Stamp Duties Act 1920 No 47

An Act to impose certain stamp duties; to amend and consolidate the laws relating to stamp duties upon instruments and upon the estates of deceased persons; to amend the Friendly Societies Act 1899 and the Companies (Death Duties) Act 1901; and for purposes consequent thereon or incidental thereto.

Part 1 Preliminary

pt 1, hdg: Ins 1999 No 31, Sch 5.100 [1].

1 Name of Act

This Act may be cited as the Stamp Duties Act 1920.

s 1: Am 1924 No 32, secs 7 (f) (ii), 9 (b); 1937 No 35, Second Sch; 1971 No 75, sec 2 (a); 1977 No 135, Sch 3 (1); 1978 No 139, Sch 1 (1); 1980 No 161, Sch 1 (1); 1982 No 43, Sch 3 (1); 1982 No 133, Schs 1 (1), 2 (1); 1982 No 134, Sch 4 (1); 1983 No 72, Sch 2 (1). Subst 1984 No 171, Sch 1 (1).

1A Application of this Act after commencement of Duties Act 1997 on 1 July 1998

(1) Instruments generally The following Divisions of Part 3 do not apply to instruments first executed on or after 1 July 1998:

Division No	Division heading
2	Agreements
3	Agreements for sale or conveyance
3E	The Public Equity Partnership Arrangement and the Rent/Buy Scheme
10	Conveyances
11	Conveyances by possessory application
11A	Copies of instruments
12	Deeds of assignment
14	Divorce—family law instruments
16	Duplicates or counterparts
18	Leases
19	Superannuation
21	Loan securities
21A	Mortgage-backed securities
21B	Loan-backed securities
22	Motor vehicle certificates of registration
23	Partitions or divisions
25	Replicas
25A	Transfer of units in unit trust schemes
26	Shares—issue or allotment by direction
27 (except Subdivision 3)	Shares—transfer
28	Transfer etc of certain mortgages and debentures
28A	Transfer of shares—London Stock Exchange

(1A)  The Second Schedule does not apply to instruments first executed on or after 1 July 1998.

(2) Transactions The following Divisions of Part 3 do not apply to transactions (or transactions of the kind specified in relation to a particular Division) that occur on or after 1 July 1998:

Division No	Division heading	Transaction
3A	Transactions otherwise than by dutiable instruments	All transactions
15	Hiring arrangements	Hiring arrangements within the meaning of section 74D
26A	SCH-regulated transfers	SCH-regulated transfers
30	Acquisitions of company and unit trust interests dutiable as conveyances of land	Acquisitions within the meaning of section 99A

(3) Policies of insurance Division 24 of Part 3 does not apply to:

(a)  the amount of a premium paid in relation to a policy of insurance, not being a policy of life insurance, or

(b)  a policy of life insurance or a life insurance rider,

if the contract, policy or life insurance rider is effected or renewed on or after 1 July 1998.

(4) First home purchase scheme Division 3B of Part 3 and Schedule 2A do not apply to contracts exchanged on or after 1 July 1998 or mortgages over land the subject of those contracts.

(5) Rental-purchase schemes The Chief Commissioner may not, on or after 1 July 1998:

(a)  approve a person for the purposes of Schedule 2B, or

(b)  approve a rental-purchase agreement entered into or proposed to be entered into by an approved person.

(6) Flood-prone housing scheme Division 3D of Part 3 and Schedule 2C do not apply to contracts executed on or after 1 July 1998.

(7) Transfers of marketable securities involving brokers Subdivision 3 of Division 27 of Part 3 does not apply to sales or purchases made on or after 5 July 1998.

(8) Loan securities Division 21 of Part 3 does not apply to advances made on or after 1 July 1998 if the advances are secured only by a loan security within the meaning of section 83 that, if first executed on or after 1 July 1998, would not be a mortgage within the meaning of section 205 of the Duties Act 1997.

(9)  This section has effect despite any other provision of this Act.

s 1A: Ins 1997 No 123, Sch 2.2 [1]. Am 1998 No 44, Sch 5 [1].

2 Repeal of Acts, savings etc

(1)  The Acts mentioned in the First Schedule to this Act are to the extent therein mentioned hereby repealed, but such repeal shall be without prejudice to the past operation of anything in the said Act or the Schedules thereto.

(2)  All persons appointed under the Acts hereby repealed and holding office at the time of the passing of this Act shall be deemed to have been appointed hereunder.

(3)  All regulations made and forms prescribed under the authority of any Act hereby repealed and being in force at the time of the passing of this Act shall be deemed to have been made under this Act.

(4)  The Chief Commissioner appointed under this Act shall be the Commissioner for the purposes of the Acts repealed by this Act and the Acts repealed by such Acts.

s 2: Am 1931 No 13, sec 2 (a); 1983 No 13, Sch 1 (1).

3 Definitions

(1)  In this Act, unless the context or subject-matter otherwise indicates or requires:

Agreement, in relation to a sale or conveyance of goods, wares or merchandise, includes a memorandum relating to the sale or conveyance of goods, wares or merchandise.

Appointed day means the day upon which Part II of the Currency Act 1965 of the Parliament of the Commonwealth of Australia commences.

Approved form means the form approved by the Chief Commissioner for the purposes of the provision of this Act or the regulations in relation to which the expression is used.

Chief Commissioner means the Chief Commissioner of State Revenue referred to in section 60 of the Taxation Administration Act 1996.

Commissioner means the Commissioner of State Revenue referred to in section 64 of the Taxation Administration Act 1996.

Company title dwelling means a separate dwelling in a building containing more than one separate dwelling situated on land in New South Wales owned or leased by a company in which shares issued by the company are owned by persons who, by virtue of the ownership of their shares, have an exclusive right to occupy a part of the building.

Complying superannuation fund means a fund that is a complying superannuation fund for the purposes of Part IX of the Commonwealth Income Tax Assessment Act 1936 in accordance with section 45 of the Commonwealth Superannuation Industry (Supervision) Act 1993 and includes a regulated exempt public sector superannuation scheme within the meaning of section 299W of the Commonwealth Superannuation Industry (Supervision) Act 1993.

Corporate debt security means any debenture, debenture stock, bond or note or other security of a corporation, company or society, any convertible note issued by a company or any convertible note in a unit trust scheme issued by the trustee of a unit trust scheme, or any right thereto, whether constituting a charge on the assets of the corporation, company, society or unit trust scheme or not, and includes any property of a class or description of property prescribed to be a corporate debt security for the purposes of this definition, but does not include any property of a class or description of property prescribed not to be a corporate debt security for the purposes of this definition.

CUFS means any interest, issued by or on behalf of CHESS Depositary Nominees Pty Ltd, that provides beneficial ownership in respect of:

(a)  shares in a corporation incorporated outside Australia, or

(b)  units in a public unit trust scheme,

being shares or units that are quoted on the market operated by Australian Stock Exchange Limited.

Die includes any plate, type, tool, machine or implement whatever used (whether or not used for any other purpose) for expressing or denoting any duty or the fact that any duty or fine has been paid or that an instrument is duly stamped or is not chargeable with any duty, and also includes any part of any such plate, type, tool, machine or implement.

Duly stamped means stamped in accordance with this Act and the regulations.

Duty means the stamp duty for the time being chargeable by law.

Executed, with reference to instruments under seal, means signed and sealed, and with reference to instruments not under seal means signed.

Execution, with reference to instruments under seal, means signature and sealing, and with reference to instruments not under seal means signature.

Forge and forged include counterfeit and counterfeited.

Instrument includes every written document.

IR means any interest, issued by a trustee in connection with the disposal by the Commonwealth government or the government of a State or Territory of shares, that provides beneficial ownership in respect of shares that are quoted on the market operated by Australian Stock Exchange Limited.

Land includes a stratum, being a part of land consisting of a space or layer below, on, or above the surface of the land, or partly below and partly above the surface of the land, defined or definable by reference to improvements or otherwise, whether some of the dimensions of the space or layer are unlimited or whether all the dimensions are limited.

Marketable security means:

(a)  any stock or share of any municipal or other corporation, company or society,

(b)  any debenture, debenture stock, bond or note or other security of a Government, or any right thereto, whether constituting a charge on the assets of the Government or not, and

(b1)  any corporate debt security, and

(c)  any CUFS or IR.

Material includes every sort of material upon which words or figures can be expressed.

Mining company means any company, whether a NSW company or not, whose sole business is either or both of the following activities:

(a)  mining in New South Wales for minerals within the meaning of the Mining Act 1992 or the Offshore Minerals Act 1999,

(b)  prospecting or mining in New South Wales for petroleum within the meaning of the Petroleum (Onshore) Act 1991.

Minister means any Minister charged with the administration of this Act.

Money includes a bill of exchange and a promissory note and all sums expressed in British or in any foreign or colonial currency.

Mortgage includes a security by way of mortgage or charge:

(a)  for the payment of any definite and certain sum of money advanced or lent at the time or previously due or owing, or forborne to be paid, being payable, and

(b)  for the repayment of money to be thereafter lent, advanced, or paid, or which may become due upon an account current together with any sum already advanced or due, or without, as the case may be.

Motor vehicle means:

(a)  a motor vehicle or trailer within the meaning of the Traffic Act 1909, or

(b)  a caravan.

NSW company means a company incorporated or taken to be incorporated under the Corporations Law of New South Wales, and includes a body corporate that is incorporated under any other New South Wales Act and that is not a company incorporated or taken to be incorporated under the Corporations Law of another State or a Territory of the Commonwealth.

Person includes company, corporation, and society.

Person primarily liable in respect of any instrument or matter means the person who comes within the description specified in the column of the Second Schedule hereto headed “persons primarily liable” in respect of such instrument or matter.

Prescribed means prescribed by this Act or the regulations.

Property includes real and personal property and any estate or interest in any property real or personal, and any debt, and any thing in action, and any other right or interest.

Public hospital means:

(a)  a public hospital under the control of an area health service within the meaning of the Health Services Act 1997, or

(b)  a statutory health corporation or affiliated health organisation within the meaning of that Act.

Public unit trust scheme means:

(a)  a unit trust scheme any of the units of which are listed for quotation on:

(i)  the Australian Stock Exchange, or

(ii)  any other stock exchange prescribed for the purposes of this definition, or

(b)  a unit trust scheme:

(i)  which is the subject of a deed approved under Division 5 of Part 7.12 of the Corporations Law or a corresponding law,

(ii)  any of the units of which have been offered to the public, and

(iii)  in respect of which no fewer than 50 persons hold units.

Record means:

(a)  a documentary record, or

(b)  a record made by an electronic, electromagnetic, photographic or optical process, or

(c)  any other kind of record.

Regulations means regulations under this Act.

Stamp means either a stamp impressed or imprinted by means of a die, an adhesive stamp or an adhesive label.

Stamped, with reference to instruments and material, applies as well to instruments and material impressed with stamps by means of a die, as to instruments and material having adhesive stamps or adhesive labels affixed thereto.

Stock means any share in stocks or funds of any Government or in the capital, stock, or funded debt of any company, corporation or society.

Superannuation scheme includes a retirement, provident or benefit scheme.

Transfer of shares or rights to shares includes a conveyance of or an agreement to convey shares or rights to shares.

Unit in relation to a unit trust scheme, means any right or interest (whether described as a unit or a sub-unit or otherwise) of a beneficiary under the scheme.

Unit trust scheme means any arrangements made for the purpose, or having the effect, of providing, for persons having funds available for investment, facilities for the participation by them, as beneficiaries under a trust, in any profits or income arising from the acquisition, holding, management or disposal of any property whatsoever pursuant to that trust.

Valuer means a person whose business it is to make valuations of the particular class of property of which a valuation is required.

Will includes any testamentary instrument.

Write, written, and writing include every mode in which words or figures can be expressed upon material.

(2)    (Repealed)

(3)  For the purposes of the definition of Public unit trust scheme in subsection (1), units in a unit trust scheme shall be taken to be offered to the public if and only if:

(a)  an offer is made to the public or to a section of the public to subscribe for or purchase the units, or

(b)  an invitation is issued to the public or to a section of the public to make offers to subscribe for or purchase the units.

s 3: Am 1924 No 16, sec 2 (a); 1924 No 32, sec 3 (a) (i); 1931 No 13, sec 2 (b); 1931 No 57, sec 20; 1954 No 17, sec 2 (a); 1955 No 30, sec 2 (a); 1965 No 36, sec 3 (a); 1966 No 55, sec 7 (a); 1967 No 23, sec 2 (a); 1967 No 92, sec 3 (a); 1968 No 55, sec 2 (1) (a); 1973 No 81, Fourth Sch; 1974 No 110, secs 4 (a), 7 (a); 1977 No 135, Sch 3 (2); 1983 No 13, Sch 1 (2); 1984 No 171, Sch 1 (2); 1985 No 219, Sch 3 (1); 1986 No 53, Sch 1; 1986 No 193, Schs 2 (1), 8 (1); 1987 No 85, Sch 1 (1); 1987 No 87, Sch 1 (1); 1990 No 45, Sch 1 (1); 1990 No 95, Sch 1 (1) (3) (12); 1990 No 112, Sch 2; 1991 No 17, Sch 2; 1991 No 93, Schs 1 (1), 3 (1), 5 (1); 1992 No 29, Sch 5; 1993 No 41, Sch 1 (1); 1994 No 48, Schs 9 (1), 11 (1) (4) (10) (11); 1994 No 72, Sch 4 (1); 1994 No 95, Sch 2; 1995 No 98, Sch 7 (1) (2); 1996 No 34, Sch 1.3 (1) (2); 1996 No 98, Sch 1.7 (1); 1997 No 109, Sch 1.8; 1997 No 115, Sch 4.21 [1]; 1997 No 123, Sch 2.2 [2] [3]; 1997 No 154, Sch 6.42; 1998 No 5, Sch 2.3; 1998 No 44, Sch 5 [2] [3]; 1999 No 42, Sch 3.15.

3AA Taxation Administration Act 1996

This Act is to be read together with the Taxation Administration Act 1996 which makes provision for the administration and enforcement of this Act and other taxation laws.

s 3AA: Ins 1997 No 123, Sch 2.2 [4].

3A Calculation of time

(1)  This section applies to the calculation of a period of time for the purposes of determining when the payment of duty is due, and when fines are incurred, under this Act.

(2)  A month is taken to be a period commencing at the beginning of a day of one of the 12 named months (within the meaning of the Interpretation Act 1987) and ending:

(a)  at the end of the corresponding day of the next named month, or

(b)  if there is no such corresponding day, at the end of the next named month.

(3)  A period of 2 or more months is taken to be a period commencing at the beginning of a day of one of the 12 named months (within the meaning of the Interpretation Act 1987) and ending:

(a)  at the end of the corresponding day of the last named month within the period, or

(b)  if there is no such corresponding day, at the end of that named month.

(4)  Section 36 (except subsection (1)) of the Interpretation Act 1987 applies to the calculation of a period of time to which this section applies.

s 3A: Ins 1994 No 48, Sch 11 (9).

4 Charge of duties

From and after the commencement of this Act there shall be charged for the use of His Majesty and to form part of the Consolidated Revenue Fund upon and in respect of the several instruments and matters described or mentioned in this Act and in the Second and Third Schedules hereto the several duties and at the several rates in the Act and in the said Schedules specified, which duties shall be in substitution for the duties theretofore chargeable under the enactments repealed by this Act, and shall be subject to the exemptions contained in this Act and the said Schedules and in any other Act for the time being in force.

4A Minimum amount of duty

(1)  Despite any other provision of this Act or the regulations, if the amount of duty chargeable under this Act in respect of an instrument or transaction would, but for this section, be less than $2, the amount of duty chargeable is $2.

(2)  This section does not apply to or in respect of Division 24 or 29 of Part 3.

s 4A: Ins 1990 No 95, Sch 1 (4).

5 (Repealed)

s 5: Am 1970 No 52, Second Sch; 1986 No 193, Sch 9 (1). Rep 1997 No 123, Sch 2.2 [5].

5A Construing duties in old currency

Where any instrument has been duly stamped in accordance with the law in force before the appointed day and the stamp duty chargeable on any other instrument executed on or after such day is referable to such instrument, the duty chargeable on such other instrument shall be that which would be chargeable were the duty paid on the first mentioned instrument expressed on the basis referred to in section 11 of the Currency Act 1965 of the Parliament of the Commonwealth of Australia.

s 5A: Ins 1965 No 36, sec 3 (b).

6 Duties to be denoted etc in accordance with Act and regulations

(1)  All stamp duties for the time being chargeable by law upon any instruments or matters specified in this Act shall be denoted and paid according to this Act and the regulations:

Provided that as from the appointed day duty on any instrument may be denoted in terms or in manner used in connection with the currency provided for by Part II of the Currency Act 1965 of the Parliament of the Commonwealth of Australia or any Act passed in amendment of or substitution for the same.

(2)  Except where express provision is made to the contrary by this Act or the regulations, all duties are to be denoted by impressed stamps only.

s 6: Am 1924 No 32, sec 3 (a) (ii); 1965 No 36, sec 3 (c).

6A (Repealed)

s 6A: Ins 1992 No 86, Sch 6 (17). Rep 1997 No 123, Sch 2.2 [5].

7 Schedules part of Act

The Schedules to this Act and everything therein contained shall be read and construed as part of this Act.

7A Extent of exemptions in Act

Where under this Act any instrument is exempted from duty the exemption shall not apply to any conveyance or other dealing with that instrument unless such conveyance or dealing is expressly exempted from duty.

s 7A: Ins 1924 No 32, sec 3 (a) (iii).

Part 2 Administration

pt 2 (previously General exemptions from stamp duty under Part 3): Am 1967 No 18, sec 121 (1); 1967 No 92, sec 4 (e); 1968 No 55, sec 2 (1) (e); 1969 No 73, sec 11; 1970 No 94, sec 2 (1) (q); 1972 No 15, Sch; 1974 No 110, secs 5 (c), 8 (g); 1972 No 72, Sch 2; 1976 No 72, Sch 2; 1979 No 173, Sch 1 (3); 1979 No 209, sec 3; 1980 No 161, Schs 2 (2) (g), 3 (3); 1982 No 43, Sch 2 (8) (b); 1982 No 134, Sch 9; 1983 No 13, Sch 1 (10); GG No 126 of 16.9.1983, p 4266; 1985 No 219, Sch 3 (21) (e); GG No 56 of 4.4.1986, p 1493; 1986 No 193, Schs 1 (5), 3 (2), 8 (9), 9 (14) (15); 1987 No 85, Sch 5 (15) (b); 1987 No 194, sec 3; 1987 No 227, Sch 1 (16) (e); 1988 No 114, Sch 4; 1988 No 130, Sch 5 (16) (f)–(i); 1989 No 113, Sch 1 (3); 1990 No 21, Sch 2; 1990 No 45, Sch 1 (17); 1990 No 95, Sch 1 (40); 1991 No 34, Sch 3; 1991 No 93, Schs 3 (14), 5 (17); 1992 No 33, Sch 1 (19) (21); 1992 No 46, Sch 1; 1992 No 86, Sch 6 (16); 1993 No 32, Sch 2; 1994 No 48, Schs 10 (13) (14), 11 (14); 1994 No 72, Sch 4 (32); 1995 No 95, Sch 4; 1995 No 98, Sch 7 (31)–(41); 1996 No 17, Sch 5 (am 1996 No 121, Sch 4.30 (5)); 1996 No 34, Sch 1.4 (28); 1996 No 125, Sch 1 (30) (31); 1997 No 11, Sch 1.16 [1]–[4]; 1998 No 44, Sch 5 [13] [14]. Renumbered 1999 No 31, Sch 5.100 [2].

Division 1 General

pt 2, div 1, hdg: Ins 1988 No 130, Sch 1 (1).

8–10 (Repealed)

s 8: Am 1954 No 17, sec 2 (b). Subst 1977 No 135, Sch 3 (3); 1983 No 13, Sch 1 (3). Am 1985 No 219, Sch 3 (2); 1987 No 87, Sch 1 (2); 1994 No 48, Sch 11 (2). Rep 1996 No 98, Sch 1.7 (2).

s 8A: Ins 1977 No 135, Sch 3 (3). Am 1983 No 13, Sch 1 (4). Rep 1994 No 48, Sch 11 (3).

s 8B: Ins 1977 No 135, Sch 3 (3). Subst 1983 No 13, Sch 1 (5). Rep 1997 No 123, Sch 2.2 [5].

s 8C: Ins 1990 No 45, Sch 1 (2). Rep 1997 No 123, Sch 2.2.

s 9: Subst 1924 No 32, sec 3 (b) (i). Am 1949 No 37, sec 2; 1982 No 133, Sch 1 (2); 1982 No 134, Sch 10 (1); 1987 No 48, Sch 32; 1994 No 48, Sch 11 (13). Rep 1997 No 123, Sch 2.2.

s 10: Subst 1924 No 32, sec 3 (b) (i). Am 1965 No 36, Sch; 1983 No 72, Sch 3 (1); 1986 No 193, Sch 9 (2); 1992 No 112, Sch 1. Rep 1997 No 123, Sch 2.2 [5].

11 Stamps to be provided

The Minister shall provide for denoting the several duties hereby imposed, such stamps or dies as may be required for the purposes of this Act, and do any other act which may be necessary for effectually collecting the said duties.

12 Licences to deal in stamps

(1)  The Chief Commissioner may grant a licence to any person to deal in stamps at any place to be named in the licence.

(2)  The licence shall specify the full name and place of abode of the person to whom the same is granted.

(3)    (Repealed)

(4)  Every person is liable to a fine not exceeding 0.5 penalty unit who:

(a)  not being duly licensed to deal in stamps, deals in any manner in stamps.

(b), (c)    (Repealed)

(5)  Upon the sale of stamps to be dealt in by a licensee as aforesaid such discount shall be allowed to the purchasing licensee as the Minister directs.

(6)  The Chief Commissioner may cancel any licence granted under this section, and any licence may be granted on such terms and conditions as the Chief Commissioner thinks advisable.

s 12: Am 1924 No 32, sec 3 (b) (ii); 1931 No 13, sec 3 (a); 1965 No 36, Sch; 1984 No 153, Sch 16; 1992 No 112, Sch 1; 1995 No 98, Sch 7 (3)–(5).

12A Use of adhesive stamps

The following instruments may be stamped with adhesive stamps:

(a)  agreements under hand,

(b)  transfers of shares (or rights to shares) of any corporation listed on the Australian Stock Exchange Limited, where the transfer is effected pursuant to a sale of the shares (or rights to shares) for full consideration in money or money’s worth,

(c)  transfers of units in any unit trust scheme listed on the Australian Stock Exchange Limited, where the transfer is effected pursuant to a sale of the units for full consideration in money or money’s worth,

(d)  leases in respect of greyhounds,

(e)  leases in respect of racing or trotting horses,

(f)  duplicates or counterparts of instruments that may themselves be stamped with adhesive stamps.

s 12A: Ins 1996 No 34, Sch 1.4 (1).

13, 14 (Repealed)

s 13: Am 1924 No 32, sec 3 (b) (iii); 1931 No 13, sec 3 (b); 1933 No 12, sec 3 (a); 1968 No 55, sec 2 (1) (b); 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1970 No 94, sec 2 (1) (a); 1990 No 95, Sch 1 (8). Rep 1997 No 123, Sch 2.2 [5].

s 14: Am 1924 No 32, sec 3 (b) (iv); 1931 No 13, sec 3 (c). Rep 1997 No 123, Sch 2.2 [5].

15 Refunds—failed instruments and spoiled or unused duty stamps

(1)  A person having a stamped instrument which has failed in its intended operation and has become useless may apply, in the approved form, to the Chief Commissioner for a refund of the duty paid in respect of the instrument.

(2)  An application under subsection (1) is to be made within 1 year after the date on which the instrument fails and becomes useless.

(3)  A person having any spoiled or unused duty stamps may apply, in the approved form, to the Chief Commissioner for a refund of the duty paid for the spoiled or unused stamps.

(4)  An application under subsection (3) is to be made:

(a)  in the case of an executed instrument—within 1 year after the date when the stamp was spoiled, or

(b)  in the case of an unexecuted instrument or an adhesive stamp which is not fixed to an instrument—within 1 year after the date when the stamp was rendered useless.

(5)  A person:

(a)  who has inadvertently used a stamp of greater value than was necessary for an instrument liable to duty, or

(b)  who has inadvertently used a stamp for an instrument not liable to duty, or

(c)  who has used an adhesive stamp where an adhesive stamp should not have been used,

may apply, in the approved form, to the Chief Commissioner to cancel the stamp misused and to treat it as spoiled.

(6)  An application under subsection (5) is to be made:

(a)  in the case of an instrument which is dated—within 1 year after the date of the instrument, or

(b)  in the case of an instrument which is not dated—within 1 year after the date of first execution of the instrument.

(7)  The Chief Commissioner may grant or refuse to grant an application under this section.

(8)  The granting of an application is subject to:

(a)  the surrendering to the Chief Commissioner of the stamps or stamped instrument concerned, except in the case of an instrument which has been destroyed by the Registrar-General following the registration of the instrument by the Registrar-General, and

(b)  the payment to the Chief Commissioner of commission of 5 per cent of the duty paid in respect of the stamped instrument or of the value of the spoiled or unused duty stamps.

(9)  The Chief Commissioner may destroy an instrument in respect of which an allowance has been made and which is not claimed within 3 months after the date of the allowance.

s 15: Am 1924 No 32, sec 3 (b) (v); 1940 No 50, sec 5 (1) (a). Subst 1991 No 93, Sch 4 (1). Am 1992 No 33, Sch 1 (1).

Division 2 Hardship Review Board

pt 2, div 2: Ins 1988 No 130, Sch 1 (2). Subst 2000 No 105, Sch 5 [1].

15A Waiver, deferral and writing off of duty in hardship cases

The Hardship Review Board constituted under Division 5 of Part 10 of the Taxation Administration Act 1996 may exercise its functions in relation to duty payable under this Act.

s 15A: Ins 1988 No 130, Sch 1 (2). Subst 1997 No 123, Sch 2.2 [6]; 2000 No 105, Sch 5 [1].

15B–15F (Repealed)

ss 15B–15F: Ins 1988 No 130, Sch 1 (2). Rep 1997 No 123, Sch 2.2 [6].

Part 3 Duties on instruments

pt 3, hdgs to sections: Rep 1982 No 43, Sch 3 (6) (10).

pt 3, hdgs to divs 2–13, 15–27: Ins 1982 No 43, Sch 3 (10).

Division 1 General provisions

16 How instruments are to be written and stamped

(1)  Every instrument written on stamped material is to be written in such manner, and every instrument partly or wholly written before being stamped is to be so stamped, that the stamp may appear on the face of the instrument, and cannot be used for or applied to any other instrument written on the same piece of material.

(2)  If more than one instrument is written on the same piece of material, every one of such instruments is to be separately and distinctly stamped with the duty with which it is chargeable.

17 Instruments to be separately charged with duty in certain cases

(1)  Except where express provision to the contrary is made by this or any other Act, an instrument containing or relating to several distinct matters is to be separately and distinctly charged with duty in respect of each of such matters, as if each matter were expressed in a separate instrument.

(2)  An instrument made for more than one consideration is to be charged with duty in respect of each such consideration, according to the rate with which each is chargeable, as though each consideration were expressed in a separate instrument.

18 As to the use of appropriated stamps

(1)  A stamp which by any word or words on the face of it is appropriated to any particular description of instrument is not to be used, or if used is not to be available for any instrument of any other description.

(2)  An instrument falling under the particular description to which any stamp is so appropriated as aforesaid is not to be deemed duly stamped unless it is stamped with the stamp so appropriated.

19 (Repealed)

s 19: Am 1931 No 13, sec 3 (d); 1989 No 223, Sch 1 (1). Rep 1997 No 123, Sch 2.2 [5].

20 Chief Commissioner may call for and refuse to proceed without evidence

(1)  On any application to the Chief Commissioner with reference to any instrument, he may require to be furnished with an abstract of the instrument and also with such evidence on oath or otherwise as he deems necessary in order to show to his satisfaction whether all the facts and circumstances affecting the liability of the instrument to duty, or the amount of the duty chargeable thereon, are fully and truly set forth therein, and may refuse to proceed on any such application until such evidence has been furnished accordingly.

(2)  No oath, affidavit, or statutory declaration made in pursuance of this section shall be used against any person making the same in any proceeding whatsoever, except in a prosecution for perjury, false swearing, or making or uttering a false or untrue statutory declaration in case it is false, and except in an inquiry as to the duty with which the instrument to which it relates is chargeable, and, except as provided by the next succeeding section, every person by whom any such oath, affidavit, or declaration is made shall, on payment of the full duty and fine with which the instrument to which it relates is chargeable, be relieved from any other fine, forfeiture, or disability he may have incurred by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid.

s 20: Am 1931 No 13, sec 4 (a).

21 Penalty for not fully setting forth facts

Every person who, with intent to defraud His Majesty:

(a)  executes any instrument in which all the said facts and circumstances are not fully and truly set forth, or

(b)  being employed or concerned in or about the preparation of any instrument, neglects or omits fully and truly to set forth therein all the said facts and circumstances,

is liable to a fine of 50 penalty units in the case of a corporation and 20 penalty units in any other case in addition to the amount of duty of which His Majesty has been deprived by any such fraudulent act as aforesaid.

s 21: Am 1965 No 36, Sch; 1987 No 227, Sch 1 (1).

22 Cancellation of adhesive stamps

(1)  An instrument the duty on which is required or permitted by law to be denoted by an adhesive stamp is not to be deemed duly stamped until a person cancels the stamp by writing or impressing or marking in ink on or across the stamp his name or initials, or the name or initials of his firm, together with the true date of his so writing, so that the stamp may be effectually cancelled and rendered incapable of being used for any other instrument.

(2), (3)    (Repealed)

s 22: Am 1924 No 32, sec 9 (a) (i); 1956 No 25, sec 2 (a); 1962 No 27, sec 5 (1) (a); 1965 No 36, Sch; 1975 No 75, sec 7 (2); 1986 No 193, Sch 7 (1); 1991 No 93, Sch 5 (2).

23 Fine in relation to adhesive stamps or to any duty

(1)  Every person who:

(a)  fraudulently removes or causes to be removed from any instrument any adhesive or impressed stamp, or affixes to any instrument any adhesive or impressed stamp which has been removed from any other instrument with intent that such stamp may be used again, or

(b)  knowingly sells or offers for sale, or utters any adhesive or impressed stamp which has been removed from any instrument, or utters any instrument having thereon an adhesive or impressed stamp which, to his knowledge, has been so removed as aforesaid, or

(c)  practises or is concerned in any fraudulent act, contrivance, or device with intent to evade any duty under this Act,

shall be liable to a fine of 0.5 penalty unit over and above any other penalty to which he may be liable.

(2)  Nothing in this section shall affect the liability of any such person to be prosecuted under any other statute or at Common Law.

s 23: Am 1931 No 13, sec 4 (b); 1965 No 36, Sch; 1992 No 112, Sch 1.

24 Penalty for registering instrument not duly stamped

(1)  If a person whose duty it is to enrol or register instruments or to enter instruments in or on any records enrols, registers or enters:

(a)  an instrument chargeable with duty which is unstamped or insufficiently stamped, or

(b)  an instrument made or executed on or after 21 November 1986 in respect of a transaction to which Division 3A of Part 3 applies, unless:

(i)  an instrument executed for the purpose of effecting that transaction has been sufficiently stamped, or

(ii)  any statement required to be lodged under section 44A in respect of the transaction has been lodged and the duty and any fine with which the statement is chargeable have been paid,

the person shall incur a fine not exceeding 5 penalty units for each offence.

(2)  No instrument which is marked as sufficiently or fully or duly stamped, or as not liable to stamp duty shall, for the purposes of this section, be deemed to be unstamped or insufficiently stamped.

(3)  It is a defence to a prosecution for an offence against this section in respect of the enrolling, registering or entering of an instrument referred to in subsection (1) (b) if it is proved that the defendant did not know and could not reasonably be expected to have known that the instrument was an instrument so referred to.

s 24: Am 1965 No 36, Sch; 1982 No 134, Sch 10 (2); 1987 No 85, Sch 1 (2); 1987 No 87, Sch 1 (3); 1992 No 112, Sch 1.

25 Terms on which instruments may be stamped after execution

(1)  Except where other express provision is made by this or any other Act, a person primarily liable with respect to any instrument chargeable with duty shall cause it to be duly stamped or, in accordance with the provisions of section 41 (5), 42 (7) or 78D (5), marked “interim stamp only”:

(a)  where it was first executed on or after 20th October 1982 and before the date of assent to the Stamp Duties (Further Amendment) Act 1982—within 6 months after that date of assent, or

(b)  where it was first executed on or after that date of assent—within 6 months after it was first executed.

Maximum penalty: 100 penalty units.

(1A)–(6)    (Repealed)

s 25: Subst 1924 No 32, sec 9 (a) (ii). Am 1931 No 13, sec 4 (c); 1933 No 12, sec 3 (b); 1965 No 36, Sch; 1966 No 55, sec 2 (a); 1967 No 23, sec 2 (b); 1982 No 134, Sch 1; 1987 No 227, Sch 1 (2); 1992 No 112, Sch 1; 1997 No 123, Sch 2.2 [7].

26 Execution of instruments

For the purposes of this Act an instrument is deemed to be first executed the first time that it is signed and sealed, or signed (as the case may be) by any party thereto:

Provided that if the instrument is ineffective by reason of a failure of the necessary parties to execute it, a refund may be made of any money paid for stamping:

Provided further that a contract made by acceptance of an offer contained in any instrument shall be deemed first executed when the offer is accepted.

s 26: Am 1924 No 32, sec 9 (a) (iii).

27 Terms on which unstamped or insufficiently stamped instruments may be received in evidence

(1)  On the production of an instrument chargeable with stamp duty as evidence in any court of civil judicature, the officer whose duty it is to read the instrument shall call the attention of the Judge to any omission or insufficiency of the stamp thereon, and if the instrument is one which may legally be stamped after execution it may, on payment to such officer of the amount of the unpaid duty and the fine payable by law, be received in evidence, saving all just exceptions on other grounds.

(2)  Such officer shall detain and immediately transmit to the Chief Commissioner the instrument, together with the duty and fine so paid thereon, and the payment thereof shall be denoted on such instrument accordingly.

28 Secondary evidence of unstamped and other instruments

(1)  In proceedings in any court secondary evidence of an instrument may, saving all just exceptions on other grounds, be admitted notwithstanding that such instrument is subject to stamp duty and has not been duly stamped, if the amount of the stamp duty or the amount of the deficiency of the stamp duty and any fine imposed by this Act are paid to an officer of the court and if the instrument is one which may legally be stamped after execution.

