Commissioner of State Revenue v Sandgate Road Property Pty Ltd [2023] QCATA 26

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Commissioner of State Revenue v Sandgate Road Property Pty Ltd [2023] QCATA 26 PARTIES: COMMISSIONER OF STATE REVENUE (appellant) v SANDGATE ROAD PROPERTY PTY LTD (respondent) APPLICATION NO: APL085-21 ORIGINATING APPLICATION NO: GAR008-20 MATTER TYPE: Appeals DELIVERED ON: 17 March 2023 HEARING DATE: 29 September 2022 HEARD AT: Brisbane DECISION OF: Senior Member Aughterson Member McVeigh ORDERS: The appeal is dismissed. The parties shall file (and serve on the other party), within 35 days of the date of delivery of these orders, any written submissions in respect of the question of costs of the application for leave to appeal or appeal. TAXES AND DUTIES – STAMP DUTIES – EXEMPTIONS – CONVEYANCE OR TRANSFER ON SALE OF REAL PROPERTY – QUEENSLAND – dutiable transaction – exemption from dutiable transaction – where Commissioner refused exemption under s 152 of the Duties Act 2001 (Qld) – where respondent sought review of Commissioner’s decision to refuse exemption - where Tribunal set aside the decision and assessment for duty made by the Commissioner – whether Tribunal erred in its application of s 152 of the Duties Act 2001 (Qld) – whether ‘dutiable transaction to correct a clerical error in a previous dutiable transaction about the same property’ Duties Act 2001 (Qld), s 8, s 9, s 10, s 11, s 21, s 22, s 30, s 152, s 152A, Schedule 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 142, s 146 Taxation Administration Act 2001 (Qld), s 14 -- 1 of 13 -- 2 Chopra v Department of Education and Training (2020) 60 VR 505 Collector of Customs v Agfa-Gavaert Ltd (1996) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Commissioner of State Revenue v Viewbank Properties Pty Ltd (2004) 55 ATR 501 Commissioner of Taxation v Crown Insurance Services Limited (2012) 207 FCR 247 Crime and Corruption Commission v Andersen [2021] QCA 222 Hope v Bathurst City Council (1980) 144 CLR 1 Pryke v Commissioner of State Revenue [2007] QCA 121 R v ACR Roofing Pty Ltd [2004] VSCA 215 Sandgate Road Property Pty Ltd v Commissioner of State Revenue [2021] QCAT 84 Screen Australia v EME Productions No 1 Pty Ltd [2012] FCAFC 19 Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 Sherratt v Commissioner of State Revenue [2013] QCAT 9 Wakefield v Commissioner of State Revenue [2019] QSC 85 APPEARANCES & REPRESENTATION: Appellant: GC Hartridge of counsel, instructed by the Commissioner of State Revenue Respondent: M Wilson of counsel, instructed by Porta Lawyers REASONS FOR DECISION [1] The question on this appeal is whether the Tribunal at first instance erred in applying s 152 of the Duties Act 2001 (Qld) (‘the Act’), which allows an exemption from transfer duty where there is a second transaction ‘to correct a clerical error in a previous dutiable transaction about the same property’. The Tribunal at first instance held that s 152 applied in the circumstances of the present case. It is the submission of the Commissioner that the Tribunal erred in so finding. [2] Sandgate Road Property Pty Ltd (‘Sandgate’) intended to acquire the land at 1856 – 1860 Sandgate Road Virginia for its valuation price of $3,700,000. That land is described in the Queensland Land Register as Lot 23 on RP 81051, Lot 24 on RP 81051, Lot 1 on RP 86194 and Lot 2 on RP 107126. [3] As a consequence of an error in the office of the solicitors for Sandgate, only three of the four lots were listed in the contract and the Transfer lodged in the Queensland Titles Registry, though the address of 1856 – 1860 Sandgate Road Virginia was shown in the contract. Sandgate paid self-assessed duty of $193,275 on the transfer, which was based on the purchase price of $3,700,000 intended for all four lots. When the solicitor’s error was discovered, the fourth lot was transferred. The Commissioner of -- 2 of 13 -- 3 State Revenue assessed the duty payable on the second transaction at $46,000. The Tribunal below reviewed the Commissioner’s decision and set aside the Commissioner’s assessment, reassessing it to a value of $0. The Commissioner appeals that decision. [4] The grounds of appeal are that the Tribunal erred in that it misconstrued and misapplied s 152 of the Act, in regard to the facts of this matter by: (a) Incorrectly interpreting and applying the words ‘a dutiable transaction to correct a clerical error in a previous transaction’, having regard to the definition of ‘dutiable transaction’ in s 9 of the Act and the particular ‘previous dutiable transaction’ in this matter; (b) Incorrectly interpreting and applying the words ‘same property’ in s 152(1) of the Act, in the context of that section and the Act as a whole; (c) Interpreting and applying s 152 of the Act without due regard to the text of the section, its context in Part 13, its relationship with part 152A and its context in the Act as a whole; (d) Incorrectly interpreting and applying s 152 of