Burnitt & Anor v Pacific Paradise Resort Pty Ltd [2004] QDC 218

DISTRICT COURT OF QUEENSLAND CITATION: Burnitt & Anor v Pacific Paradise Resort Pty Ltd [2004] QDC 218 PARTIES: PETER RAYMOND BURNITT and TRACY MAREE BURNITT Plaintiffs v PACIFIC PARADISE RESORT PTY LTD Defendant FILE NO/S: BD1721/2004 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 19 July 2004 DELIVERED AT: Brisbane HEARING DATE: 30 June 2004 JUDGE: McGill DCJ ORDER: Application dismissed. Defendant to pay plaintiff’s costs of and incidental to the application to be assessed. CATCHWORDS: STAMP DUTY – Conveyance or transfer on sale – sale – action for specific performance of contract for sale of land – not to be struck out because contract not yet stamped. PRACTICE – Statement of Claim – Striking out – not available because contract sought to be enforced not yet stamped. Duties Act 2001 s 487. Acclaim Holdings Pty Ltd v Vlado Pty Ltd (1989) 1 WAR 128 – considered. Ash Street Properties Pty Ltd v Pollnow (1987) 9 NSWLR 80 – not followed. Australia and New Zealand Banking Group Ltd v Barry [1992] 2 Qd R 12 – applied. Brisbane City Council v Southern Electric Authority of Queensland (1968) 42 ALJR 78 – applied. Caxton Street Agencies Pty Ltd v Korkidas [2002] QSC 210 – not followed. -- 1 of 12 -- 2 Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122 – applied. Dent v Moore (1919) 26 CLR 316 – considered. General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 – applied. Hoggett v O’Rourke [2002] 1 Qd R 490 – not followed. Official Trustee in Bankruptcy v D’Jamirze (1999) 48 NSWLR 416 – applied. Rothwells Ltd v Connell (1993) 93 ATC 5106 – followed. Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 – applied. St Andrew Property Holdings Pty Ltd v Gull Petroleum (WA) Pty Ltd (1991) 6 WAR 325 – not followed. COUNSEL: B A Laurie for the plaintiffs M H Hindman for the defendant SOLICITORS: Simmonds Crowley and Galvin for the plaintiffs Dibbs Barker Gosling Lawyers for the defendant. [1] On 14 May 2004 the plaintiffs filed a claim seeking specific performance of a contract in writing dated 7 February 2003 for the defendant to sell to the plaintiffs certain land for a price of $160,000. The defendant has not filed a notice of intention to defend, but on 15 June 2004 filed an application for an order that the statement of claim be struck out pursuant to r 171 on the ground that the statement of claim does not disclose a reasonable cause of action. It appears from the affidavit material in support of the application that the basis of the application was that the contract specific performance of which was sought in the action had not been stamped. [2] The application came on for hearing before me on 30 June 2004, its return date, when I was told that the relief sought in the application was no longer sought by the defendant, because the contract had been stamped after the application was filed. However the defendant sought costs, on the basis that at the time the application was filed the point was a good one, and the application would have succeeded but for the fact that the contract was subsequently stamped. Counsel for the defendant relied on two decisions of Holmes J, Hoggett v O’Rourke [2002] 1 Qd R 490, and Caxton Street Agencies Pty Ltd v Korkidas [2002] QSC 210. Counsel for the plaintiffs however submitted that those cases were distinguishable, and that the application was misconceived, and ought to be dismissed with costs. [3] In my opinion the submission from counsel for the plaintiff is correct, the decisions referred to can be distinguished, and the absence of stamping of the contract was no basis for striking out the statement of claim. A pleading is struck out on this ground1 only if it is so clearly untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 130. That was the case in that matter because the defendants could claim the benefit of certain 1 This is not a case where the statement of claim is alleged to be defective as a pleading, where the remedy is to strike out with liberty to replead, and the test is different. -- 2 of 12 -- 3 statutory defences provided under the Patents Act 1925 which prevented the grant of an injunction, the remedy sought by the plaintiff. But whatever the effect of s 487 of the Duties Act 2001 (the applicable provision), it is capable of being overcome, as it was in this case, by payment of the duty. Once the duty has been paid, any obstacle to the validity or enforcement of the document imposed by that section disappears, and is taken to have done so from the time when the document would have become valid but for that section: Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359. [4] In that case Dixon J said2 at pp.382-3: “There remains the contention that … the document was not efficacious at the time of the alleged breach, which therefore could not be wrongful. This argument depends upon s 29 of the Stamp Duties Act, the material words of which are: ‘Except as aforesaid, no instrument … shall … be pleaded or given in evidence, or admitted to be good, useful, or available in law or in equity for any purpose whatsoever, unless it is duly stamped in accordance with the law in force at the time when it was first executed.’ The words ‘except as aforesaid’ qualify the whole section, and it is evident that whatever is comprised within them is not vitiated by its provisions. The words refer to the preceding sections, including s 25, which allows instruments to be stamped after execution and upon payment of a fine if more than a month has elapsed, and s 27, which authorises the reception in evidence of an instrument although there is some omission or insufficiency of the stamp thereon, if the amount of the unpaid duty and the fine payable by law is paid to the officer of the court. Further, the condition expressed in the section upon which the usefulness of the instrument is made to depend is not introduced by the word ‘until’ but by the word ‘unless’. It is not to be pleaded or given in evidence or admitted to be good, useful or available unless it is duly stamped. The expressions ‘pleaded’, ‘given in evidence’ and ‘admitted’ refer to the use or the recognition of the document or of its operation in judicial proceedings or otherwise, and, I think, would naturally be understood as intending that when by due stamping it had become pleadable, receivable in evidence and admissible as good, useful and available, then its validity and operation as from the beginning were to be construed as unaffected by the enactment.” [5] The effect of this was summarised by Hodgson CJ in Equity in Official Trustee in Bankruptcy v D’Jamirze (1999) 48 NSWLR 416 at 427 in the following terms: “Plainly, this means that an unstamped instrument is not of absolutely no effect until stamped: the use of the word ‘until’ in some of the cases noted earlier is obiter, and contrary to the ratio of Shepherd. Until stamped, an instrument has whatever effect is consistent with the proposition that, if stamped, it will be fully effective ab initio. To put this another way, Shepherd must mean that an instrument is effective from the start conditionally upon being stamped before relied on in court, or alternatively, from the start carries the potentiality of being so effective.” His Honour went on to cite other authority in support of that approach. It is an approach with which I would respectfully agree. [6] It follows that the failure to stamp cannot be a strike out point, unless it is possible to be satisfied according to the high standards of the General Steel test not only that the absence of a stamp means that the plaintiffs’ case cannot possibly succeed, but that that deficiency cannot possibly be overcome prior to the time at which the 2 Stark J and McTiernan J agreed with Dixon J on this point; Rich J and Evatt J gave judgments to similar effect. -- 3 of 12 -- 4 plaintiffs’ case is properly tested, at trial. Leaving aside for a moment whether at trial the deficiency can be overcome by complying with the requirements of s 487(2), which is a separate point, it can plainly be overcome by payment of the duty prior to trial. So long as there is any possibility therefore that the plaintiff, or someone else, will pay the duty prior to trial, one could not be satisfied on the basis of the General Steel test that the plaintiffs’ case cannot possibly succeed. [7] That is shown most clearly by what occurred in the case principally relied on by her Honour, the High Court decision in Dent v Moore (1919) 26 CLR 316. In that case the plaintiff sued to recover commission due on the sale of property in circumstances where apparently the property had been conveyed without the stamp duty on the contract ever having been paid. The plaintiff sought to rely on an admission in the defence, and on proof of the conveyance to establish that there had been a sale, but it was held that neither of these could be relied on, that the plaintiff had to prove the contract of sale as part of the process of showing an entitlement to be paid commission, and that, the contract being unstamped, it could not be relied upon for that purpose by the plaintiff. The judgment of the court, which was written by Isaacs J, is preoccupied with giving the fullest possible protection to the revenue, which is the reason why provisions like this are inserted in stamp duty legislation, and betrays behind the hand the heart of a former state attorney-general.3 Nevertheless, the point for present purposes about Dent v Moore is that even Isaacs J did not regard this as a strike out point; at the end of his judgment (p.334) he noted that the unsuccessful plaintiff respondent was apparently offered a new trial, in order to have the opportunity of stamping the document before that trial, but declined to take that opportunity because the cost was not worthwhile in order to preserve his claim for commission. The fact that the offer was made demonstrates a recognition that the plaintiff’s case was not incurably bad.4 Indeed, it was