(2)  In any proceedings in any court, secondary evidence of an instrument made or executed on or after 21 November 1986 in respect of a transaction to which Division 3A of Part 3 applies may, saving all just exceptions on other grounds, be admitted if:

(a)  an instrument executed for the purpose of effecting that transaction has been sufficiently stamped, or

(b)  any statement required to be lodged under section 44A in respect of the transaction has been lodged and the duty and any fine with which the statement is chargeable have been paid.

s 28: Am 1931 No 13, sec 4 (d); 1987 No 85, Sch 1 (3).

29 Inadmissibility of unstamped and other instruments

(1)  Except as aforesaid, no instrument executed in New South Wales or relating (wheresoever executed) to any property situate or to any matter or thing done or to be done in any part of New South Wales, shall, except in criminal proceedings, be pleaded or given in evidence, or admitted to be good, useful, or available in law or 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: Provided that any instrument chargeable with duty before the appointed day shall be deemed to be duly stamped in accordance with the law in force at the time when it was first executed, notwithstanding that the duty chargeable on such instrument is denoted in terms of the currency provided for by Part II of the Currency Act 1965 of the Parliament of the Commonwealth of Australia or any Act passed in amendment of or substitution for the same.

(2)  Subsection (1) of this section applies to and in respect of an unexecuted copy of an instrument referred to in that subsection (being an instrument that was first executed on or after 20th October 1982) in the same way as it applies to the instrument unless:

(a)  the court is satisfied that the instrument of which it is a copy is duly stamped, or

(b)  the copy is duly stamped in accordance with section 73D.

(3)  No instrument made or executed (whether in New South Wales or elsewhere) on or after 21 November 1986 in respect of a transaction to which Division 3A of Part 3 applies, shall, except in criminal proceedings, be pleaded or given in evidence, or admitted to be good, useful, or available in law or equity for the purpose of proving that a change in beneficial ownership to which the transaction relates occurred, unless:

(a)  an instrument to effect that transaction has been sufficiently stamped, or

(b)  any statement required to be lodged under section 44A in respect of the transaction has been lodged and the duty and any fine with which the statement is chargeable have been paid.

(4)  Sections 27 and 28 and this section do not apply to an instrument or a copy of an instrument tendered as evidence on behalf of a party (not being a person who is primarily liable to duty in respect of the instrument) if the court is satisfied:

(a)  that the party has informed, or will in accordance with arrangements approved by the court inform, the Chief Commissioner of the name of the person primarily liable to duty in respect of the instrument, and

(b)  that the party will, in accordance with arrangements approved by the court, lodge the instrument or a copy of the instrument with the Chief Commissioner.

s 29: Am 1924 No 32, sec 9 (a) (iv); 1965 No 36, sec 3 (d); 1982 No 134, Sch 4 (2); 1987 No 85, Sch 1 (4); 1990 No 95, Sch 1 (9); 1991 No 93, Sch 5 (3).

30 Rule as to instruments executed out of New South Wales

(1)  No instrument executed out of New South Wales, and which by the law of the country in which it was executed is inadmissible in evidence in such country by reason of not having been stamped, shall be for such reason inadmissible in evidence in New South Wales, unless it is proved that such instrument is, by the statute law of such country, expressly made void if made or executed without being stamped.

(2)  Nothing herein shall be deemed to render valid in New South Wales any instrument executed out of New South Wales which is void by the law of the place in which the same was executed for any other reason than that the same was not duly stamped.

31 Contingent stamp duties

Where the duty with which an instrument is chargeable depends in any manner upon the duty paid upon another instrument the payment of the lastmentioned duty shall upon application to the Chief Commissioner and production of both the instruments, be denoted upon the firstmentioned instrument in such manner as the Chief Commissioner thinks fit.

32 (Repealed)

s 32: Am 1931 No 13, sec 4 (e); 1933 No 12, sec 3 (c). Rep 1997 No 123, Sch 2.2 [5].

33 Marketable securities to be valued

Where an instrument is chargeable with ad valorem duty in respect of any marketable security, such duty shall be calculated on the price of such security as quoted in any stock or share market in or out of New South Wales, or on the average value according to the best evidence that can be obtained of such security on the day of the date of the instrument.

34 Effect of statement of value

(1)  Where an instrument contains a statement of current rate of exchange, or quoted price, or average value, and is stamped in accordance with such statement, it is, so far as regards the subject-matter of such statement, to be deemed duly stamped.

(2)  If such statement is proved to be untrue, the deficient duty and fine may be recovered.

35 Action by Chief Commissioner after assessing document

After assessing a document, the Chief Commissioner may:

(a)  stamp the document to indicate that it is not liable to duty, or

(b)  stamp the document to indicate:

(i)  that a specified amount of duty has been paid, and

(ii)  that the document is duly stamped.

s 35: Am 1924 No 32, sec 9 (a) (v); 1987 No 85, Sch 5 (1). Subst 1997 No 123, Sch 2.2 [8].

35A Stamping taken to constitute an assessment

For the purposes of this Act, the stamping of an instrument (excluding a return) by the Chief Commissioner is taken to be an assessment of the duty (and, where relevant, of any fine) payable under this Act in respect of the instrument.

s 35A: Ins 1992 No 33, Sch 1 (2).

35B–36 (Repealed)

s 35B: Ins 1992 No 33, Sch 1 (2). Rep 1997 No 123, Sch 2.2 [5].

s 35C: Ins 1992 No 33, Sch 1 (2). Rep 1997 No 123, Sch 2.2 [5].

s 36: Rep 1997 No 123, Sch 2.2 [5].

37 Deficient duty may be recovered

(1)  If it appears that the Chief Commissioner has stamped an instrument having assessed an insufficient amount of duty or fine thereon, or erroneously or improperly put on the same a stamp denoting that it is not liable to duty or is duly stamped, the Chief Commissioner may at any time call upon the person on whose behalf the instrument was presented for assessment to pay the amount with which in his opinion such instrument was properly chargeable in respect of duty or fine, or both duty and fine, at the time of stamping the same.

(1A)  If it appears that the Chief Commissioner has assessed an insufficient amount of duty or fine in respect of an assessment under section 127B (Default assessment of stamp duty), the Chief Commissioner may at any time call upon the person liable to pay the duty the subject of the assessment to pay the amount which, in the opinion of the Chief Commissioner, was properly chargeable in respect of duty or fine, or both duty and fine, at the time the assessment was issued.

(2)  An amount payable under this section shall be a debt due to the Crown, and may be recovered from such person accordingly: Provided

(a)  that such person, if dissatisfied, may object or appeal against the decision of the Chief Commissioner under section 124, the provisions of which shall, mutatis mutandis, apply, and

(b)  that the instrument stamped under subsection (1) shall be as good and available for all purposes as though full duty and fine had been paid thereon.

s 37: Am 1924 No 32, sec 9 (a) (vi); 1987 No 85, Sch 5 (2).

38 Stamp duty a debt to the Crown

(1)  Every person primarily liable with respect to any instrument or matter of the nature mentioned in this Act is personally liable to the Crown for the payment of the duty so chargeable on such instrument immediately upon the first execution thereof, and every such person may be sued for the amount of such duty as for a debt due to the Crown.

(1A)  Every person required by this Act to lodge a return and to pay stamp duty under the provisions of Part 3 of this Act is personally liable to the Crown for the payment of the duty immediately upon the duty becoming payable, and every such person may be sued for the amount of the duty as for a debt due to the Crown.

(1B)  If a person required by this Act to lodge a statement and to pay duty under the provisions of Division 3A or 30 of Part 3 fails or refuses to lodge the statement, or the Chief Commissioner is not satisfied with the statement lodged, and an assessment is issued under section 127B, the person is personally liable to the Crown for the payment of the duty immediately upon the duty becoming payable, and the person may be sued for the amount of the duty as for a debt due to the Crown.

(2)  Nothing herein shall be deemed to exonerate any other person from any liability imposed upon him by or under this Act, or to exempt any instrument or matter from any duty or disability to which it is liable under this Act.

s 38: Am 1924 No 32, sec 9 (a) (vii); 1974 No 110, sec 7 (b); 1982 No 134, Sch 10 (3); 1987 No 85, Sch 1 (5); 1991 No 93, Sch 5 (4).

38A (Repealed)

s 38A: Ins 1924 No 32, sec 9 (a) (viii). Am 1965 No 36, Sch; 1982 No 134, Sch 10 (4); 1992 No 112, Sch 1. Rep 1997 No 123, Sch 2.2 [5].

38B Instruments executed by Public Trustee

Any instrument executed by the Public Trustee under his seal of office which if made by an individual would not be required by law to be under seal shall not be liable to a higher stamp duty by reason only of the use of such seal.

s 38B: Ins 1924 No 32, sec 9 (a) (viii).

38C Payment of duty by return in certain cases

s 38C, hdg after: Rep 1982 No 43, Sch 3 (2).

(1)  Any person may apply to the Chief Commissioner in a form approved by him for approval to pay duty in respect of any class of instruments in accordance with the provisions of this section.

(2)  The Chief Commissioner may approve or refuse an application made under subsection (1) of this section but shall not approve of such an application if the instruments of the class in respect of which it is made are instruments in respect of which the Chief Commissioner may, under any other provision of this Act, grant the applicant an approval to pay duty as an approved person under that provision.

(3)  Where the Chief Commissioner approves an application made under subsection (1) of this section, he shall in the approval specify the date upon which the approval comes into force and the class of instruments to which the approval relates.

(4)  A person whose application under subsection (1) of this section has been approved by the Chief Commissioner is, while the approval is in force, an approved person for the purposes of this section.

(5)  Except as provided in this section, an approved person is not liable to pay duty in respect of any instrument of a class to which his approval relates.

(6)  An approved person shall make a record at such times and of such particulars relating to an instrument of a class to which his approval relates as the Chief Commissioner may, by notice in writing given to him, require.

(7)  An approved person shall:

(a)  lodge with the Chief Commissioner a return in respect of any instrument of a class to which his approval relates at such times, in respect of such periods, in such form and containing such particulars as may be notified to him in writing by the Chief Commissioner, and

(b)  when he lodges that return, pay to the Chief Commissioner as stamp duty an amount equal to the amount of stamp duty that would, but for the provisions of subsection (5) of this section, have been payable in respect of each instrument to which the return relates.

(8)  In the case of an approval relating to loan securities and related instruments, an approved person must:

(a)  stamp the instruments with the stamp or stamps issued to the person by the Chief Commissioner for the purposes of this section and complete the particulars specified in the stamp or stamps, or

(b)  endorse the instruments in the manner approved by the Chief Commissioner and comply with such directions as may be given by the Chief Commissioner from time to time with respect to the electronic or other recording of specified particulars of or relating to advances secured by or under the instruments.

In any other case, the approved person must endorse on an instrument of a class to which the approval relates the words “Stamp Duty” followed by the distinguishing number of the approval allocated to the person by the Chief Commissioner for the purposes of this section.

(9)  Instruments stamped or endorsed in accordance with subsection (8) are taken to be stamped.

(10)  A person making any record in accordance with subsection (6) of this section shall retain the record for a period of 2 years.

(11)  A person who contravenes subsection (6), (7) or (10) of this section is liable to a fine not exceeding 5 penalty units.

(12)  Any person, not being an approved person, who endorses on an instrument any words or numbers suggesting or implying that the instrument is duly stamped under the provisions of this section is liable to a fine not exceeding 5 penalty units.

(13)  The Chief Commissioner may, by notice in writing, cancel any approval granted under this section:

(a)  on application by the person to whom the approval was granted, or

(b)  for any reason he deems sufficient,

and shall in any such notice specify the date on and from which the approval ceases to be in force.

(14)  An approval so cancelled shall cease to be in force on and from the date specified in the notice by which the approval is cancelled.

s 38C: Ins 1975 No 75, sec 6 (a). Am 1985 No 219, Sch 3 (3); 1991 No 93, Sch 4 (2); 1992 No 112, Sch 1; 1996 No 125, Sch 1 (1).

38D The Taxline system

(1)  The Taxline system enables an approved person, in accordance with arrangements made under this section:

(a)  to obtain an assessment of stamp duty (and any fine) on an instrument by electronically transmitting information concerning the instrument to the Chief Commissioner, and

(b)  to pay stamp duty (and any fine) on the instrument by electronic funds transfer in accordance with the assessment, and

(c)  to stamp the instrument by fixing an adhesive label to it which bears an authorisation number issued for the instrument by the Chief Commissioner and such other particulars as are determined by the Chief Commissioner and which is in a form approved by the Chief Commissioner,

without the need for the instrument to be produced to the Chief Commissioner.

(2)  A person may apply to the Chief Commissioner for approval to use the Taxline system.

(3)  An application is to be made in the form approved by the Chief Commissioner.

(4)  The Chief Commissioner may approve or refuse an application.

(5)  If the Chief Commissioner approves an application, the Chief Commissioner is to specify the terms of the approval, the date on which the approval commences and the instruments to which the approval applies.

(6)  A person whose application is approved is, while the approval remains in force, an approved person for the purposes of this section.

(7)  An approval may be amended at any time:

(a)  by agreement between the Chief Commissioner and the approved person, or

(b)  by written notice given by the Chief Commissioner to the approved person.

(8)  An approval remains in force until it is cancelled by the Chief Commissioner or until the approved person surrenders it.

(9)  The Chief Commissioner may cancel an approval at any time for any reason and without the necessity to give prior notice to the approved person. The Chief Commissioner must give written notice to the person of the cancellation.

s 38D: Ins 1993 No 41, Sch 1 (2).

38E Assessment and stamping of instruments under the Taxline system

(1)  For the purposes of this Act, the issue, under the Taxline system, of an adhesive label for an instrument by the Chief Commissioner comprises an assessment of the duty (and any fine) in relation to the instrument.

(2)  An approved person for the purposes of section 38D, or a person authorised by the approved person, must, on receipt of an adhesive label bearing the authorisation number issued for the instrument by the Chief Commissioner, fix the adhesive label to the face of the instrument.

(3)  An instrument is taken to be stamped if there is fixed to the face of it an adhesive label bearing the authorisation number issued for the instrument by the Chief Commissioner.

(4)  An adhesive label is not an adhesive stamp for the purposes of this Act.

s 38E: Ins 1993 No 41, Sch 1 (2). Am 1994 No 48, Sch 11 (15).

38F Fines relating to adhesive labels

(1)  A person who:

(a)  sells an adhesive label or offers an adhesive label for sale, or

(b)  fraudulently utters an adhesive label, or

(c)  fraudulently fixes an adhesive label to an instrument other than the instrument for which the adhesive label was issued, or

(d)  fraudulently removes an adhesive label, or fraudulently causes an adhesive label to be removed, from an instrument, or

(e)  fraudulently utters an instrument to which an adhesive label is fixed knowing that the adhesive label was not issued for that instrument, or

(f)  in relation to an adhesive label, practises or is concerned in any fraudulent act, contrivance or device with the intention of evading duty under this Act,

is liable to a fine not exceeding 50 penalty units.

(2)  In this section, adhesive label means an adhesive label issued by the Chief Commissioner.

s 38F: Ins 1993 No 41, Sch 1 (2).

39 Variation instruments

s 39, hdg: Rep 1924 No 16, sec 2 (b) (i).

(1)  An instrument which the Chief Commissioner is satisfied:

(a)  is executed in order to vary or replace an earlier instrument, and

(b)  would not have caused a greater amount of duty to be chargeable if the earlier instrument had been varied or replaced by the later instrument before the earlier instrument became chargeable with duty,

is subject to a credit of the amount of duty paid in respect of the earlier instrument, except as provided by subsection (2).

(2)  The minimum amount of duty payable in respect of any such instrument is $10.

(3)  This section does not apply to or in respect of a loan security (within the meaning of section 83).

s 39: Rep 1924 No 16, sec 2 (b) (i). Ins 1990 No 95, Sch 1 (10).

Division 2 Agreements

40 Duty on certain agreements under hand may be denoted by adhesive stamp

(1)  The duty on an agreement under hand other than an agreement chargeable with ad valorem duty may be denoted by an adhesive stamp.

(2)    (Repealed)

s 40: Am 1924 No 32, sec 4 (a); 1931 No 13, sec 4 (f); 1965 No 36, Sch; 1986 No 193, Sch 7 (2).

40A Options

(1)  The interest created by an agreement by which an option is given or taken to purchase or sell any property in New South Wales (other than stock, a marketable security or a unit in a unit trust scheme) shall be deemed to be property for the purposes of this Act, and the agreement shall be liable to duty as an agreement for the sale or conveyance of property in New South Wales accordingly.

(2)  The ad valorem duty chargeable on the agreement, if any, made in pursuance of and by the exercise of the option shall be reduced by the amount of the ad valorem duty paid on the agreement creating the option.

(3)  This section does not apply to an agreement by which an option is given or taken in accordance with an approved rental-purchase agreement under Schedule 2B.

(4)  This section does not apply to an option on which duty is paid or payable under section 40B (1).

s 40A: Ins 1931 No 13, sec 4 (g). Am 1988 No 130, Sch 3 (1); 1991 No 93, Sch 5 (5); 1994 No 48, Sch 11 (16).

40B Put and call options to buy property

(1)  If both an option to purchase any property (other than stock, a marketable security or a unit in a unit trust scheme) and an option to sell the property are in force at the same time, and they involve the same purchasers and vendors, any instrument creating the options is liable to ad valorem duty as if it were a conveyance of the property. However, if more than one instrument is liable under this subsection as if it were a conveyance of the same property, only one of the instruments is to be charged with the ad valorem duty. Each of the other instruments is to be charged with duty of $10.

(2)  Any instruments assigning options to purchase and sell property referred to in subsection (1) are liable to ad valorem duty in the same way as those options. However, if more than one instrument is liable under this subsection as if it were a conveyance of the same property, only one of the instruments is to be charged with the ad valorem duty. Each of the other instruments is to be charged with duty of $10.

(3)  An agreement made in pursuance of and by the exercise of an instrument for which ad valorem duty has been paid under this section is liable to duty of $10.

(4)  Any conveyance of property in pursuance of any instrument for which ad valorem duty has been paid under this section, or in pursuance of an agreement for which duty has been paid under this section, is liable to duty of $2.

(5)  The persons liable to pay the duty are the parties to the instrument.

s 40B: Ins 1994 No 48, Sch 11 (17).

40C Put and call options not proceeded with

(1)  If options to purchase and sell any property (other than stock, a marketable security or a unit in a unit trust scheme), in force at the same time, and involving the same purchasers and vendors (whether or not as assignees of previous purchasers and vendors), expire without being exercised, the options are liable to duty under section 40A instead of section 40B.

(2)  The difference between any duty paid by a person under section 40B, and that payable by the person under section 40A, less $25, must be refunded to the person or the person’s executors, administrators or assigns.

(3)  Application for a refund is to be made in the form approved by the Chief Commissioner not later than 12 months after the duty first becomes payable under section 40A instead of section 40B.

s 40C: Ins 1994 No 48, Sch 11 (17).

Division 3 Agreements for sale or conveyance

41 Agreements for sale or conveyance to be chargeable as conveyance etc

(1)  Every agreement for the sale or conveyance of any property in New South Wales shall be charged with the same ad valorem duty to be paid by the purchaser or person to whom the property is agreed to be conveyed as if it were a conveyance of the property agreed to be sold or conveyed and shall be stamped accordingly.

(2)  An agreement for the exchange of any property for any other property shall for the purposes of this Act be deemed to be an agreement for the sale of the property to be exchanged.

(3)  Where the agreement is constituted or evidenced by two or more instruments, not being instruments to which subsection (3A) of this section applies, it shall be sufficient if any one of such instruments is stamped with the duty aforesaid.

(3A)  Where there are executed two or more agreements for the sale or conveyance of separate parts of, or separate estates or interests in, any property in New South Wales:

(a)  pursuant to one transaction relating to the whole of the property, or

(b)  that together evidence or give effect to what is, substantially, one transaction relating to the whole of the property,

one of the agreements shall be charged with the same ad valorem duty to be paid by the purchaser or person to whom the property is agreed to be conveyed as if it were a conveyance of the property agreed to be sold or conveyed for the total consideration for the whole of the property to which the transaction relates and shall be stamped accordingly and the other agreement or agreements shall be charged with the duty of $10 each.

(3B)  For the purposes of subsection (3A) of this section, where there are executed two or more agreements for the sale or conveyance of separate parts of, or separate estates or interests in, any property in New South Wales:

(a)  between the same parties or between different parties who are related persons (within the meaning of Division 30, as provided by section 99A (8)), and

(b)  within, or apparently within, a period of 12 months of each other,

the agreements shall, unless the Chief Commissioner is satisfied that it would not be just and reasonable in the circumstances, be deemed to have been executed pursuant to one transaction relating to the whole of the property.

(3C), (3D)    (Repealed)

(4) 

(a)  Where duty has been duly paid in conformity with the foregoing provisions of this section, the conveyance made in conformity with the agreement or agreements shall not be chargeable with ad valorem duty, but shall be chargeable with a duty of $2, provided that where the ad valorem duty charged on such agreement (or in case there is more than one of such agreements on the agreement carrying the highest ad valorem duty) is less than $2, the said ad valorem duty or the said highest ad valorem duty as the case may be shall be chargeable in place of the said duty of $2.

(b)  The Chief Commissioner upon application and on production of the conveyance and the agreement or agreements leading thereto, duly stamped as aforesaid, or on production of the conveyance and on his being satisfied that the agreement or agreements are duly stamped and subject to the next succeeding section, shall mark the conveyance as duly stamped.

(5)  In case the full amount on which ad valorem duty is payable cannot be immediately ascertained the duty may be paid upon so much (if any) thereof as is ascertainable, and the agreement may be stamped accordingly and marked “interim stamp only”, and where so stamped may be admitted in evidence, subject to subsection (6). The balance of such duty shall be paid as soon as the same is ascertained or assessed by the Chief Commissioner, and thereupon and upon payment of the fine (if any) the agreement shall be stamped with the amount of such balance and shall be marked as duly stamped.

(6)  An agreement may not be admitted in evidence under subsection (5) unless the Chief Commissioner has issued a certificate in writing to the effect that the full amount on which ad valorem duty is payable cannot be immediately ascertained, and that certificate is in force. Such a certificate remains in force for 3 months after it is issued, but a further certificate may be issued at any time.

(7) 

(a)  In case the agreement is afterwards rescinded or annulled the ad valorem duty paid thereon shall be refunded by the Chief Commissioner to the party to the agreement by whom or on whose behalf the duty was paid, or to his executors, administrators, or assigns. Application for the refund shall be made in or to the effect of the form approved by the Chief Commissioner within twelve months of the agreement being rescinded or annulled.

(b)  There shall be deducted from the amount of any such refund:

(i)  $25, and

(ii)  the amount of any duty, other than ad valorem duty, to which the instrument may be liable.

(ba)  An agreement which is rescinded or annulled within 2 months after it was first executed and before it was duly stamped is liable to a payment of $25 instead of ad valorem duty. The person primarily liable to make the payment is the purchaser.

(bb)  An application for an agreement to be dealt with under paragraph (ba) is to be made in the approved form within 12 months after the rescission or annulment.

(c)  This subsection shall not apply if the Chief Commissioner is of the opinion that a subsequent sale of the property is a transaction within the meaning of a subsale notwithstanding that the subsequent conveyance or transfer is executed by the person who was the vendor in the cancelled contract.

(d)  The agreement is not liable to duty merely because, by virtue of the rescission or annulment, the agreement operates to convey the deposit paid under the agreement to the vendor.

(7A)  If, under section 66M of the Conveyancing Act 1919, in relation to a duly stamped agreement (whether executed before or after the commencement of this subsection):

(a)  the consideration expressed in the agreement is reduced, or

(b)  the purchaser recovers an amount from the vendor as a debt,

the person who paid the duty may apply to the Chief Commissioner, on a form approved by the Chief Commissioner, for a further assessment of the ad valorem duty and a refund of the difference (if any) between the duty as paid and the duty as further assessed.

(7B)  The Chief Commissioner, on application under subsection (7A), may make a further assessment of the ad valorem duty in relation to the agreement which shall be calculated on the amount on which duty was previously assessed less:

(a)  any amount by which the consideration expressed in the agreement was reduced, or

(b)  any amount recovered by the purchaser from the vendor as a debt.

(7C)  An amount of $25 shall be deducted from the amount of any refund under subsection (7A).

(7D)  An application under subsection (7A) for a refund shall be made within 12 months after the consideration expressed in the agreement is reduced or the purchaser recovers an amount from the vendor as a debt.

(8)  This section applies only to agreements made after the passing of this Act.

(9)    (Repealed)

s 41: Am 1924 No 32, sec 4 (b) (i)–(iv); 1931 No 13, sec 4 (h); 1933 No 12, sec 2 (a); 1955 No 30, sec 2 (b); 1965 No 36, Sch; 1967 No 23, sec 2 (c); 1974 No 71, sec 4 (a); 1978 No 139, Sch 2 (1); 1985 No 219, Sch 1 (1); 1986 No 193, Sch 2 (2); 1987 No 227, Sch 1 (3); 1990 No 45, Sch 1 (3); 1990 No 95, Sch 1 (5); 1992 No 33, Sch 1 (3); 1992 No 86, Sch 6 (6); 1992 No 112, Sch 1; 1995 No 98, Sch 7 (6); 1997 No 123, Sch 2.2 [9].

41A Effect of reduction in purchase price

If the Chief Commissioner is satisfied that:

(a)  after an agreement for the sale or conveyance of property is first executed and before the property is conveyed, the consideration under the agreement is reduced by another instrument, and

(b)  the reduced consideration is not less than the unencumbered value of the property to be conveyed as at the date of first execution of that other instrument,

the Chief Commissioner must assess or reassess the liability of the agreement to duty in accordance with the reduced consideration.

s 41A: Ins 1992 No 33, Sch 1 (4).

42 Instruments effecting conveyance or sale—special provisions

(1)  Where any property has been agreed to be sold for one consideration for the whole, and is conveyed to the purchaser in separate parts or parcels by different instruments, the consideration shall be apportioned in such manner as the parties think fit, so that a distinct consideration for each separate part or parcel shall be set forth in the conveyance relating thereto.

(2)  Where any property agreed to be purchased for one consideration for the whole by two or more persons jointly, or by any person for himself and others, or wholly for others, is conveyed in parts or parcels by separate instruments to the persons by or for whom the same was purchased for distinct parts of the consideration, each such part of the consideration shall be set forth in the conveyance of each separate part or parcel.

(2A)  Where any property is agreed to be purchased by two or more persons otherwise than as joint tenants, the contract for such purchase shall specify the aliquot part to be taken by each purchaser, and in the absence of such specification the purchasers shall for the purposes of this Act be deemed to have purchased the property in equal shares.

(3) 

(a)  Where property is sold, but not conveyed, to any person, and is subsequently subsold to another person or other persons in succession as subpurchasers, the instrument whereby each sale or subsale is effected shall be liable to ad valorem stamp duty as if it were a conveyance to the purchaser and each subpurchaser from his immediate vendor, and if the said duty is not paid on any of such instruments the amount of such unpaid duty, together with any fine payable in respect thereof, shall be paid as an additional duty on the conveyance to the ultimate purchaser.

(b)  Notwithstanding any stipulation to the contrary the ultimate purchaser shall be entitled to deduct any such unpaid duty and fine (other than that on the instrument of subsale to himself) from any consideration payable by him under his agreement of purchase.

(4)  Where the instruments of the sale and of the subsales have been duly stamped with ad valorem duty in conformity with the foregoing provision, the conveyance by the original vendor to the ultimate purchaser shall be chargeable with a duty of one dollar, and on payment thereof shall be marked as duly stamped: Provided that where the ad valorem duty on such of the said instruments as carries the highest ad valorem duty is less than one dollar, the amount of such highest ad valorem duty shall be chargeable in place of the said duty of one dollar.

(5)  Where a vendor of any property conveys the same or part thereof by direction, whether written or oral, to any person other than the original purchaser or to the original purchasers in shares other than those in which they purchased the property, such conveyance shall set forth the consideration for every direction or agreement whether written or oral leading thereto, and shall be liable to additional duty equal in amount to the ad valorem duty which would have been payable if each of such agreements or directions had been an actual conveyance. This provision shall not apply to cases where each of such agreements or directions has been duly stamped as provided by this Act.

(6)  Every instrument purporting to be a conveyance or an agreement to convey any property in which the name of the purchaser or conveyee is not written in ink or indelible pencil shall not be stamped until the name of the purchaser or conveyee is written therein in ink or indelible pencil:

Provided that this subsection shall not apply to an instrument purporting to be a transfer of any marketable security.

(7)  In case the full amount on which ad valorem duty is payable cannot be immediately ascertained, the duty may be paid upon so much (if any) thereof as is ascertainable and the conveyance may be stamped accordingly and marked “interim stamp only”, and when so stamped shall be admissible in evidence. The balance of such duty shall be paid as soon as the same is ascertained or assessed by the Chief Commissioner, and thereupon and upon payment of the fine (if any) the conveyance shall be stamped with the amount of such balance and shall be marked as duly stamped.

s 42: Am 1922 No 20, sec 2 (a); 1924 No 32, sec 4 (b) (v); 1931 No 13, sec 4 (j); 1933 No 12, sec 2 (b); 1955 No 30, sec 2 (c); 1965 No 36, Sch; 1974 No 71, sec 4 (b).

43 Conveyances of, or agreements for, goods, wares or merchandise generally

s 43, hdg: Rep 1924 No 16, sec 2 (c) (i).

(1)  A conveyance or agreement for the sale or conveyance of goods, wares or merchandise:

(a)  if under seal—is chargeable with a duty of $10 but is otherwise exempt from duty, or

(b)  if under hand—is exempt from duty,

so far as the conveyance or agreement relates to the goods, wares or merchandise only.

(2)  Subsection (1) does not apply to any goods, wares or merchandise included in a conveyance or agreement to which section 43A applies, unless they are goods, wares or merchandise referred to in section 43B.

(3)  The parties to the conveyance or agreement are primarily liable for the duty chargeable under this section.

s 43: Rep 1924 No 16, sec 2 (c) (i). Ins 1986 No 193, Sch 2 (3). Am 1987 No 85, Sch 5 (3).

43A Goods, wares or merchandise included in or connected with a conveyance or agreement for the sale or conveyance of other property

(1)  In this section:

arrangement means a conveyance of goods, wares or merchandise or a written or unwritten arrangement, including a written or unwritten agreement for the sale, conveyance, lease or use of goods, wares or merchandise.

other property means property that is not goods, wares or merchandise.

(1A)  In this section, a reference to a conveyance of goods, wares or merchandise is a reference to a conveyance of goods, wares or merchandise, not being a conveyance made in conformity with an agreement for the sale or conveyance of goods, wares or merchandise.

(2)  If:

(a)  one conveyance of property (being goods, wares or merchandise) and other property is made,

(b)  one agreement for the sale or conveyance of property (being goods, wares or merchandise) and other property is made, or

(c)  one agreement is made with respect to property (being goods, wares or merchandise) and other property and part of the agreement is for the sale or conveyance of some or all of the other property,

the conveyance or the agreement shall, except in so far as the Chief Commissioner is satisfied that it would not be just and reasonable in the circumstances, be charged with ad valorem duty (to be paid by the person to whom the property is to be conveyed or by the purchaser or person to whom the property is agreed to be conveyed) at the rates specified in the Second Schedule under the heading “Conveyances of Any Property” on the whole of the property to which the conveyance or the agreement relates and shall be stamped accordingly.

(3)  If:

(a)  2 or more arrangements are entered into with respect to property (being goods, wares or merchandise) and other property:

(i)  pursuant to one transaction relating to the whole of the property, or

(ii)  that together evidence or give effect to what is, substantially, one transaction relating to the whole of the property, and

(b)  at least one of the arrangements is:

(i)  a conveyance, or

(ii)  an agreement for the sale or conveyance,

of some or all of the other property,

the conveyance or the agreement, or one of the conveyances or agreements, shall be charged with the same ad valorem duty (to be paid by the person to whom the property is conveyed or by a purchaser or person to whom the property is agreed to be conveyed) as if it were a conveyance of the whole of the property to which the transaction relates and shall be stamped accordingly and such of the other arrangements as are written shall be charged with the duty of $10 each.

(4)  If:

(a)  the ad valorem duty to be charged under subsection (2) or (3) in respect of the whole of any property would, but for this subsection, be calculated separately in respect of different component parts of the property, and

(b)  the amount of duty would be greater if it were calculated on an aggregation of the relevant amounts or values applicable to those component parts,

the duty shall be calculated on the basis described in paragraph (b).

(5)  If 2 or more arrangements are entered into with respect to property (being goods, wares or merchandise) and other property:

(a)  between the same parties or between different parties who are not at arms’ length, and

(b)  within, or apparently within, a period of 12 months of each other,

the arrangements shall, except in so far as the Chief Commissioner is satisfied that it would not be just and reasonable in the circumstances, be deemed to have been entered into pursuant to one transaction relating to the whole of the property.

(6)  A person:

(a)  who makes or is otherwise engaged or concerned in the preparation of an instrument referred to in subsection (2) or (3), and

(b)  who does not disclose, in writing to the Chief Commissioner:

(i)  upon submission by the person or any other person of the instrument to the Chief Commissioner for stamping, or

(ii)  when required by the Chief Commissioner to do so,

the relevant amounts or values on which subsection (2) or (3) requires ad valorem duty to be charged in respect of that instrument,

shall be guilty of an offence and liable to a fine not exceeding 10 penalty units.

(7)  It is a defence to a prosecution under subsection (6):

(a)  that the defendant did not know and could not reasonably be expected to have known the relevant amounts or values required to be disclosed by that subsection, or

(b)  that a person to whom that subsection applies, other than the defendant, did, in relation to the instrument referred to in subsection (2) or (3) in respect of which the prosecution is brought, disclose the relevant amounts or values required to be disclosed by subsection (6).

(8)  The provisions of section 41 (4), (5) and (7) apply to and in respect of an agreement duly stamped in accordance with this section in the same way as they apply to and in respect of an agreement duly stamped in accordance with section 41.

s 43A: Ins 1986 No 193, Sch 2 (3). Am 1987 No 85, Sch 5 (4); 1992 No 112, Sch 1.

43B Certain goods, wares or merchandise exempt from section 43A

(1)  Goods, wares or merchandise are exempt from section 43A, so far as they are:

(a)  stock-in-trade held or used in connection with a business,

(b)  goods, wares or merchandise held or used in connection with land used for primary production, or

(c)  goods, wares or merchandise of a prescribed class or description,

and section 43A accordingly does not apply to or in respect of the goods, wares or merchandise so exempt.

(2)  If goods, wares or merchandise included in a conveyance of goods, wares or merchandise or an agreement are eligible for the exemption, and the conveyance of goods, wares or merchandise or the agreement also relates to another matter for which duty is payable, the exemption does not apply unless:

(a)  a claim is made for the exemption, and

(b)  particulars of and the respective values of the goods, wares and merchandise for which the exemption is claimed, and an apportionment of the purchase money, are fully set out in the conveyance of goods, wares or merchandise or the agreement.