the Act, having regard to its purpose and the purpose of the Act as a whole; (e) Not properly taking into account Public Rulings DA 152.1.2 and DA 152A.1.1 in determining the application of s 152 of the Act in the circumstances of the matter. [5] A preliminary question is whether leave to appeal is required. Leave to appeal is required where the appeal is on a question of fact or mixed law and fact.1 Prior to the hearing of the appeal, both the Commissioner and Sandgate shared the view that leave to appeal was necessary because there may be questions of fact as to the ordinary meaning of ‘clerical error’ or ‘same property’ in section 152 of the Act. Sandgate remains of that view.2 [6] However, subsequent to the Appeal Tribunal hearing, submissions were filed by the parties in relation to that issue. The Commissioner now submits that it is open to the Appeal Tribunal to find that the grounds give rise to questions of law only, while it is the submission of the respondent that the grounds raise questions of mixed law and fact so that leave to appeal is required. Is leave to appeal required? [7] The outcome of this appeal turns on the proper interpretation of section 152 of the Act, which provides: Exemption—to correct clerical error in previous dutiable transaction (1) Transfer duty is not imposed on a dutiable transaction to correct a clerical error in a previous dutiable transaction about the same property if— (a) no additional consideration is paid or payable; and 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b). 2 Respondent’s submissions on mixed fact and law dated 23 November 2022. -- 3 of 13 -- 4 (b) the beneficial interests in the property change only to the extent necessary to correct the error. Examples of clerical errors in a dutiable transaction about property— • an accidental misdescription of the property • an accidental misdescription of a party to the transaction (2) To remove any doubt, it is declared that an error by a party about the appropriateness of a transaction to achieve a particular intended legal result is not a clerical error in the transaction. (3) A dutiable transaction to which this section applies is a section 152 exempt transaction. [8] The five general principles regarding the distinction between questions of fact and questions of law in a statutory context are set out in Collector of Customs v Pozzolanic Enterprises Pty Ltd,3 which were extracted by the High Court in Collector of Customs v Agfa-Gevaert Ltd.4 They are: (1) The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. (2) The ordinary meaning of a word or its non-legal technical meaning is a question of fact. (3) The meaning of a technical legal term is a question of law. (4) The effect or construction of a term whose meaning or interpretation is established is a question of law. (5) The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law. [9] In Crime and Corruption Commission v Andersen,5 an appeal from a decision of a QCAT Appeal Tribunal, the court referred to the following summary of the relevant principles by the Victorian Court of Appeal in Chopra v Department of Education and Training:6 … What is the proper meaning, as a matter of construction, of a statutory provision is usually a question of law. Ordinarily, whether facts fully found fall within a statutory provision, properly construed, is a question of law. However, where a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the question whether they do or not is one of fact. (footnotes omitted) [10] In Commissioner of Taxation v Crown Insurance Services Limited,7 the Full Federal Court stated: When the statute under consideration has no technical meaning, but is understood in its plain ordinary meaning, a question of law will arise if the facts found must necessarily have come within the statutory description, but only a question of fact will arise if the facts found are capable of coming within the 3 (1993) 43 FCR 280, 287. 4 (1996) 186 CLR 389, 395. 5 [2021] QCA 222. 6 (2020) 60 VR 505, [88]. 7 (2012) 207 FCR 247, [39]. -- 4 of 13 -- 5 statutory description. In that second case, no question of law arises because, as Hill J said at 16 in Sharp Corporation of Australia Pty Ltd v Collector of Customs, the decision "will generally involve weight being given to one or other element of the facts and so involve matters of degree". To put it another way, a choice between two conclusions open on a consideration of the facts is a question of fact. [11] In Hope v Bathurst City Council,8 in issue was whether for the purposes of the Local Government Act, the land in question was wholly or mainly used for carrying on the business or industry of grazing. In a case stated to the Supreme Court of NSW, one question was whether the Land Valuation Court had erred in holding that it was a question of fact whether the activities of the appellant fell within the description of one or both of the words ‘business’ or ‘industry’ under the Local Government Act. While the Court of Appeal answered ‘No’ to that question, on appeal the High Court answered ‘Yes’. Mason J, with whom the other members of the Court agreed, stated: [10] Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J. in Hayes v. Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47, at p 51, where his Honour quoted the comment of Lord Parker of Waddington in Farmer v. Cotton's Trustees (1915) AC 922, at p 932, which was adopted by Latham C.J. in Commissioner of Taxation v. Miller [1946] HCA 23; (1946) 73 CLR 93, at p 97, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J. then said (1956) 96 CLR, at p 51: ". . . this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The 'facts' referred to by Lord Parker . . . are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law." (at p7) [11] However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v. Cozens [1972] UKHL 6; (1973) AC 854 was just such a case. The only question raised was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact. (at p7) … [13] Although it has been common ground that "business" is used in its ordinary meaning in s. 118 (1), the courts below have refrained from saying what that meaning is. This is perhaps understandable because, as a glance at the Shorter Oxford Dictionary will show, the word has many meanings. Ironically it is the last meaning given by the Shorter Oxford Dictionary, "19. A 8 (1980) 144 CLR 1, 7-8 [10]-[13]. -- 5 of 13 -- 6 commercial enterprise as a going concern", that comes closest to the popular meaning which the courts appear to have acted on in the present case. In truth it is the popular meaning of the word as used in the expression "carrying on a business", rather than the popular meaning of the word itself, that is enshrined in the statutory definition. It is the words "carrying on" which imply the repetition of acts (Smith v. Anderson (1880) 15 Ch D 247, at pp 277-278) and activities which possess something of a permanent character. This conclusion serves to emphasize that it is necessary to engage in a process of construction in order to arrive at the meaning of the word in s. 118 (1). (at p8) … [18] In deciding whether Rath J.'s decision involved an error of law, it is to his decision expressed in the stated case, as explained by his judgment, that we must look. His Honour may have erred in arriving at the common understanding of the word "business". However, if this was an error, it was associated with an omission to relate the word to the expression with which it was associated, this being an error in construction and accordingly of law. (at p10) [12] Similarly, in Screen Australia v EME Productions No 1 Pty Ltd,9 the Court noted: Where there is uncertainty as to the meaning of a statutory word or expression … the process of construction raises a question of law. [13] In R v ACR Roofing Pty Ltd,10 the Victorian Court of Appeal considered the term ‘engaged’ in the context of Occupational Health and Safety legislation. Nettle JA, with whom Ormiston JA and Vincent JA agreed, stated (footnotes omitted): [42] Of course “engaged” is an ordinary English word. It follows according to some authorities that, unless the word is used in s.21(3) in a special sense, its meaning is strictly speaking a question of fact and thus one for the jury. According to that view of the matter, so long as a judge considers that the facts of a case are capable of falling within the ordinary meaning of the word, he or she should simply leave to the jury the question of whether facts as found satisfy the section. But in reality there are very few cases where the question of whether facts as found come within a statutory provision is purely a question of fact. As Mason J said in Hope v Bathurst City Council many authorities can be found to sustain the proposition that whether the facts fully found fall within the provisions of a statutory enactment, properly construed is a question of law. It is in effect only in cases of statutes which involve very simple words permitting of only one ordinary meaning that the problem is purely factual. In my opinion this is not such a case. The word “engagement” has a number of meanings and a number of those import legal conceptions upon which jurors would need guidance. It would be inappropriate and inadequate to leave the jury to decide the meaning for themselves. I consider that the meaning of the word in context is to be decided as a matter of law and that the jury are to be instructed as to what that meaning is and therefore of the facts of which they must be satisfied. [14] In the present matter, s 152 of the Act provides that transfer duty is not imposed on ‘a dutiable transaction to correct a clerical error in a previous dutiable transaction about the same property’. 9 [2012] FCAFC 19, [42]. 