The point at issue was whether a payment for the right to get
and carry away slag from the partnership's land was a receipt of a
trade (see
BIM62020).
The partnership had originally traded as iron and coal
masters. However, that trade had ceased several years before.
Trustees for the partnership managed a number of properties that
had been retained. One of these properties had been used to deposit
waste from furnace and mining operations, including those of the
partnership. The slag, at the time deposited, was worthless and had
reduced the value of the land. At a later date a use was found for
the slag (road construction) and it became a valuable asset. A
company was granted an exclusive right to get and carry away the
slag for seven years in return for payments determined by a number
of factors. These included the nature of the material, the quantity
removed and, in some instances, the eventual sale proceeds and cost
of removal.
Held that the transactions did not amount to a trade.
Justice Finlay noted that whether there was a trade, or not,
was a question of fact and said:
"
I cannot, looking at this case, hold as a
matter of law that there was no evidence upon which the Special
Commissioners could arrive at their conclusion. Indeed, if one is
to speculate (it is not for me to speculate), I think the
conclusion was very likely right."