(3)  The Chief Commissioner may exercise any of the powers conferred by section 68 with respect to the claim.

(4)  The duty of $10 under section 43 does not apply if other duty is payable because the exemption does not apply.

(5)  In this section:

land used for primary production means land used primarily for:

(a)  the cultivation of the land for the purpose of selling the produce of the cultivation,

(b)  the maintenance of animals or poultry on the land for the purpose of selling them or their natural increase or bodily produce,

(c)  the keeping of bees on the land for the purpose of selling their honey,

(d)  a nursery within the meaning of the Horticultural Stock and Nurseries Act 1969, being a nursery in respect of which a person is registered under that Act as a nurseryman, or

(e)  the propagation for sale of mushrooms, orchids or flowers.

s 43B: Ins 1986 No 193, Sch 2 (3). Am 1987 No 85, Sch 5 (5).

Division 3A Transactions otherwise than by dutiable instruments

pt 3, div 3A: Ins 1987 No 85, Sch 1 (6).

44 Transactions to which this Division applies

s 44, hdg: Rep 1974 No 110, sec 7 (c).

(1)  This Division applies to a transaction which, on or after 21 November 1986, causes or results in a change in the beneficial ownership of an estate or interest in:

(a)  land situated in New South Wales,

(b)  goods, wares or merchandise situated in New South Wales, being goods, wares or merchandise sold or conveyed with other property situated in New South Wales, being property of the kind referred to in paragraph (a), (c), (d), (e) or (f) or prescribed, or of a class prescribed, for the purposes of this subsection,

(c)  the goodwill in New South Wales of a business carried on in New South Wales,

(d)  a lease of land situated in New South Wales,

(e)  an interest in a partnership, in so far as the interest relates to property of the partnership, being property of the kind referred to in paragraph (a), (b), (c), (d) or (f) or prescribed, or of a class prescribed, for the purposes of this subsection,

(f)  shares or rights to shares of a NSW company or of a corporation incorporated outside Australia which are registered on a register of members of the corporation kept in New South Wales, or

(g)  property prescribed, or of a class prescribed, for the purposes of this subsection.

(1A)  This Division applies to a transaction which, on or after 1 January 1991, causes or results in a change in the beneficial ownership of an estate or interest in units in a unit trust scheme, being units which are:

(a)  registered on a register kept in New South Wales, or

(b)  registered on a register kept outside New South Wales, if the manager of the unit trust scheme is a NSW company or a person resident in New South Wales.

(1B)  This Division applies to a transaction which, on or after the date of assent to the State Revenue Legislation (Amendment) Act 1994, involves the redemption and issue to another person of shares which confer an exclusive right to occupation of a company title dwelling, whether or not the company is a NSW Company or has a register of members in New South Wales.

(2)  A reference to a change in beneficial ownership in this section does not include a reference to a change in beneficial ownership occurring as the consequence of:

(a)  the appointment of a receiver or trustee in bankruptcy,

(b)  the appointment of a liquidator,

(c)  the making of a compromise or arrangement under Part VIII of the Companies (New South Wales) Code which has been approved by the court,

(d)  the issue or redemption of units in a unit trust scheme,

(e)  the surrender of a lease,

(f)  the transfer or conveyance of any estate or interest in property as a security, including the pledging or charging of property, or

(g)  the release or termination of an option for the purchase of property.

(2A)  If a transaction to which this Division applies by virtue of subsection (1A) also causes or results in a change in the beneficial ownership of an estate or interest specified in subsection (1), this Division does not apply in relation to that change.

(3)  This Division does not apply to:

(a)  an SCH-regulated transfer within the meaning of section 9 of the Corporations Law, or

(b)  a transaction that (by reason of the issue, surrender, exchange, transfer or other disposition of American Depositary Shares or of American Depositary Receipts that relate to American Depositary Shares) causes or results in a change in the beneficial ownership of an estate or interest in shares, or of rights to shares, in a corporation incorporated in New South Wales or a company incorporated outside Australia that has a register in New South Wales, or

(c)  a transaction, or any property, prescribed by the regulations for the purposes of this subsection or that belongs to a class of transactions or property so prescribed.

(4)  Notwithstanding anything to the contrary in any other Act, a regulation made for the purposes of subsection (3) may take effect as from 21 November 1986 or a later day.

s 44: Rep 1974 No 110, sec 7 (c). Ins 1987 No 85, Sch 1 (6). Am 1988 No 130, Sch 5 (2); 1990 No 95, Sch 1 (13); 1994 No 48, Schs 9 (2) (19), 11 (5); 1995 No 98, Sch 7 (7); 1996 No 34, Sch 1.4 (2).

44A Payment of duty on statements in absence of dutiable instruments

(1)  A person, being a party to a transaction to which this Division applies which is not effected or evidenced by an instrument chargeable with ad valorem duty in accordance with the Second Schedule under:

(a)  paragraph (1), (2) or (3) under the heading “Transfer of Shares”,

(b)  the heading “Conveyances of Any Property”, or

(c)  any other heading whereby duty is charged as on a conveyance of property,

shall, if the person would have been liable to pay such ad valorem duty in respect of the transaction had such an instrument been executed, lodge with the Chief Commissioner a statement in respect of the transaction.

(1A)  A person, being a party to a transaction to which this Division applies which is not effected or evidenced by an instrument chargeable with duty in accordance with Division 19 shall, if the person would have been liable to pay such duty in respect of the transaction had such an instrument been executed, lodge with the Chief Commissioner a statement in respect of the transaction.

(1B)  A person, being a party to a transaction to which this Division applies by virtue of section 44 (1B), must lodge with the Chief Commissioner a statement in respect of the transaction.

(2)    (Repealed)

(2A)  A person, being a party to a transaction to which this Division applies by virtue of section 44 (1A) which is not effected or evidenced by an instrument chargeable with ad valorem duty in accordance with section 91, shall, if the person would have been liable to pay such duty in respect of the transaction had such an instrument been executed, lodge with the Chief Commissioner a statement in respect of the transaction.

(2B)  A person is not required to lodge a statement under this section in respect of a transaction which causes or results in a change in the beneficial ownership of an estate or interest in shares or units in a unit trust scheme or in land situated in New South Wales as a consequence of a transfer of units in a unit trust scheme:

(a)  in respect of which stamp duty of not less than an amount, that but for this paragraph, would be chargeable under this section is paid in a place outside New South Wales, or

(b)  which is exempt from duty in a place outside New South Wales.

(2C)  A person is not required to lodge a statement under this section in respect of a transaction which causes or results in a change in the beneficial ownership of an estate or interest in shares in a company which is registered, recorded or entered on a register of the members of the company lawfully kept in the United Kingdom:

(a)  in respect of which ad valorem duty in accordance with the law of the United Kingdom is paid, or

(b)  which is exempt from duty under the law of the United Kingdom.

(3)  The statement shall be lodged within 2 months after the change in beneficial ownership or, in the case of a statement for the purposes of subsection (1B), after the date of issue of the shares concerned, which is caused by or results from the transaction.

(4)  The statement shall be in a form approved by the Chief Commissioner.

(5)  The statement (not being a statement for the purposes of subsection (1B)) shall, for the purposes of this Act, be deemed to be an instrument effecting the transaction to which it relates and is chargeable with the ad valorem duty or duty referred to in subsection (1), (1A) or (2A) appropriate to the transaction.

(5A)  A statement for the purposes of subsection (1B) is taken to be an instrument effecting the transaction to which it relates and is chargeable with ad valorem duty as set out in the Second Schedule under the heading “Conveyances of Any Property”.

(6)  The statement shall, for the purposes of this Act, be deemed to have been first executed on the date on which the change in beneficial ownership occurs or, in the case of a statement for the purposes of subsection (1B), on the date of issue of the shares concerned.

(7)  The ad valorem duty with which a statement is chargeable shall be charged on:

(a)  the unencumbered value of the property (other than any goods, wares or merchandise to which section 43B (1) applies) the subject of the transaction as at the date on which the change in beneficial ownership occurs or, in the case of a statement for the purposes of subsection (1B), on the date of issue of the shares concerned, or

(b)  the amount of the consideration (other than consideration relating to any goods, wares or merchandise to which section 43B (1) applies) in respect of the transaction,

whichever is the greater, and shall be paid at the time of lodgment of the statement with the Chief Commissioner by the person required to lodge the statement.

s 44A: Ins 1987 No 85, Sch 1 (6). Am 1988 No 130, Sch 5 (3); 1990 No 95, Sch 1 (14); 1991 No 93, Sch 1 (2); 1994 No 48, Schs 9 (3), 11 (6); 1994 No 72, Sch 4 (2); 1996 No 125, Sch 1 (2).

44B Splitting of transactions

(1)  If:

(a)  2 or more transactions to which this Division applies, or

(b)  at least one transaction to which this Division applies and at least one instrument liable to ad valorem duty under this Act,

are entered into or executed, as the case may be:

(c)  in relation to separate parts of, or separate estates or interests in, the same property,

(d)  between the same parties or between one party and other parties, where the other parties are not at arms’ length from each other, and

(e)  within, or apparently within, a period of 12 months of each other,

the transactions or the transactions and instruments, as the case requires, shall, unless the Chief Commissioner is satisfied that it would not be just and reasonable in the circumstances, be deemed to constitute a single transaction relating to the whole of the property concerned and ad valorem duty shall be chargeable on:

(f)  the unencumbered value of the whole of that property as at the date on which the change in beneficial ownership occurs, or

(g)  the total amount of the consideration in respect of the whole of that property,

whichever is the greater.

(2)  If ad valorem duty has been paid in respect of a transaction or instrument referred to in subsection (1), the duty payable under that subsection shall be reduced by the amount of duty so paid.

s 44B: Ins 1987 No 85, Sch 1 (6).

44C Effect of execution of dutiable instruments

(1)  An instrument executed for the purpose of effecting or evidencing or apparently for the purpose of effecting or evidencing a transaction to which this Division applies, being a transaction in respect of which a statement has been duly stamped in accordance with section 44A, is not chargeable with duty under this Act to the extent to which duty has been paid on the statement.

(2)  A conveyance made in conformity with an instrument or statement referred to in subsection (1) shall be chargeable with duty of $1.

(3)  If, within 2 months after a change in beneficial ownership occurs as the result of a transaction to which this Division applies, an instrument chargeable with ad valorem duty (not being a statement under section 44A) is executed for the purpose of effecting or evidencing or apparently for the purpose of effecting or evidencing the transaction, section 44A ceases to apply to the transaction.

(4)  For the purposes of section 25 (Terms on which instruments may be stamped after execution), an instrument referred to in subsection (3) shall be deemed to have been first executed on the date on which the change in beneficial ownership occurs.

s 44C: Ins 1987 No 85, Sch 1 (6).

44D Aiding and abetting

A person who:

(a)  directly or indirectly, aids, abets, counsels or procures another person to enter into a transaction to which this Division applies, or

(b)  is, in any way, by act or omission, directly or indirectly concerned in, or party to, the entry by another person into a transaction to which this Division applies,

knowing or believing that the other person does not intend to lodge a statement under section 44A and pay duty in accordance with this Division in respect of the transaction, is guilty of an offence and liable to a fine not exceeding 50 penalty units.

s 44D: Ins 1987 No 85, Sch 1 (6). Am 1992 No 112, Sch 1.

44E (Repealed)

s 44E: Ins 1987 No 85, Sch 1 (6). Am 1992 No 112, Sch 1. Rep 1997 No 123, Sch 2.2 [5].

44F Ascertainment of value of property

Section 68 (Ascertainment of the value of property conveyed) applies to and in respect of a statement under section 44A (1B) in the same way as it applies to and in respect of a conveyance chargeable with ad valorem duty under this Act.

s 44F: Ins 1994 No 48, Sch 11 (7).

Division 3B First home purchase scheme

pt 3, div 3B: Ins 1987 No 227, Sch 2 (1).

45 Administration of the scheme

(1)  The Chief Commissioner shall administer the scheme set out in Schedule 2A.

(2)  The scheme confers no rights on a person except to the extent determined by the Chief Commissioner.

(3)  Schedule 2A has effect.

s 45: Am 1924 No 32, sec 6 (a); 1965 No 36, Sch. Rep 1974 No 110, sec 7 (d). Ins 1987 No 227, Sch 2 (1).

Division 3C Rental-purchase schemes

pt 3, div 3C (s 45AA): Ins 1988 No 130, Sch 3 (2).

45AA Rental-purchase schemes

Schedule 2B has effect.

pt 3, div 3C (s 45AA): Ins 1988 No 130, Sch 3 (2).

Division 3D Flood-prone housing scheme

pt 3, div 3D (s 45AB): Ins 1988 No 130, Sch 4 (1).

45AB Administration of the scheme

(1)  The Chief Commissioner shall administer the scheme set out in Schedule 2C.

(2)  The scheme confers no rights on a person except to the extent determined by the Chief Commissioner.

(3)  Schedule 2C has effect.

pt 3, div 3D (s 45AB): Ins 1988 No 130, Sch 4 (1).

Division 3E The Public Equity Partnership Arrangement and the Rent/Buy Scheme

pt 3, div 3E (ss 45AC, 45AD): Ins 1990 No 95, Sch 1 (18).

45AC Definitions

In this Division:

eligible land means:

(a)  land owned by N.S.W. Housing No. 1 Pty. Limited that the Chief Commissioner is satisfied is the subject of an arrangement known as the Public Equity Partnership Arrangement in which the New South Wales Land and Housing Corporation is a participant, and

(b)  land of which the trustee of the FANMAC Pooled Superannuation Trust No. 1 is an owner and which the Chief Commissioner is satisfied is the subject of a scheme known as the Rent/Buy Scheme in which the New South Wales Land and Housing Corporation is a participant.

eligible owner means N.S.W. Housing No. 1 Pty. Limited or the trustee of the FANMAC Pooled Superannuation Trust No. 1.

pt 3, div 3E (ss 45AC, 45AD): Ins 1990 No 95, Sch 1 (18).

pt 3, div 4: Rep 1991 No 93, Sch 3 (2).

s 45A, hdg: Ins 1924 No 32, sec 5 (i). Rep 1991 No 93, Sch 3 (2).

s 45A: Ins 1924 No 32, sec 5 (i). Am 1931 No 13, sec 4 (k); 1965 No 36, Sch; 1987 No 227, Sch 1 (4). Rep 1991 No 93, Sch 3 (2).

s 46: Rep 1990 No 66, Sch 1 (1).

pt 3, div 5: Rep 1990 No 66, Sch 1 (1).

s 46A: Ins 1966 No 55, sec 2 (b). Subst 1987 No 227, Sch 1 (5). Am 1988 No 130, Sch 5 (4). Rep 1990 No 66, Sch 1 (1).

s 47: Am 1922 No 20, sec 2 (b). Rep 1990 No 66, Sch 1 (1).

s 47A: Ins 1967 No 23, sec 2 (d). Subst 1974 No 71, sec 6 (a). Rep 1990 No 66, Sch 1 (1).

s 48: Am 1924 No 32, sec 6 (b) (i); 1965 No 36, Sch; 1966 No 55, sec 2 (c). Rep 1990 No 66, Sch 1 (1).

s 48A: Ins 1974 No 71, sec 6 (b). Rep 1990 No 66, Sch 1 (1).

s 49: Rep 1990 No 66, Sch 1 (1).

s 49A: Ins 1965 No 36, sec 10. Subst 1967 No 23, sec 2 (e). Rep 1990 No 66, Sch 1 (1).

s 50: Subst 1924 No 32, sec 6 (b) (ii). Am 1965 No 36, Sch. Rep 1990 No 66, Sch 1 (1).

s 51: Am 1931 No 13, sec 4 (1); 1965 No 36, Sch; 1982 No 133, Sch 2 (7). Rep 1990 No 66, Sch 1 (1).

s 52: Am 1924 No 32, sec 6 (b) (iii). Rep 1990 No 66, Sch 1 (1).

pt 3, div 6: Rep 1989 No 223, Sch 1 (2).

s 53: Am 1931 No 13, sec 4 (m) (i); 1933 No 12, sec 2 (d) (i). Rep 1989 No 223, Sch 1 (2).

s 53A: Ins 1924 No 32, sec 6 (c). Rep 1989 No 223, Sch 1 (2).

s 54: Am 1931 No 13, sec 4 (m) (iii)–(vii); 1965 No 36, Sch; 1986 No 193, Sch 7 (3). Rep 1989 No 223, Sch 1 (2).

pt 3, div 7: Rep 1989 No 223, Sch 1 (2).

s 55: Rep 1989 No 223, Sch 1 (2).

s 56: Am 1986 No 193, Sch 7 (4). Rep 1989 No 223, Sch 1 (2).

s 57: Rep 1989 No 223, Sch 1 (2).

s 57A: Ins 1931 No 13, sec 4 (n) (i). Am 1965 No 36, Sch. Rep 1989 No 223, Sch 1 (2).

pt 3, div 8: Rep 1989 No 223, Sch 1 (2).

s 58: Am 1931 No 13, sec 4 (o) (i); 1965 No 36, Sch; 1966 No 55, sec 2 (d). Rep 1989 No 223, Sch 1 (2).

s 59, hdg: Rep 1933 No 12, sec 2 (e) (i).

s 59: Am 1924 No 32, sec 7 (b) (i); 1931 No 13, sec 4 (p). Rep 1933 No 12, sec 2 (e) (i).

s 60: Am 1924 No 32, sec 7 (b) (ii). Rep 1933 No 12, sec 2 (e) (i).

pt 3, div 9: Rep 1990 No 95, Sch 1 (19).

s 61: Am 1940 No 50, sec 5 (1) (b). Rep 1990 No 95, Sch 1 (19).

s 62: Am 1965 No 36, Sch; 1986 No 193, Sch 7 (5). Rep 1990 No 95, Sch 1 (19).

s 63: Am 1940 No 50, sec 5 (1) (c); 1965 No 36, Sch; 1966 No 55, sec 7 (b); 1985 No 219, Sch 3 (4). Rep 1990 No 95, Sch 1 (19).

s 64: Am 1955 No 30, sec 2 (d); 1965 No 36, sec 3 (e). Rep 1990 No 95, Sch 1 (19).

45AD Liability to duty in respect of housing schemes to which this Division applies

(1)  The New South Wales Land and Housing Corporation is to pay duty that would otherwise be payable by an eligible owner on an instrument executed in relation to eligible land for the purposes of the arrangement known as the Public Equity Partnership Arrangement or the scheme known as the Rent/Buy Scheme.

(2)  The New South Wales Land and Housing Corporation is to pay the duty payable on any sovereign risk insurance policy or any correlation insurance policy issued in relation to the arrangement known as the Public Equity Partnership Arrangement.

(3)  A payment made under this section is to be regarded as an expense of the New South Wales Land and Housing Corporation.

pt 3, div 3E (ss 45AC, 45AD): Ins 1990 No 95, Sch 1 (18).

Divisions 4–9

45A–64   (Repealed)

Division 10 Conveyances

65 Definition of conveyance and convey

For the purposes of this Act the expression conveyance includes any transfer, lease, assignment, exchange appointment, settlement, surrender, release, foreclosure, disclaimer, declaration of trust, and every other instrument (except a will), and every decree, judgment or order of any court whereby any property in New South Wales is transferred to or vested in or accrues to any person, and also includes a covenant to pay money not made for a full consideration in money or money’s worth, the money covenanted to be paid to be regarded as the property conveyed, and convey has a meaning corresponding with that of conveyance. Conveyance on sale includes every instrument and every decree, judgment or order of any court whereby any property on the sale thereof is conveyed to a purchaser or other person on his behalf or by his direction.

s 65: Am 1924 No 32, sec 8 (i); 1931 No 13, sec 4 (q); 1970 No 52, Second Sch.

66 Duty on conveyances

(1)  Subject to the provisions of this Act every conveyance is to be charged with ad valorem duty in respect of the unencumbered value of the property thereby conveyed.

(2) 

(a)  A conveyance on sale of any property is to be charged with ad valorem duty on the amount or value of the consideration for the sale.

(b)  If the amount or value of the consideration is less than the unencumbered value of the property the duty is to be charged on the unencumbered value of the property ascertained in accordance with section 68.

(3)  A conveyance of property made without consideration in money or money’s worth is to be charged with ad valorem duty on whichever is the greater of:

(a)  the unencumbered value of the property ascertained in accordance with section 68, or

(b)  the amount or value of all encumbrances (whether certain or contingent) subject to which the property is conveyed.

(3A)  A conveyance of property made upon a bona fide consideration in money or money’s worth of less than the unencumbered value of the property is to be charged with ad valorem duty on whichever is the greater of:

(a)  the unencumbered value of the property ascertained in accordance with section 68, or

(b)  the amount obtained by aggregating together:

(i)  the amount or value of the consideration ascertained in accordance with this Act, and

(ii)  the amount or value of all encumbrances (whether certain or contingent) subject to which the property is conveyed,

but the Chief Commissioner, where he is satisfied that the consideration paid was agreed to as representing the true market value of the property, may treat the conveyance as a conveyance on sale and stamp the conveyance accordingly with ad valorem duty on the unencumbered value of the property ascertained in accordance with section 68.

(3B)  A conveyance of property made upon a bona fide consideration in money or money’s worth of not less than the unencumbered value of the property, not being a conveyance on sale of the property, is to be charged with ad valorem stamp duty on the amount obtained by aggregating together:

(a)  the amount or value of the consideration ascertained in accordance with this Act, and

(b)  the amount or value of all encumbrances (whether certain or contingent) subject to which the property is conveyed.

(3C)  Nothing in subsection (3), (3A), or (3B) of this section affects the operation of section 73.

(4)  A conveyance by way of exchange is to be charged with ad valorem duty under the preceding provisions of this section as a conveyance of all the property comprised therein, and the person to whom property is conveyed by way of exchange is to be deemed the purchaser thereof, and the person by whom property is so conveyed is to be deemed the seller thereof.

(5)  The balance due to the Crown for the conversion of a holding under any Act into a fee simple absolute shall not be deemed part of the consideration for a conveyance.

(6)  Subsections (3A), (3B), (3C) and (3D) of section 41 apply to and in respect of a conveyance in the same way as they apply to and in respect of an agreement for sale or conveyance and, in so applying those subsections:

(a)  the reference in subsection (3A) of section 41 to the purchaser or person to whom the property is agreed to be conveyed shall be read and construed as if it were a reference to the person primarily liable in respect of the conveyance, and

(b)  the reference in subsection (3A) of section 41 to $10 shall be read and construed as if it were a reference to $1.

s 66: Subst 1924 No 32, sec 8 (ii). Am 1931 No 13, sec 4 (r) (i)–(v); 1933 No 12, secs 2 (g) (k), 3 (d); 1978 No 139, Sch 2 (2); 1980 No 161, Sch 2 (1); 1985 No 219, Sch 1 (1).

66A Agreements and conveyances on sale—concession for purchases of private dwelling houses

(1)  Where it is proved to the satisfaction of the Chief Commissioner that:

(a)  land included in an agreement for sale at the date of such agreement was improved, there being erected thereon a private dwelling house, and

(b)  the property comprised in the agreement was being purchased by the person named therein as the purchaser with intent that he and members of his family would use such private dwelling house as their place of residence, and

(c)  such agreement was not entered into by such person with the intention of renting, leasing, or otherwise using such private dwelling house as a source of income or of reselling such private dwelling house at a profit, and

(d)  neither the unencumbered value of such property nor the amount or value of the consideration for the sale calculated and determined in accordance with the provisions of this Act was in excess of ten thousand dollars,

the stamp duty chargeable on the agreement for the sale of such property or on the conveyance of such property where the agreement for the sale was not evidenced in writing shall be reduced by an amount equal to ten per centum of the ad valorem duty chargeable on the amount or value of such consideration.

The provisions of this subsection shall apply, mutatis mutandis, to and in respect of an agreement for the exchange of real property being a private dwelling house or a conveyance by way of exchange of real property being a private dwelling house.

(2)  In this section private dwelling house includes a lot within a strata plan, used as a place of residence.

(2A)  In this section:

(a)  a reference to an agreement for sale of land or property, in relation to a private dwelling house which is a lot within a strata plan, is a reference to an agreement for the sale of the leasehold interest in the lot, and

(b)  a reference to that land or property is a reference to the leasehold interest in that lot.

(3)  No assessment of a reduced amount of stamp duty in accordance with this section shall be made by the Chief Commissioner unless there is lodged with the Chief Commissioner the instrument chargeable with ad valorem duty as aforesaid together with such evidence on oath or otherwise including evidence of value as the Chief Commissioner deems necessary.

(4)  Until such time as the Chief Commissioner is satisfied in accordance with the provisions of subsection (1) of this section the reduced amount of stamp duty as aforesaid shall not be the stamp duty chargeable and payable on such instrument.

s 66A: Ins 1965 No 36, sec 11. Am 1965 No 36, Sch; 1973 No 68, Sch 3; 1986 No 220, Sch 1; 1996 No 139, Sch 2.29 [1] [2].

66B Conveyance to or from joint tenants

(1)  In any case where property is conveyed to persons as joint tenants or by persons as joint tenants and one or more of such persons is or are a conveyor or conveyors and a conveyee or conveyees, the conveyance shall, for the purpose of assessment of duty on such instrument, be construed as if any reference to joint tenants is read as tenants in common and for this purpose:

(a)  where property is conveyed by persons as joint tenants the value of the share or interest of each joint tenant in the jointly held property immediately prior to the conveyance shall be the proportion of the unencumbered value of such property that one bears to the total number of such persons,

(b)  where property is conveyed to persons as joint tenants the value of the share or interest of each joint tenant in the jointly held property immediately after the conveyance shall be the proportion of the unencumbered value of such property that one bears to the total number of such persons, and

(c)  where the consideration or part of the consideration for the conveyance is a debt, any joint liability in respect thereof shall be construed as a liability of each person in the proportion that one bears to the total number of persons so jointly liable therefor.

(2)  Such conveyance shall be chargeable with duty of $10 in addition to any ad valorem duty chargeable in accordance with the provisions of this Act.

(3)  The provisions of subsection (1) of this section shall not apply to a conveyance where the conveyor or conveyors or conveyee or conveyees is or are a trustee or trustees for himself or themselves either alone or together with any other person or persons or for any other person or persons.

s 66B: Ins 1966 No 55, sec 2 (e). Am 1974 No 71, sec 4 (c); 1985 No 219, Sch 1 (2).

66C Conveyance subject to an option

(1)  Where any property or estate or interest therein is agreed to be conveyed or is conveyed to any person subject to the exercise of an option to purchase such property or estate or interest therein, whether the option is exercisable in writing or otherwise, the agreement or the conveyance, as the case may be, is to be charged with duty in accordance with the provisions of this Act as a conveyance of the property the subject of the option and the consideration for such conveyance shall be deemed to be an amount equal to the amount payable in the event of the option being exercised.

(2)  Where duty has been paid in conformity with subsection (1) of this section on an agreement the conveyance made in conformity with the agreement shall not be chargeable with ad valorem duty and on production of the duly stamped agreement to the Chief Commissioner such conveyance made in conformity therewith is to be charged with a duty of one dollar.

(3)  The duty payable under subsections (1) and (2) of this section is payable by the parties to the agreement or conveyance or any one of them.

(4)  Where the Chief Commissioner is satisfied:

(a)  that the option has not been exercised, and

(b)  that the period during which the option may be exercised has expired, and

(c)  where the property or estate or interest therein was conveyed to the person to whom the option was granted or his nominee, that the property or estate or interest therein has been reconveyed to the person from whom it was conveyed or has been conveyed to a person to whom the property or estate or interest therein has been transmitted by death or bankruptcy,

the Chief Commissioner shall refund the ad valorem duty paid on the agreement or conveyance less an amount equal to any duty which would have been payable but for this section.

(5)  Where duty has been paid in conformity with the foregoing provisions an agreement made in pursuance of and by the exercise of the option shall not be chargeable with ad valorem duty but shall be chargeable with a duty of $10.

s 66C: Ins 1966 No 55, sec 2 (e). Am 1974 No 71, sec 4 (d); 1985 No 219, Sch 1 (2).

66D Transfer or conveyance of certain land by way of mortgage

(1)  A transfer or conveyance by way of mortgage of land, or an estate or interest in land, under the Real Property Act 1900 is to be charged with ad valorem duty on the unencumbered value of the land, or the estate or interest, as the case may require, ascertained in accordance with section 68.

(2)  The rate of ad valorem duty to be charged in respect of a transfer or conveyance referred to in subsection (1) of this section is the rate provided in the Second Schedule to this Act for a conveyance of land on a sale for a consideration in money or money’s worth of not less than the unencumbered value of the land as if the unencumbered value of the land, or the estate or interest, as the case may require, ascertained in accordance with section 68 were the amount of the consideration.

(3)  The duty payable in accordance with subsections (1) and (2) of this section is payable by the parties to the transfer or conveyance or any one of them.

(4)  Where the Chief Commissioner is satisfied:

(a)  that there has been a transfer or conveyance by way of mortgage of land, or an estate or interest in land, under the Real Property Act 1900 from a mortgagor to a mortgagee,

(b)  that duty has been paid in accordance with subsections (1) and (2) of this section on the transfer or conveyance, and

(c)  that the land, or the estate or interest, as the case may require, has been retransferred or reconveyed to the mortgagor or to a person to whom the land, estate or interest has been transmitted by death or bankruptcy and the mortgagor or person, as the case may require, is the registered proprietor, within the meaning of the Real Property Act 1900, of the land, estate or interest,

the Chief Commissioner shall refund the ad valorem duty paid on the transfer or conveyance by way of mortgage less the amount of duty that would have been payable on that transfer or conveyance if it were a loan security.

s 66D: Ins 1980 No 161, Sch 3 (1).

66E Conveyance between married couples

(1)  In this section:

de facto married couple means a man and a woman who, although not legally married to each other, are living with each other as husband and wife on a bona fide domestic basis.

married couple includes a de facto married couple.

private dwelling house includes a lot within a strata plan used as a place of residence.

(2)  A conveyance of property is exempt from stamp duty, if it is proved to the satisfaction of the Chief Commissioner that:

(a)  as a result of the conveyance, the property is held by a married couple as:

(i)  joint tenants,

(ii)  tenants in common in equal shares, or

(iii)  tenants in common in shares, other than equal shares, and the resulting share of the person to whom the property is conveyed is less than a half share, or

(iv)  tenants in common in shares, other than equal shares, and, if the resulting share of the person to whom the property is conveyed is more than a half share, the shares are proportionate to the contributions of the parties towards the purchase and improvement of the property or are in such proportions (if any) as may be prescribed and have been created in circumstances (if any) as may be prescribed,

(b)  the property qualifies under subsection (2A),

(c)  the conveyor was the married couple or one of them, the conveyee was the married couple or one of them and no other person was a conveyor or conveyee, and

(d)  in the case of a de facto married couple, the parties to the relationship have lived in the relationship for at least the 2 years before the date of the conveyance.

(2A)  Property qualifies under this subsection if:

(a)  the property has erected on it a private dwelling house and was solely or principally used, as at the date of the conveyance, as the married couple’s principal place of residence, or

(b)  the property is vacant land and the married couple intend to use it as the site of a private dwelling house to be solely or principally used as the married couple’s principal place of residence.

(3)  A person who has or persons who have paid duty on a conveyance of property is or are entitled to a refund of the duty if the person is or the persons are able to satisfy the Chief Commissioner that:

(a)  the person is one of a married couple or the persons are a married couple,

(b)  the property, as at the date of the conveyance, was vacant land,

(c)  the property, as at the date of application for the refund, has erected on it a private dwelling house which is solely or principally used as the married couple’s principal place of residence,

(d)  had the dwelling house been erected on the property as at the date of the conveyance and been solely or principally used, as at that date, as the married couple’s principal place of residence, the conveyance would have been exempt, under this section, from stamp duty, and

(e)  the application for the refund has been made within 12 months after the dwelling house came to be so used.

(4)  An application under subsection (3) shall be made in the form approved by the Chief Commissioner.

s 66E: Ins 1986 No 193, Sch 1 (1). Am 1987 No 85, Sch 5 (6); 1987 No 227, Sch 1 (6); 1988 No 130, Sch 5 (5); 1992 No 86, Sch 6 (7); 1994 No 48, Sch 10 (1); 1996 No 139, Sch 2.29 [3].

66F Exemption for assignment of rent to vendor of land

Notwithstanding any other provision of this Act, duty is not chargeable in respect of an assignment of, or agreement to assign, rent payable under a lease of property or premises on property if:

(a)  the assignment is by, or the assignment provided for by the agreement is by, the purchaser to the vendor of the property under an agreement for the sale of the property, and

(b)  the rent assigned or agreed to be assigned is rent payable in respect of a period for which allowance has been or is to be made between the vendor and the purchaser under that agreement for sale.

s 66F: Ins 1992 No 86, Sch 6 (8).

66G Conveyance back to bankrupt by trustee

A conveyance of real property is exempt from stamp duty if it is a conveyance of property back to a former bankrupt by the trustee of the estate of the former bankrupt.

s 66G: Ins 1994 No 48, Sch 10 (2).

66H Intergenerational rural transfers

(1)  Notwithstanding any other provision of this Act, duty is not chargeable in respect of an instrument, being a conveyance or agreement for sale of land, a lease of land, or a transfer or assignment of a lease or permit in respect of land, used for primary production, together with any other property that is an integral part of the business of primary production, being an instrument first executed on or after 14 September 1994, if the Chief Commissioner is satisfied that:

(a)  the land was land used for primary production by the transferor, lessor or assignor immediately before the date of first execution of the instrument, and

(b)  the land will continue to be land used for primary production by the transferee, lessee or assignee, and

(c)  the parties to the instrument are parties of a class identified in guidelines approved from time to time by the Treasurer, and

(d)  the transaction satisfies such other requirements as may be contained in those guidelines.

(2)  Notwithstanding any other provision of this Act, duty is not chargeable in respect of a transfer of shares in a share management fishery within the meaning of the Fisheries Management Act 1994, being a transfer first executed on or after 14 September 1994, if the Chief Commissioner is satisfied that:

(a)  the parties to the instrument are parties of a class identified in guidelines approved from time to time by the Treasurer, and

(b)  the transaction satisfies such other requirements as may be contained in those guidelines.

(3)  In this section, land used for primary production has the same meaning as in section 43B (5) and includes:

(a)  an oyster farm or fish farm within the meaning of the Fisheries and Oyster Farms Act 1935, or

(b)  land subject to an aquaculture permit or aquaculture lease within the meaning of the Fisheries Management Act 1994.

s 66H: Ins 1994 No 72, Sch 4 (3). Am 1995 No 98, Sch 7 (8) (9); 1997 No 37, Sch 6 [1]–[3].

67 (Repealed)

s 67: Rep 1924 No 32, sec 8 (ii).