10 [2004] VSCA 215, [42]. -- 6 of 13 -- 7 [15] The respondent submits that ‘same property’ and ‘clerical error’ are to be given their ordinary meanings, with such meanings being questions of fact. In other words, it falls under the second Pozzolanic principle: see [8], above. [16] However, even should the word ‘property’ be dealt with in isolation, there are various types of property. While generally the term ‘property’ might indicate any object or thing over which rights might be exercised, in the present case the term is used in the context of ‘dutiable property’. By s 9(1)(a) of the Act a ‘dutiable transaction’ includes a transfer of ‘dutiable property’ and the latter term is defined in s 10 of the Act. In Schedule 6 of the Act, ‘property’ – (1) generally – includes dutiable property and a new right; or (2) of a corporation for chapter 3, part 1 – see section 168. [17] In other words, the term is to be given the meaning prescribed by the Act, rather than ‘the ordinary or non-legal technical meaning’. There is also a question of construction as to what is meant by the term ‘same property’. Does it mean the same property that is described in both transfer documents or, perhaps, does it mean the same property that was intended to be transferred in the original transaction? It seems that it is not necessarily the former, as a given example of ‘clerical errors in a dutiable transaction about property’ is ‘an accidental misdescription of the property’. The term ‘clerical error’ is not defined in the Act. However, that term needs to be understood in the context of the surrounding words ‘in a previous dutiable transaction’ and ‘about the same property’, keeping in mind that duty is not applicable only to real property and in relation to a registrable instrument. [18] With reference to the decision in Hope, it is evident that the terms ‘clerical error’ and ‘property’ and ‘same property’ are to take their meaning from the context of s 152 of the Act and the Act as a whole and that ‘it is necessary to engage in a process of construction in order to arrive at the meaning of the word(s)’.11 It follows that the proper construction of s 152 of the Act and whether the facts fall within that provision is a question of law. In the present case, the underlying facts are not in dispute. [19] Accordingly, the scope of the appeal is limited to the question of law and the Appeal Tribunal should proceed in accordance with s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Did the Tribunal at first instance fall into error? [20] The underlying facts were not in dispute. In summary, those facts are: (a) In 2019 the respondent agreed to purchase the property described as 1856 – 1860 Sandgate Road Virginia for $3,700,000. Solicitors were retained by the respondent. (b) 1856-1860 Sandgate Road comprised four lots: Lots 23 and 24 on RP 81051 and Lots 1 and 2 on RP 86194. However, due to an error on the part of the respondent’s solicitors, the contract and transfer omitted reference to Lot 2. (c) The consideration of $3,700,000 was apportioned as $800,000 for Lot 2 and $2,900,000 for the other three lots. 11 (1980) 144 CLR 1, 8. -- 7 of 13 -- 8 (d) Stamp duty was self-assessed on the basis of the total consideration of $3,700,000. (e) After the error was discovered, a second transfer document was lodged for Lot 2. This second transfer recorded the consideration as $800,000, but, in fact, no consideration other than the original $3,700,000 was paid. [21] The question is whether, given those facts, transfer duty should have been imposed on the second transaction; that is, whether that transaction was a ‘dutiable transaction to correct a clerical error in a previous dutiable transaction about the same property’. [22] Based on the unchallenged evidence there can be no doubt that the legal result Sandgate initially intended was to acquire all four lots at 1856 – 1860 Sandgate Road Virginia for the consideration of $3,700,000. [23] In order to obtain the benefit of the s 152 exemption Sandgate must establish: (a) that a clerical error was made in the first dutiable transaction (an error about the appropriateness of a transaction to achieve a particular intended legal result is not a clerical error: see s 152(2) of the Act); (b) that the second transaction was about the same property as the first dutiable transaction; (c) that no additional consideration was paid or payable for the second transaction; and (d) that the beneficial interests in the property changed only to the extent necessary to correct the error. [24] In particular, the questions here are whether there was a relevant ‘clerical error’ and whether the second transaction was about ‘the same property’. What was the previous or first dutiable transaction? [25] The Act imposes transfer duty on dutiable transactions: the Act, s 8. Both contracts of sale and transfers of land in Queensland are dutiable transactions: the Act, ss 9 and 10. However, the Commissioner does not impose duty more than once: the Act, ss 21 and 22. In conveyancing transactions, duty is assessed on the transfer, not the contract. Dutiable transactions that together form, evidence, give effect to or arise from what is substantially one