The jurisdiction of the High Court under Section 39 of the Stamp Act 1949 is original when determining stamp duty appeals through the case stated procedure, not appellate.

JUDGMENT

Mary Lim Thiam Suan FCJ:

[1] On 28 June 2021, the appellant was granted leave to appeal after the Federal Court was satisfied that the three questions posed met the threshold requirements set out in s 96(a) of the Courts of Judicature Act 1964 [Act 91]. On 18 October 2021, a separate panel of the Federal Court in granting leave to appeal to the same appellant before us in respect of Pemungut Duti Setem, UTC Johor Bahru v. Ku Ek Mei [Civil Application No: 08(f)-247-09/2020 (J)] [second appeal] ordered that that appeal be heard together with the present appeal. In that appeal, the following threshold question was allowed together with several other questions:

Stamp Act 1949

Whether the High Court in hearing the appeal by way of case stated pursuant to s 39 of the Stamp Act 1949 is exercising its original or appellate jurisdiction.

[2] When the two appeals came up for hearing before us, the second appeal was withdrawn. Meanwhile, the respondent in the present appeal filed a motion 08(R)-2-02/2022(B) pursuant to r 137, praying for a setting aside of the leave granted on 28 June 2021, citing lack of jurisdiction as the main ground. The appellant agreed that the issue of jurisdiction be dealt with as a preliminary issue in the main appeal. We then proceeded to hear the review application and adjourned the main appeal pending the outcome of the decision in this application.

[3] After hearing extensive submissions from both counsel in addition to the written submissions filed, we adjourned to allow us time to deliberate on what we see as a very important issue, with extensive ramifications. Having deliberated at length, this is our decision on the preliminary issue of jurisdiction.

Some Factual Background

[4] The respondent's claim started when the appellant imposed ad valorem stamp duty on Forms 14A executed by the respondent together with one Mr Tan, as co-administrators of the estate of Mr Tan Kok Lee @ Tan Chin Chai who died intestate on 17 May 2018 leaving three beneficiaries, namely the respondent who is the deceased's widow and their two children. The deceased owned five properties which under a deed of family arrangement dated 2 October 2018, the two children agreed to inter alia distribute those five properties solely to their mother. A Court order dated 20 December 2018 was issued to vest those properties on the respondent. Pursuant to the vesting order, the co-administrators were required to execute instruments of transfer, Forms 14A under the National Land Code to affect the transfer of the five properties to the respondent.

[5] By virtue of s 36(1) of the Stamp Act 1949 [Act 378], the appellant imposed ad valorem stamp duty on those instruments of transfer, assessing the amount payable under item 66(c) in the First Schedule to Act 378 as the transfer was treated as a 'release or renunciation by way of gift'. The respondent disagreed and asked for a review under s 38A, claiming that the transfer should be assessed under item 32(i) where the amount is RM10.00 and not under item 66(c).

[6] The review was dismissed by the appellant. The respondent then invoked her right of appeal under s 39(1) and filed two separate appeals; which appeals were later consolidated as one. Meanwhile, as required by s 39, the respondent paid the stamp duty as assessed by the appellant.

[7] On 20 December 2019, the High Court allowed the appeal. The respondent's appeal to the Court of Appeal was later dismissed. On 28 June 2021, the Federal Court granted leave to appeal on three questions of law posed by the appellant.

Appealability Of An Appeal By Way Of Case Stated Under Section 39 Of The Stamp Act 1949

[8] We understand at the time of the application for leave to appeal, the matter of appealability of this appeal was raised by learned counsel for the respondent as a preliminary objection in opposition to the application for leave under s 96(a) of the Courts of Judicature Act 1964 [Act 91]. After hearing submissions, that preliminary issue