68 Ascertainment of the value of property conveyed

(1)  In the case of every conveyance and agreement chargeable with ad valorem duty under this Act the Chief Commissioner may require the purchaser or other person primarily liable with respect to such instrument to furnish him within the time specified by him with a declaration by a competent valuer as to the value of the property comprised in such instrument, or with such other evidence of the value of such property as the Chief Commissioner thinks fit, and may assess the duty in accordance therewith.

(2)  If the Chief Commissioner is not satisfied with such evidence of value he may cause a valuation of the property to be made and may assess the duty on the footing of such valuation.

(3)  Any such assessment shall be subject to objection and appeal in the manner and subject to the conditions prescribed by section 124.

(4)  If there is no appeal against such assessment the Chief Commissioner may add the whole or any part of the expenses incurred by him in obtaining such valuation to the duty payable and the same shall be recoverable as part of the duty payable in respect of such instrument.

(5)  If there is an appeal as aforesaid the payment of such expenses shall be in the discretion of the court hearing the appeal.

s 68: Am 1924 No 32, sec 8 (iii); 1992 No 33, Sch 1 (5).

69 How ad valorem duty to be calculated in respect of marketable securities

(1)  Subject to the provisions of paragraph (b) of subsection (2) of section 66, where the consideration, or any part of the consideration, for a conveyance on sale consists:

(a)  of any marketable security, such conveyance is to be charged with ad valorem duty in respect of the value of such security,

(b)  of any security not being a marketable security, such conveyance is to be charged with ad valorem duty in respect of the amount due on the day of the date thereof for principal and interest,

(c)  of shares or debentures to be issued by a company or a contract to issue such shares or debentures, such conveyance is to be charged with ad valorem duty in respect of the face value of the shares or debentures,

(d)  of money payable periodically for a definite period, so that the total amount to be paid can be previously ascertained, such conveyance is to be charged in respect of such consideration with ad valorem duty on such total amount,

(e)  of money payable periodically in perpetuity or for any indefinite period not terminable with life, such conveyance is to be charged in respect of such consideration with ad valorem duty on the total payable during the period of fifteen years next after the day of the date of such instrument,

(f)  of money payable periodically during any life or lives, such conveyance is to be charged in respect of such consideration with ad valorem duty on the amount which will or may, according to the terms of sale, be payable during the period of nine years next after the day of the date of such instrument,

unless the duty so charged would be less than the amount of duty that would be chargeable if the conveyance were charged with ad valorem duty on the unencumbered value of the property conveyed, in which case the conveyance is to be charged with ad valorem duty on the unencumbered value of that property.

(2)  No conveyance chargeable with ad valorem duty in respect of periodical payments, and containing also provision for securing such periodical payments, is to be charged with any duty whatsoever in respect of such provision, and no separate instrument made in any such case for securing such periodical payments is to be charged with any higher duty than $10.

s 69: Am 1924 No 32, sec 8 (iv); 1955 No 30, sec 2 (e); 1965 No 36, Sch; 1974 No 71, sec 4 (e); 1982 No 134, Sch 2; 1985 No 219, Sch 1 (2).

70 How conveyance in consideration of a debt or subject to future payment, to be charged

(1)  Where property is conveyed to any person in consideration wholly or in part of any debt due to him or subject either certainly or contingently to the payment or transfer of any money or marketable security, whether being or constituting a charge or incumbrance upon the property or not, such debt, money, or marketable security is to be deemed the whole or part, as the case may be, of the consideration in respect whereof the conveyance is chargeable with ad valorem duty.

(2)  Where there is more than one owner of property, and one of such owners sells his share or interest therein in consideration of any such debt, or subject as mentioned in the last preceding subsection, then the duty shall be assessed and paid on or in respect of the share or interest of the vendor in such debt, money, or marketable security as aforesaid, and any further or other consideration (if any), and not on the full amount or value of such debt, money, or marketable security as the case may be.

71 As to the sale of an annuity or right not before in existence

(1)  Where upon the sale or upon the gift or creation of any annuity or other right not before in existence such annuity or other right is not created by actual grant or conveyance, but is only secured by bond, warrant of attorney, covenant, contract, or otherwise, the bond or other instrument, or some one of such instruments, if there is more than one, is to be charged with the same duty as a conveyance.

(2)  This section shall not apply and shall be deemed never to have applied to an instrument whereby provision is made for the payment of any annuity, pension or superannuation for the benefit of any person in relation to his employment and/or the dependants of any such person.

The enactment of this subsection shall not entitle any person to a refund of any duty paid by him before the commencement of the Finances Adjustment Act 1938.

(3)  Notwithstanding any other provision of this Act, duty shall not be chargeable in respect of any instrument whereby an annuity:

(a)  is issued, created or sold by a company registered under the Life Insurance Act 1945 of the Commonwealth or a prescribed person, or

(b)  is purchased by a person from any such company or a prescribed person,

where the issue, creation, sale or purchase, as the case may be, occurs on or after 6 February 1985.

s 71: Am 1931 No 13, sec 4 (s); 1938 No 13, sec 6 (a); 1985 No 219, Sch 3 (5); 1992 No 34, Sch 1.

72 Where several instruments, one only to be charged with ad valorem duty

Where several instruments are executed for effecting the conveyance of the same property, one only of such instruments is to be charged with the ad valorem duty, and each of the other instruments is to be charged with a fixed duty of $10.

s 72: Am 1924 No 32, sec 8 (v); 1931 No 13, sec 4 (t); 1955 No 30, sec 2 (f); 1965 No 36, Sch; 1974 No 71, sec 4 (f); 1985 No 219, Sch 1 (2).

73 Certain conveyances not chargeable with ad valorem duty

(1)  The following instruments are not to be charged with ad valorem duty as conveyances, namely:

(a)  

(i)  An instrument appointing a new trustee, or

(ii)  an instrument appointing an additional trustee, or

(iii)  an instrument by which a trustee retires from a trust without any new trustee being appointed in his place, or

(iv)  a declaration by an executor under section 11 of the Trustee Act 1925.

(b)  A conveyance not made for valuable consideration and made to a beneficiary under and in conformity with the trusts contained in a conveyance, declaration of trust or other instrument on which ad valorem stamp duty imposed by an Act in force at the time of its execution has been paid or which, by an Act so in force, was exempt from stamp duty, but only to the extent that the conveyance to the beneficiary is a conveyance of property that the Chief Commissioner is satisfied is wholly or substantially the same as:

(i)  property that, at the time of the execution of the instrument containing the trusts, was held or to be held by the trustees upon those trusts and was property in respect of which that ad valorem duty was paid or that exemption applied,

(ii)  property representing the proceeds of re-investment of property referred to in subparagraph (i) of this paragraph, or

(iii)  property referred to in both subparagraph (i) and subparagraph (ii) of this paragraph.

(c)  An instrument made or executed bona fide by way of completion or confirmation of title whereby no greater benefit, legal or equitable, accrues to the person in whose favour the instrument is made or executed than he originally had or was entitled to have by virtue of some other instrument which is duly stamped with ad valorem duty as a conveyance or declaration of trust.

(d)  An instrument of appointment in favour of persons specially named or described as the objects of a power of appointment contained in a conveyance on which ad valorem stamp duty imposed by an Act in force at the time of its execution has been paid or which, by an Act so in force, was exempt from stamp duty, but only to the extent that property conveyed by exercise of the power of appointment is property that the Chief Commissioner is satisfied is wholly or substantially the same as:

(i)  property in respect of which that ad valorem duty was paid or that exemption applied, or

(ii)  property representing the proceeds of re-investment of property referred to in subparagraph (i), or

(iii)  property referred to in both subparagraph (i) and subparagraph (ii).

(e)  A conveyance whereby the apparent purchaser of property that is vested in him upon trust for the person who was the real purchaser and who has actually paid the purchase money therefor, conveys the same to the real purchaser.

(f)  A conveyance not made for valuable consideration and made to a beneficiary by a trustee under and in conformity with the trusts contained in a will or arising on an intestacy and in either case in respect of property on which death duty or duty under an Act imposing duties on the estates of deceased persons has been paid or which, by such an Act, is exempt from death duty or in respect of which no death duty is, by virtue of such an Act, chargeable.

(g)  A conveyance first executed on or after 19 July 1985, not made for valuable consideration and made to a beneficiary by a trustee, being a conveyance of property the subject of a trust for sale contained in a will and in respect of property on which death duty or duty under an Act imposing duties on the estates of deceased persons has been paid or which, by such an Act, is exempt from death duty or in respect of which no death duty is, by virtue of such an Act, chargeable.

(1A)  For the purposes of this section, paragraph (4) (b) of the matter appearing in the Second Schedule under the heading “Conveyances of any Property” and paragraph (4) of the matter appearing in the Second Schedule under the heading “Transfer of Shares”, where the amount of $200 duty chargeable pursuant to paragraph (2) (a) of the matter appearing in the Second Schedule under the heading “Declaration of Trust” is paid in respect of an instrument, ad valorem stamp duty shall, to the extent of that amount, be deemed to have been paid on the instrument.

(2)  In each of the aforesaid cases the instruments not chargeable with ad valorem duty are to be charged with the duty of $10.

(2A)  Where a conveyance made for nominal consideration is consequential upon the making of a decision which is recorded in writing and which has the same effect as an instrument referred to in subsection (1) (a) (i), (ii) or (iii) or the execution of such an instrument (whether the trust affected by the instrument is expressed or implied) the duty with which the conveyance is to be charged is $2 if:

(a)  where, by the decision or the instrument upon the execution of which the conveyance is consequential, a new or additional trustee is appointed—the conveyance, upon taking effect, would operate to vest the trust property for which the new or additional trustee is appointed in the persons who become and are the trustees for performing the trust, or

(b)  where, by the decision or the instrument upon the execution of which the conveyance is consequential, a trustee retires—the conveyance, upon taking effect, would operate to vest in the continuing trustee alone the trust property that was vested jointly in the trustee who retired and the continuing trustees,

and the Chief Commissioner is satisfied:

(c)  that, subject to subsection (2AA) of this section, none of the persons who, after the appointment of a new or additional trustee by the decision or the instrument upon the execution of which the conveyance is consequential, are the trustees for performing the trust is, or can become, a beneficiary under the trust, or

(d)  that, subject to subsection (2AA) of this section, none of the continuing trustees remaining after the retirement of a trustee pursuant to the decision or the instrument upon the execution of which the conveyance is consequential is, or can become, a beneficiary under the trust.

(2AA)  A reference in subsection (2A) (c) or (d) of this section to trustees (whether as trustees for performing a trust or as continuing trustees) does not include a reference to:

(a)  the Public Trustee,

(b)  a trustee company within the meaning of the Trustee Companies Act 1964,

(c)  a corporation that is constituted under the law of another State or of a Territory of the Commonwealth and, in the opinion of the Chief Commissioner, corresponds in that State or Territory to the Public Trustee or a trustee company referred to in paragraph (b) of this subsection, or

(d)  the trustees of a fund which is a complying superannuation fund or which, in the opinion of the trustees, will become a complying superannuation fund within 12 months after the execution of the instrument referred to in subsection (1) (a) (i), (ii) or (iii).

(2AB)  Where the Chief Commissioner is not satisfied as provided by subsection (2A) (c) or (d) of this section, the duty chargeable on a conveyance of property that is consequential upon the making of a decision which is recorded in writing and which has the same effect as an instrument referred to in subsection (1) (a) (i), (ii) or (iii) or the execution of such an instrument and that has the operation referred to in subsection (2A) (a) or (b) of this section is the same duty as would be chargeable if the conveyance were a conveyance to a beneficiary under and in conformity with the trusts to which the decision or the instrument relates except that, where that duty is ad valorem stamp duty, it is not chargeable in relation to property that the Chief Commissioner is satisfied is wholly or substantially property subject to those trusts in respect of which ad valorem stamp duty has previously been paid on the instrument creating the trusts or under this subsection or is property representing the proceeds of reinvestment of any such property.

(2AC)  Where:

(a)  duty pursuant to subsection (2AB) of this section has been paid on a conveyance of property that is consequential upon the making of a decision which is recorded in writing and which has the same effect as an instrument referred to in subsection (1) (a) (i), (ii) or (iii) or the execution of such an instrument and has the operation referred to in subsection (2A) (a) or (b) of this section, and

(b)  under and in conformity with the trusts to which the decision or the instrument relates the property subject to the trusts is vested in a beneficiary (other than a trustee for performing those trusts) by an instrument on which duty under section 73 (2) or ad valorem duty has been paid, or which is exempt from duty,

the Chief Commissioner shall refund the amount of duty referred to in paragraph (a) of this subsection, less 1 dollar.

(2AD)  A conveyance not made for valuable consideration is chargeable with a duty of $2 if it is made to the trustees appointed (otherwise than pursuant to a decision which is recorded in writing and which has the same effect as an instrument referred to in subsection (1) (a) (i), (ii) or (iii) or such an instrument) to perform the trusts created by an instrument on which ad valorem stamp duty imposed by an Act in force at the time of its execution has been paid or which, by an Act so in force, was exempt from stamp duty but only to the extent that the property comprised in the conveyance to the trustees is the same property as the property in respect of which ad valorem duty was paid on that instrument or in respect of which that exemption applied.

(2AE)  A conveyance of a marketable security or a unit in a unit trust scheme or of a right to acquire a marketable security or a unit in a unit trust scheme, being a conveyance which the Chief Commissioner is satisfied:

(a)  does not result in changing the persons who have a beneficial interest in the property conveyed, and

(b)  does not result in any such person acquiring a legal or a greater interest in that property, and

(c)  is not made in contemplation of any change in a beneficial interest in that property,

is not to be charged with ad valorem duty as a conveyance but is to be charged with duty of $2.

(2AF)  A conveyance of a marketable security or a unit in a unit trust scheme or of a right to acquire a marketable security or a unit in a unit trust scheme is not to be charged with ad valorem duty as a conveyance but is to be charged with duty of $10, if the Chief Commissioner is satisfied that the conveyance:

(a)  conveys the same property previously conveyed in a conveyance not subject to ad valorem duty because of subsection (2AE), and

(b)  conveys the property to the person who has the beneficial interest in the property conveyed and who had the beneficial interest at the time of that previous conveyance.

(2B)  An instrument on which duty is payable:

(a)  under paragraph (7) of the matter appearing in the Second Schedule to this Act under the heading “Conveyances of any Property”, or

(b)  under paragraph (5) or (6) of the matter appearing in the Second Schedule to this Act under the heading “Transfer of Shares”,

is not to be charged with ad valorem duty as a conveyance except to the extent, if any, provided in those paragraphs.

(3)  Nothing in this section shall be deemed to exempt any of such instruments from liability to any other duty to which it is or may be liable under this Act, or to extend to any instrument referred to in paragraph (2) of the matter appearing in the Second Schedule under the heading “Declaration of Trust”.

s 73: Am 1924 No 32, sec 8 (vi); 1931 No 13, sec 4 (u) (i) (v) (i) (iii) (v) (viii); 1933 No 12, sec 2 (1); 1955 No 30, sec 2 (g); 1965 No 36, Sch; 1974 No 71, sec 4 (g); 1974 No 110, sec 7 (f); 1980 No 161, Sch 1 (2); 1982 No 134, Sch 3 (1); 1985 No 219, Schs 1 (2), 3 (6); 1990 No 95, Sch 1 (6); 1991 No 93, Sch 1 (3); 1992 No 33, Sch 1 (6) (7); 1992 No 86, Sch 6 (18); 1994 No 48, Sch 10 (3); 1994 No 72, Sch 4 (4); 1998 No 44, Sch 5 [4].

73AA Exemption from or reduction in duty for certain conveyances

(1)  The Chief Commissioner is to administer the scheme set out in Schedule 2D.

(2)  Schedule 2D has effect.

s 73AA: Ins 1989 No 113, Sch 2 (1). Am 1990 No 45, Sch 1 (4). Subst 1990 No 95, Sch 2 (1). Am 1994 No 72, Sch 4 (5).

Division 11 Conveyances by possessory application

pt 3, div 11, hdg: Subst 1982 No 134, Sch 4 (3).

73A Valuation of land in possessory application

s 73A, hdg: Ins 1979 No 28, sec 3 (a).

Notwithstanding section 125 (1) of this Act, duty payable in respect of a possessory application under the Real Property Act 1900 shall be paid:

(a)  where the land to which the application relates has been valued under the Valuation of Land Act 1916—according to the land value of the land as last determined under that Act, or

(b)  in any other case—according to the land value of land within the meaning of the Valuation of Land Act 1916 determined by such means as the Chief Commissioner thinks fit.

s 73A: Ins 1979 No 28, sec 3 (a). Am 1981 No 119, Sch 1; 1986 No 193, Sch 9 (3).

73B Waiver of certain duties

Where the Registrar-General grants a possessory application under the Real Property Act 1900, payment of duty on the application as provided by this Act operates as a waiver of:

(a)  any unpaid duty on an instrument executed before the making of the application in so far as the instrument relates to the land the subject of the application, and

(b)  any death duty payable before the making of the application but not assessed by reason of a failure to disclose as part of the estate of a deceased person the land the subject of the application.

s 73B: Ins 1979 No 28, sec 3 (a).

Division 11A Copies of instruments

pt 3, div 11A (ss 73C, 73D): Ins 1982 No 134, Sch 4 (4).

73C Definitions

For the purposes of this Division and of the matter appearing under the heading “Copies of Instruments” in the Second Schedule:

copy, in relation to an original instrument, means an unexecuted instrument in which, in the opinion of the Chief Commissioner, the matter contained in the original instrument is wholly or substantially reproduced, whether or not the matter reproduced has the same appearance as the matter contained in the original instrument, but does not include a replica within the meaning of section 89B.

original instrument means an instrument that is chargeable with duty otherwise than pursuant to section 73D (1).

pt 3, div 11A (ss 73C, 73D): Ins 1982 No 134, Sch 4 (4).

73D Certain copies of instruments to be dutiable

(1)  A copy of an original instrument is chargeable with duty if the original instrument was executed on or after 20th October 1982, and such a copy is so chargeable as if it had been executed in the same way as the original instrument and had been first executed at the same time as the original instrument unless the Chief Commissioner is satisfied:

(a)  that the original instrument has been duly stamped, or

(b)  that a copy of the original instrument has been duly stamped in accordance with this subsection.

(2)  Where a copy of an original instrument is duly stamped in accordance with subsection (1) of this section, the original instrument shall be deemed to have been duly stamped.

pt 3, div 11A (ss 73C, 73D): Ins 1982 No 134, Sch 4 (4).

Division 12 Deeds of assignment

74 Duty on certain deeds of assignment

(1)  Every deed of assignment is liable to a stamp duty of $10.

(2)  For the purpose of this section deed of assignment means every deed or other instrument executed by any person and providing or purporting to provide in any way for the distribution of the whole or any part of the property of such person amongst the whole or any of his creditors for the purpose of obtaining a release of the debts due by him to them; but it does not include subsequent and supplementary deeds or instruments executed by such person in favour of or at the request of the trustees for the purpose of effecting such distribution or giving effect to the arrangement contemplated by such deed of assignment.

s 74: Am 1955 No 30, sec 2 (h); 1965 No 36, Sch; 1974 No 71, sec 4 (h); 1985 No 219, Sch 1 (2).

Division 13 Discount arrangements

74A Definitions

s 74A, hdg: Ins 1967 No 92, sec 2 (a).

(1)  For the purposes of this Division and of the matter appearing under the heading “Discount Arrangement” in the Second Schedule to this Act, unless inconsistent with the context or subject-matter:

Accommodation means the amount paid or payable in accordance with the discount arrangement.

Discount arrangement means the purchase, acquisition, discounting or factoring of a book debt by a person in the course of carrying on the business of purchasing, acquiring, discounting or factoring book debts where:

(a)  the accommodation is paid or payable in New South Wales and:

(i)  both the person accommodating and the person accommodated are carrying on any business in New South Wales, or

(ii)  either the person accommodating or the person accommodated is carrying on any business in New South Wales and stamp duty or duty of a like nature has not been paid or is not payable in accordance with the provisions of any law of the Commonwealth of Australia or of any Territory or State of the Commonwealth (other than New South Wales) on the discount arrangement, or

(b)  the accommodation is paid or payable outside New South Wales and either the person accommodating or the person accommodated is or both of them are carrying on any business in New South Wales and stamp duty or duty of a like nature has not been paid or is not payable in accordance with the provisions of any law of the Commonwealth of Australia or of any Territory or State of the Commonwealth (other than New South Wales) on the discount arrangement,

but does not include the purchase, acquisition, discounting or factoring of:

(i)  any book debt which relates solely to any amount due to any person in the Commonwealth of Australia for goods or other chattels personal which have been exported by that person from the Commonwealth of Australia,

(ii)  any bill of exchange or promissory note at a discount rate (as hereinafter calculated) not exceeding the prescribed rate per annum or, where no rate is prescribed, twelve per centum per annum,

(iii)  a marketable security, or

(iv)  any book debt secured by mortgage over real property situate in New South Wales if, had this paragraph not been enacted, the purchase, acquisition, discounting or factoring of the book debt would not be a short term discount arrangement, if it is effected together with a transfer or assignment of the mortgage to the person who purchases, acquires, discounts or factors the book debt and if stamp duty has been paid on the transfer or assignment.

Person accommodated means the person from whom a book debt has been purchased, acquired, discounted or factored.

Person accommodating means the person who has purchased, acquired, discounted or factored a book debt.

Short term discounting arrangement means a discount arrangement where the debt the subject of the discount arrangement is payable in full within six months from the date such debt was purchased, acquired, discounted or factored and the person accommodating has by the return made under section 74C of this Act elected to treat such discount arrangement as a short term discount arrangement.

(2)  For the purposes of the definition of discount arrangement the discount rate shall, irrespective of whether a rate of discount is or is not expressed in the instrument constituting or evidencing the discount arrangement, be calculated in accordance with the provisions of the First Schedule to the Money-lenders and Infants Loans Act 1941, as amended by subsequent Acts, and in making that calculation a reference in that Schedule to principal shall be construed as a reference to the amount paid in respect of the discounting of the bill of exchange or promissory note in accordance with the discount arrangement and interest shall be construed as the difference between the amount so paid in accordance with the discount arrangement and the amount of the bill of exchange or promissory note.

(3)  Where the person accommodated carries on business outside New South Wales and the person accommodating makes application to the Chief Commissioner that a discount arrangement be subject to exemption from duty or a reduction of duty the Chief Commissioner may, having regard to the procedures under which the discount arrangement was entered into and any other facts or circumstances he considers relevant, grant such exemption or a reduction.

s 74A: Ins 1967 No 92, sec 2 (a). Am 1974 No 110, sec 7 (g); 1982 No 43, Sch 3 (3).

74B, 74C (Repealed)

s 74B: Ins 1967 No 92, sec 2 (a). Rep 1991 No 93, Sch 3 (3).

s 74C: Ins 1967 No 92, sec 2 (a). Am 1974 No 110, sec 7 (h); 1979 No 150, Sch 1 (1); 1982 No 43, Sch 2 (1). Rep 1991 No 93, Sch 3 (3).

74CAA Charging of duty on and application of Division to instruments etc made on or after 1.1.1983

(1)  Notwithstanding any other provision of this Act, duty shall not be chargeable in respect of:

(a)  an instrument made out on or after 1 January 1983 in respect of a discount arrangement, or

(b)  a discount arrangement made on or after 1 January 1983.

(2)  Without derogating from subsection (1), this Division does not apply to or in respect of an instrument or discount arrangement referred to in that subsection.

s 74CAA: Ins 1982 No 133, Sch 2 (2).

Division 14 Divorce—family law instruments

pt 3, div 14: Ins 1982 No 43, Sch 1 (1).

74CA Definitions

(1)  In this Division:

Commonwealth Act means the Family Law Act 1975 of the Parliament of the Commonwealth or any Act of that Parliament amending or replacing that Act.

de facto partner has the same meaning as it has in the De Facto Relationships Act 1984.

de facto relationship has the same meaning as it has in the De Facto Relationships Act 1984.

marriage includes a void marriage.

matrimonial property, in relation to a marriage, means property of the parties to the marriage or of either of them.

partnership property, in relation to a de facto relationship, means property of the partners to the relationship or of either of them.

(2)  A reference in this Division to a party to a marriage includes a reference to a person who was a party to a marriage that has been dissolved or annulled, in Australia or elsewhere.

(2A)  A reference in this Division to a de facto partner includes a reference to a person who was a de facto partner in a de facto relationship that has ceased, whether the cessation took effect in Australia or elsewhere.

(3)  A reference in this Division to an instrument that makes provision for or with respect to the conveyance of property includes, without prejudice to the generality of the meaning of that expression, a reference to an agreement or order of a court to the extent that it makes provision with respect to the conveyance of the property.

s 74CA: Ins 1982 No 43, Sch 1 (1). Am 1986 No 193, Sch 5 (1).

74CB Certain instruments exempt from duty

(1)  An instrument is exempt from duty to the extent that the instrument makes provision for or with respect to:

(a)  the conveyance to the parties to a marriage which is dissolved or annulled (whether before or after the instrument is executed) or to either of those parties, or to a child or children of either of them, of matrimonial property, if the instrument is:

(i)  registered or approved under the Commonwealth Act or executed for the purposes of or in accordance with another instrument so registered or approved, or

(ii)  an order of a court under that Act or executed for the purposes of or in accordance with such an order, or

(b)  the conveyance to the parties to a marriage or to either of those parties, or to a child or children of either of them, of matrimonial property, if the instrument is:

(i)  approved under the Commonwealth Act or executed for the purposes of or in accordance with another instrument so approved, or

(ii)  an order of a court under that Act or executed for the purposes of or in accordance with such an order, or

(c)  the conveyance to either of the parties to a marriage which is dissolved or annulled (whether before or after the instrument is executed) of matrimonial property pursuant to a public auction of the property held:

(i)  for the purposes of or in accordance with an instrument registered or approved under the Commonwealth Act, or

(ii)  for the purposes of or in accordance with an order of a court under that Act, or

(d)  the conveyance to either of the parties to a marriage of matrimonial property pursuant to a public auction of the property held:

(i)  for the purposes of or in accordance with an instrument approved under the Commonwealth Act, or

(ii)  for the purposes of or in accordance with an order of a court under that Act.

(2)  An instrument is exempt from duty to the extent that the instrument makes provision for or with respect to the conveyance to the de facto partners in a de facto relationship, or to either of them, or to a child or children of either of them, of partnership property, if:

(a)  the de facto relationship ceases, and

(b)  the instrument is an order of a court made under the De Facto Relationships Act 1984 or is executed in accordance with such an order.

(3)  An instrument, being:

(a)  a separation agreement within the meaning of section 44 of the De Facto Relationships Act 1984 which has been certified in accordance with section 47 of that Act, or

(b)  a conveyance made in accordance with the separation agreement which conveys property to one of the former de facto partners or a child or children of either of them,

is exempt from duty if the Chief Commissioner is satisfied that the former de facto partners have been separated for at least 3 months before the instrument is lodged for stamping.

(4)  For the purposes of subsection (3) and section 25 (2), the date of first execution of a separation agreement referred to in subsection (3) is taken to be 3 months after the actual date of first execution.

(5)  An instrument is exempt from duty to the extent that:

(a)  for purposes of or ancillary to an instrument referred to in subsection (1) or (2), it transfers a share that is matrimonial or relationship property to a person not a party to the relevant marriage or relationship, in order to comply with a requirement of or prescribed under the Corporations Law, or

(b)  it is a declaration of trust, by the transferee of a share transferred as referred to in paragraph (a), for the benefit of a party to the marriage or relationship.

s 74CB: Ins 1982 No 43, Sch 1 (1). Am 1986 No 193, Sch 5 (2); 1987 No 227, Sch 1 (7); 1992 No 33, Sch 1 (8); 1992 No 86, Sch 6 (9); 1996 No 125, Sch 1 (3).

74CC Special provisions as to motor vehicles

(1)  A motor vehicle certificate of registration issued to the parties to a marriage or to either of them (and to no other person) pursuant to an application relating to the transfer of the vehicle concerned is exempt from duty to the extent that the vehicle was, at the time the application was made, matrimonial property, if:

(a)  the marriage is dissolved or annulled (whether before or after the certificate is issued), and

(b)  the application was made for the purposes of or in accordance with:

(i)  an instrument registered or approved under the Commonwealth Act, or

(ii)  an order of a court under that Act.

(2)  A motor vehicle certificate of registration issued to the de facto partners in a de facto relationship or to either of them (and to no other person) pursuant to an application relating to the transfer of the vehicle concerned is exempt from duty to the extent that the vehicle was, at the time the application was made, partnership property, if:

(a)  the de facto relationship ceases, and

(b)  the application was made for the purposes of, or in accordance with, an order of a court made under the De Facto Relationships Act 1984.

s 74CC: Ins 1982 No 43, Sch 1 (1). Am 1986 No 193, Sch 5 (3).

74CD Refunds

The Chief Commissioner shall, on application made to him in writing, within such time (if any) as is prescribed, and on production to him of such relevant instruments and information as he requires, refund the amount of any duty paid in respect of:

(a)  an instrument referred to in section 74CB, or

(b)  a motor vehicle certificate of registration referred to in section 74CC,

if the duty would not, by virtue of this Division, have been payable when the refund is made.

s 74CD: Ins 1982 No 43, Sch 1 (1).

Division 15 Hiring arrangements

74D Definitions

s 74D, hdg: Ins 1967 No 92, sec 2 (a).

(1)  For the purposes of this Division and of the matter appearing under the heading “Hiring Arrangement” in the Second Schedule to this Act, unless inconsistent with the context or subject matter:

Equipment financing arrangement means a hiring arrangement consisting of:

(a)  a hire purchase agreement, or

(b)  some other agreement for a term of not less than 9 months,

entered into on or after 1 October 1996, but does not include an arrangement referred to in paragraph (b) that was entered into on or after 1 October 1996 for the purpose of refinancing a hiring arrangement entered into before that date.

Goods includes all chattels personal (other than money, livestock and things in action) and any fixture severable from the realty.

Hire purchase agreement includes a letting of goods with an option to purchase and an agreement for the purchase of goods by instalments (whether the agreement describes the instalments as rent or hire or otherwise), but does not include any agreement:

(a)  whereby the property in the goods comprised in the agreement passes at the time of the agreement or on or at any time before the delivery of the goods, or

(b)  for the letting of goods or an agreement for the purchase of goods together with real property or any estate or interest in real property or with any business or interest in a business.

Hiring arrangement includes any arrangement under which goods are or may be used at or during any time or times by any person other than the owner of such goods where:

(a)  the arrangement is entered into in New South Wales,

(b)  the goods are supplied or delivered or agreed to be supplied or delivered in New South Wales, or

(c)  the goods may be used in New South Wales,

but does not include:

(i)  a hire-purchase agreement entered into before 1 October 1996,

(ii)  any arrangement relating to the use of an electricity, gas or water meter or a book,

(iii)  a lease of real estate where the rental or other consideration in respect of which stamp duty is chargeable under this Act also includes rental or other consideration for goods,

(iv)  any arrangement made for the use, by a person who is partially or totally incapacitated, of an invalid aid or prosthetic device or of any similar aid, device or appliance, or

(v)  any arrangement relating to the hire of a caravan which is to remain on site, or

(vi)  an arrangement under which an operator is provided by the owner of the goods to operate the goods for the hirer, or

(vii)  a credit contract within the meaning of the Consumer Credit (New South Wales) Code, or

(viii)  an arrangement made with a trader concerning the provision to and display by the trader of goods pending their sale or lease to a third party, or

(ix)  an arrangement under which a motor vehicle is subleased by an employee to an employer in connection with the employee’s remuneration or other employment benefits, or

(x)  an arrangement prescribed by the regulations.

Hirer means the person to whom goods are hired under a hiring arrangement.

Owner means the person from whom goods are hired under a hiring arrangement.

(2)  For the purposes of this section, a hire purchase agreement entered into before 1 October 1996 under which none of the goods were supplied or delivered before that date is taken to be entered into on the date on which the goods, or the first of them, were supplied or delivered.

(3)  For the purposes of the definition of Equipment financing arrangement in subsection (1), an agreement is taken to be for a term of less than 9 months if the final payment payable under the agreement is payable less than 8 months after the commencement of the agreement.

(4)  In this section, refinancing a hiring arrangement means making a new arrangement by an agreement:

(a)  providing for the hiring by the same hirer of the same goods, and

(b)  replacing the existing hiring arrangement, and

(c)  entered into before payment of the penultimate instalment under the existing hiring arrangement.

s 74D: Ins 1967 No 92, sec 2 (a). Am 1982 No 43, Sch 3 (4); 1985 No 219, Sch 3 (7); 1990 No 45, Sch 1 (5); 1990 No 95, Sch 1 (21); 1991 No 93, Schs 3 (4), 5 (6); 1996 No 34, Sch 1.2 (1)–(5); 1996 No 125, Sch 1 (4)–(8); 1998 No 44, Sch 5 [5].

74E Instrument to be made out

(1) 

(a)  Subject to the provisions of paragraph (d) of this subsection an owner shall make out an instrument at the time the first or only payment is made under a hiring arrangement.

(b)  Such instrument shall clearly and truly set out:

(i)  the full name and address of the owner,

(ii)  the full name and address of the hirer,

(iii)  a description of the goods sufficient to indicate their nature,

(iv)  the total amount payable under the hiring arrangement, or the amount calculated under section 74G of this Act.

(c)  Such instrument shall:

(i)  be marked “Original Instrument” on the front or first page thereof,

(ii)  be stamped as a hiring arrangement in accordance with the provisions of this Act, and for such purposes, notwithstanding anything contained in section 26 of this Act, be deemed to be first executed at the time such instrument is made out, and

(iii)  be retained by the owner for a period of twelve months.

(d)  This subsection shall not apply to and in respect of an approved person referred to in section 74F of this Act or to a hiring arrangement in respect of which the Chief Commissioner has under subsection (1) of section 74G of this Act required the owner to pay duty as an approved person.

(e)  Any instrument not being an instrument made out in accordance with this subsection, which has been made out and which constitutes or evidences the terms and conditions of a hiring arrangement, shall not be chargeable with duty in respect of the hiring arrangement under any other provisions of this Act:

Provided that if the instrument contains or relates to any other distinct matter each such distinct matter is to be separately and distinctly charged with duty in respect of each such matter as if each matter were expressed in a separate instrument.

(2)  Where the owner is a person resident outside New South Wales the provisions of subsection (1) of this section shall apply to that person in respect of a hiring arrangement where:

(a)  a hiring arrangement is entered into in New South Wales, or

(b)  the goods are supplied or delivered, or agreed to be supplied or delivered in New South Wales.