arrangement are aggregated and treated as a single dutiable transaction: the Act, s 30. [26] The dutiable value of a transfer of land is the consideration for the dutiable transaction, or the unencumbered value of the dutiable property if there is no consideration for the transaction: the Act, s 11(7). [27] In this case, duty on the transaction documented in the First Transfer was assessed by a registered self-assessor. That assessment was taken to have been made by the Commissioner.12 As the consideration stated in the Transfer was $3,700,000, duty was assessed as $193,275. [28] In this case, the previous dutiable transaction, frequently described in submissions as the First Transaction, was the transfer of land for the consideration of $3,700,000. 12 Taxation Administration Act 2001 (Qld), s 14. -- 8 of 13 -- 9 Was there a ‘clerical error’ in the previous dutiable transaction? [29] In the decision at first instance it was noted that ‘there is no dispute that a clerical error occurred … the respondent has now conceded this point’.13 On appeal, Sandgate submits that the Commissioner abandoned the argument regarding clerical error below and should not be allowed to re-open this issue on appeal. In an understatement, the Commissioner submits that the issue of whether or not there was a clerical error was not strongly pressed below. In any event, if on the undisputed facts there was no clerical error s 152 of the Act could not be invoked and an error of law would arise. [30] The Act does not define the term ‘clerical error’. [31] However, it is common ground that an error was made. There is no suggestion that the error was made by Sandgate. Sandgate intended to acquire the land at 1856 – 1860 Sandgate Road Virginia for the consideration of $3,700,000. As a result of an error by omission in the office of Sandgate’s solicitor, the contract of sale and First Transfer only referred to three of the four lots at 1856 - 1860 Sandgate Road but recorded the consideration as $3,700,000 (in accordance with the valuation for the four lots). [32] The Commissioner submits that the error was not a clerical error because the fourth lot had been omitted from both the contract and the First Transfer by an employee of a solicitor’s firm; the real property description referred to in the First Transfer document matches the real property description in the contract; and the physical address is irrelevant to a dutiable transaction that is a transfer of an estate in fee simple in real property. It is submitted that the error in this case should be classified as an error by the employee who failed to undertake all necessary property searches to ascertain the correct real property description of the lots at 1856 – 1860 Sandgate Road Virginia, or alternatively as a failure to properly supervise the employee by a legal practitioner. [33] Identification of the person who made the error cannot be determinative of the nature of the error. Sandgate is a company, therefore any error it makes must be made by a human being. A clerical error can only be made by a human being. In our view there can be no difference between an error made by an employee of Sandgate or an error made by an employee of Sandgate’s solicitor if the error otherwise fits within the operation of section 152. [34] The Commissioner referred to Pryke v Commissioner of State Revenue.14 That case concerned the Act as it was prior to insertion of the adjective ‘clerical’ before error, the insertion of the examples in s 152 and, to remove doubt, the addition of section 152(2). Despite the amendments, Pryke remains a useful starting point for considering this issue. The Court of Appeal considered not only the meaning of ‘error’ but also the phrase ‘in a previous dutiable transaction’, which has not changed. Douglas J adopted the approach to the construction of an exception to dutiability set out by Nettle J in Commissioner of State Revenue v Viewbank Properties Pty Ltd.15 Accepting the unchallenged factual findings of the court at first instance, his Honour found that the error was ‘in the transaction’ in the sense that it was reflected in the mistaken description of the transferee in the memorandum of transfer.16 13 Sandgate Road Property Pty Ltd v Commissioner of State Revenue [2021] QCAT 84, [28]. 14 [2007] QCA 121. 15 (2004) 55 ATR 501. 