that the appellant fails on the first of the questions argued on the appeal. It is therefore unnecessary to consider the second and I refrain from doing so.
The appeal will be dismissed with costs.
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