(3) 

(a)  In the case of a hiring arrangement where the owner is a person resident outside New South Wales or, subject to subsection (3B) of this section, is not bound by the provisions of this Act, the hirer if he is resident or domiciled in New South Wales shall, unless duty has been paid on such hiring arrangement in accordance with the provisions of this Act, make out and furnish to the Chief Commissioner a return setting out the information contained in paragraph (b) of subsection (1) of this section and shall pay to the Chief Commissioner the same duty as if the return were an instrument made out under subsection (1) (a) of this section.

(b)  Such return shall be furnished and such duty paid within two months of the date the first or only payment is made in accordance with the hiring arrangement.

(3A)  The Chief Commissioner may, upon such terms and conditions as the Chief Commissioner thinks fit, enter into an agreement with a person not bound by the provisions of this Act for the collection by that person and payment to the Chief Commissioner (whether by instalments or otherwise) of stamp duty that, but for subsection (3B) of this section, would be required to be paid under subsection (3) of this section.

(3B)  The operation of subsection (3) of this section is suspended in relation to a hiring arrangement while payment is made in respect of the hiring arrangement in accordance with an agreement in force under subsection (3A) of this section.

(3C)  In a case in which an amount of stamp duty (or duty of a like nature) is paid or payable on a hiring arrangement under a law of another State or Territory, the amount of duty chargeable under this Act is reduced by the lesser of:

(a)  the amount of the duty paid or payable under the other law, or

(b)  the amount of duty otherwise payable under this Act.

(4)  Any person who fails to comply with any of the provisions of this section shall be liable to a fine for such offence not exceeding 2 penalty units.

s 74E: Ins 1967 No 92, sec 2 (a). Am 1984 No 26, Sch 1; 1985 No 219, Sch 3 (8); 1987 No 85, Sch 5 (7); 1992 No 112, Sch 1; 1994 No 48, Sch 10 (4).

74F Payment of duty on hiring arrangements by return

(1)  Any person liable to the payment of duty under the provisions of section 74E of this Act may apply to the Chief Commissioner in a form approved by him for approval to pay, in accordance with the provisions of this section, duty in respect of hiring arrangements.

(2)  The Chief Commissioner may approve or refuse to approve any such application.

(3)  Where the Chief Commissioner approves any such application he shall in the approval specify the date upon which the approval comes into force.

(4)  A person whose application under subsection (1) of this section has been approved by the Chief Commissioner is, while the approval is in force, an approved person for the purposes of this section.

(5)  Where duty has been paid in respect of a hiring arrangement in accordance with the provisions of this section, any instrument evidencing the terms and conditions of such hiring arrangement shall not be chargeable with duty as a hiring arrangement.

(6)  An approved person shall, at the time the first or only payment is received in accordance with a hiring arrangement, make a record of such particulars relating to the hiring arrangements as the Chief Commissioner may by notice in writing given to him require.

(7)  Subject to subsection (7A), an approved person shall:

(a)  lodge a return in the approved form with the Chief Commissioner not later than the day notified to the approved person for the purposes of this subsection, and

(b)  subject to subsection (7C), when he lodges that return, pay to the Chief Commissioner as stamp duty an amount equal to the sum of the amounts calculated, in respect of each hiring arrangement, at the prescribed rate in respect of the total amount received in respect of each such hiring arrangement during each calendar month that is within such period of calendar months as is specified in the notification under paragraph (a) of this subsection.

The prescribed rate for the purposes of paragraph (b) is 0.75 per cent in relation to amounts received under an equipment financing arrangement and 1.5 per cent in any other case.

(7A)  If the total amount received during a calendar month in respect of hiring arrangements (other than equipment financing arrangements) by an approved person (not being a member of a group) or a group of which an approved person is a member:

(a)  does not exceed $6,000—no stamp duty (as stamp duty on a hiring arrangement other than an equipment financing arrangement) is payable by the approved person in respect of that calendar month,

(b)  does not exceed $5,500—a return is not required to be lodged under subsection (7) by the approved person in respect of stamp duty on a hiring arrangement other than an equipment financing arrangement, or

(c)  exceeds $5,500 but does not exceed $6,000—a return is required to be lodged by the approved person even though no stamp duty (as stamp duty on a hiring arrangement other than an equipment financing arrangement) is payable by the approved person in respect of that calendar month, or

(d)  exceeds $6,000—stamp duty (as stamp duty on a hiring arrangement other than an equipment financing arrangement) is payable only on that part of the amount that is in excess of $6,000.

(7AA)  For the purposes of subsection (7A), a group is constituted in the same manner as under Subdivision 2 of Division 29.

(7B)  Nothing in subsection (7) requires an approved person to pay to the Chief Commissioner as stamp duty an amount or amounts totalling more than $10,000 in respect of any one hiring arrangement but only if the hiring arrangement precludes the inclusion within it of other goods in replacement of, or in addition to, the original goods to which it relates (whether the other goods are of a class the same as, or of a class different from, the original goods).

(7C)  In a case in which an amount of stamp duty (or duty of a like nature) is paid or payable on a hiring arrangement under a law of another State or Territory, the amount of duty chargeable under this Act is reduced by the lesser of:

(a)  the amount of the duty paid or payable under the other law, or

(b)  the amount of duty otherwise payable under this Act.

(7D)  A reference in subsection (7) (b) to a total amount received in respect of a hiring arrangement during a calendar month does not include a reference to an amount so received that results in the passing to the hirer of title to the goods.

(8)  An approved person shall, when he makes out an instrument which but for the provisions of subsection (5) of this section would be chargeable with duty as a hiring arrangement endorse on that instrument the words “Stamp Duty” followed by the serial number of the notice of approval issued to him by the Chief Commissioner under this section.

(9)  An instrument endorsed in accordance with subsection (8) of this section shall be deemed to be duly stamped.

(10)–(13)    (Repealed)

(14)  The Chief Commissioner may by an instrument in writing cancel any approval granted under this section:

(a)  on application by the person to whom the approval was granted, or

(b)  for any reason he deems sufficient,

and shall in any such instrument specify the date on and from which the approval ceases to be in force.

(15)  An approval so cancelled shall cease to be in force on and from the date specified in the instrument by which the approval is cancelled:

Provided that, before any approval is cancelled the approved person shall:

(a)  unless the Chief Commissioner otherwise determines, furnish to the Chief Commissioner a statutory declaration stating the total amount which has been received by him in respect of hiring arrangements since he lodged his last return on which stamp duty has been paid under subsection (7) of this section together with the total amount still to be received in respect of hiring arrangements subsisting at the time of making such declaration, and

(b)  pay to the Chief Commissioner as stamp duty at the time of lodging such declaration an amount calculated at one and one-half per centum of the total of such amounts on which stamp duty has not been paid under subsection (7) of this section.

The amount so calculated shall be recoverable as a debt due to the Crown:

Provided further that where the Chief Commissioner is satisfied that it is not reasonably practicable to calculate the total amount still to be paid under any subsisting hiring arrangement the provisions of subsection (1) of section 74G shall, mutatis mutandis, apply to such arrangement and for this purpose the Chief Commissioner may require the owner to continue to pay duty in respect of such hiring arrangement as an approved person.

Any person who in contravention of this subsection fails or neglects to furnish a statutory declaration or pay the duty calculated in accordance with this subsection shall be liable to a fine for such offence not exceeding 2 penalty units.

s 74F: Ins 1967 No 92, sec 2 (a). Am 1968 No 55, sec 3 (a); 1974 No 71, sec 7 (a); 1974 No 110, sec 7 (i); 1979 No 150, Sch 1 (1); 1982 No 134, Sch 10 (5); 1985 No 219, Sch 3 (9); 1986 No 193, Sch 9 (4); 1987 No 85, Sch 5 (8); 1987 No 227, Sch 3 (1) (am 1988 No 20, Sch 20); 1989 No 113, Sch 2 (2); 1991 No 93, Sch 4 (3); 1992 No 112, Sch 1; 1994 No 48, Sch 10 (5); 1994 No 72, Sch 4 (6); 1996 No 34, Sch 1.2 (6)–(8); 1996 No 125, Sch 1 (9)–(12); 1997 No 123, Sch 2.2 [10].

74G Total amount not readily ascertainable

(1)  Where the Chief Commissioner is satisfied that it is not reasonably practicable to calculate the total amount payable under any hiring arrangement, he may:

(a)  calculate the total amount payable in such manner or on such basis as he thinks fit and the amount so calculated shall be deemed to be the total amount payable for the purposes of this Act, or

(b)  require the owner to pay duty in respect of that hiring arrangement as an approved person and for this purpose the provisions of section 74F shall, mutatis mutandis, apply to such person.

(2)    (Repealed)

s 74G: Ins 1967 No 92, sec 2 (a). Am 1986 No 193, Sch 9 (5). Rep 1990 No 95, Sch 1 (11).

74H Exemption from duty

(1)  Notwithstanding any other provision of this Act, duty is not chargeable in respect of an amount paid or payable under a hiring arrangement if the owner of the goods subject to the hiring arrangement paid ad valorem duty on a conveyance of property in connection with the acquisition of the goods by the owner at the request of the hirer.

(2)  Subsection (1) applies:

(a)  if the owner of the goods is an approved person for the purposes of section 74F—to amounts paid or payable on or after 10 August 1987, or

(b)  if the owner is not such an approved person—to hiring arrangements executed on or after 10 August 1987.

s 74H: Ins 1987 No 227, Sch 1 (8). Am 1991 No 93, Sch 5 (7); 1992 No 86, Sch 6 (19).

74I Hire purchase agreements dutiable only under this Division

No duty is chargeable under this Act in respect of a hire purchase agreement except under this Division.

s 74I: Ins 1996 No 34, Sch 1.2 (9).

Division 16 Duplicates or counterparts

75 As to duplicates or counterparts

The duplicate or counterpart of an instrument chargeable with duty is not to be stamped as such unless it is proved to the satisfaction of the Chief Commissioner that the full and proper duty has been paid on the original instrument of which it is the duplicate or counterpart.

Division 17 Instalment purchase arrangements

75A Interpretation and duty on instalment purchase arrangements

s 75A, hdg: Ins 1924 No 32, sec 10 (a) (i). Subst 1966 No 55, sec 6 (a).

(1)  For the purposes of this Division:

Credit arrangement means an arrangement or an offer to enter into an arrangement under which when goods are purchased or where subsequent to the purchase of goods an option to pay by instalments is exercised the amount payable or paid is not less than the purchase price of the goods plus interest and where the purchase price is four hundred dollars or more.

Credit purchase agreement means an agreement for the purchase of goods under which irrespective of the time at which the property in the goods passes or is to pass to the purchaser or to the order of the purchaser the purchase price or any part thereof is paid or payable not before the expiration of six months from the date of the agreement by not less than two instalments and under which any of the instalments are to be paid after the goods have been delivered to the purchaser and whether any instalments are paid or payable by cash or by cheque, bill of exchange or promissory note payable on demand or otherwise, but does not include:

(a)  any agreement where the purchase price is less than four hundred dollars, or

(b)  any agreement for the purchase of goods together with real property or any estate or interest in real property or with any business or interest in a business.

Goods includes all chattels personal (other than money, livestock and things in action) and includes any fixture severable from the realty.

Instalment purchase arrangement means a credit arrangement or a credit purchase agreement.

(2)–(7)    (Repealed)

s 75A: Ins 1924 No 32, sec 10 (a) (i). Am 1931 No 13, sec 4 (w) (i). Subst 1956 No 25, sec 2 (b); 1966 No 55, sec 6 (a). Am 1967 No 23, sec 2 (f); 1968 No 55, secs 3 (b), 5 (1); 1982 No 43, Sch 3 (5); 1991 No 93, Sch 3 (5); 1994 No 48, Sch 11 (12).

75B–75E (Repealed)

ss 75B–75D: Ins 1966 No 55, sec 6 (a). Rep 1991 No 93, Sch 3 (6).

s 75E: Ins 1966 No 55, sec 6 (a). Am 1974 No 110, sec 7 (j); 1979 No 150, Sch 1 (1). Rep 1991 No 93, Sch 3 (6).

75F Charging of duty on and application of Division to instruments etc made on or after 1.1.1983

(1)  Notwithstanding any other provision of this Act, duty shall not be chargeable in respect of:

(a)  an instrument constituting or evidencing the terms and conditions of a credit purchase agreement, being an instrument made on or after 1 January 1983, or

(b)  a credit purchase agreement or a sale or an exercise of an option following the sale as the case may be to which a credit arrangement relates, being an agreement or sale made or an option exercised on or after 1 January 1983.

(2)  Without derogating from subsection (1), this Division does not apply to or in respect of an instrument, agreement, sale or exercise of an option referred to in that subsection.

s 75F: Ins 1982 No 133, Sch 2 (3). Am 1991 No 93, Sch 3 (7).

Division 18 Leases

76 Definition of lease

(1)  For the purposes of this Act the expression lease includes any promise of or agreement for a lease of any property, and includes any instrument (not being an instrument liable to ad valorem duty as a conveyance) whereby a right to use at or during any time or times any property in New South Wales for any purpose whatever is conferred on or acquired by any person (who shall be deemed to be the lessee), but does not include any clause in a mortgage providing for attornment by a mortgagor or a hiring arrangement as defined in section 74D of this Act.

(2)  A lease made subsequently to and in conformity with any such promise or agreement duly stamped is to be charged with the duty of fifty cents.

s 76: Am 1931 No 13, sec 4 (x); 1955 No 30, sec 2 (i); 1965 No 36, Sch; 1967 No 92, sec 2 (b); 1974 No 71, sec 4 (i).

77 Leases, how to be charged in respect of produce etc

(1)  Where the consideration or any part of the consideration for which any lease is granted or agreed to be granted does not consist of money but of any produce or other goods, the duty is to be calculated on the value of such produce or goods at the average market price thereof on the day of the date of the instrument.

(2)  Where the consideration or any part of the consideration for a lease consists of an agreement or covenant by the lessee to make or pay for any improvements or additions to the property the subject of the lease or where the lessee has in consideration of the grant or agreement for the grant of a lease previously made or paid for any improvements or any additions to the property the subject of the lease the value of such improvements or additions shall be deemed to be rent or additional rent reserved under the lease to the following extent:

(a)  where the term of the lease:

(i)  does not exceed ten years—the whole of such value,

(ii)  exceeds ten but does not exceed twenty years—three-quarters of such value,

(iii)  exceeds twenty but does not exceed thirty years—one-half of such value,

(iv)  exceeds thirty but does not exceed forty years—one-quarter of such value,

(v)  exceeds 40 years—no part of such value, and

(b)  where the lease is a periodic lease or for a term the duration of which cannot be ascertained when the lease is made—the whole of such value.

(3) 

(a)  For the purpose of subsection (2) of this section the value of such improvements or additions shall be deemed to be the total expenditure incurred by the lessee thereon or estimated by the Chief Commissioner to be incurred by the lessee thereon. For the purpose of ascertaining such total expenditure the Chief Commissioner may by notice in writing require the parties to the lease or any one of them to furnish him within the time specified by him with such information, details or evidence as he may require.

(b)  Any person who fails to comply with any requirement of the Chief Commissioner under paragraph (a) of this subsection shall be liable to a fine for such offence not exceeding 2 penalty units.

s 77: Am 1966 No 55, sec 2 (f); 1988 No 130, Sch 5 (6); 1992 No 112, Sch 1.

78 Duty not to be charged on penal rents

A lease is not to be charged with duty in respect of any penal rent or increased rent in the nature of a penal rent, thereby reserved.

s 78: Am 1931 No 13, sec 4 (y).

78A Leases, term to be assessed

Where by reason of any provision in a lease tenancy, or the right to use property (whether expressed as a weekly, monthly, quarterly, half-yearly or yearly tenancy or otherwise) is subject to the provisions of the lease to continue for some specified period of twelve months or more or until some specified time twelve months or more later than the commencement of the lease that lease shall for the purposes of this Act be deemed to be a lease for a term ending at the termination of that period or at that time.

s 78A: Ins 1962 No 27, sec 2 (a).

78B Refund of part of duty on early determination of certain leases

(1)  Where duty has been paid upon any lease for any term of not less than two years executed after the commencement of the Stamp Duties (Amendment) Act 1962 and the lease is surrendered forfeited or otherwise determined before the expiration of the full term in respect of which duty was paid, the Chief Commissioner shall, upon application in writing made to him within 12 months after such surrender forfeiture or other determination and upon the lease upon which duty was paid being given up to him or, upon the Chief Commissioner being provided with such documents and information as the Chief Commissioner may require, refund to the lessee or (where the lease has been transferred or assigned by the lessee) to the transferee or assignee an amount in money equivalent to the difference between the duty actually paid and the duty which would have been payable if the lease had been expressed to expire at the date of such surrender forfeiture or other determination.

(2)  Where duty has been paid upon any lease for any term of not less than 2 years executed after the commencement of the Stamp Duties (Amendment) Act 1985 and the lease is subsequently rescinded, cancelled or annulled before the commencement of the term in respect of which duty was paid, the Chief Commissioner shall, upon application in writing made to the Chief Commissioner within 12 months after the lease is rescinded, cancelled or annulled and upon the lease upon which duty was paid being given up to the Chief Commissioner or, upon the Chief Commissioner being provided with such documents and information as the Chief Commissioner may require, refund to the lessee or (where the benefit of the lease has been transferred or assigned by the lessee) to the transferee or assignee the whole of the duty so paid.

s 78B: Ins 1962 No 27, sec 2 (a). Am 1985 No 219, Sch 3 (10); 1986 No 193, Sch 9 (6).

78C Duty to be paid on certain variations of lease

(1)  An instrument varying a lease (whether the lease is in writing or not):

(a)  by increasing the total amount of the rent or other consideration payable in respect of the lease, or

(b)  by extending the term of the lease,

or both, is, subject to this Act, chargeable with duty as a lease.

(2)  Duty is payable only in respect of the additional amount of rent or consideration payable as a result of the variation, except as provided by subsection (4).

(3)  If an instrument varies a lease (whether the lease is in writing or not) so as to reduce the total amount of the rent or other consideration payable in respect of the lease and on which duty has been paid in accordance with this Act, the Chief Commissioner must, on being provided with such documents and information as the Chief Commissioner may require, refund to the lessee (or, where the benefit of the lease has been transferred or assigned by the lessee, to the transferee or assignee) the difference between the duty actually paid and the duty which would have been payable if that duty had been assessed on the lease as so varied.

(4)  The minimum amount of duty payable in respect of an instrument varying a lease is $10.

s 78C: Ins 1962 No 27, sec 2 (a). Subst 1990 No 95, Sch 1 (22).

78D Duty payable in respect of rental variations

(1)  This section applies to a lease under which the rent may be varied during its term so that the total rent payable for the term cannot be calculated at the commencement of the lease. The duty payable in respect of the lease may be determined in one of two ways. The first way applies unless there is agreement between the Chief Commissioner and the lessee to use the second way.

(2)  Under the first way:

(a)  The Chief Commissioner makes an initial determination and a redetermination at the end of the term and, if the term of the lease is for more than 3 years, redeterminations after each 3 years.

(b)  Duty is to be paid following the initial determination on the total rent for the full term of the lease calculated according to such rate or rates as may, subject to variation, be expressed to apply throughout the term. If, when making the initial determination, no rate of rent payable after the first variation can be determined, duty, in the first instance, is payable on the total rent for the full term of the lease calculated as if the rate of rent payable before the first variation were to be paid throughout the full term (or, if there are different rates before the first variation, at the higher or highest of those rates).

(c)  Within 1 month after each redetermination is required to be made, the lessee must produce to the Chief Commissioner a duly stamped part of the lease and a statutory declaration stating, firstly, the total amount of rent payable between the date on which the initial determination or the last redetermination, as the case may be, was made and the date on which the current redetermination is required to be made and, secondly, the rate of rent payable as at the date on which the current redetermination is required to be made. The duty to be paid following the redetermination is the duty payable on any increase in the amount of rent paid or payable since the initial determination or last redetermination and, in respect of the balance of the term following the redetermination, on the amount of rent calculated as if the rate of rent payable at the time of the redetermination were to be paid throughout the balance of the term.

(d)  A lessee who does not comply with paragraph (c) is guilty of an offence and is liable on conviction to a penalty not exceeding 20 penalty units.

(e)  If, following a redetermination, a re-assessment of duty is made by the Chief Commissioner, the lessee must pay any additional duty assessed or the Chief Commissioner must make a refund of duty to the lessee, as the case requires.

(3)  The second way requires the agreement of both the Chief Commissioner and the lessee. Under the second way:

(a)  The Chief Commissioner assesses duty as if the total rent payable under the lease were the amount of rent (if any) which is not subject to variation under the lease together with the amount of the other rent calculated under paragraph (b).

(b)  The amount of the other rent is the amount that would be payable for the first year at the rate payable before the first variation (or, if there are different rates before the first variation, at the higher or highest of those rates) compounded for each year, or part, after the first year by the amount of the annual percentage increase in the Consumer Price Index last issued before the commencement of the lease.

(c)  The duty assessed may not be varied merely because the actual rent is different from the estimated rent.

(4)  This section applies to and in respect of any premium, fine, foregift or consideration other than rent reserved by a lease in the same way as it applies to and in respect of rent reserved by a lease.

(5)  A lease on which only part of the duty has, in accordance with subsection (2), been paid may be marked “interim stamp only”. A lease on which no part of the duty is immediately ascertainable may, on payment of duty of $10, be stamped accordingly and marked “interim stamp only”. Section 41 (5) applies to a lease marked “interim stamp only” in the same way as it applies to an agreement referred to in that subsection marked “interim stamp only”.

(6)  In this section:

Consumer Price Index means the number appearing in the Consumer Price Index (All Groups Index) for Sydney published by the Commonwealth Statistician under the Census and Statistics Act 1905 of the Commonwealth.

lessee includes a person to whom a lease is transferred or assigned.

variation means a variation made for any reason or on any basis and includes a further variation.

s 78D: Ins 1962 No 27, sec 2 (a). Am 1965 No 36, Sch; 1966 No 55, sec 2 (g); 1974 No 71, sec 4 (j); 1985 No 219, Sch 1 (2). Subst 1990 No 45, Sch 1 (6). Am 1990 No 95, Sch 1 (23).

78E Lease of real property—maximum duty payable

(1)  For the purposes of this section, lease means a lease or promise of or agreement for a lease of real property.

(2)  Where the person primarily liable to duty on a lease furnishes evidence to the satisfaction of the Chief Commissioner that if the property included in the lease had been purchased immediately prior to the execution of the lease for a consideration in money or money’s worth of not less than the unencumbered value of the property and the stamp duty chargeable upon the agreement to give effect to such purchase would have been less than the duty chargeable on the lease, the duty on the lease shall subject to subsection (3) of this section be the duty which would have been chargeable on such agreement if so executed.

(3)  Where the Chief Commissioner is of the opinion that during the term of the lease the value of the property will be or has been substantially increased by reason of improvements or additions to the property the Chief Commissioner shall, in assessing duty which would be chargeable on an agreement for the sale of the property, add to the unencumbered value of the property an amount equal to the amount estimated by the Chief Commissioner to be incurred or to have been incurred in the making of or payment for such improvements or additions.

s 78E: Ins 1966 No 55, sec 2 (h).

78F Exemption from duty—residential leases

(1)  Notwithstanding any other provision of this Act, duty is not chargeable in respect of so much of the rent or other consideration payable under a residential lease executed on or after 23 September 1987 as relates to the premises or part of the premises used, or intended to be used, exclusively as a place of residence.

(1A)  Notwithstanding any other provision of this Act, duty is not chargeable in respect of the rent or other consideration payable under a lease of a moveable dwelling site used, or intended to be used, as the principal place of residence of the lessee.

(2)  In this section:

lease of a moveable dwelling site means an agreement under which a person has the right to occupy for a term (or a term together with any option period) not exceeding 5 years:

(a)  any land used, or intended to be used, as the site of a moveable dwelling, or

(b)  any moveable dwelling on that site, or

(c)  both the land and any such moveable dwelling.

moveable dwelling has the same meaning as it has in the Local Government Act 1993.

residential lease means an agreement under which a person has the right to occupy for a term (or for a term together with any option period) not exceeding 5 years any premises or part of premises used or intended to be used, whether or not exclusively, as a place of residence.

s 78F: Ins 1986 No 193, Sch 9 (7). Subst 1987 No 227, Sch 1 (9). Am 1992 No 33, Sch 1 (9); 1995 No 11, Sch 1.

78FA Exemption from duty—leases of accommodation for aged and disabled persons

(1)  Despite any other provision of this Act, duty is not chargeable in respect of:

(a)  a lease granted by or on behalf of a corporation, society or institution if:

(i)  the purpose of the lease is to grant a retired person or a disabled person the right to occupy residential accommodation, and

(ii)  the lease has not been granted for the purpose of profit by the lessor, or

(b)  a lease executed in accordance with Part V of the National Health Act 1953 of the Commonwealth.

(2)  In this section:

disabled person means a person who has attained the age of 16 years and who is:

(a)  permanently blind, or

(b)  permanently incapacitated for work.

retired person means a person who has attained the age of 55 years or who has retired from full-time employment and includes a person who is or was the spouse or the de facto partner (within the meaning of the De Facto Relationships Act 1984) of such a person.

s 78FA: Ins 1990 No 95, Sch 1 (24). Am 1991 No 93, Sch 5 (8); 1994 No 72, Sch 4 (7).

78G (Repealed)

s 78G: Ins 1988 No 130, Sch 5 (7). Rep 1990 No 95, Sch 1 (11).

79 Leases, how to be charged in respect of royalty

(1)  Where the consideration for a lease is wholly or partly a royalty, payable either in money, produce, or goods, or any other consideration whatever other than a fixed sum of money, then, if it is stipulated that the amount of such money, or the value of such produce or goods, is to amount at least to or not to exceed a given sum, or where the lessee is specially charged with or has the option of paying after any permanent rate of conversion, the yearly amount of such money and value of such produce or goods is to be estimated at such given sum or according to such given rate.

(2)    (Repealed)

s 79: Am 1931 No 13, sec 4 (z); 1955 No 30, sec 2 (j); 1965 No 36, Sch; 1966 No 55, sec 2 (i).

80 (Repealed)

s 80: Rep 1966 No 55, sec 2 (j).

Division 19 Superannuation

pt 3, div 19: Rep 1989 No 223, Sch 1 (2). Ins 1991 No 93, Sch 1 (4).

81 Definitions

In this Division:

complying approved deposit fund means an entity that is a complying approved deposit fund in accordance with section 43 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth.

complying superannuation fund means an entity that is a complying superannuation fund in accordance with section 42 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth.

pooled superannuation trust means an entity that is a pooled superannuation trust in accordance with section 44 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth.

s 81: Am 1924 No 32, sec 7 (a); 1931 No 13, sec 4 (aa); 1933 No 12, sec 2 (n); 1965 No 36, Sch; 1986 No 193, Sch 7 (6). Rep 1989 No 223, Sch 1 (2). Ins 1991 No 93, Sch 1 (4). Subst 1994 No 72, Sch 4 (8).

81A Duty on certain instruments relating to superannuation

(1)  The following instruments are liable to a stamp duty of $20:

(a)  an instrument which contains or amends provisions governing a superannuation fund, an approved deposit fund or a pooled superannuation trust, being a fund or trust which, in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust within 12 months after the instrument or amending instrument takes effect,

(b)  an instrument under which an employer agrees to participate in or contribute to a complying superannuation fund or a superannuation fund which, in the opinion of the trustees, will become a complying superannuation fund within 12 months after the employer agrees to participate in or contribute to the fund,

(c)  an instrument that is executed in order to set out the terms of custodial arrangements concerning a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust (whether or not the instrument contains any other terms) or concerning a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust within 12 months after the instrument takes effect.

(2)  The persons primarily liable to pay the duty are the parties to the instrument.

(3)  The duty may be denoted by adhesive stamp.

s 81A: Ins 1991 No 93, Sch 1 (4). Am 1994 No 72, Sch 4 (9).

82 Duty on certain conveyances of property between certain superannuation funds

(1)  This section applies to an instrument which the Chief Commissioner is satisfied is an agreement to convey or a conveyance of property between superannuation funds (which, in the opinion of the respective trustees, will be complying superannuation funds for the year in which the conveyance occurs) in connection with a person’s ceasing to be a member of, or otherwise ceasing to be entitled to benefits in respect of, the transferor fund and becoming a member of, or otherwise becoming entitled to benefits in respect of, the transferee fund.

(2)  The duty payable on an instrument to which this section applies is the ad valorem duty as a conveyance or $200, whichever is the lesser.

(3)  The person primarily liable to pay the duty is the transferee.

(4)  An application for an assessment of duty in accordance with this section is to be accompanied by the following:

(a)  a brief explanation of the background to the conveyance and the entitlements to be extinguished and created,

(b)  copies of the governing rules of the complying superannuation funds concerned,

(c)  a statement of the property to be conveyed,

(d)  a copy of each instrument of conveyance,

(e)  a statutory declaration from a trustee (or a director of a corporate trustee) of each of the superannuation funds concerned stating that, in the opinion of the trustee (or director), the fund will be a complying superannuation fund for the year in which the conveyance occurs.

(5)  The Chief Commissioner may require further information.

(6)  An instrument on which duty of $200 has been paid in accordance with an assessment under this section is taken to have been duly stamped with ad valorem duty as a conveyance.

(7)  In this section:

complying superannuation fund includes a complying approved deposit fund.

s 82: Rep 1924 No 16, sec 2 (h) (i). Ins 1991 No 93, Sch 1 (4).

82AA Duty on certain conveyances of property to trustees or custodians of superannuation funds or trusts

(1)  This section applies to an instrument that the Chief Commissioner is satisfied is an agreement to convey or a conveyance of property to a trustee or custodian of a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, or a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust within 12 months after the agreement to convey or conveyance takes effect, where there is no change in the beneficial ownership of the property.

(2)  The duty payable on an instrument to which this section applies is the ad valorem duty as a conveyance or $200, whichever is the lesser.

(3)  The person primarily liable to pay the duty is the transferee.

(4)  An instrument on which duty of $200 has been paid in accordance with an assessment under this section is taken to have been duly stamped with ad valorem duty as a conveyance.

(5)  A conveyance of or agreement to convey property to a trustee or custodian of a pooled superannuation trust in exchange for the issue of units in the trust does not, effect for the purposes of this section, a change in the beneficial ownership of the property.

s 82AA: Ins 1994 No 72, Sch 4 (10). Am 1996 No 125, Sch 1 (13).

82AB Duty on certain conveyances of securities to trustees or custodians of superannuation schemes or trusts

(1)  A conveyance of or an agreement to convey a marketable security or a unit in a unit trust scheme or of a right to acquire a marketable security or a unit in a unit trust scheme, being a conveyance or agreement to convey that the Chief Commissioner is satisfied:

(a)  is a conveyance to or an agreement to convey to a trustee or custodian of a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, or a fund or trust that, in the opinion of the trustees, will be a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust within 12 months after the agreement to convey or conveyance takes effect, and

(b)  does not result in changing the persons who have a beneficial interest in the property conveyed or agreed to be conveyed,

is not to be charged with ad valorem duty as a conveyance but is to be charged with duty of $2.

(2)  This section has effect despite section 82AA.

(3)  A conveyance of or agreement to convey a marketable security or unit, or the right to acquire either of them, to a trustee or custodian of a pooled superannuation trust in exchange for the issue of units in the trust does not, result for the purposes of this section, in a change in the persons who have a beneficial interest in the marketable security or unit.

s 82AB: Ins 1994 No 72, Sch 4 (10). Am 1996 No 125, Sch 1 (14).

Division 20

82A–82E   (Repealed)

pt 3, div 20: Rep 1991 No 93, Sch 3 (8).

s 82A, hdg: Ins 1974 No 110, sec 3. Rep 1991 No 93, Sch 3 (8).

s 82A: Ins 1974 No 110, sec 3. Am 1982 No 43, Schs 2 (2), 3 (7). Rep 1991 No 93, Sch 3 (8).

s 82B: Ins 1974 No 110, sec 3. Am 1982 No 43, Sch 3 (8). Rep 1991 No 93, Sch 3 (8).

s 82C: Ins 1974 No 110, sec 3. Rep 1991 No 93, Sch 3 (8).

s 82D: Ins 1974 No 110, sec 3. Am 1975 No 75, sec 6 (b); 1979 No 150, Sch 1 (1); 1982 No 43, Sch 2 (3). Rep 1991 No 93, Sch 3 (8).

s 82E: Ins 1982 No 133, Sch 2 (4). Rep 1991 No 93, Sch 3 (8).

Division 21 Loan securities

83 Definitions

s 83, hdg: Subst 1974 No 110, sec 4 (b).

(1)  For the purposes of this Division and of the matter appearing under the heading “Loan Security” in the Second Schedule to this Act, unless inconsistent with the context or subject-matter:

Advance includes the provision or obtaining of funds by way of financial accommodation.

Bill facility means one or more agreements, understandings or arrangements as a consequence of which a bill of exchange or promissory note:

(a)  is drawn, accepted, endorsed or made, and

(b)  is held, negotiated or discounted to obtain funds,

whether or not the funds are obtained from the person who draws, accepts, endorses or makes the bill of exchange or promissory note and whether or not the funds are obtained from a person who is a party to any such agreement, understanding or arrangement.

Corporation means a body corporate, whether or not a NSW company.

Debenture includes debenture stock, bonds, notes and any other document evidencing or acknowledging a debt owed by a corporation in respect of money that is, or may be, deposited with, or lent to, the corporation, whether or not payment of the debt is secured by a charge on property of the corporation, but does not include:

(a)  a document that merely acknowledges the receipt of money by a corporation where, in respect of the money, the corporation issues in compliance with section 97 of the Companies (New South Wales) Code a document prescribed by section 97 (2) of that Code and complies with the other requirements of section 97 of that Code,

(b)  an order for the payment of money,

(c)  a bill of exchange or promissory note,

(d)  a document that merely evidences or acknowledges a debt owing by a bank or, within the meaning of Division 29, the short-term liability of a short-term dealer,

(e)  a document, not being an acknowledgement of indebtedness of a corporation in respect of money that is deposited with or lent to the corporation, that does not create a debt, or

(f)  a document that merely evidences or acknowledges the receipt of money by a prescribed person within the meaning of the definition of that expression in this subsection, if the money is deposited with, or lent to, the prescribed person otherwise than:

(i)  in the course of a business of lending money not limited to depositing money with, or lending money to, the prescribed person, and

(ii)  in response to an invitation to the public to deposit or lend money within a specified period.

Financial accommodation includes:

(a)  funds provided by means of a loan or funds provided or obtained by means of a bill facility, and

(b)  funds provided under any other obligation except an obligation imposed by a lease or a hiring arrangement within the meaning of section 74D.

Loan includes:

(a)  an advance of money, and

(b)  money paid for or on account of or on behalf of or at the request of any person, and

(c)  a forbearance to require payment of money owing on any account whatever, and

(d)  any transaction (whatever its terms or form) which in substance effects a loan of money.