16 [2007] QCA 121, [29]. -- 9 of 13 -- 10 [35] Applying similar reasoning to the facts of this case, the error in the previous dutiable transaction was the omission of Lot 2 from the description of the land to be transferred for consideration of $3,700,000. Had the First Transfer, which only identified three lots, stated the value of those lots as the consideration ($2,900,000), the duty would not have been assessed at $193,275. [36] Under s 152 of the Act, a given example is ‘an accidental misdescription of the property’. The accidental misdescription in the First Transfer simply replicated the accidental misdescription in the contract. Further, the examples of clerical errors given in section 152 are just that: examples, not a definitive list. The facts of this case provide another example: an accidental omission from the description of the lots to be transferred for the stated consideration. In Pryke the error was an accidental misdescription of a party to the transaction, while in the present case the error was the omission of Lot 2 from the description of the property being transferred for consideration of $3,700,000. [37] The qualification in s 152(2) of the Act does not arise in this case. That sub-section provides: To remove any doubt, it is declared that an error by a party about the appropriateness of a transaction to achieve a particular intended legal result is not a clerical error in the transaction. [38] The Commissioner submits that the error was excluded by operation of section 152(2) on the basis that the error was as to the effectiveness of the first Transfer to achieve the intended legal result of transfer of the four lots, in circumstances in which the real property description in the contract and the Transfer matched. [39] This is too narrow an interpretation of the legal result intended by Sandgate. Sandgate never had the intention of acquiring three of the four lots at 1856 – 1860 Sandgate Road for $3,700,000. [40] This was not a case where Sandgate failed to consider, take advice on or implement the most appropriate legal structure for the transaction at first instance. There is no doubt that Sandgate intended to acquire the land at 1856 – 1860 Sandgate Road by paying consideration of $3,700,000. [41] A useful comparison is the decision in Sherratt v Commissioner of State Revenue.17 In that case, in relation to the first dutiable transaction the legal representatives of the parties had carried out their clients’ explicit instructions to transfer the property as joint tenants. The second dutiable transaction, which was the subject of the exemption application, was to correct the clients’ misunderstanding of the difference between acquiring a property as joint tenants and as tenants in common. Clearly in that case the error was not clerical, but rather was a failure on the part of the clients to understand advice from their accountant regarding how the title should be held. [42] Section 152(2) does not exclude an error of inserting only three of the four lot numbers in the contact and transfer, and where the given consideration of $3,700,000 was intended for all four lots. That was not an error about the appropriateness of the first Transfer to achieve Sandgate’s intended legal result. 17 [2013] QCAT 9. -- 10 of 13 -- 11 Was the second transfer about the same property as the first dutiable transaction? [43] The Tribunal Member at first instance found that the words ‘same property’ were wide enough to cover the circumstances of Sandgate’s first and second transactions.18 [44] The Commissioner argues that Lot 2 on RP 107126 is not the same property as Lot 23 and Lot 24 on RP 81051 and Lot 1 on RP 86194. That is because the Second Transfer, as the dutiable transaction, refers only to the property by lot description, which is not the same as any of the lots referred to in the First Transfer. [45] Sandgate submits that this is too narrow a reading of section 152. It argues that the property is the land at 1856 – 1860 Sandgate Road and hence that the Second Transfer was about the same property as the previous Transfer. [46] It is evident from one of the examples given at s 152(1) of the Act that it was intended that a clerical error about property can include ‘an accidental misdescription of the property’. That misdescription must appear in the ‘previous dutiable transaction’; that is, here, the First Transfer. The reference to the ‘same property’ cannot strictly mean the same property description as appears in both transactions, whether by reference to real property description, street address or otherwise. It is common ground that section 152 is not limited to real property transactions and can apply to all manner of dutiable transactions. [47] It is clear from the contract and the undisputed evidence before the Tribunal that the intended purpose of the contract and transfer was to give effect to the agreement to sell all four lots at the given address for a total consideration of $3,700,000. [48] The Second Transfer related to part of the same property in that it incorporated the Lot number that was omitted from the First Transfer. [49] Related to s 152 is s 152A of the Act. One of the grounds of appeal is that the Tribunal erred in: Interpreting and applying s 152 of the Act without due regard to the text of the section, its context in Part 13, its relationship with part 152A and its context in the Act as a whole; [50] As appears in the Explanatory Notes to the 2013 amendments to the Act,19 s 152A was intended to apply as an addition to the existing exemption under s 152. While s 152 exempts from duty a second transaction to correct a clerical error