a foreshadowing of the views expressed in Shepherd some years later. If this were a strike out point, the plaintiff in Dent v Moore would never have been offered the opportunity of a new trial. [8] Another case particularly relied on by her Honour in Hoggett was Acclaim Holdings Pty Ltd v Vlado Pty Ltd (1989) 1 WAR 128. The plaintiff sued on an unstamped instrument, which was referred to in the endorsement on the writ although that did not of course disclose the absence of stamping. No appearance was entered and default judgment was signed, and the defendant then applied to have that judgment set aside on the ground that it had been irregularly entered, because the document had not been stamped. When the matter reached the Full Court, the three judges went three different ways. Wallace J held that the plaintiff could not sue on the basis of the unstamped document so that the judgment was irregularly entered and should be set aside. Kennedy J held that the issue of the writ did not breach the prohibition on pleading the unstamped document, because there was no statement of claim endorsed on it, and the plaintiff had not done anything yet in the action which ran into the prohibition in the statute, so the judgment had been regularly entered, but would be set aside on the merits because, if an appearance were entered, unless the document were stamped the plaintiff could not succeed in the action. Pidgeon J also thought that by issuing proceedings the plaintiff was not in breach of the 3 Sir Isaac Isaacs was at one time Attorney-General of the state of Victoria: (1948) 22 ALJ 66. The judgment is a good illustration of the assessment of His Honour’s judgments by Sir Anthony Mason in (2003) 27 MULR 864 at 872. 4 See Electricity Meter Manufacturing Co Ltd v Manufacturers’ Products Pty Ltd (1930) 30 SR(NSW) 422 at 430. -- 4 of 12 -- 5 prohibition in the Act, so that the judgment was regularly entered, and would not have set it aside because the defendant had not shown, indeed had not sought to show, a defence on the merits. Significantly for present purposes none of the judges even suggested that the action could be struck out on this basis, and striking out is plainly inconsistent with the approach adopted by two of the three judges. [9] Her Honour also applied the decision of the Court of Appeal in New South Wales in Ash Street Properties Pty Ltd v Pollnow (1987) 9 NSWLR 80. That decision certainly involves a sweeping application of some of the statements in Dent v Moore, but both of the judgments refer to the document being invalid “unless and until stamped”, in a way which is inconsistent with the important distinction between the words “unless” and “until” identified by Dixon J in Shepherd in the passage cited above. For what it is worth, their Honours did not go on to say that this was a strike out point.5 [10] In Hoggett reference was also made to St Andrew Property Holdings Pty Ltd v Gull Petroleum (WA) Pty Ltd (1991) 6 WAR 325 as an example of a case where a statement of claim was struck out as disclosing no reasonable cause of action where the contract of sale on which the plaintiff relied was not stamped: [20]. That is so, although the reasons do not contain any discussion of the question of whether this was a strike out point, or even any reference to the question of whether the plaintiff might want to pay the duty on the contract in order to enable the proceedings to continue. The case was remarkable because the plaintiff was not seeking to enforce the contract, but rather seeking recovery of the deposit, and seeking to have the contract declared void under s 87 of the Trade Practices Act. Whether the Western Australian section made the contract invalid or merely unenforceable, it is difficult to see why it should have been a barrier to any of the relief sought by the plaintiff in that action, particularly relief under a Commonwealth statute. But in any case, the plaintiff had submitted the contract to the Commissioner of Stamp Duties in Western Australia, who had endorsed on it that stamp duty had not been paid as the transaction was not carried into effect and no one apparently obtained any significant benefit from it. In effect, the plaintiff had offered to pay stamp duty but the commissioner had said there was none payable. Yet this was held to be effective under neither s 15A of the Act dealing with the refund of duty in certain circumstances, nor s 31 of the Act as a determination that no duty was payable, and the master expressed the view that if the defendants were purporting to retain the deposit on the basis of the contract then the proposition that no one had obtained significant benefit under it would be wrong. The outcome therefore was that the plaintiff was prevented from asserting that the contract was invalid or unenforceable because, as a result of a failure to pay duty which the commissioner did not want and had not sought, the contract was by statute invalid or unenforceable. Such a bizarre result demonstrates that the process of reasoning which leads to it must be wrong. I would not regard this decision as a good authority for anything. [11] The analysis in Hoggett also seems to me to be difficult to reconcile with the approach adopted by the Court of Appeal in Rothwells Ltd v Connell (1993) 93 ATC 5106.6 In that case the plaintiffs were suing on a deed which required 5 Nevertheless, this decision does seem to have been influential in a number of later decisions, particularly in New South Wales, as shown by the note in (1997) 71 ALJ 674, which emphasises Dent but makes no mention of Shepherd. 