Loan security means:

(a)  a mortgage or debenture executed in New South Wales,

(b)    (Repealed)

(c)  a mortgage that, at the time of its execution, affected property in New South Wales,

(d)  a mortgage (not being a floating charge) that did not affect property in New South Wales at the time of its execution but affects land in New South Wales at any time during the period of 12 months that next succeeds its execution, or

(e)  an instrument executed (whether or not in New South Wales) after 1 January 1989 which, on the deposit of documents of title over property in New South Wales or instruments creating a charge on property in New South Wales, evidences the terms of a mortgage or becomes a mortgage, but does not include:

(i)  an instrument which is executed by a person for the purpose of conducting the person’s money market trading operations, or

(ii)  an agreement by which a clearing member agrees to lodge securities with, or to make securities available to, Options Clearing House Limited.

Mortgage includes, without limiting the meaning of that expression in section 3 (1) of this Act:

(a)  a security by way of mortgage or charge given in consideration of the conveyance or transfer of any estate or interest in any real or personal property,

(b)  any transfer or conveyance of any estate or interest in any real or personal property whatsoever in trust to be sold or otherwise converted into money, intended only as a security, and redeemable before the sale or other disposal thereof either by express stipulation or otherwise, except where such transfer or conveyance is made for the benefit of creditors generally, or for the benefit of creditors specified, who accept the provision made for payment of their debts in full satisfaction thereof,

(c)  any defeasance, declaration, or other instrument for defeating or making redeemable or explaining or qualifying any conveyance, transfer, assignment or disposition of any estate or interest in any real or personal property whatsoever, apparently absolute but intended only as a security,

(d)  any agreement, contract or covenant (being an agreement, contract or covenant relating to documents of title or accompanied with the deposit of any documents of title or instruments creating a charge on any property) for making a mortgage or any such other security, transfer or conveyance of any estate or interest in real or personal property whatsoever comprised in such documents, or for pledging or charging any such property as a security, and

(e)  any instrument of mortgage (including an instrument of mortgage referred to in paragraph (a), (b), (c) or (d) of this definition) for the purpose of securing the repayment of debentures or any instrument of trust protecting the interests of the holders of debentures,

but, notwithstanding the meaning of that expression in section 3 (1) of this Act, does not include a transfer or conveyance by way of mortgage of land, or an estate or interest in land, under the Real Property Act 1900.

Prescribed person means:

(a)  a financial institution in accordance with the definition of that expression in section 98 (1),

(b)  a person prescribed for the purposes of that definition as not being a financial institution, or

(c)  a person prescribed for the purposes of this definition.

(2)    (Repealed)

(3)  For the purposes of this Act, a debenture that is not executed shall be deemed to be executed when it is issued.

(4)  The reference in the Second Schedule to this Act in the matter under the heading “Loan Security” to:

(a)  the amount secured by a loan security is, in relation to a mortgage, being an instrument of trust referred to in paragraph (e) of the definition of Mortgage in subsection (1) of this section, a reference to the amount repayable in respect of the debentures to which the instrument relates, and

(b)  the borrower, in relation to such a mortgage, is a reference to the person who issued those debentures.

(5)  For the purposes of this Division and of the matter appearing under the heading “Loan Security” in the Second Schedule to this Act, property is taken to be in New South Wales in so far as the property comprises shares in a NSW company. However, if those shares are registered on a share register in another State or a Territory and duty as on a loan security has been paid in accordance with a corresponding law of that State or Territory in respect of a mortgage affecting those shares, the mortgage is exempt from payment of duty under this Act to the extent to which it relates to those shares.

s 83: Subst 1974 No 110, sec 4 (c). Am 1980 No 161, Sch 3 (2); 1982 No 43, Sch 3 (9); 1986 No 193, Sch 8 (2); 1987 No 85, Sch 3 (1); 1988 No 130, Sch 5 (8); 1989 No 113, Sch 2 (3); 1990 No 95, Sch 1 (25); 1991 No 93, Schs 3 (9), 5 (9); 1992 No 33, Sch 1 (10); 1994 No 48, Sch 11 (24); 1994 No 72, Sch 4 (11); 1995 No 98, Sch 7 (10).

84 Limited and unlimited loan securities

(1)  Where:

(a)  the total amount secured or to be ultimately recoverable by or under a loan security is limited to a definite and certain sum of money (whether or not it is expressed to be so limited) and pursuant to the loan security that total amount may be increased, and

(b)  the total amount is increased (whether or not pursuant to the loan security),

then:

(c)  if that total amount is increased pursuant to the loan security, that loan security, or

(d)  if that total amount is increased pursuant to any other instrument, that other instrument,

shall be stamped as a loan security with the duty, if any, equal to the difference between:

(e)  the duty, as duty on a loan security, that would be payable if a loan security were executed in respect of the sum of the amount payable or repayable under or secured by the firstmentioned loan security and the amount of that increase and any previous increases, and

(f)  the duty, as duty on a loan security, paid on the firstmentioned loan security or on any such instrument relating to the firstmentioned loan security.

(2)  A loan security for the payment or repayment of money to be lent, advanced, or paid, or which may become due upon an account current either with or without money previously due (not being a mortgage otherwise chargeable with duty as a loan security) is to be stamped, where the total amount secured or to be ultimately recoverable is limited to a definite and certain sum of money (whether or not it is expressed to be so limited), with the same duty as a loan security for that total amount.

(2A)  Where:

(a)  the total amount secured or to be ultimately recoverable by or under a loan security is limited to a definite and certain sum of money (whether or not it is expressed to be so limited), and

(b)  advances, or additional advances, are made under the loan security the total amount of which exceeds that definite and certain sum (even though the amount outstanding does not at any time exceed that definite and certain sum),

the loan security shall be stamped as a loan security, with duty equal to the difference, if any, between:

(c)  the duty, as duty on a loan security, that would be payable if a loan security were executed in respect of the total amount of the advances, and

(d)  the duty, as duty on a loan security, already paid on the loan security.

(3)  If the total amount secured or to be ultimately recoverable by or under a loan security is not expressed (whether in the loan security or otherwise) to be limited to a definite and certain sum of money, the loan security is to be stamped with duty of $5 and, if an advance, or the total of an advance and one or more additional advances made under or secured by the loan security, exceeds $16,000, additional duty of $4 for every $1,000 or fractional remaining part of $1,000 of the total amounts advanced under or secured by the loan security in excess of $16,000 shall be payable.

(3A)  Nothing in this section or the Second Schedule under the heading “Loan Security” requires the payment of duty in respect of an advance or additional advance if the amount payable or repayable under or secured by the loan security following the advance or additional advance does not exceed the maximum amount payable or repayable under or secured by the loan security (being an amount in relation to which duty, as duty on a loan security, has previously been paid) at any time prior to the making of the advance or additional advance, but if the loan security is a loan security to which subsection (1) or (2) applies, the amount of duty with which the loan security is to be stamped shall not be less than the amount of duty payable as required under subsection (1) or (2), whichever is the greater amount under those subsections.

(3AA)    (Repealed)

(3B)  In subsection (3A):

(a)  a reference to an advance or an additional advance includes a reference to the increase in the amount of any contingent liability referred to in subsection (3C), and

(b)  a reference to the amount payable or repayable under or secured by the loan security includes a reference to the amount of any contingent liability dutiable under subsection (3C).

(3BA)  For the purposes of subsection (3A), an advance in relation to which duty is not chargeable because of section 84CAC is to be treated as if duty, as duty on a loan security, has previously been paid on the amount of the advance.

(3C)  If a loan security is used or is capable of being used (whether directly or through a chain of relationships) to recover the whole or any part of an amount payable by a guarantor, an indemnifying party or a party to another instrument (whether of the same or of a different kind), the loan security shall, unless the Chief Commissioner is satisfied that there is no connection between the loan security and any advance by any party to the arrangements, be liable to duty as a loan security:

(a)  in the case of a loan security of the type referred to in subsection (1)—in accordance with subsection (1), (2) or (2A):

(i)  in respect of the total amount secured or to be ultimately recoverable under the loan security, and

(ii)  in respect of the contingent liability under the guarantee, indemnity or other instrument (or, where there is more than one guarantee, indemnity or other instrument, the greatest contingent liability) as if that liability were an advance, or

(b)  in the case of a loan security of the type referred to in subsection (3)—in accordance with subsection (3) as if the advances made under or secured by the loan security included the amount of the contingent liability under the guarantee, indemnity or other instrument (or, where there is more than one guarantee, indemnity or other instrument, the greatest contingent liability).

(3CA)  A reference in subsection (3C) to a contingent liability is a reference to a contingent liability limited to the amount of any advance by any party to the arrangements referred to in that subsection and does not include a reference to any other kind of contingent liability.

(3D)  Nothing in subsection (3C) requires duty to be paid more than once in respect of an advance.

(4)  A loan security referred to in this section is unenforceable unless it has been stamped as provided by this section, whether or not the amount in relation to which the loan security is sought to be enforced is less than the amount in relation to which it is required to be stamped.

(4A)  The Chief Commissioner may, by notice in writing served on a party to a loan security, require the party to provide the Chief Commissioner, within a time specified in the notice, with a statutory declaration specifying the amount of each advance made under the loan security and the date on which it was made.

(5)  Subsection (4) of this section does not apply to a loan security executed before 1st January 1975 or to a loan security that is not subject to duty under this Act.

(6)  An advance or additional advance referred to in subsection (2A) or (3) shall for the purposes of section 25 of this Act be deemed to be made pursuant to a new and separate loan security first executed on the day on which the advance or additional advance was made.

(6A)  Section 25 (Terms on which instruments may be stamped after execution) applies to and in respect of a mortgage referred to in paragraph (d) of the definition of Loan security in section 83 (1), being a mortgage which affects land in New South Wales, as if a reference in section 25 to the date on which an instrument is first executed were a reference to the date on which the mortgage affected land in New South Wales.

(6B)  Section 25 (Terms on which instruments may be stamped after execution) applies to and in respect of an instrument which evidences the terms of a mortgage or becomes a mortgage as referred to in paragraph (e) of the definition of Loan security in section 83 (1) as if a reference in section 25 to the date on which an instrument is first executed were a reference to the date on which the documents of title or instruments evidencing the terms of a mortgage were first deposited, or the instrument becomes a mortgage, as so referred to.

(7)  Where the original loan security is deposited in the office of the Registrar-General or any other public office in which registration is effected, any duplicate or counterpart of the original loan security may be stamped with any additional duty referred to in subsection (2A) or (3) of this section, and that stamping shall have the same effect as if the stamps had been impressed upon the original loan security.

(8)  In proceedings for recovery of an amount payable or repayable under or secured by a loan security, the loan security shall not be unenforceable only because duty has not been paid in respect of an advance or additional advance which has been made for the purpose of paying any unpaid duty on the loan security.

s 84: Am 1965 No 36, Sch. Subst 1974 No 110, sec 4 (c). Am 1986 No 193, Sch 8 (3); 1987 No 85, Sch 3 (2); 1987 No 227, Sch 3 (2); 1988 No 130, Sch 5 (9); 1990 No 45, Sch 1 (7); 1990 No 95, Sch 1 (26) (29); 1991 No 93, Sch 5 (10); 1994 No 48, Sch 10 (6) (7); 1996 No 34, Sch 1.2 (10).

84A Charging of loan securities for repayment by periodical payments

A loan security for the payment of any rent charge, annuity or periodical payments, by way of repayment or in satisfaction or discharge of any loan, advance, or payment intended to be so repaid, satisfied, or discharged, is to be charged with the same duty as a similar security for the payment of the sum of money so lent, advanced, or paid.

s 84A: Ins 1974 No 110, sec 4 (c).

84B Collateral security

(1)  If a loan security or other instrument of security for money has been duly stamped under this Act or under the law of another State or a Territory (in this subsection called the stamped instrument) and there is another or other instruments which are security, wholly or partly, for the same money, the duty chargeable in respect of each of those other loan securities is to be reduced:

(a)  if each such other instrument is security for the whole of the same money, by the amount of duty (including duty paid or payable under the law of another State or a Territory) that was paid or is payable on the stamped instrument, and

(b)  if any of such other instruments is security for part of the same money, by an amount equal to the same proportion of the duty (including duty paid or payable under the law of another State or a Territory) that was paid or is payable on the stamped instrument as the amount of the same money for which that other instrument is security bears to the amount for which the stamped instrument is security.

(2)  Duty may not be reduced under subsection (1) to such an extent as to cause the duty chargeable under that subsection in respect of an instrument to be less than $10.

s 84B: Ins 1974 No 110, sec 4 (c). Am 1975 No 75, sec 6 (c); 1982 No 134, Sch 5 (1); 1986 No 193, Sch 8 (4); 1987 No 227, Sch 1 (10). Subst 1990 No 45, Sch 1 (8). Am 1990 No 95, Sch 1 (30).

84C Subsequent mortgages

Where a subsequent mortgage contains a covenant which confers upon the mortgagee a right whether absolute or contingent to pay to a prior mortgagee the amount owing under a prior mortgage and providing that any payment so made will be directly secured by the subsequent mortgage, the subsequent mortgage shall in the first instance be charged with duty, as duty on a loan security, without regard to the provisions of such covenant, but in the event of a payment being made under the covenant, the subsequent mortgage shall be deemed to be a new and separate mortgage first executed on the day on which the payment was made and shall be chargeable with $5 stamp duty where the amount of the payment does not exceed $16,000 and, where the amount of the payment exceeds $16,000, stamp duty of $5 for the first $16,000 and $4 for every $1,000 or fractional remaining part of $1,000 by which the amount exceeds $16,000, but so as not to otherwise affect the subsequent mortgage as a security.

s 84C: Ins 1974 No 110, sec 4 (c). Am 1990 No 95, Sch 1 (27).

84CA Unregistered mortgage protected by caveat

(1)  A caveat under the Real Property Act 1900 in which an estate or interest is claimed under an unregistered mortgage is chargeable with duty:

(a)  if the mortgage is stamped with ad valorem duty or is not chargeable with duty—of $10, or

(b)  if the mortgage is chargeable, but not stamped, with ad valorem duty—of the same amount as is chargeable on the mortgage.

(2)  The mortgagor is the person primarily liable for duty chargeable under this section.

(3)  This section does not apply to a caveat lodged in respect of a mortgage being a loan security not chargeable with duty under section 84EB.

(4)  This section does not apply to a caveat lodged in respect of a mortgage which is created solely for the purpose of providing security in accordance with a condition imposed on the grant of bail in connection with criminal proceedings.

s 84CA: Ins 1986 No 193, Sch 8 (5). Am 1987 No 85, Sch 3 (3); 1989 No 113, Sch 2 (4).

84CAA Refinancing of loans

(1)  In this section, refinancing loan security means a loan security that secures the amount of the balance outstanding under an earlier loan security granted for the benefit of the same borrower over the same or substantially the same property or part of it.

(2)  For the purposes of subsection (1), loan securities are granted for the benefit of the same borrower if, either directly in terms of the securities themselves or indirectly through one or more collateral arrangements, the same person obtains the advances secured by them.

(3)  A refinancing loan security is taken to have been stamped with ad valorem duty as a loan security in respect of the maximum amount secured by the previous loan security, except as provided by subsection (5).

(4)  If a loan is refinanced by more than one lender, so that loan securities given to the lenders together secure the balance outstanding under an earlier loan security, the definition of refinancing loan security in subsection (1) is to be construed as though:

(a)  the reference to a loan security securing the outstanding balance were a reference to the aggregate of such loan securities, and

(b)  the reference in that definition to property were a reference to the property securing the aggregate of refinancing advances made by the lenders under their combined securities,

to the intent that, if the requirements of the definition, as so construed, are satisfied, each lender is taken, for the purposes of this section, to be the holder of a refinancing loan security.

(5)  If, as provided by subsection (4), each of a number of lenders is the holder of a refinancing loan security, a refinancing loan security held by each lender is taken to have been duly stamped with ad valorem duty as a loan security in respect of an amount equal to the same proportion of the maximum amount secured by the earlier loan security as the amount secured by that security bears to the total amount secured by the refinancing loan securities held by all the lenders.

(6)  If each of two or more refinancing loan securities severally secures the same advance:

(a)  the provisions of subsection (3) or (5), as the case may be, apply to such one of the securities as the Chief Commissioner determines, and

(b)  no duty is chargeable in respect of any of the others.

(7)  For the purposes of section 84B:

(a)  a refinancing loan security that is taken, by the operation of subsection (3) or (5), to be duly stamped is in either case the stamped instrument, and

(b)  duty is taken to have been paid on it to the extent provided by whichever of those subsections applies.

(8)  Duty at the rate of $4 per $1,000 or remaining part of $1,000 is payable on the amount by which the advance made under a refinancing loan security (not being a security on which, by virtue of subsection (6) (b), no duty is chargeable) exceeds:

(a)  the maximum amount secured by the earlier loan security, or

(b)  the proportion of that amount referred to in subsection (5), in the case of a refinancing to which subsection (4) applies.

s 84CAA: Ins 1988 No 130, Sch 5 (10). Am 1991 No 93, Sch 5 (11). Subst 1996 No 34, Sch 1.2 (11); 1996 No 125, Sch 1 (15).

84CAB (Repealed)

s 84CAB: Ins 1992 No 33, Sch 1 (11). Am 1992 No 86, Sch 6 (20); 1993 No 108, Sch 2; 1994 No 48, Sch 10 (8). Rep 1996 No 34, Sch 1.2 (11).

84CAC Exemption for certain home loan transactions

(1) Exemption An advance under a loan security relating to the refinancing or transfer of a loan security over a person’s home is not liable to duty, to the extent that it relates to the refinancing or transfer, if the transaction satisfies all of the criteria in this section.

(2) Kind of transaction The advance must:

(a)  be under a loan security that secures the balance outstanding under an earlier loan security over the person’s home or must be made under or in connection with the transfer of a loan security over the person’s home, and

(b)  be made on or after 1 January 1993 and before 1 January 1996, and

(c)  be in respect of an amount of not more than $120,000.

(3) Parties All the parties need not be the same as the original parties to the loan security over the person’s home.

(4) Who is eligible? The advance must be made to a natural person or persons whose taxable income, or combined taxable income, is not more than $40,000 and the loan security concerned must be over the person’s or persons’ principal place of residence.

s 84CAC: Ins 1994 No 48, Sch 10 (9). Am 1994 No 72, Sch 4 (12); 1995 No 98, Sch 7 (11).

84D Duty on subscriptions under instruments which secure debentures

(1)  Where a corporation is or will be under a liability to repay any money received or to be received by it in respect of debentures of the corporation and there is an instrument of trust relating to the debentures to which the corporation is a party, the corporation and the trustee for the holders of the debentures may give an undertaking in an approved form to the Chief Commissioner and thereupon the instrument of trust and any mortgage executed by the corporation protecting the interests of the holders of the debentures shall not be liable to duty as duty on a loan security, and any such debenture issued in respect of any amount subscribed for in New South Wales shall be deemed to be duly stamped under the provisions of this Act and any such debenture issued in respect of any amount subscribed for outside New South Wales shall not, subject to subsection (4) of this section, be chargeable with duty under this Act if duty of a like nature under the law of the place where the amount is subscribed for has been paid.

Any mortgage, not executed by the corporation, protecting the interests of the holders of the debentures shall be liable to duty of $10.

(2)  The undertaking to be given by the corporation and the trustee for the holders under subsection (1) of this section shall be under seal and shall bind the corporation and the trustee to lodge with the Chief Commissioner in the month of July in each year a statutory declaration setting out the total amount subscribed for in New South Wales in respect of the debentures referred to in that subsection during the year ending on the thirtieth day of June then last past and shall bind the corporation to pay to the Chief Commissioner $4 for every $1,000 and any remaining fractional part of $1,000 so subscribed for in New South Wales during that period of one year.

(2A)  Notwithstanding subsection (2) of this section, an undertaking referred to in that subsection shall be construed as if:

(a)  the reference in that subsection to the total amount subscribed did not include a reference to amounts repayable at call or in less than 30 days, and

(b)  the reference in that subsection to $4 for every $1,000 and any remaining fractional part of $1,000 were:

(i)  in the case of money that is repayable at or after the expiration of a period of not less than 30 days and not more than 3 months—a reference to $2 for every $10,000 and for any remaining fractional part of $10,000, or

(ii)  in the case of money that is repayable at or after the expiration of a period of not less than 3 months and not more than 6 months—a reference to $2 for every $1,000 and for any remaining fractional part of $1,000.

(2B)  For the purposes of subsection (2A) of this section, money repayable at call after a specified period shall be regarded as money repayable at the expiration of that period.

(3)  Where an undertaking is given by a corporation and the trustee for the holders under subsection (1) of this section before 30 June 1975, the provisions of subsection (2) of this section shall have effect in relation to the statutory declaration to be made by the corporation and the trustee in the month of July 1975 as if subsection (2) of this section required that statutory declaration to set out the total amount subscribed for in New South Wales in respect of the debentures referred to in subsection (1) of this section during the period commencing on 1 January 1975 and ending on 30 June 1975.

(4)  Where a person resident or domiciled in New South Wales becomes the holder of a debenture referred to in subsection (1) of this section which was subscribed for outside New South Wales, that person is liable, on the day on which he becomes the holder of the debenture, to duty, as duty on a loan security, for an amount equal to the duty payable on a loan security for the amount to be repaid under the debenture except where ad valorem stamp duty has been paid or is payable in another State or a Territory of the Commonwealth in respect of the issue of or the subscription to the debenture.

(5)  The provisions of this section apply to and in respect of debentures and subscriptions for debentures issued or made on or after 1 January 1975 whether or not the mortgage deed or trust deed relating to those debentures was executed before, on or after that date.

(6)  In this section, a reference to an amount subscribed for in respect of debentures includes a reference to an amount represented by debentures issued upon the conversion or renewal of an existing holding of debentures or other marketable securities.

s 84D: Ins 1974 No 110, sec 4 (c). Am 1982 No 134, Sch 5 (2); 1990 No 45, Sch 1 (9); 1991 No 93, Sch 5 (12).

84E Debentures not liable to duty if mortgage duly stamped

Notwithstanding any other provision of this Act, where:

(a)  the repayment of any debentures is secured on a mortgage referred to in paragraph (e) of the definition of Mortgage in section 83 (1) of this Act (not being an instrument of trust) and the amount secured is not less than the amount repayable in respect of those debentures, or

(b)  the interests of the holders of any debentures to which a mortgage so referred to (being an instrument of trust) relates are protected by the mortgage to an extent not less than the amount repayable in respect of the debentures,

and the mortgage is duly stamped as a loan security, the debentures are not liable to duty, as duty on a loan security.

s 84E: Ins 1974 No 110, sec 4 (c).

84EA Re-issue of certificates of debentures not liable to duty

To the extent to which duty, as duty on a loan security or as duty of a like nature in another State or a Territory of the Commonwealth, has been paid in relation to a debenture, any certificate subsequently issued in relation to that debenture, or any part thereof, is not liable to duty under this Act.

s 84EA: Ins 1985 No 219, Sch 3 (11). Am 1987 No 227, Sch 1 (11).

84EB Loan securities associated with certain consumer credit contracts

(1)  If:

(a)  a loan security is security for an amount advanced under a consumer credit contract and no other advance, and

(b)  the total amount advanced under the consumer credit contract does not exceed $35,000,

the loan security is exempt from duty.

(2)  If:

(a)  a loan security is security for an amount advanced under a consumer credit contract and another advance, and

(b)  the total amount advanced under the consumer credit contract does not exceed $35,000,

duty is not chargeable on the loan security in relation to the amount advanced under the consumer credit contract.

(3)  If:

(a)  a loan security is security for an amount advanced under a consumer credit contract (whether or not it is also security for any other advance), and

(b)  the total amount advanced under the consumer credit contract exceeds $35,000,

the whole of the amount advanced under the consumer credit contract comprises or forms part of the amount or the maximum amount that is or may become payable or repayable under or that is secured by the loan security.

(4)  An exemption provided by subsection (1) or (2) is not available to the extent to which the consumer credit is provided for the purposes of:

(a)  the acquisition of a private dwelling house or land on which to erect a private dwelling house, or

(b)  the erection of a private dwelling house or the addition of accommodation to a private dwelling house.

(5)  In this section:

consumer credit means credit regulated under the Consumer Credit Code.

Consumer Credit Code means:

(a)  the provisions of the Code by that name set out in the Appendix to the Consumer Credit (Queensland) Act 1994 of Queensland, as applied and in force in any Australian jurisdiction, or

(b)  the provisions of an Act of an Australian jurisdiction that are in the same, or substantially the same, terms as that Code.

private dwelling house includes a lot within the meaning of the Strata Schemes Management Act 1996 used as a place of residence.

s 84EB: Ins 1985 No 219, Sch 3 (11). Am 1986 No 193, Sch 8 (6); 1995 No 7, Sch 1; 1996 No 34, Sch 1.1. Subst 1997 No 41, Sch 1 [1]. Am 1999 No 31, Sch 3.17.

84EBAA Farm machinery and commercial vehicles

(1)  Duty on a loan security is not chargeable on so much of an advance to a natural person for the acquisition of farm machinery or a commercial vehicle as is secured by the loan security.

(2)  In this section:

commercial vehicle means:

(a)  a motor vehicle or trailer within the meaning of the Traffic Act 1909 constructed or adapted principally for the carriage of goods but does not include a motor vehicle of the kind known as a utility, a station wagon or a panel van, or

(b)  a vehicle without motive power of its own and constructed or adapted principally for the carriage of goods and for being drawn by a motor vehicle within the meaning of that Act.

farm machinery means:

(a)  a harvester, binder, tractor, plough or other agricultural implement, or

(b)  a boat within the meaning of the Fisheries Management Act 1994 or fishing gear within the meaning of that Act, or

(c)  any other goods of a class commonly used for the purposes of a farming undertaking that are determined by the Chief Commissioner to be farm machinery for the purposes of this section,

where the goods are acquired for the purposes of a farming undertaking.

farming undertaking includes:

(a)  any agricultural, apicultural, dairy farming, horticultural, orcharding, pastoral, poultry keeping, viticultural or other business involving the cultivation of the soil, the gathering of crops or the rearing of livestock, and

(b)  the business of taking fish, crustacea, oysters or any other marine, estuarine or fresh-water animal life, and

(c)  the cutting of timber for sale, and

(d)  any class of business determined by the Chief Commissioner to be a farming undertaking.

s 84EBAA: Ins 1997 No 41, Sch 1 [1]. Am 1997 No 115, Sch 4.21 [2].

84EBA Exemption for loan securities of companies with regional headquarters in NSW

(1)  Notwithstanding any other provision of this Act, duty is not chargeable in respect of a loan security where the borrower or person bound is a company:

(a)  that is the subject of a determination under section 82CE of the Income Tax Assessment Act 1936 of the Commonwealth and that has established in New South Wales after 1 July 1995 the facilities that comprise its regional headquarters, and

(b)  that satisfies such other requirements as may be imposed from time to time by the Treasurer.

(2)  This section:

(a)  applies to a company, but only if a determination under section 82CE of the Income Tax Assessment Act 1936 of the Commonwealth was made in relation to it before 1 September 1995, and

(b)  ceases to apply to a company on 1 July 2000.

s 84EBA: Ins 1994 No 72, Sch 4 (13) (am 1995 No 16, Sch 2). Am 1995 No 98, Sch 7 (12).

84EC Exemption of certain debentures and related instruments from duty

(1)  In this section:

financial corporation means a corporation whose sole or principal business is that of the provision of finance to the public, including the making of loans within the meaning of Division 20 to the public.

related corporation, in relation to a financial corporation, means a corporation that is deemed to be related to the financial corporation by virtue of section 7 (5) of the Companies (New South Wales) Code.

(2)  Subject to subsection (3), but notwithstanding any other provision of this Act:

(a)  duty is not chargeable on:

(i)  a debenture issued by a financial corporation or a related corporation pursuant to an instrument of trust to which the financial corporation or related corporation is a party and which protects the interests of the holders of the debentures, or

(ii)  a debenture issued by a financial corporation or a related corporation the repayment in respect of which is secured by a mortgage executed by the financial corporation or related corporation, and

(b)  duty as duty on a loan security is not chargeable on:

(i)  an instrument of trust to which a financial corporation or a related corporation is a party and which protects the interests of the holders of debentures issued by the financial corporation or related corporation pursuant to the instrument, or

(ii)  a mortgage executed by a financial corporation or a related corporation to secure the repayment of debentures issued by the financial corporation or related corporation.

(3)  Subsection (2) applies to a debenture issued, or an instrument of trust or mortgage executed, by a related corporation only in so far as the debenture is issued, or the instrument of trust or mortgage is executed, for the purpose of raising funds to be used by a financial corporation.

s 84EC: Ins 1987 No 227, Sch 1 (12).

84F Loan security in respect of property in and out of the State

Despite any other provision of this Act, if money secured or ultimately recoverable by or under a loan security is secured:

(a)  partly on property in the State and partly on property out of the State, ad valorem duty under this Act is payable in respect of the loan security on that portion of the money as bears to the total amount of the money the same proportion as the value of the property in the State bears to the total value of all property to which the loan security relates, or

(b)  wholly on property out of the State, the duty payable under this Act in respect of the loan security is, subject to any exemption under this Act, $10.

s 84F: Ins 1974 No 110, sec 4 (c). Am 1982 No 134, Sch 5 (3). Subst 1986 No 193, Sch 8 (7); 1990 No 45, Sch 1 (10).

Division 21A Mortgage-backed securities

pt 3, div 21A: Ins 1984 No 171, Sch 1 (3).

84FA Charging of duty on issue etc of mortgage-backed securities

(1)  In this section:

bank means a bank as defined by section 5 of the Banking Act 1959 of the Commonwealth or a bank constituted under a law of a State or Territory.

mortgage means a mortgage of any estate or interest in land, including a leasehold estate or interest in land, whether the land is situated in New South Wales or elsewhere.

mortgage-backed security means:

(a)  an instrument which entitles the holder of or beneficial owner under the instrument to the whole or any part of:

(i)  the rights or entitlements of a mortgagee and any other rights or entitlements in respect of a mortgage or any money payable by the mortgagor under the mortgage (whether the money is payable to the holder of or beneficial owner under the instrument on the same terms and conditions as under the mortgage or not), or

(ii)  the rights or entitlements of a mortgagee and any other rights or entitlements in respect of a pool of mortgages or any money payable by mortgagors under those mortgages (whether the money is payable to the holder of or beneficial owner under the instrument on the same terms and conditions as under the mortgages or not),

and which may, in addition, entitle the holder or beneficial owner to a transfer or assignment of the mortgage or mortgages,

(b)  a corporate debt security the payments under which by the corporation, company or society which issues or makes the instrument are derived substantially or, where the regulations prescribe the extent, to the prescribed extent, from the income or receipts of a pool of mortgages, all of the mortgages in which are residential mortgages and all of the money in which, being money which has been paid pursuant to mortgages, has been paid pursuant to residential mortgages,

(c)  any of the following instruments or property:

(i)  an instrument or property creating, conferring or comprising a right or interest (whether described as a unit, bond or otherwise) of or on a beneficiary in a scheme under which any profit or income in which the beneficiaries participate arises from the acquisition, holding, management or disposal of prescribed property, or any instrument that evidences such a right or interest,

(ii)  a corporate debt security or other debt security the payments under which by the corporation (including a corporate trustee), company or society that issues or makes the instrument are derived substantially from the income or receipts of prescribed property,

(iii)  an instrument, or any property, prescribed by the regulations to be a mortgage-backed security for the purposes of this definition or that belongs to a class of instruments or property so prescribed, or

(d)  an instrument or property which creates an interest in or charge over an instrument or property to which paragraph (a), (b) or (c) applies,

but does not include an instrument or property comprising:

(e)  a mortgage,

(f)  the transfer of a mortgage,

(g)  a declaration of trust, or

(h)  an instrument of a class or description of instruments, or property of a class or description of property, prescribed not to be a mortgage-backed security for the purposes of this definition.

pool of mortgages means a pool or collection of assets:

(a)  which is comprised solely of mortgages, or

(b)  which is comprised substantially or, where the regulations prescribe the extent, to the prescribed extent, of mortgages or of money paid pursuant to mortgages (whether or not that money has been invested in the assets specified in any of subparagraphs (ii)–(viii) or in assets prescribed under subparagraph (ix)), or both, but which may also contain any one or more of the following:

(i)  cash,

(ii)  bonds, debentures, stock or Treasury Bills of the Commonwealth of Australia or the Government of New South Wales or the Government or Administration of any other State or any Territory of the Commonwealth,

(iii)  debentures or stock of any public statutory body constituted under the law of the Commonwealth of Australia or of New South Wales or of any other State or any Territory of the Commonwealth,

(iv)  notes or other securities of the Commonwealth of Australia or the Government of New South Wales or the Government or Administration of any other State or any Territory of the Commonwealth,

(v)  deposits with, or the acquisition of certificates of deposits or any other security issued by, a bank or a building society (whether expressed in Australian currency or otherwise),

(vi)  bills of exchange, promissory notes or other negotiable instruments accepted, drawn or endorsed by a bank (whether expressed in Australian currency or otherwise),

(vii)  a guaranteed investment contract (expressed in Australian currency) of a type approved by the Chief Commissioner,

(viii)  mortgage-backed securities, mortgage-backed certificates within the meaning of Part 1B of the Trustee Act 1958 of Victoria and marketable securities that are secondary mortgage market securities under section 29 (1) of the Mortgages (Secondary Market) Act 1984 of Queensland,

(ix)  assets prescribed by the regulations for the purposes of this subparagraph or belonging to a class or description so prescribed.

prescribed property means assets of the kind specified in paragraph (b) (i)–(viii) of the definition of pool of mortgages, or prescribed under paragraph (b) (ix) of that definition.

residential mortgage means:

(a)  a mortgage, the amount secured by which is or is to be applied for:

(i)  the purchase of land, whether there are improvements on the land or not, which is to be used solely or predominantly for residential purposes, or

(ii)  the extension or improvement of any residential accommodation on land, or

(b)  a mortgage of a class or description of mortgages prescribed for the purposes of this definition.

(2)  Notwithstanding any other provision of this Act, duty (other than duty payable in respect of a receipts return within the meaning of section 98 (1) or a short term dealers return within the meaning of that subsection or under Division 29) shall not be chargeable in respect of:

(a)  the issue or making of a mortgage-backed security,

(b)  the transfer or assignment of or other dealing in a mortgage-backed security,

(c)  the discharge, cancellation or termination of a mortgage-backed security, or

(d)  a mortgage or other charge executed on or after the date of assent to the Stamp Duties (Further Amendment) Act 1986 over the interest of a corporation, company or society in mortgages or in assets specified in paragraph (b) (i), (ii) or (iii), or prescribed for the purposes of paragraph (b) (iv), of the definition of pool of mortgages in subsection (1), being a mortgage or other charge relating to corporate debt securities that are mortgage-backed securities issued by the corporation, company or society to secure the repayment of financial accommodation provided to it,

where the issue, making, transfer, assignment, dealing in, discharge, cancellation or termination referred to in paragraph (a), (b) or (c) occurs on or after 15 November 1984.