in a previous dutiable transaction, s 152A exempts from duty the first or previous dutiable transaction where the conditions set out in s 152A are met. It would seem, for example, that where the first transaction is invalid it would be appropriate to impose any duty on the correcting second transaction, rather than on the first. In any event, s 152A does not detract from the operation or interpretation of s 152, but simply provides another circumstance in which an exemption may arise. If anything, it reinforces the evident intention of providing an exemption in the circumstances such as arise in the present case. It is noted that one of the conditions at s 152A(1)(b) is that ‘the clerical error in the previous dutiable transaction is a misdescription of the property’. 18 Sandgate Road Property Pty Ltd v Commissioner of State Revenue [2021] QCAT 84, [30]. 19 Explanatory Notes to the Revenue Amendment and Trade and Investment Queensland Bill 2013 (Qld), clauses 10 and 11. -- 11 of 13 -- 12 [51] The final ground of appeal is that the Tribunal erred: In not properly taking into account Public Rulings DA 152.1.2 and DA 152A.1.1 in determining the application of s 152 of the Act in the circumstances of the matter. [52] Public Ruling DA152.1.2 was noted by the Tribunal at first instance.20 DA 152.1.2 relates to s 152 and DA 152A.1.1 relates to s 152A of the Act. While the Commissioner accepts that the rulings cannot alter or affect the operation of the legislation,21 it is submitted that DA 152.1.2 was relevant given that the Tribunal is effectively standing in the shoes of the Commissioner: see s 19, Queensland Civil and Administrative Tribunal Act 2009 (Qld). [53] After setting out the requirements of s 152 of the Act, DA 152.1.2 gives two examples as to how this might operate in practice. Those examples envisage correction by reconveyance of the property. Example 2 is as follows: Blackacre is conveyed by A to B. A intended to convey Whiteacre to B but the incorrect real property description was inserted in the transfer in error. B may transfer Blackacre back to A. Section 152 of the Act will apply so the transfer will be exempt from transfer duty. However, if A subsequently transfers Whiteacre to B, this transfer will not be exempt under s.152, because that transaction is not for the same property as that dealt with in the original defective transaction. However, if the conditions of s.152A are met, exemption under that section may apply to the original transfer of Blackacre from A to B.2 In that case, the only transaction on which transfer duty will be imposed would be the subsequent correct transfer of Whiteacre from A to B. [54] This approach was advocated by the Commissioner. However, there is nothing in s 152 of the Act to indicate that any correction must be by reconveyance of the property. While that might often be an effective approach in relation to the transfer of real property, there is need to be mindful that the relevant provisions of the Act are not confined to dutiable transactions relating to real property or property that is subject to a registration system. Accordingly, in other circumstances, reconveyance might be an unwieldy way of making any necessary correction. In any event, the examples given in DA 152A.1.1 and DA 152.1.2 are simply that: examples. [55] The other elements of s 152 were not argued; that is, was any additional consideration paid for the second transaction, and did the beneficial interests in the property change only to the extent necessary to correct the error. [56] It is not in dispute that Sandgate did not pay any additional consideration for the transfer of Lot 2. 20 [2021] QCAT 84, [13]. 21 In that regard, see Wakefield v Commissioner of State Revenue [2019] QSC 85, per Bowskill J at [45] (footnotes omitted) (see also at [60]): A Public Ruling is the published view of the Commissioner of State Revenue on the topic to which it relates. It does not alter or affect, or operate as an estoppel against, the operation of the legislation. Its purpose is simply to promote certainty and consistency in administrative decision making. -- 12 of 13 -- 13 [57] As a result of the Second Transfer, Sandgate acquired the fourth lot at the street address 1856 – 1860 Sandgate Road. This change was necessary to transfer the beneficial interest in all the land at 1856 – 1860 Sandgate Road for which Sandgate had paid $3,700,000. [58] In our view, the Second Transfer in the present case was ‘a dutiable transaction to correct a clerical error in a previous dutiable transaction about the same property’ and no error on the part of the Tribunal at first instance has been demonstrated. Orders [59] For the above reasons, we make the following orders: 1. The appeal is dismissed. 2. The parties shall file (and serve on the other party), within 35 days of the date of delivery of these orders, any written submissions in respect of the question of costs of the application for leave to appeal or appeal. -- 13 of 13 --