6 Also reported at 119 ALR 538. The High Court refused special leave to appeal: see [1995] QSC 30 at p.9. -- 5 of 12 -- 6 stamping under both the law of Queensland and the law of Western Australia. The deed had been properly stamped so far as Queensland was concerned, but had been only partially stamped so far as Western Australia was concerned, so that arguably it was subject to s 27(1) of the Western Australian Stamp Act which provided: “Except as otherwise provided by this Act no instrument chargeable with duty and executed in Western Australia, or relating, wheresoever executed, to any property situate or to any matter or thing done or to be done in Western Australia, shall, except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful, or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed.” [12] It was submitted on behalf of the defendant that the proper law of the contract on which the plaintiff was suing was the law of Western Australia, that accordingly the validity of the deed for the purposes of the Queensland action depended on the law of Western Australia, and that by that law the deed was invalid by virtue of that provision of the Stamp Act.7 The majority8 decided the appeal on the basis that the proper law of the contract was Queensland rather than Western Australia, and that therefore the defendant’s argument failed. Nevertheless their Honours went on to say that they did not accept that the Western Australian section was applicable to the Queensland proceeding even if the law of Western Australia was the proper law of the contract, adding at p.5111: “There are powerful arguments to the contrary; eg, that, by the law of Queensland, (i) a foreign revenue law will not be enforced, and (ii) it is the law of the forum, not the proper law of the contract, which determines the material issue in this proceeding; sub-sec. 27(1) of the Western Australian Stamp Act is not concerned with substantive but procedural or adjectival requirements and, on its proper construction, is confined to proceedings in Western Australia.” Their Honours cited two High Court authorities on the presumption against extraterritorial operation of statutes. If s 27(1) is not a substantive but a procedural or adjectival requirement, it is difficult to see why s 487 of the Duties Act is any different. It affects therefore not substantive validity, but only procedural or adjectival validity. [13] The third member of the court, McPherson JA, reached the same conclusion but by a somewhat different route, in the course of which his Honour addressed all aspects of the defendant’s argument. In the course of that analysis at the foot of p.5112 he said in effect the same thing as the majority had said in the passage I have just quoted, saying that the issue was “really a matter of procedure or evidence in legal proceedings being conducted in Queensland.” His Honour referred to a passage from a judgment of Evatt J in Shepherd (supra) that the effect of what his Honour described as a similar provision was “to set up a general rule that documents unstamped or insufficiently stamped shall not be made use of or treated as having any legal efficacy in any civil proceeding in the state.” He also noted at p.5113 the mechanism for tendering an unstamped document with a written undertaking: “In Queensland a different procedure is prescribed by statute to enable an unstamped document to be received in the course of legal proceedings. By s 4A(a) of the Stamp Act 1894 (Qld), it is sufficient for a solicitor to give a written undertaking to pay the duty without having to pay it at the time the instrument is tendered.” 7 Reliance was placed in particular on Acclaim Holdings Pty Ltd v Vlado Pty Ltd (1989) 1 WAR 128. 