(3)  Notwithstanding any other provision of this Act, duty (other than duty payable in respect of a receipts return within the meaning of section 98 (1) or a short term dealers return within the meaning of that subsection or under Division 29) shall not be chargeable in respect of a mortgage or charge of a mortgage or pool of mortgages or part of a pool of mortgages for the purpose of creating, issuing, marketing or securing a mortgage-backed security:

(a)  to a person entitled to a mortgage-backed security or a trustee or agent for such a person, or

(b)  by or to a person who issues, makes or endorses a mortgage-backed security, or

(c)  to a person who provides security (whether as a guarantor, surety or otherwise) to a person entitled to a mortgage-backed security or a trustee or agent for such a person,

where the mortgage or charge is executed on or after 1 January 1991.

s 84FA: Ins 1984 No 171, Sch 1 (3). Am 1985 No 219, Sch 3 (12); 1986 No 193, Sch 3 (1); 1990 No 95, Sch 1 (31); 1996 No 34, Sch 1.4 (3)–(6).

Division 21B Loan-backed securities

pt 3, div 21B (s 84FB): Ins 1988 No 130, Sch 5 (11).

84FB Charging of duty on issue etc of loan-backed securities

(1)  In this section:

bank means a bank within the meaning of the Banking Act 1959 of the Commonwealth or a bank constituted by a law of a State or of the Commonwealth.

government body means:

(a)  the Commonwealth,

(b)  the Government of New South Wales,

(c)  the Government or Administration of any other State or any Territory of the Commonwealth,

(d)  a municipal corporation, other local governing body or public authority constituted by or under a law of the Commonwealth or the Government of New South Wales or the Government or Administration of any other State or any Territory of the Commonwealth, or

(e)  a corporation the principal business of which is the supply and distribution by a system of reticulation, in New South Wales or in any other State or any Territory of the Commonwealth, of water, gas or electricity.

loan-backed security means:

(a)  an instrument or property creating, conferring or comprising a right or interest (whether described as a unit, bond or otherwise) of or on a beneficiary in a scheme under which the profits, distributions of capital or income in which beneficiaries participate arise or arises from the acquisition, holding, management or disposal of a pool of loans, or any instrument which evidences such a right or interest, or

(b)  a corporate debt security:

(i)  the payments under which by the corporation, company or society which issues or makes the instrument are derived substantially from the acquisition, holding, management or disposal of a pool of loans, and

(ii)  which is secured by a mortgage or charge over a pool of loans, or

(c)  an instrument of a class or description of instruments, or property of a class or description of property, prescribed to be a loan-backed security for the purposes of this definition.

mortgage-backed security has the same meaning as in section 84FA (1).

permanent building society means a permanent building society listed in the Second Schedule to the Co-operation Act 1923 or registered under the Permanent Building Societies Act 1967.

pool of loans means a pool of loans which is comprised substantially of any one or more of the following:

(a)  cash,

(b)  notes, debentures, loans, stock, promissory notes, bonds or other securities of a government body,

(c)  bills of exchange, promissory notes or other negotiable instruments accepted, drawn or endorsed by a bank, a permanent building society or a government body,

(d)  deposits with, or the acquisition of certificates of deposits or any other security issued by, a bank, a permanent building society or a government body,

(e)  loan-backed securities,

(f)  mortgage-backed securities,

(g)  a guaranteed investment contract of a type approved by the Chief Commissioner,

(h)  assets of a class or description of assets prescribed for the purposes of this definition.

(2)  Notwithstanding any other provision of this Act, duty (other than duty payable in respect of receipts within the meaning of section 98 (1) or a short term dealers return within the meaning of Division 29) shall not be chargeable in respect of an instrument which is or effects:

(a)  the issue or making of a loan-backed security,

(b)  the transfer or assignment of, or other dealing in, a loan-backed security,

(c)  the discharge, redemption, cancellation or termination of a loan-backed security,

(d)  any instrument that, in the opinion of the Chief Commissioner, was executed for the purpose of creating, issuing or marketing loan-backed securities,

(e)  a mortgage or other charge over the interest of a person in a pool of loans, being a mortgage or other charge relating to loan-backed securities issued by the person to secure the repayment of financial accommodation provided to the person,

(f)  a policy of insurance covering any or all assets in a pool of loans or a pool of loans acquired for the purpose of issuing loan-backed securities,

(g)  any option agreement relating to any or all assets in a pool of loans or a pool of loans, being a pool of loans acquired or held for the purpose of issuing loan-backed securities, or

(h)  an agreement for the sale or conveyance, or a conveyance, of assets of the type specified in the definition of pool of loans in subsection (1), being an agreement for the sale or conveyance, or a conveyance, executed for the purpose of creating or issuing loan-backed securities,

but only so far as the instrument relates to loan-backed securities.

pt 3, div 21B (s 84FB): Ins 1988 No 130, Sch 5 (11).

Division 22 Motor vehicle certificates of registration

84G Duty on motor vehicle certificates of registration

s 84G, hdg: Ins 1962 No 27, sec 5 (1) (b).

(1)  For the purposes of this Act and of the matter appearing under the heading “Motor Vehicle Certificate of Registration” in the Second Schedule to this Act, a motor vehicle certificate of registration means a certificate of registration issued in respect of a motor vehicle in accordance with the provisions of the Traffic Act 1909 or Road Transport (Vehicle Registration) Act 1997 as amended by subsequent Acts and the regulations thereunder whether such motor vehicle certificate of registration has been issued pursuant to a new registration or transfer of registration but does not include:

(a)  any such motor vehicle certificate of registration issued to the person in whose name such vehicle was last registered (whether in New South Wales or elsewhere) before the issue of such motor vehicle certificate of registration, not being:

(i)  a motor vehicle certificate of registration issued to that person where duty has not previously been paid under this Act or any corresponding Act or law of another State or a Territory of the Commonwealth by that person on or in relation to a motor vehicle certificate of registration issued in respect of the motor vehicle, or

(ii)  a motor vehicle certificate of registration issued to such a person where, because the motor vehicle was, before the issue of the certificate, registered in another State or a Territory of the Commonwealth in which no duty of a kind chargeable under this section was charged, duty has not previously been payable,

and the certificate is not a certificate referred to in paragraph (d) of this subsection, or

(b)  a duplicate motor vehicle certificate of registration, or

(c)  a motor vehicle certificate of registration issued pursuant to a transfer of a motor vehicle under Regulation 29 of the Regulations under the Motor Traffic Act 1909, as so amended, or

(d)    (Repealed)

(e)  a motor vehicle certificate of registration issued for a motor vehicle if ad valorem duty as on a conveyance of property has been paid in connection with the acquisition of the motor vehicle, or

(f)  a motor vehicle certificate of registration issued:

(i)  in respect of a demonstrator motor vehicle within the meaning of section 4 (1) of the Motor Dealers Act 1974 (paragraph (b) of that definition excepted) which has not previously been registered under the Traffic Act 1909 or Road Transport (Vehicle Registration) Act 1997 or a law of another State or a Territory of the Commonwealth which corresponds to the Traffic Act 1909 or Road Transport (Vehicle Registration) Act 1997, and

(ii)  to a person who is engaged principally in the trade or business of buying or selling motor vehicles, who is the holder of a dealer’s licence or a wholesaler’s licence under the Motor Dealers Act 1974 and who is the holder of, and who complies with the conditions imposed in respect of, an exemption authority issued by or with the approval of the Chief Commissioner, or

(g)  a motor vehicle certificate of registration issued in respect of a motor vehicle specially constructed for the work of conveying sick or injured persons or for mine rescue work in accordance with the Mines Rescue Act 1925, and the regulations under that Act, if the vehicle while on a road or road related area is used solely for purposes connected with that work, or

(h)  a motor vehicle certificate of registration issued in respect of a motor vehicle which weighs not more than 255 kg when unladen and is specially constructed to be used, and while on a road or road related area is used, solely for the conveyance of an invalid, or

(i)  a motor vehicle certificate of registration issued to a person who is a dealer in used or reconstructed motor vehicles solely in connection with the business of financing the purchase of those vehicles and who, in the course of that business, does not dispose of any such vehicle except through a dealer licensed under the Motor Dealers Act 1974, being a certificate that has been obtained for the purpose of the resale of the vehicle in respect of which the certificate is issued, or

(j)  a motor vehicle certificate of registration issued to:

(i)  a non-profit organisation having as one of its objects a charitable, benevolent, philanthropic or patriotic purpose, or

(ii)  a charity which is registered or which is exempted from registration under the Charitable Collections Act 1934, or

(k)  a motor vehicle certificate of registration issued to a rural lands protection board established under the Rural Lands Protection Act 1989, or

(ka)  a motor vehicle certificate of registration issued as a result of the transfer of a motor vehicle from a continued unincorporated industrial organisation or a continued non-industrial organisation (within the meaning of section 615 of the Industrial Relations Act 1991) to an industrial organisation or non-industrial organisation (within the meaning of section 406 (1) of that Act) in compliance with the incorporation provisions of the Industrial Relations Act 1991, or

(kb)  a motor vehicle certificate of registration issued in the name of a veteran who is totally and permanently incapacitated and who is eligible for a special rate of pension under section 24 of the Commonwealth Veterans’ Entitlements Act 1986, or

(l)  a motor vehicle certificate of registration issued in circumstances in which the Chief Commissioner considers it would not be just and reasonable to require the payment of stamp duty.

(2)  Subject to the provisions of this Act a motor vehicle certificate of registration is to be charged with ad valorem duty in respect of the value of the motor vehicle for which the certificate is issued at the rate specified in the Second Schedule.

(2A)  Duty is not payable under subsection (2) of this section in the case of a motor vehicle certificate of registration issued to a person who is engaged principally in the trade or business of buying or selling motor vehicles and is the holder of a dealer’s licence or a wholesaler’s licence under the Motor Dealers Act 1974 where the certificate of registration:

(a)  has been obtained for the purpose of the resale of the motor vehicle in respect of which it is issued, being a motor vehicle which has previously been registered under the Traffic Act 1909 or Road Transport (Vehicle Registration) Act 1997 or a law of another State or a Territory of the Commonwealth which corresponds to that Act, and

(b)  is not in respect of a demonstrator motor vehicle within the meaning of the definition of that expression in section 4 (1) of the Motor Dealers Act 1974, paragraph (b) of that definition excepted.

(2B)  Duty is not payable under subsection (2) of this section in the case of a motor vehicle certificate of registration that:

(a)  relates to a motor vehicle described in subsection (2A) of this section, and

(b)  is issued to a person who is the holder of a licence under any law of another State, or of a Territory of the Commonwealth, that corresponds to a dealer’s licence, or a wholesaler’s licence, under the Motor Dealers Act 1974,

if stamp duty would not have been payable under any law of that State or Territory in respect of acquisition of the motor vehicle had it been acquired in that State or Territory by a person referred to in subsection (2A) of this section.

(3)  For the purposes of this section and all the matter appearing under the heading “Motor Vehicle Certificate of Registration” in the Second Schedule to this Act, the value of a motor vehicle shall, subject to the provisions of subsections (3AA) and (5) of this section, be such amount as is specified, in the form referred to in subsection (3A), by the applicant for such certificate of registration in respect of such motor vehicle or the transfer thereof to represent the market value of such vehicle as at the time of making such application.

(3AA)  The value of a new motor vehicle does not include any amount for sales tax if the vehicle was purchased by a purchaser who was not liable to pay sales tax.

(3A)  An application for a motor vehicle certificate of registration shall be accompanied by a statement, in or to the effect of the form for the time being approved by the Chief Commissioner, specifying:

(a)  the market value of the vehicle as at the time of the making of the application, and

(b)  such other matters as the Chief Commissioner may require to be specified in the form.

(3B)  Any person who, in purported compliance with a requirement under subsection (3A), furnishes information which is false or misleading in a material particular is guilty of an offence and liable to a penalty not exceeding 50 penalty units or imprisonment for 12 months, or both.

(4)  An amount equivalent to the duty chargeable under this Act on a motor vehicle certificate of registration shall be forwarded with the application for the certificate of registration or transfer thereof.

(5)  Where, in the opinion of the Chief Commissioner, the amount of the market value of a motor vehicle specified in accordance with subsection (3A) of this section by an applicant for a certificate of registration in respect of the motor vehicle is less than the true market value of the motor vehicle, the Chief Commissioner may make a further assessment of the duty payable on the basis that the value of the motor vehicle was:

(a)  the amount of the consideration paid for the acquisition of the motor vehicle by the applicant,

(b)  such other amount as, in the opinion of the Chief Commissioner, is the true market value of the motor vehicle, or

(c)  if the applicant satisfies the Chief Commissioner that the value of the motor vehicle was some other amount—that other amount.

(5A)  Where the Chief Commissioner makes an assessment under subsection (5) that the true market value of a motor vehicle is greater than the market value of the motor vehicle specified in the statement referred to in subsection (3A), the motor vehicle certificate of registration is chargeable with:

(a)  the additional duty payable as a result of the assessment, and

(b)  a fine of double the additional duty so payable.

(6)  The Chief Commissioner may recover any additional duty (including any fine chargeable under subsection (5A)) payable as a result of an assessment under subsection (5) of this section or, as the case may require, shall refund to the applicant any overpayment of duty, the amount of any additional duty or any refund being denoted on the certificate of registration.

(7)  For the purposes of this Act, a motor vehicle certificate of registration issued on or after the date of assent to the Stamp Duties (Further Amendment) Act 1982 shall, if it was issued as a result of an application therefor, be deemed to have been issued and first executed at the time at which payment of the fee, or of part of the fee, for the issue of the certificate of registration is first recorded, by cash register imprint or otherwise, in accordance with the regulations under the Motor Traffic Act 1909.

(8)  In this section:

road or road related area means a road or road related area within the meaning of the Traffic Act 1909 (other than a road or road related area that is the subject of a declaration made under section 2A (1) (b) of that Act).

s 84G: Ins (as sec 84A) 1962 No 27, sec 5 (1) (b). Renumbered, 1975 No 75, sec 7 (1). Am 1978 No 139, Sch 2 (3); 1982 No 134, Sch 6; 1984 No 26, Sch 3; 1985 No 219, Sch 3 (13); 1987 No 227, Schs 1 (13), 3 (3); 1988 No 130, Sch 5 (12); 1991 No 93, Sch 4 (4); 1992 No 86, Sch 6 (10); 1992 No 112, Sch 1; 1994 No 72, Sch 4 (14); 1997 No 115, Sch 4.21 [3] [4]; 1997 No 119, Sch 2.26; 1998 No 44, Sch 5 [6]–[8].

84GA Refund of duty—certificates of registration of stolen motor vehicles

(1)  A person may apply to the Chief Commissioner for a refund of duty paid by the person in respect of a motor vehicle certificate of registration if the motor vehicle concerned is repossessed from the person because, before the person acquired it, it had been stolen.

(2)  An application must be made in the approved form within 1 year after the date of purchase of the motor vehicle concerned by the applicant.

(3)  The Chief Commissioner may refund duty in accordance with an application made under this section.

s 84GA: Ins 1992 No 33, Sch 1 (12).

Division 23 Partitions or divisions

85 Partition or division of any property

(1)  Every agreement or other instrument for or effecting the partition or division of any property is to be charged with a fixed duty of $10, and where the divided parts of the property are unequal in unencumbered value the principal or only instrument whereby the partition or division is effected is to be charged in addition to the said fixed duty with the same ad valorem duty as if it were a conveyance of similar property of an unencumbered value equal to the amount by which the unencumbered value of the undivided share of each partitioner is exceeded by the unencumbered value of the divided part taken by him and any amount paid or given or agreed to be paid or given for equality shall be deemed to be consideration for such conveyance.

(2)  Where in any such case there are several instruments for completing the title of either party the principal instrument is to be ascertained, and the other instruments are to be charged with a fixed duty of $10.

s 85: Am 1924 No 32, sec 11 (b); 1931 No 13, sec 4 (bb) (i)–(iii); 1933 No 12, sec 2 (p); 1955 No 30, sec 2 (k); 1965 No 36, Sch; 1974 No 71, sec 4 (k); 1985 No 219, Sch 1 (2).

Division 24 Policies of insurance etc

pt 3, div 24: Subst 1989 No 113, Sch 1 (1).

86 Definitions

(1)  In this Division and in the Second Schedule:

approved means approved by the Chief Commissioner.

exempt insurance means insurance to which this Division does not apply by virtue of section 87.

Class 1 insurance means insurance, other than:

(a)  Class 2 insurance, or

(a1)  Class 3 insurance, or

(b)  life insurance, or

(c)  exempt insurance.

Class 2 insurance means:

(a)  motor vehicle insurance, being insurance covering any one or more of the following:

(i)  the loss (including the loss by theft) of a motor vehicle,

(ii)  damage to a motor vehicle,

(iii)  loss of or damage to property by a motor vehicle,

(b)  aviation insurance, being insurance covering any one or more of the following:

(i)  the loss (including the loss by theft) of an aircraft,

(ii)  damage to an aircraft,

(iii)  the death of or injury to a person by an aircraft or a thing falling from an aircraft,

(iv)  the loss of or damage to property by an aircraft or a thing falling from an aircraft,

(c)  disability income insurance, being insurance effected by a policy of insurance under which an amount is payable in the event of disablement of the insured by accident or sickness,

(d)  occupational indemnity insurance, being insurance covering liability arising out of the provision by a person of professional services or other services, or

(e), (f)    (Repealed)

(g)  hospital and ancillary health benefits insurance, being insurance covering liability incurred in respect of fees or charges for hospital treatment, or for health care ancillary to hospital treatment, if the liability is not covered by an organisation registered under Part VI of the National Health Act 1953 of the Commonwealth.

Class 3 insurance means:

(a)  crop insurance, being insurance covering:

(i)  loss due to the destruction of, or physical damage to, any pasturage or any crop of grain, fruit, vegetables or other plants, where the destruction or damage occurs while the pasturage or crop is being grown, or

(ii)  loss due to the destruction of, or physical damage to, the product of any such pasturage or crop, where the destruction or damage occurs while the product of the pasturage or crop is being stored or transported,

but not being insurance covering loss referred to in subparagraph (ii) unless the contract by which the insurance is effected also effects insurance covering the loss referred to in subparagraph (i), or

(b)  livestock insurance, being insurance covering:

(i)  loss due to the death of, or physical damage to, any animal, whether domesticated or wild, or

(ii)  loss due to the death of, or physical damage to, any genetic material of any such animal, or

(iii)  loss due to the theft of any such animal or genetic material.

insurance includes assurance.

life insurance means insurance on a life or lives or on any event or contingency relating to or depending on a life or lives, but does not include insurance for any payment agreed to be made on the death of a person only from accident or violence or otherwise than from a natural cause or as compensation for personal injury.

life insurance rider means insurance (other than life insurance or disability income insurance referred to in paragraph (c) of the definition of Class 2 insurance in this subsection) which:

(a)  is attached to a policy of life insurance,

(b)  adds specified events and contingencies to those insured under the policy,

(c)  is subject to the terms and conditions of the policy, and

(d)  is not available separately from such a policy.

motor vehicle means a motor vehicle or trailer within the meaning of the Motor Accidents Act 1988.

premium means the total amount paid in New South Wales or elsewhere to an insurer in respect of insurance effected in New South Wales or elsewhere by the insurer without any deduction for any amount paid or payable by way of discount to an agent, but does not include an amount paid in respect of stamp duty or by way of re-insurance.

registered person means a person registered for the time being under this Division.

risk includes contingency or event.

(2)  A reference in this Division to the receipt of a premium includes a reference to the crediting of the amount of a premium to an account.

s 86: Am 1931 No 13, sec 4 (cc); 1967 No 92, sec 2 (c). Subst 1989 No 113, Sch 1 (1). Am 1991 No 93, Schs 2 (1), 4 (5); 1997 No 37, Sch 6 [4]–[6]; 1997 No 115, Sch 4.21 [5].

86A (Repealed)

s 86A: Ins 1974 No 71, sec 7 (b). Am 1982 No 134, Sch 7 (1). Rep 1989 No 113, Sch 1 (1).

87 Insurance to which this Division does not apply

This Division does not apply to the following insurances:

(a)  insurance covering only property of the Crown,

(b)  insurance effected by a separate policy in a distinct sum against loss by fire on the tools, implements of work or labour used by any working mechanic, artificer, handcraftsman or labourer,

(c)  insurance taken out by or on behalf of:

(i)  a non-profit organisation having as one of its objects a charitable, benevolent, philanthropic or patriotic purpose,

(ii)  an organisation that:

(A)  was, immediately before the repeal of the Charitable Collections Act 1934, a charity within the meaning of that Act and registered or exempted from registration under that Act, and

(B)  has not, since the repeal of that Act, altered its constitution in so far as its constitution relates to its charitable objects,

(d)  insurance taken out by or on behalf of a society or institution for the time being approved for the purposes of this paragraph by the Chief Commissioner whose resources are, in accordance with its rules or objects, used wholly or predominantly for:

(i)  the relief of poverty, or

(ii)  the promotion of education, or

(iii)  any purpose directly or indirectly connected with defence or the amelioration of the condition of past or present members of the Naval, Military or Air Forces of the Commonwealth or their dependants or any other patriotic object, or

(iv)  such other purpose as, in the opinion of the Chief Commissioner, warrants the society or institution being taken to be a charitable society or institution,

(e)  insurance covering mortgages or pools of mortgages acquired for the purpose of issuing mortgage-backed securities within the meaning of section 84FA,

(f)  insurance effected by a policy issued by an organization registered under Part VI of the National Health Act 1953 of the Commonwealth, being a policy which provides hospital benefits or medical benefits (or both), whether or not other benefits are also provided,

(g)  insurance effected under the Workers Compensation Act 1987,

(h)  insurance effected under the Motor Accidents Act 1988,

(i)  re-insurance,

(j)  insurance of:

(i)  the hull of a floating vessel used primarily for commercial purposes, or

(ii)  goods or merchandise, or the freight of goods or merchandise, carried by sea, land or air,

or both,

(k)  insurance effected by an instrument which is exempt under this Act (section 88P excepted) from the payment of stamp duty,

(l)  redundancy insurance in respect of a housing loan which does not exceed $124,000.

s 87: Am 1931 No 13, sec 4 (dd); 1965 No 36, Sch; 1986 No 193, Sch 7 (7). Subst 1989 No 113, Sch 1 (1). Am 1991 No 69, Sch 1; 1991 No 93, Sch 5 (13).

87A (Repealed)

s 87A: Ins 1987 No 227, Sch 1 (14). Rep 1989 No 113, Sch 1 (1).

88 Exemption from duty—property etc outside New South Wales

Notwithstanding any other provision of this Act, duty is not chargeable in respect of insurance, or the premium payable in respect of insurance, to the extent to which the insurance relates to:

(a)  property which, at the time of issue or renewal of the insurance, is outside New South Wales, or

(b)  a risk, or that proportion of a risk, concerning an act or omission which, in the normal course of events, can only occur outside New South Wales.

s 88: Am 1965 No 36, Sch; 1966 No 55, sec 2 (k). Subst 1989 No 113, Sch 1 (1). Am 1989 No 223, Sch 1 (3).

88AA (Repealed)

s 88AA: Ins 1966 No 55, sec 2 (l). Am 1974 No 110, sec 7 (k); 1979 No 150, Sch 1 (1). Rep 1989 No 113, Sch 1 (1).

88A Registration of persons carrying on insurance business

(1)  A person must not in New South Wales carry on or hold out that the person carries on insurance business (not being life insurance business) unless the person is registered under this Division.

Maximum penalty: 50 penalty units.

(2)  A person does not carry on insurance business for the purposes of this section only because the person is an insurance broker.

(3)  The Chief Commissioner must register a person who applies in the approved form for registration under this Division.

(4)  A person who carries on life insurance business may apply to the Chief Commissioner in the approved form for registration under this Division.

(5)  The Chief Commissioner must issue a serial number to each registered person who effects or proposes to effect life insurance.

(6)  The Chief Commissioner may, by notice in writing, cancel a person’s registration under this Division for any reason the Chief Commissioner thinks sufficient.

(7)  The cancellation of a person’s registration by the Chief Commissioner has effect from the date specified for the purpose by the Chief Commissioner in the notice of cancellation.

(8)  A registered person who ceases to carry on insurance business in New South Wales may cancel the person’s registration under this Division by:

(a)  giving notice to the Chief Commissioner, and

(b)  lodging the return required to be lodged under this Division, and

(c)  paying the stamp duty payable on the return on or before the twenty-first day of the month after which the notice is given.

s 88A: Ins 1931 No 13, sec 4 (ee). Am 1965 No 36, Sch. Subst 1989 No 113, Sch 1 (1).

88B Monthly returns and payment of duty

(1)  A registered person must, on or before the twenty-first day of each month:

(a)  lodge with the Chief Commissioner a return in the approved form verified in the approved manner showing:

(i)  the total amount of all premiums for Class 1 insurance received by or on behalf of the person in the preceding month (other than premiums for exempt insurance or insurance to which section 88 applies), and

(ii)  the total amount of all premiums for Class 2 insurance received by or on behalf of the person in the preceding month (other than premiums for exempt insurance or insurance to which section 88 applies), and

(iia)  the total amount of all premiums for Class 3 insurance received by or on behalf of the person in the preceding month (other than premiums for exempt insurance or insurance to which section 88 applies), and

(iii)  the total amount of all first year’s premiums for life insurance riders received by or on behalf of the person in the preceding month (other than premiums for exempt insurance or insurance to which section 88 applies), and

(b)  pay to the Chief Commissioner as stamp duty on the return:

(i)  an amount equal to 11.5 per cent of the total amount of the premiums for Class 1 insurance, and

(ii)  an amount equal to 5 per cent of the total amount of the premiums for Class 2 insurance, and

(iia)  an amount equal to 2.5 per cent of the total amount of the premiums for Class 3 insurance, and

(iii)  the amounts determined in accordance with the Second Schedule in respect of the policies of life insurance issued by or on behalf of the person in the preceding month, and

(iv)  the amount determined in accordance with the Second Schedule in respect of the life insurance riders issued by or on behalf of the person in the preceding month, and

(c)  in respect of each contract or agreement for life insurance effected by or on behalf of the person in the preceding month, make out and execute a policy of insurance and endorse on that policy the words “stamp duty” followed by the serial number issued to the registered person under section 88A.

(2)  A policy of life insurance endorsed in accordance with this section is to be taken to be duly stamped.

(3)  A person (other than a registered person) who endorses on a policy of life insurance any words or numbers suggesting or implying that the policy is duly stamped under this section is guilty of an offence.

Maximum penalty: 2 penalty units.

s 88B: Ins 1956 No 6, sec 2 (a). Am 1965 No 36, Sch; 1982 No 43, Sch 2 (4); 1982 No 134, Sch 7 (2); 1984 No 26, Sch 2 (1). Subst 1989 No 113, Sch 1 (1). Am 1991 No 93, Sch 2 (2); 1997 No 37, Sch 6 [7]–[9].

88C Apportionment of premiums

If the Chief Commissioner is not satisfied that the premium paid in respect of a policy of insurance which effects any 2 or more of the following types of insurance, namely:

(a)  Class 1 insurance,

(b)  Class 2 insurance,

(b1)  Class 3 insurance,

(c)  life insurance,

(d)  exempt insurance,

(e)  insurance referred to in section 88,

has been properly apportioned for the purposes of a return under section 88B or 88D having regard to the property or risk concerned, the Chief Commissioner may determine the apportionment, reassess the liability to duty of the return and charge duty accordingly.

s 88C: Ins 1956 No 6, sec 2 (a). Am 1965 No 36, Sch; 1982 No 43, Sch 2 (4); 1982 No 134, Sch 7 (3); 1984 No 26, Sch 2 (2). Subst 1989 No 113, Sch 1 (1). Am 1989 No 223, Sch 1 (4); 1997 No 37, Sch 6 [10].

88D Duty payable by insured in certain circumstances

(1)  A person (other than a registered person) who obtains, effects or renews any insurance in New South Wales or elsewhere as an insured person with a person who is not a registered person, being insurance, other than insurance referred to in section 88, must, within 21 days after the end of the month in which the premium relating to the insurance is paid to an agent, broker or insurer, lodge with the Chief Commissioner a return in the approved form containing such particulars and information as to the premium and the insurance as the Chief Commissioner may require.

(2)  A return under this section is liable to stamp duty at the rate of:

(a)  11.5 per cent of the amount of any premium paid for Class 1 insurance to which subsection (1) applies, and

(b)  5 per cent of the amount of any premium paid for Class 2 insurance to which subsection (1) applies, and

(c)  2.5 per cent of the amount of any premium paid for Class 3 insurance to which subsection (1) applies.

(3)  A person who lodges a return under this section must pay the stamp duty to which the return is liable when the return is lodged.

(4)  The payment of a periodic premium in respect of disability income insurance which is continued, but not renewed, on the payment of the premium is taken to effect the insurance for the purposes of this section.

s 88D: Ins 1956 No 6, sec 2 (a). Subst 1987 No 102, Sch 1. Rep 1988 No 114, Sch 4. Ins 1989 No 113, Sch 1 (1). Am 1989 No 223, Sch 1 (5); 1990 No 95, Sch 1 (32); 1997 No 37, Sch 6 [11] [12].

88E Giving of undertakings by certain persons

(1)  A person who is not a registered person and is not required to be registered under this Division may give an undertaking in the approved form to the Chief Commissioner in respect of such payments of stamp duty as the person would be required to make if the person were required to be registered under this Division.

(2)  On receiving an undertaking under this section, the Chief Commissioner must determine whether or not to accept it.

(3)  If the Chief Commissioner accepts an undertaking from a person, the person is to be taken to be a registered person.

(4)  An undertaking from a person has effect from the date of its acceptance by the Chief Commissioner until:

(a)  the person withdraws it by notice in writing to the Chief Commissioner, or

(b)  the Chief Commissioner withdraws the acceptance of the undertaking by notice in writing to the person.

(5)  A person whose undertaking has effect is not required to include in a return lodged under section 88B the amount of any premium received by the person and which is paid to another registered person.

s 88E: Ins 1967 No 92, sec 2 (d). Am 1979 No 150, Sch 1 (1); 1982 No 43, Sch 2 (5). Subst 1989 No 113, Sch 1 (1).

88F Variation of time for furnishing returns

(1)  If the Chief Commissioner is of the opinion that it is unduly onerous to require a person to lodge returns within the time prescribed by this Division, the Chief Commissioner may by notice in writing given to the person vary the time.

(2)  The person must, while the notice given to the person remains unrevoked, lodge returns accordingly.

(3)  The Chief Commissioner may at any time by notice in writing revoke a notice given under this section.

s 88F: Ins 1967 No 92, sec 2 (d). Am 1982 No 43, Sch 2 (5). Subst 1989 No 113, Sch 1 (1).

88G Returns by certain New South Wales residents where life policy issued outside New South Wales

(1)  A person resident in New South Wales who effects any life insurance for which a policy of insurance is or is to be issued outside New South Wales must, unless duty has been paid on the policy in accordance with this Act:

(a)  lodge with the Chief Commissioner within 1 month after effecting the insurance a return in the approved form containing such particulars and information as the Chief Commissioner may require, and

(b)  when the person lodges the return, pay to the Chief Commissioner as stamp duty an amount equal to the amount of stamp duty that would have been payable in respect of each insurance to which the return relates if the insurance had been effected under a policy of insurance issued in New South Wales.

(2)  A person who effects insurance to which this section applies and who fails or neglects:

(a)  to lodge a return as required by subsection (1) (a), or

(b)  to pay in accordance with subsection (1) (b) the duty chargeable on a return lodged by the person under subsection (1),

is guilty of an offence.

Maximum penalty: 2 penalty units.

(3)  This section does not apply to a policy which relates solely to the life or lives of a person or persons who was or were, at the time the policy was effected, domiciled outside New South Wales.

s 88G: Ins 1968 No 55, sec 3 (c). Subst 1989 No 113, Sch 1 (1).

88H Returns by certain New South Wales insurers where life policy issued outside New South Wales

(1)  A person:

(a)  with whom there is effected by any person resident in New South Wales any life insurance and who in connection with that insurance issues a policy outside New South Wales, or

(b)  who for or on behalf of any person resident in New South Wales arranges any life insurance for which a policy is issued outside New South Wales,

must lodge with the Chief Commissioner within 1 month of the insurance being effected a return in the approved form containing such particulars and information as to the insurance as the Chief Commissioner may require and pay as duty on the return the duty that would be chargeable on the policy if the policy had been issued in New South Wales.

(2)  A return furnished under this section is admissible in evidence in any proceeding under section 88G or 88J and is evidence of the facts stated in the return.

(3)  This section does not apply to a policy which relates solely to the life or lives of a person or persons who was or were, at the time the policy was effected, domiciled outside New South Wales.

s 88H: Ins 1974 No 110, sec 7 (1). Subst 1989 No 113, Sch 1 (1).

88I Application of secs 88G and 88H to companies

(1)  For the purposes of sections 88G and 88H, person resident in New South Wales and person include, in the case of a company, a NSW company and a company (not being a NSW company) that carries on business in New South Wales.

(2)  This section is not to be construed as limiting the construction of any provision of this Act other than sections 88G and 88H.

s 88I: Ins 1974 No 110, sec 7 (1). Subst 1989 No 113, Sch 1 (1). Am 1994 No 48, Sch 11 (25).

88J Stamping of foreign policies

(1)  A policy of insurance, and a renewal of any such policy, issued outside New South Wales and received in New South Wales, is liable to duty as if:

(a)  it were a return under section 88B, and

(b)  the holder of the policy were a registered person, and

(c)  in the case of:

(i)  a policy of Class 1 insurance, a policy of Class 2 insurance or a policy of Class 3 insurance—the amount of the premium paid in respect of the policy, or its renewal, were the amount shown in the return, or

(ii)  a policy of life insurance—the policy were issued in New South Wales.

(2)  This section does not apply to a policy of life insurance which relates solely to the life or lives of a person or persons who was or were, at the time the policy was issued, domiciled outside New South Wales.

(3)  A policy of insurance to which this section applies must, within 2 months after the policy is first received in New South Wales, be stamped by the holder of the policy with the duty chargeable under this section.

(4)  A person who has in his or her possession or control, or who for any purpose avails himself or herself of any policy of insurance to which this section applies and which is not duly stamped in accordance with this section is guilty of an offence and is also liable, in addition to any fine, to pay an amount equivalent to the duty which would have been payable had the policy been duly stamped.

Maximum penalty: 1 penalty unit.

