Collector of Stamp Revenue v. Toplus Investment Ltd

HCA012821/1983

Action No. 12821/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Mantell, J.

Date of hearing: 24 January 1985

Date of handing down of judgment: 7 February 1985

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JUDGMENT

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1. Everybody knows that Stamp Duty is charged on the transfer of land. The rate is set out in the first schedule to the Stamp Duty Ordinance. In the case of a conveyance on sale, it arises rateably on the value of the consideration. By section 27(1) where there has been a conveyance by voluntary disposition inter vivos the rate is determined by the value of the property. By section 27(4) if the Collector of Stamp Duty thinks that the consideration for a conveyance on sale is inadequate the conveyance shall be deemed to be a voluntary disposition for the purpose of assessing Stamp Duty. The assessment of Stamp Duty in such a case is for the Collector under section 13(3). Having made his assessment, under section 13(9) he has 1 month in which to change his mind and substitute an assessment in a lesser sum. Clearly, the subsection envisages the possibility of the party assessed making represontations within that period. In any event, section 14(1) gives a right to appeal to any person dissatisfied with the assessment provided the Stamp Duty assessed is paid and the notice of appeal is lodged within 1 month. By section 13(8) the assessment becomes final and conclusive for all purposes 1 month after it is made, subject to the outcome of any appeal.

2. In the present case, the defendant took a conveyance of property in Kimberley Street for a stated consideration of $6,500,000 paying Stamp Duty appropriate to that figure. The Collector of Stamp Duty valued the property at $17,000,000 and has assessed the Stamp Duty accordingly. The assessment was made on 21st January 1983 and sent by registered post to the defendant on the same day - within the time allowed. On 17th February 1983, a firm of surveyors and valuers wrote to the Commissioner of Rating & Valuation, who advises the Collector on questions of value, to make representations on behalf of the defendant with a view to persuading the Commissioner and/or the Collector to revise the assessment. That letter appears to have been received on 19th February and its contents communicated to the Collector the same day. The Collector did not revise his assessment and since no appeal has been made against it on the face of things the assessment became final and conclusive for all purposes on 21st February 1983.

3. In this action the Collector sues for the Stamp Duty unpaid on the assessment. The defendant resists the claim on the ground that section 27(4) is inapplicable to the circumstances of the case and that by previous practice the Collector had led the defendant's advisor to believe that there would be a review of the assessment as a result of which the defendant was persuaded not to exercise its right of appeal - in other words, the Collector is estopped from relying upon the assessment. I have been asked to decide the case upon the agreed documents and on the assumption that the assessment was excessive.

4. The first ground of Defence has been abandoned. The second rests upon previous transactions evidenced in the documents from which it appears that in cases in which the same surveyors and valuers were acting for companies connected with the defendant the Collector was prepared to revise assessments even though the 1 month period allowed under the Ordinance had expired. Now I am far from saying that there could never be circumstances in which the Collector might be estopped from relying upon the assessment but in this case it seems to me that none of the ingredients necessary to an esteppel have been established. At most the previous transactions indicated a willingness on the part of the Collector to entertain representations even though the period under which he was permitted to do so had elapsed. It is quite impossible in the present case to imply any promise to review the assessment let alone a promise to revise it in the defendant's favour. And there is nothing to indicate that the defendants failure to lodge a notice of appeal had anything to do with the previous transactions. The right to appeal and the opportunity to make representations are not mutually exclusive remedies and any dissatisfied party would be well advised to avail himself of both.

5. I do not think my decision depends upon the authorities which has been cited and I hope I shall be forgiven for not referring to them. There will be judgment for the plaintiff for the sum claimed with interest. As to interest I give liberty to apply if the rate cannot be agreed. I make an order nisi for costs against the defendant.

Representation:

Alfred Chow, Crown Council for the Plaintiff

Wally Yeung (Yung, Yu, Yuen & Co.) for the Defendant