8 Fitzgerald P and Williams J (as his Honour then was). -- 6 of 12 -- 7 [14] At the foot of p.5114 his Honour referred to the proposition, that s 27(1) had the effect of making the contract void if it was not stamped, as being the cornerstone of the defendant’s argument, that the document was not enforceable in Queensland. His Honour noted that this submission was rested on a series of decisions beginning with Dent v Moore, and including Ash Street Properties (supra) where no significance was attached to the fact that after that decision the New South Wales section was amended by omitting the words “or effectual,” which were also omitted from s 27, along with the words “for any purpose whatsoever” which were found in the section considered in Dent v Moore. His Honour said at p.5115: “In my opinion the absence of those words makes a difference to the operation and effect of the section.” His Honour noted that the same view had been expressed by the majority of the Full Court of South Australia in Re Dehy Fodders (Australia) Pty Ltd (1973) 4 SASR 538, which had received the specific approval of Barwick CJ in Commercial Banking Co of Sydney Ltd v Love (1975) 133 CLR 459 at 472.9 [15] His Honour cited with approval a passage from the judgment of Bray CJ at p.544 which gave a series of reasons why the section then under consideration was directed to a denial of enforceability rather than a denial of validity. McPherson JA therefore concluded that s 27 of the Western Australian Stamp Act, “does not in terms effect to render an unstamped instrument either void or invalid” so as to bring into operation a principle that a transaction invalid or a nullity by the law of the place where the transaction took place would not be regarded as effective elsewhere. His Honour after consideration of some further matters concluded at p.5116: “For all these reasons it is in my opinion not possible to classify s 27(1) of the Western Australian Stamp Act as a provision prescribing a form of execution which, if omitted, affects the intrinsic validity, or the existence, or even the efficacy of the deed, considered as a contract or a covenant that it is now sought to enforce in Queensland. The statutory disqualification or disability is therefore properly to be considered as one going only to enforceability and thus to procedure, rather than to the substance of the obligation.” It followed that the governing provision was the section of the Queensland Act under which the document had been stamped.10 [16] This analysis seems to me to show that the crucial issue, under the Western Australian provision, was enforceability rather than validity, and that the absence of the word “effective” from the Western Australian section was a matter of some importance. Section 487 does not provide that an instrument not properly stamped is not effective. In Hoggett her Honour noted that s 4A made no reference to effectuality, but, in the light of the approach in Ash Street Properties, took the view that that omission did not make any difference: [14]. The analysis of McPherson JA in Rothwells Limited v Connell appears to me to be to the contrary, and his Honour appears to have preferred the majority decision in Dehy Fodders (supra) to the decision in Ash Street Properties which her Honour followed. In the circumstances, with respect, I prefer the analysis of McPherson JA. [17] Hoggett was a case where the party pleading the unstamped document did not offer any undertaking to pay the duty, and there was evidence which made it appear 9 And of Jacobs J at p.481; the third member of the court, Stephen J, arrived at the same conclusion without referring to this decision. 10 At first instance Moynihan J had accepted that s 27 applied and rendered the deed invalid, but, significantly for present purposes, did not strike out the action, or stay it permanently, but only stayed it until further order, since the obstacle could be overcome by payment or a successful appeal: (1992) 25 ATR 123. -- 7 of 12 -- 8 unlikely that the duty would ever be paid. Rather he submitted that it was sufficient to rely on admissions in the defence, but that was contrary to Dent v Moore and was rejected by her Honour. His alternative position was to allow the relevant part of the statement of claim to be struck out, on the basis that the matter could proceed in respect of other parts of the statement of claim. As pointed out by counsel for the plaintiffs, there is a difference between a case where it is clear not only that stamp duty has not been paid, but that it will not be paid, and a case where the latter is not clear, in relation to an application to strike out. Although her Honour did say some things which suggest that she did not regard that as being a relevant distinction, I prefer the approach adopted by Hodgson CJ in Official Trustee in Bankruptcy (supra), as I have outlined earlier. [18] Her Honour returned to the issue in Caxton Street Agencies Pty Ltd v Korkidas (supra). That was an application for summary judgment on the part of the defendants, which however involves the application of a different test from the strike out test laid down in General Steel Industries.11 That provides a basis for distinction; it is strictly speaking unnecessary for me to decide whether absence of stamping is a good summary judgment point for a defendant, but it seems to me, with all due respect, that her Honour’s judgment does not have sufficient regard to the actual terms of the relevant rule, r 293. Subrule (2)(a) permits a judgment only if the court is satisfied “the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim.” The word “prospect” is one which looks to the future; it is not concerned with the situation at the time of the application, but to what would happen if the matter went to trial in the ordinary course. [19] This is consistent with longstanding authority on the correct approach to summary judgment, all of which were concerned with summary judgment in favour of a plaintiff rather than a defendant. In Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122 at 133 Isaacs J said: “If the defendant shows such a state of facts as lead to the inference that at the trial of the action he may be able to establish a defence to the plaintiff’s claim, he ought not to be debarred of all power to defeat the demand upon him: by the very words of the Order the plaintiff is not to be allowed to sign judgment merely because the defendant’s affidavit does not show a complete defence.” [Emphasis added]. In Australia and New Zealand Banking Group Ltd v Barry [1992] 2 Qd R 12 at 14 Macrossan CJ cited this decision in support of the proposition that summary judgment should not be given unless “there were no facts shown such as would lead to the inference that at the trial of the action the second defendants might be able to establish a defence to the plaintiff’s claim. A complete defence does not have to be shown by a defendant at the stage when summary judgment is sought.” [Emphasis added]. Derrington J at p.19 cited a longer passage from Cloverdell Lumber Co which included what I have cited above, and himself gave added emphasis to the words “at the trial of the action he may be able to establish a defence”. He referred to other authority, to the same effect. [20] There is also the decision of the High Court in Brisbane City Council v Southern Electric Authority of Queensland (1968) 42 ALJR 78. In that case there was an application for summary judgment in an action to recover payment for electricity 11 Commissioner of Stamp Duties v Agenti Architects Pty Ltd [2003] QCA 265, at [33]. In this judgment White J, with whom the other members of the Court of Appeal agreed, referred to the decision in Hoggett (supra), but only to its place in the history of the related litigation which was then before the Court of Appeal. -- 8 of 12 -- 9 supplied by the respondent to the appellant. There was no dispute that the electricity had been supplied, and that the respondent was entitled to recover payment at a particular rate which had been fixed pursuant to an Act and published in the Gazette. However, the appellant had a right under the Act to appeal to the Industrial Court against the determination of that rate, and it had exercised that right, and had also brought proceedings seeking rectification of the clause in the agreement under which that determination had been made. The respondent applied for summary judgment and was successful in the Supreme Court, and on appeal counsel for the appellant, “frankly admitted that the appellant had no existing defence to the claim.”12 However if the action for rectification and the appeal to the Industrial Court which were on foot “were eventually to conclude in the appellant’s favour the rights of the parties in the action out of which this appeal arises might well be substantially affected and it is the contention of the appellant that, if the present judgment is allowed to stand, no amount or amounts paid in satisfaction of it will be recoverable by it if it should be successful in its appeal to the Industrial Court and the determination is set aside. We do not express any opinion on the validity of this contention nor do we venture any opinion as to the appellant’s prospects in its appeal; it is sufficient for our purposes to say that, as the appellant contends, the reasons the learned judge of first instance did not, we think, sufficiently take these matters into consideration. The problem as we see it is one which requires us to take into account, not only the fact that the appellant has not at the present time any defence to the action, but also the fact that events may happen which will afford a defence to the appellant.” [21] In the event the respondent was allowed to keep the judgment only on the basis of an undertaking that, in the event of the appeal to the Industrial Court being successful and it ultimately being determined that the amount paid under that judgment was an overpayment, it would refund the amount of that overpayment. But for that, the appeal would have been allowed and the summary judgment set aside. That clearly demonstrates that, on a summary judgment application, it is not just a question of whether the respondent has any real prospects at the time of the application, but also whether anything may subsequently happen which may enhance those prospects. [22] I am not aware of any case which would call into question the authority of those decisions under the present rules; as I say the use of the word “prospect” indicates that those considerations are still relevant. Accordingly in my opinion before there can be given summary judgment for a defendant because the plaintiff’s cause of action is based on an unstamped document it is necessary for the defendant to show not only that that is the case, but that there is no real prospect that, by the time of the trial of the action, the invalidity will have been retrospectively removed, in accordance with Shepherd (supra), by the payment of the duty, either by the plaintiff or someone else. It follows, in my opinion, that this is ordinarily not a summary judgment point either. [23] Another matter that her Honour raised was the effect under the former Stamp Act 1894, and the current Duties Act 2001, of the giving of an undertaking to pay the duty, and any penalty, when a document is tendered at a trial in the way provided in s 4A(2) of the former Act, and s 487(2) of the current Act. Her Honour said that, although that undertaking would overcome the prohibition on admissibility of the 12 At p.78, as is the next quote. -- 9 of 12 -- 10 unstamped document, it did not overcome the fundamental problem that such a document may not be relied on as founding an action.13 This conclusion was inconsistent with established practice in this state14, and I have difficulty in reconciling it with the analysis in Shepherd (supra). [24] The provision which governed the instrument of the present case is s 487 of the Duties Act 2001, which is in the following terms: “(1) Unless an instrument is properly stamped, it – (a) is not available for use in law or equity or for any purpose; and (b) must not be received in evidence in a legal proceeding, other than a criminal proceeding. (2) However, a court may receive the instrument in evidence if – (a) after it is received in evidence, the instrument is given to the commissioner as required by arrangements approved by the court; or (b) if the person who produces the instrument is not the person liable to pay the duty, the name and address of the person so liable, and the instrument, is given to the commissioner as required by arrangements approved by the court. (3) A court may receive in evidence an unsigned copy of an instrument that is imposed with duty or effects or evidence as a transaction that is imposed with duty if the court is satisfied – (a) the instrument of which is a copy is properly stamped; or (b) the copy is properly stamped under s 494.” [25] The first thing that can be said about this provision is that it contains two clear drafting errors. In subsection (2)(b), the second “is” should be “are”; and subsection (1), on its face excludes a criminal proceeding from the prohibition in paragraph (b) but not from that in paragraph (a). This is contrary to the practice with these provisions, that the exclusionary provision, whatever its effect, only applies in civil proceedings and not in criminal proceedings. In Dehy Fodders (supra) Bray CJ regarded this distinction as an indication that the prohibition was directed to enforceability rather than validity.15 It is difficult to believe that the legislature seriously intended that the document would be regarded as invalid for the purposes of the criminal law if it was not stamped. The invalidity of the document could mean that the Crown would be unable to establish an essential element of the offence charged, for a reason which was either fortuitous or, possibly, the result of a deliberate omission on the part of the accused. The exclusion of criminal proceedings from the operation of whatever effect s 4A of the Stamp Act had was 13 Hoggett (supra) at 495. 14 Proctor (2000) volume 23 number 8, p.25; and apparently in New South Wales: (1997) 71 ALJ 674. 15 See 4 SASR at p.544: “It would be odd if a mortgage were a good security for the purposes of the criminal law, but not for the purposes of the civil law.” -- 10 of 12 -- 11 general, and it would be very odd if the legislature had a different intention with s 487. However, that would be the outcome if subsection (1) were read literally. [26] That suggests that the splitting of subsection (1) into paragraphs (a) and (b) was a function not of the true legislative intention, but of the preoccupation with drafting technique in the Office of Parliamentary Counsel. The same consideration might apply to the somewhat anomalous outcome if subsections (2) and (3) are read literally only as overcoming paragraph (b) of subsection (1), but not paragraph (a). It has always been recognised that the whole point and purpose of provisions such as this is to protect the revenue, by ensuring that the stamp duty on these documents is paid. But so long as the duty is to be paid, the purpose of the section has been satisfied. Since the document will clearly be admitted in evidence if the duty has been paid before it is tendered, the only point of provisions such as subsection (2) is to provide a mechanism by which a document may be admitted in evidence notwithstanding that duty has not yet been paid. Paragraph (a) of this section is presumably intended to reflect the previous practice of permitting an undertaking to pay the duty and any penalty to be imposed; paragraph (b) might be seen as a qualification of the traditional rule that the obstacle to enforceability affects even a person not liable to pay the duty, since it would seem that a person can under paragraph (b) tender the document notwithstanding that the duty has not been paid, and will not be paid by that person. [27] It is difficult to see however what useful purpose is achieved by these provisions if the document although received in evidence will remain invalid because of subsection (1)(a). The whole point and purpose of tendering a document is to use it in law or equity or for some purpose. If it cannot be used in law or in equity or for any purpose, it would seem that having the document sitting on the associate’s table with an exhibit stamp on the back was no more than a solemn farce. Documents are not put in evidence for the fun of it; they are put in evidence with a view to some use being made of the document by the court, either at law or in equity, or for some purpose.16 [28] In these circumstances I find unpersuasive her Honour’s proposition that subsection (2) only overcomes the prohibition in paragraph (b) of subsection (1), and not that in paragraph (a). In my opinion a preferable construction is that the word “however” at the beginning of subsection (2), means that that subsection, where it is satisfied, overrides and excludes the operation of the whole of subsection (1). The position would be the same as the effect attributed to s 27 of the New South Wales Act (the equivalent of subsection (2)) in excluding the operation of s 29 (the equivalent of subsection (1)), as described in Shepherd (supra) at p.386 by Evatt J: “The reason why s 29 does not ‘strike with sterility’ (Dent v Moore at 324) documents which belonging to the class which may legally be stamped after execution are discovered at the trial to be unstamped or insufficiently stamped, but are receivable in evidence on payment of the unpaid duty and the legal fine, is that s 29 does not ‘strike at’ such documents at all.” [29] Whether or not this is the case, the crucial issue is whether subsection (1)(a) renders the instrument invalid or a nullity unless it is properly stamped. That is not what the section actually says. It says it is not available for use. The expression “available 16 The alternative is that the expression “available for use for any purpose” is not as sweeping as it appears at first sight, so that in some circumstances a document could be used as evidence without infringing that prohibition. -- 11 of 12 -- 12 for use” seems to me with respect to be a denial of enforceability rather than a denial of validity; it is concerned with the admissibility or availability of the document in evidence, and not with its effectiveness or validity.17 Section 487 does not provide that the instrument is not effective, and the words “for any purpose” apply to the expression “available for use” . The reasoning of McPherson JA in relation to s 27 of the Western Australian Stamp Act in Rothwells Ltd applies as clearly to s 487 of the Duties Act, and leads to the same conclusion, namely that the section is concerned with enforceability rather than intrinsic validity, and concerned with a question of procedure rather than the substance of the obligation. Which means, of course, that failure to stamp is not a strike out point. [30] That characterisation of s 487 also seems to me to be more consistent with the terms of s 36 of the Supreme Court Act 1995, which provides: “No new trial shall be granted by reason of the ruling of any judge that the stamp upon any document is sufficient or that the document does not require a stamp.” This provision dates from the days of the Stamp Act, but has not been repealed. There is some discussion of the purpose of this section,18 and some analysis of its scope, in the judgment of Connolly J in Bradley v Adams [1989] 1 Qd R 256 at 262. If the section strikes at the essential validity of the document however it would be odd for there to be this restriction on appeals. [31] Strictly speaking I am not bound by decisions of a single judge of the Supreme Court, although ordinarily I would follow one which was on point. These two decisions however are not directly on point, and to the extent that they contain statements wide enough to cover this case, I do not find their reasoning persuasive. For the reasons I have given, I would not follow them even if they were directly on point. In my opinion an application to strike out was not an appropriate response to the fact that the contract had not been stamped. If the contract were still unstamped, I would dismiss the application. The application is therefore dismissed, and I order the defendant to pay the plaintiff’s costs of and incidental to the application to be assessed. 17 To apply the two passages quoted by McPherson JA in Rothwells (supra) at p.5115, column 2. 18 This section was then s 46 of the Common Law Practice Act 1867. -- 12 of 12 --