(5)  Where duty has been paid under section 88B or 88D on a return furnished under either of those sections and the policy of insurance, or renewal of any such policy, in respect of the insurance to which the return relates is thereafter received in New South Wales, the duty so paid is to be allowed as a set-off against any duty payable under this section.

(6)  Where duty has been paid under section 88G or 88H on a return furnished under either of those sections and the policy of life insurance to which the return relates is thereafter received in New South Wales, the duty so paid is to be allowed as a set-off against any duty payable pursuant to this section.

s 88J: Ins 1974 No 110, sec 7 (1). Subst 1989 No 113, Sch 1 (1). Am 1997 No 37, Sch 6 [13].

88K Reduction of duty on certain returns

(1)  Where a policy to which section 88G, 88H or 88J applies relates to the life or lives of a person or persons domiciled in New South Wales and partly to the life or lives of a person or persons domiciled outside New South Wales, the duty chargeable on the return required to be lodged under section 88G, 88H or 88J, as the case requires, may be reduced in accordance with this section.

(2)  The duty may be reduced by such amount as, in the opinion of the Chief Commissioner, is referable to the insurance which relates to the life or lives of the person or persons who was or were, at the time the policy was effected, domiciled outside New South Wales.

ss 88K–88M: Ins 1989 No 113, Sch 1 (1).

88L Keeping of records by registered persons

(1)  If any premium is received by or on behalf of a registered person for any insurance, the person must thereupon make a record of the receipt containing such particulars as the Chief Commissioner may, by notice in writing given to the person, require.

(2)  The record is to be kept in New South Wales, or in such other place as the Chief Commissioner may approve, in a permanent form by the registered person for a period of not less than 3 years after it was made.

(3)  A registered person must not fail to make or keep a record required to be made or kept under this section.

Maximum penalty: 50 penalty units.

ss 88K–88M: Ins 1989 No 113, Sch 1 (1).

88M Denotion of stamp duty

(1)  The stamp duty paid on a return under this Division is to be denoted on the return in such manner as the Chief Commissioner may determine.

(2)  The stamp duty paid on a policy of life insurance may be denoted by adhesive stamps, or partly by adhesive stamps and partly by impressed stamps.

ss 88K–88M: Ins 1989 No 113, Sch 1 (1).

88N Set-off or refund of duty on refund of premium

(1)  If, in respect of insurance other than life insurance, a registered person refunds any premium or part of a premium, any duty paid under this Division by the registered person in respect of the amount refunded may be set off against the duty payable on a return required to be lodged under this Division by the person.

(2)  If, in respect of life insurance, a registered person refunds any premium to a person because the person cancels a life insurance policy within 30 days after receiving the policy, any duty paid under this Division by the registered person in respect of the amount refunded may be set-off against the duty payable on a return required to be lodged under this Division by the registered person.

(3)  A person who has lodged a return under section 88D and has received a refund of any premium (or part of a premium) may apply to the Chief Commissioner for a refund of the duty paid under this Division in respect of the amount refunded to the person.

(4)  An application for a refund of duty must be made within 1 year after the date the amount of premium was refunded to the person.

s 88N: Ins 1989 No 113, Sch 1 (1). Am 1991 No 93, Sch 2 (3); 1992 No 86, Sch 6 (21).

88O Penalty for registering unstamped assignment or transfer of policy

A person who registers or records an assignment or transfer of a policy of insurance before the assignment or transfer has been duly stamped is guilty of an offence.

Maximum penalty: 1 penalty unit.

s 88O: Ins 1989 No 113, Sch 1 (1).

88P Exemption from duty of certain instruments

(1)  Notwithstanding any other provision of this Act (except this Division and the matter relating to policies of life insurance under the heading “Stamp Duties and Exemptions” in the Second Schedule), duty is not chargeable in respect of:

(a)  a policy of insurance issued on or after 1 November 1989 by a registered person or the renewal of which by a registered person takes effect on or after 1 November 1989, or

(b)  a policy of insurance issued on or after 1 November 1989 to, or renewed so as to take effect on or after 1 November 1989 by, a person who has lodged a return and paid the requisite stamp duty under section 88D.

(2)  This section does not apply to a policy of disability income insurance effected before 1 January 1991 in so far as a payment of premium is made in relation to the policy on or after that date.

s 88P: Ins 1989 No 113, Sch 1 (1). Am 1990 No 95, Sch 1 (33).

89–89AB (Repealed)

s 89: Subst 1924 No 32, sec 12 (a) (i). Am 1956 No 6, sec 2 (b); 1965 No 36, Sch; 1966 No 55, sec 2 (m); 1967 No 92, sec 2 (e). Rep 1989 No 113, Sch 1 (1).

s 89A: Ins 1924 No 32, sec 12 (a) (i). Rep 1989 No 113, Sch 1 (1).

s 89AB: Ins 1967 No 92, sec 2 (f). Rep 1989 No 113, Sch 1 (1).

Division 25 Replicas

89B Replica instruments

(1)  For the purposes of this section and of the matter appearing under the heading “Replica” in the Second Schedule to this Act, replica means an instrument:

(a)  executed for the bona fide purpose of its replacing, and

(b)  containing the same terms as, but no other terms than, those that were contained in,

a previously executed instrument that has been lost, spoiled or destroyed and that, in the opinion of the Chief Commissioner, has been duly stamped.

(2)  Where a replica is duly stamped it shall be marked in such manner as the Chief Commissioner thinks fit to denote that it is a replica.

s 89B and hdg: Ins 1977 No 135, Sch 2 (1).

Division 25A Transfer of units in unit trust schemes

pt 3, div 25A: Ins 1990 No 95, Sch 1 (15).

90 Definitions

s 90, hdg: Rep 1970 No 94, sec 2 (1) (b).

(1)  In this Division, a reference to a transfer is a reference to a conveyance or an agreement to convey and the provisions of this Act (including sections 41 and 73) apply accordingly.

(2)  In this Division:

manager means the manager of a unit trust scheme and, if there is no manager, the trustee of the unit trust scheme.

unit includes a right to a unit.

s 90: Am 1922 No 20, sec 2 (c); 1965 No 36, Sch; 1966 No 55, sec 2 (n). Subst 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (b). Ins 1990 No 95, Sch 1 (15). Am 1991 No 93, Sch 5 (14).

91 Duty on certain transfers of units in unit trust schemes

(1)  Duty is payable under this Act by the transferee on a transfer of units in a unit trust scheme, being units which are registered on a register kept in New South Wales.

(2)  Duty is payable under this Act by the transferee on a transfer of units in a unit trust scheme, being units which are not registered on a register kept in New South Wales as referred to in subsection (1), if the manager of the unit trust scheme is a NSW company or a person resident in New South Wales.

(3)  The duty is payable at the rate of 60 cents for every $100 or part thereof of the consideration in money or money’s worth in the case of a sale for a consideration of not less than the unencumbered value of the units or, in any other case, of the unencumbered value of the units.

(4)  However, if the units transferred are quoted on the market operated by Australian Stock Exchange Limited, the duty is payable at half the rate specified in subsection (3).

s 91: Subst 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (c). Ins 1990 No 95, Sch 1 (15). Am 1994 No 48, Sch 11 (26); 1994 No 72, Sch 4 (15); 1995 No 17, Sch 1 (1).

s 91A: Ins 1967 No 92, sec 3 (b). Rep 1968 No 55, sec 2 (1) (c).

92 Prohibition on registration of transfers etc

The trustee or manager of a unit trust scheme must not register, or otherwise give effect to, a transfer of units in a unit trust scheme on which duty is payable under this Act unless:

(a)  a transfer or an instrument effecting or evidencing the transfer is duly executed and delivered to the trustee or manager, and

(b)  the transfer or instrument is duly stamped under this Act.

Maximum penalty: 50 penalty units plus an amount equal to double the amount of duty that would have been payable if the appropriate transfer or instrument had been executed and duly stamped under this Act.

s 92: Am 1924 No 32, sec 12 (b); 1931 No 13, sec 4 (ff); 1933 No 12, sec 3 (f) (am 1940 No 50, sec 5 (2)); 1955 No 30, sec 2 (1); 1965 No 36, Sch; 1967 No 92, sec 3 (c). Subst 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (d). Ins 1990 No 95, Sch 1 (15).

s 92A: Ins 1966 No 55, sec 2 (o). Rep 1968 No 55, sec 2 (1) (c).

93 Effect of payment of duty in a place outside New South Wales

(1)  If duty is, in a place outside New South Wales, paid on a transfer of units in a unit trust scheme (being a transfer on which duty is payable under this Act) and the amount of duty so paid:

(a)  is equal to or greater than the amount of duty that, but for this paragraph, would be payable under section 91—no duty is so payable, or

(b)  is less than the amount of duty that, but for this paragraph, would be payable under section 91—the amount of duty payable under that section is an amount equal to the difference between the amount so paid and the amount that, but for this paragraph, would be payable under section 91.

(2)  If the transfer is exempt from duty in a place outside New South Wales, no duty is payable under this Act on the transfer.

s 93: Am 1965 No 36, Sch. Subst 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (e). Ins 1990 No 95, Sch 1 (15).

s 93A: Ins 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (f).

s 93B: Ins 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (g).

s 93C: Ins 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (h).

s 93D: Ins 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (i).

s 93E: Ins 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (j).

s 93F: Ins 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (k).

s 93G: Ins 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (l).

s 93H: Ins 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (m).

s 93I: Ins 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (n).

s 93J: Ins 1968 No 55, sec 2 (1) (c). Rep 1970 No 94, sec 2 (1) (o).

94 Concessional rates of duty

s 94, hdg: Rep 1933 No 12, sec 2 (r) (i).

(1)  This section applies to:

(a)  a transfer of units in a unit trust scheme without valuable consideration to the person beneficially entitled to the units under and in conformity with the trusts contained in a conveyance, declaration of trust or other instrument on which ad valorem stamp duty imposed by an Act in force at the time of its execution has been paid or which, by an Act so in force, was exempt from stamp duty but only to the extent that the units are any one or more of the following:

(i)  the same units as, at the time of the execution of the instrument creating the trusts, were held or to be held by the trustees upon those trusts and were units in respect of which that ad valorem duty was paid or that exemption applied,

(ii)  units that the Chief Commissioner is satisfied represent the proceeds of re-investment of units referred to in subparagraph (i),

(iii)  bonus units issued by reason of a holding of units referred to in subparagraph (i) or (ii), and

(b)  a transfer of units in a unit trust scheme without valuable consideration to the person beneficially entitled to the units under and in conformity with the trusts contained in a will or arising on intestacy and, in either case, in respect of units on which death duty or duty under an Act imposing duties on the estates of deceased persons has been paid or which, by such an Act, were exempt from death duty or in respect of which no death duty is, by virtue of such an Act, chargeable, and

(c)  a transfer of units in a unit trust scheme not made for valuable consideration and made to a beneficiary by a trustee, being a transfer of units the subject of a trust for sale contained in a will and in respect of units on which the death duty or duty under an Act imposing duties on the estates of deceased persons has been paid or which, by such an Act, are exempt from death duty or in respect of which no death duty is, by virtue of such an Act, chargeable.

(2)  The duty payable on a transfer to which this section applies is duty payable at the rate specified in section 91 or $10, whichever is the lower.

s 94: Am 1924 No 32, sec 7 (c). Rep 1933 No 12, sec 2 (r) (i). Ins 1990 No 95, Sch 1 (15).

Division 26 Shares—issue or allotment by direction

94A Issue of shares by direction

s 94A, hdg: Ins 1924 No 32, sec 7 (d) (i).

(1) 

(a)  A company which becomes the purchaser of any property upon terms that the consideration for the purchase is to be satisfied, either in whole or in part by the issue or allotment of shares in the company, whether to the vendor of the property or to any other person, shall not issue or allot any share in the company in or towards satisfaction of the consideration to any person other than the vendor except on the duly stamped direction in writing of the vendor.

(b)  A company which is in any other way whatsoever under obligation to any person (in this paragraph referred to as the obligee) to issue or allot shares in the company either to or at the direction of the obligee or to any other person, shall not issue or allot any share in the company in or towards satisfaction of the obligation to any person other than the obligee except on the duly stamped direction in writing of the obligee.

(c)  If any company issues or allots any share in contravention of this subsection it shall be liable to a fine not exceeding 2 penalty units and the court imposing such fine may order that the company shall pay, as an additional penalty, an amount equal to the stamp duty which would have been payable on the direction if a direction in writing for the issue or allotment of the share had been given.

(2)  The direction shall be stamped in accordance with the rates specified in the Second Schedule hereto.

(3)  This section does not extend to the issue of shares to the legal personal representative of the person to whom the company is under an obligation to issue the shares.

s 94A: Ins 1924 No 32, sec 7 (d) (i). Am 1931 No 13, sec 4 (gg); 1939 No 30, sec 3 (1) (a); 1965 No 36, Sch; 1992 No 112, Sch 1.

Division 26A SCH-regulated transfers

pt 3, div 26A: Ins 1994 No 48, Sch 9 (20).

Subdivision 1 Duty on certain SCH-regulated transfers

94B Definitions

In this Division:

error transaction means each of the following transfers:

(a)  an SCH-regulated transfer made to reverse an SCH-regulated transfer that was made mistakenly not more than 7 days earlier,

(b)  the SCH-regulated transfer so reversed.

identification code, in relation to an SCH participant, means a code that, for the purposes of the SCH business rules, is the SCH participant’s identification code, or one of the SCH participant’s identification codes, as the case may be.

marketable security includes a right or interest (whether described as a unit or sub-unit or otherwise) of a beneficiary under a unit trust scheme.

proper SCH transfer has the same meaning as in section 9 of the Corporations Law.

relevant company means:

(a)  a NSW company, or

(b)  a foreign company (within the meaning of section 9 of the Corporations Law) with a registered office under the Corporations Law that is situated in New South Wales.

relevant SCH participant, in relation to an SCH-regulated transfer, means the participant who is liable under this Division to pay duty chargeable in respect of the transfer, or, if no duty is chargeable, the SCH participant who would be so liable if duty were chargeable.

SCH means the securities clearing house registered by the Chief Commissioner under this Division.

SCH business rules has the same meaning as in section 9 of the Corporations Law.

SCH participant has the same meaning as in section 9 of the Corporations Law.

SCH-regulated transfer has the same meaning as in section 9 of the Corporations Law.

transfer document has the same meaning as in section 1097 of the Corporations Law.

transfer identifier, in relation to an SCH-regulated transfer, means the distinctive number allocated to the transfer by SCH.

transfer value, in relation to an SCH-regulated transfer of a marketable security, means:

(a)  in the case of a transfer on sale—the consideration for the sale or the unencumbered value of the security at the date of the sale, whichever is the greater, or

(b)  in any other case—the unencumbered value of the security at the date of the transfer.

s 94B: Ins 1994 No 48, Sch 9 (20).

94C Application of Division (Duty on certain SCH-regulated transfers)

(1)  This Division applies to an SCH-regulated transfer of a marketable security only where:

(a)  the transfer is a proper SCH transfer, and

(b)  the transfer is made otherwise than on a sale or purchase of the security to which Division 27 or 28A applies, and

(c)  the security is:

(i)  a share or a right to a share in (or a CUFS or IR in respect of) the stock or funds of a relevant company, or

(ii)  a unit in a unit trust scheme the principal register of which is situated in New South Wales, and

(d)  there is a change in the beneficial ownership of the marketable security, and

(e)  the body approved as the securities clearing house under section 779B of the Corporations Law is registered by the Chief Commissioner under this Division.

(2)  This Division does not require the payment of duty in respect of the following:

(a)  a transfer of shares referred to in paragraph (6), (7) or (8) under the heading “Transfer of shares” in the Second Schedule,

(b)  a transfer referred to in paragraph (a), (b), (d), (e) or (h) of the exemptions under the heading “Transfer of shares” in the Second Schedule or in paragraph (52) under the heading “GENERAL EXEMPTIONS FROM STAMP DUTY UNDER PART 3” in that Schedule,

(c)  an issue or transfer referred to in paragraph (42) of the General Exemptions from Stamp Duty under Part 3 in the Second Schedule,

(d)  an error transaction,

(e)  a transfer by way of mortgage or discharge of mortgage, if an instrument evidencing the mortgage has been duly stamped as a loan security or is exempt from stamp duty of a like nature under the law of another State or Territory.

s 94C: Ins 1994 No 48, Sch 9 (20). Am 1995 No 98, Sch 7 (13) (14); 1996 No 125, Sch 1 (16) (17).

94D Liability to duty of SCH-regulated transfers

(1)  An SCH-regulated transfer of a marketable security to which this Division applies is chargeable with duty at the rate of 30 cents per $100, or part, of the transfer value of the marketable security.

(2)  If the SCH-regulated transfer of the marketable security is made within 2 months after an instrument of transfer of the marketable security to or for the benefit of the same transferee is first executed, the instrument is not chargeable with duty under this Act.

s 94D: Ins 1994 No 48, Sch 9 (20). Am 1995 No 17, Sch 1 (2).

94E SCH participant liable to pay duty

(1)  If duty is chargeable in respect of an SCH-regulated transfer of a marketable security, the SCH participant who is a party to the transfer, or, if there is more than one, the SCH participant who acts for the transferee under the transfer, is liable to pay the duty.

(2)  If the SCH participant liable to pay duty in respect of an SCH-regulated transfer is not the transferee under the transfer, the participant may recover from the transferee the amount of the duty paid as a debt by action in a court of competent jurisdiction and may, in reimbursement of that amount, retain any money in the participant’s hands belonging to the transferee.

ss 94E–94M: Ins 1994 No 48, Sch 9 (20).

94F Record of SCH-regulated transfers

(1)  A record must be made in accordance with this section immediately on the making of an SCH-regulated transfer of marketable securities to which this Division applies.

(2)  The record must be made by the relevant SCH participant.

(3)  The record must show the following particulars:

(a)  the date of the transfer,

(b)  the transfer identifier of the transfer,

(c)  the name of the transferee and, unless another SCH participant controls the transferor’s holding, the name of the transferor,

(d)  the identification code of the SCH participant making the record and the identification code of the other SCH participant (if any) who is a party to the transfer,

(e)  the quantity and full description of the marketable security transferred,

(f)  the transfer value of the marketable securities,

(g)  the consideration payable in respect of the transfer,

(h)  the amount of duty chargeable in respect of the transfer,

(i)  if ad valorem duty is not chargeable in respect of the transfer, the duty-type category for the transfer,

(j)  in the case of an error transaction to reverse an earlier transfer that was made mistakenly, the transfer identifier of that earlier transfer.

(4)  An SCH participant may, in any record made in accordance with this section, incorporate additional information for the participant’s own use.

(5)  The record must be kept in an accessible form for a period of not less than 5 years from the date of the transfer.

(6)  An SCH participant who fails to make or keep a record as required by this section is guilty of an offence.

Penalty: 20 penalty units.

ss 94E–94M: Ins 1994 No 48, Sch 9 (20).

94G Particulars to be included by relevant SCH participant in transfer document

The relevant SCH participant must include in the transfer document for an SCH-regulated transfer to which this Division applies the particulars required by the Chief Commissioner under the conditions of registration of SCH.

Penalty: 20 penalty units.

ss 94E–94M: Ins 1994 No 48, Sch 9 (20).

94H Relevant SCH participant’s identification code equivalent to stamping

When the relevant SCH participant includes the participant’s identification code in the transfer document for an SCH-regulated transfer to which this Division applies, the transfer document is taken to be duly stamped but without affecting the participant’s liability to pay any duty payable under section 94I.

ss 94E–94M: Ins 1994 No 48, Sch 9 (20).

94I Returns to be lodged and duty paid

(1)  The relevant SCH participant must, not more than 7 days after the end of a month in which the participant has been party to an SCH-regulated transfer to which this Division applies:

(a)  lodge with SCH a return in respect of the transfer in the form and containing the details required by the Chief Commissioner under the conditions of registration of SCH, and

(b)  if duty is payable in respect of the transfer, pay the duty to SCH.

(2)  Sections 127B and 127C apply in respect of a return required to be lodged with SCH and duty required to be paid to SCH in the same way as they apply in respect of a return required to be lodged with the Chief Commissioner and duty required to be paid to the Chief Commissioner.

ss 94E–94M: Ins 1994 No 48, Sch 9 (20).

Subdivision 2 The securities clearing house

94J Registration as the securities clearing house

(1)  The Chief Commissioner must, on application (in a form approved by the Chief Commissioner) by the body approved as the securities clearing house under section 779B of the Corporations Law, register the body under this Division.

(2)  The registration is subject to conditions determined by the Chief Commissioner from time to time and notified to SCH by writing.

(3)  The registration continues in force:

(a)  until cancelled on the application of the body registered, and

(b)  subject to an order of suspension made by the Chief Commissioner for a specified period for contravention of this Division or a condition of the registration.

ss 94E–94M: Ins 1994 No 48, Sch 9 (20).

94K Monthly return

(1)  SCH must, on or before the fifteenth day of each month:

(a)  lodge with the Chief Commissioner a return in the form and containing the particulars required by the Chief Commissioner under the conditions of registration of SCH, and

(b)  pay to the Chief Commissioner any duty paid to SCH under this Act in respect of an SCH-regulated transfer made in the preceding month.

(2)  SCH is liable to pay a penalty to the Chief Commissioner of 10% per annum on the amount of any duty payable under this section that remains unpaid.

ss 94E–94M: Ins 1994 No 48, Sch 9 (20).

94L Returns to be kept by SCH

SCH must keep a return lodged with it by an SCH participant under this Division in an accessible form for a period of not less than 5 years from the date on which it was so lodged.

ss 94E–94M: Ins 1994 No 48, Sch 9 (20).

94M Disclosure to SCH of information

Nothing in this Act prevents the disclosure to SCH of information acquired in, or in connection with, the administration of this Division.

ss 94E–94M: Ins 1994 No 48, Sch 9 (20).

Division 27 Shares—transfer

pt 3, div 27, hdg: Subst 1994 No 48, Sch 9 (4).

Subdivision 1 Off market share transfers

pt 3, div 27, sdiv 1, hdg: Ins 1994 No 48, Sch 9 (4).

95–96 (Repealed)

s 95: Rep 1994 No 48, Sch 9 (5).

s 95AA: Ins 1990 No 95, Sch 1 (16). Rep 1994 No 48, Sch 9 (6).

s 95A: Ins 1980 No 93, Sch 1 (1). Rep 1994 No 48, Sch 9 (7).

s 96: Subst 1924 No 32, sec 7 (f) (i). Am 1965 No 36, Sch; 1966 No 55, secs 2 (p), 7 (c); 1992 No 112, Sch 1. Rep 1994 No 48, Sch 9 (8).

96A Duty on certain transfers of shares

(1)  The provisions of paragraphs (2), (3), (4) and (5) under the heading “Transfer of Shares” in the Second Schedule to this Act, and of paragraph (f) of the exemptions under that heading, shall be read and construed as including a transfer of shares or of the right to any shares in (or a transfer of a CUFS or IR in respect of) the stock or funds of any NSW company or any corporation or company which being incorporated out of Australia has a register of members in New South Wales wherein such share or right is registered.

(1A)  A transfer of marketable securities of a NSW company which is registered, recorded or entered on a register of the members of the company lawfully kept in the United Kingdom and which is stamped with ad valorem duty, or is exempt from duty, in accordance with the law of the United Kingdom is not liable to duty under this Act.

(2)  This section does not apply to a transfer of shares or of the rights to any shares which are deemed to be duly stamped under section 94H or 97AC (3).

(3)  During the period on and from 16 August 1993 up to and including the day before the date of commencement of subsection (2), as substituted by the State Revenue Legislation (Amendment) Act 1994, subsection (2) as in force during that period does not apply to a transfer of shares unless the transfer:

(a)  was stamped with ad valorem duty in accordance with the law of a place prescribed for the purposes of section 96B (1A) (a) (i), as in force during that period, or

(b)  was exempt from duty in such a prescribed place, or

(c)  was not liable to duty in such a prescribed place.

s 96A: Ins 1967 No 92, sec 3 (d). Am 1982 No 134, Sch 8 (1); 1985 No 219, Sch 2 (1); 1986 No 168, Sch 1 (1); 1987 No 85, Sch 5 (9); 1988 No 130, Sch 5 (14); 1994 No 48, Sch 9 (9); 1994 No 72, Sch 4 (16); 1995 No 98, Sch 7 (15); 1996 No 125, Sch 1 (18).

96B Duty on transfers of listed shares

Notwithstanding any other provision of this Act, if duty is chargeable on a transfer of shares or of the right to any shares (or on a transfer of a CUFS or IRs) to which this Subdivision applies and the shares, CUFS or IRs are quoted on the market operated by Australian Stock Exchange Limited, the rate of duty is the rate specified in the Second Schedule but as if a reference in that Schedule to 60 cents were a reference to 30 cents.

s 96B: Ins 1982 No 134, Sch 8 (2). Am 1986 No 168, Sch 1 (2); 1987 No 85, Sch 5 (10); 1990 No 45, Sch 1 (11); 1992 No 112, Sch 1. Rep 1994 No 48, Sch 9 (10). Ins 1995 No 17, Sch 1 (3). Am 1995 No 98, Sch 7 (16) (17); 1996 No 125, Sch 1 (19) (20) (am 1997 No 55, Sch 2.16).

Subdivision 2 Requirement to stamp transfer of marketable securities before registration

pt 3, div 27, sdiv 2, hdg: Ins 1994 No 48, Sch 9 (11).

97 Transfer of shares liable to duty not to be registered unless duly stamped

(1)  A corporation, company or society shall not register, record or enter a transfer, liable to duty, of any marketable security or right thereto in its records:

(a)  in the case of a transfer to perfect a sale or purchase the details of which have been recorded in accordance with the provisions of section 97AA of this Act:

(i)  unless a proper instrument of transfer has been delivered to the corporation, company or society, and

(ii)  unless the transfer is under subsection (3) of section 97AC of this Act deemed to have been duly stamped, or

(b)  in the case of any transfer other than a transfer referred to in paragraph (a) of this subsection:

(i)  unless a proper instrument of transfer has been delivered to the corporation, company or society and, in the case of a transfer by way of sale, the consideration therefor is expressed in the transfer in terms of money, and

(ii)  unless the instrument is duly stamped.

(2)  Subject to subsection (2A) of this section, a corporation, company or society which registers, records or enters a transfer of a marketable security or right thereto in its records shall retain the instrument of transfer in an approved place for a period of not less than three years from the date on which it registers, records or enters the transfer.

(2A)  For the purposes of subsection (2) of this section, an instrument of transfer is retained in an approved place during any period during which it is:

(a)  retained in New South Wales, or

(b)  retained outside New South Wales in accordance with conditions relating to the retention of the transfer approved by the Chief Commissioner, which approval the Chief Commissioner is hereby authorised to give.

(2B)  The Chief Commissioner may revoke any approval referred to in subsection (2A) of this section.

(3)  A corporation, company or society which contravenes or fails or neglects to comply with any of the provisions of this section shall be liable to a fine for each such offence not exceeding 1 penalty unit.

(4)  The right or title of any transferee or subsequent holder of any marketable security or any right thereto shall not be invalidated by reason only that the transfer of such security or right was registered, recorded or entered in contravention of the provisions of this section in the records of any corporation, company or society.

(5)  This section does not apply to or in respect of a transfer of a marketable security or right thereto upon which a relevant transaction included in a return lodged under section 97E is consequential.

(6)  This section does not prevent the registration of:

(a)  an SCH-regulated transfer (within the meaning of section 94B) if the transfer document (within the meaning of that section) is taken by section 94H to be duly stamped, or

(b)  a transfer referred to in section 97AC (1A) that is deemed by section 97AC (3) to be duly stamped.

s 97: Subst 1924 No 32, sec 7 (f) (i). Am 1965 No 36, Sch. Subst 1966 No 55, sec 7 (d). Am 1967 No 92, sec 3 (e); 1974 No 110, sec 7 (m); 1984 No 171, Sch 1 (4); 1985 No 219, Sch 2 (2); 1987 No 87, Sch 1 (4); 1992 No 112, Sch 1; 1994 No 48, Sch 9 (21).

Subdivision 3 Transfers involving brokers

pt 3, div 27, sdiv 3, hdg: Ins 1994 No 48, Sch 9 (12).

97A Definitions and application of Subdivision 3

(1)  For the purposes of this Act, unless inconsistent with the context or subject matter:

Australian Options Market means the market regulated by section 7 of the Business Rules of the Australian Stock Exchange Limited.

Broker means a person who is a member of Australian Stock Exchange Limited.

Broker’s agent means any agent or employee of any person who is a broker within the meaning of any corresponding Act, being an agent or employee who is carrying on business for or on behalf of that person in New South Wales.

Corresponding Act means any law in force in a State or Territory of the Commonwealth that is declared by the Governor by an order for the time being in force under subsection (3) of this section to be a corresponding Act for the purposes of this Act.

Editorial Note—

For corresponding Acts see the Historical notes at the end of this Act.

Dealer means a broker or a broker’s agent within the meaning of this Act or any corresponding Act.

Futures broker has the same meaning as in the Corporations Law.

Futures contract has the same meaning as in the Corporations Law.

Marketable security includes a right or interest (whether described as a unit or sub-unit or otherwise) of a beneficiary under a unit trust scheme.

New South Wales dealer means a broker or a broker’s agent.

Odd lot means a parcel of marketable securities or rights thereto which is, under the rules of the stock exchange on which the sale or purchase is effected, required to be bought or sold through an odd lot specialist.

Odd lot specialist means a broker who is appointed by Australian Stock Exchange Limited for the purpose of buying and selling odd lots.

Options trader means a person who is a registered independent options trader or clearing member under the Business Rules of the Australian Stock Exchange Limited.

Warrant means a contract that is an option contract within the meaning of section 9 of the Corporations Law and that is admitted to trading status on the stock market of the Australian Stock Exchange Limited in accordance with section 8 of the Business Rules of the Australian Stock Exchange Limited.

Warrant-issuer means a person who is a warrant-issuer under the Business Rules of the Australian Stock Exchange Limited.

(2)  The provisions of sections 97AA to 97ADF of this Act and the charge for duty on the return referred to in section 97AB, 97ADC or 97ADF of this Act shall apply to and have effect only in the case of a sale or purchase of a marketable security or a right thereto for a consideration in money or money’s worth of not less than the unencumbered value of the marketable security or a right thereto where such marketable security or right is listed on a recognised stock exchange.

(3)  The Governor may, by order published in the Gazette, declare a law in force in a State or Territory of the Commonwealth to be a corresponding Act for the purposes of this Act.

(4)  A declaration under subsection (3) of this section may be limited in its application according to specified exceptions or factors.

s 97A: Ins 1931 No 13, sec 4 (hh). Am 1965 No 36, Sch. Subst 1966 No 55, sec 7 (e). Am 1984 No 26, Sch 5 (1); 1987 No 85, Sch 4 (1); 1992 No 86, Sch 6 (11); 1994 No 48, Schs 9 (13), 10 (10); 1996 No 34, Sch 1.4 (7) (8); 1998 No 44, Sch 5 [9].

97AA Sales and purchases to be recorded

(1)  Subject to subsection (3) of this section, a New South Wales dealer shall, forthwith on a sale or purchase being made, or being deemed to have been made, whether within or outside New South Wales:

(a)  pursuant to an order lodged with him in New South Wales, or

(b)  on his own account or behalf:

make a record of the sale or purchase showing:

(i)  the date of the sale or purchase,

(ii)  the name of the principal (if any) for whom the sale or purchase was effected,

(iii)  the name of the dealer (if any) with whom the sale or purchase was effected,

(iv)  the quantity and full description of the marketable security or right thereto including, if the amount of stamp duty is calculated under section 97AB (1A) of this Act, details of how the marketable security was short-dated on the date of the sale or purchase,

(v)  the selling price of the marketable security or right thereto per unit and in total,

(vi)  the amount of stamp duty chargeable.

(2)  For the purpose of subsection (1) of this section:

(a)  a New South Wales dealer who makes a purchase whether on his own account or on behalf of another person from any person who is not a dealer shall notwithstanding that no order to sell was in fact lodged with him be deemed to have also made a sale pursuant to an order to sell lodged with him in New South Wales by the person from whom he made the purchase, and

(b)  a New South Wales dealer who makes a sale whether on his own account or on behalf of another person to any person who is not a dealer shall notwithstanding that no order to purchase was in fact lodged with him be deemed to have also made a purchase pursuant to an order to purchase lodged with him in New South Wales by the person to whom he made the sale.

(3)  A New South Wales dealer is not required to make a record:

(a)  of any sale where the sale is made pursuant to an order to sell lodged with him by or on behalf of another dealer, or

(b)  of any purchase where the purchase is made pursuant to an order to purchase lodged with him by or on behalf of another dealer, or

(c)  of any sale or purchase of stock, bonds, debentures or Treasury Bills of the Commonwealth of Australia or of the Government of New South Wales or of any other part of the said Commonwealth or of any public statutory body constituted under the law of the Commonwealth or of the State of New South Wales or of any other State or any Territory of the said Commonwealth, or

(d)  of any sale where the sale is made pursuant to an order to sell or of any purchase where the purchase is made pursuant to an order to purchase:

(i)  by Her Majesty in right of the Commonwealth of Australia or of the State of New South Wales or of any other State or any Territory of the said Commonwealth,

(ii)  by or on behalf of a public hospital as defined in section 3 of this Act, or

(e)  of any sale or of any purchase where the sale or purchase as the case may be is of an odd lot by an odd lot specialist, or

(f)  of any sale or purchase of marketable securities or rights thereto in a mining company as defined in section 3 of this Act, or

(g)  of any sale or purchase which is a securities lending transaction or which comprises a transfer to which paragraph (c), (d) or (e) of the exemptions appearing under the heading “TRANSFER OF SHARES” in the Second Schedule applies.

(4)–(7)    (Repealed)

s 97AA: Ins 1966 No 55, sec 7 (e). Am 1972 No 15, Sch; 1976 No 72, Sch 2; 1980 No 93, Sch 1 (2); 1985 No 219, Sch 3 (14); 1992 No 86, Sch 6 (13); 1992 No 112, Sch 1; 1997 No 123, Sch 2.2 [11].

97AB Returns to be lodged and duty paid

(1)  A New South Wales dealer shall not later than Thursday of each week:

(a)  lodge with the Chief Commissioner, a return, in an approved form, of sales and purchases details of which have been recorded by him in accordance with the provisions of section 97AA of this Act during the week ending the last preceding Saturday, and

(b)  subject to subsection (2), pay to the Chief Commissioner as stamp duty in respect of the sales and purchases included in the return an amount calculated on the consideration for each such sale and each such purchase at the rate of 15 cents for every $100, and also for any remaining fractional part of $100, of the sale price or the purchase price, as the case may be:

Provided however that where there has been no sale or purchase the return to be lodged shall be a “NIL” return.

(1AA)  Despite subsection (1) or (2), in the case of a sale or purchase made following the exercise of an option to purchase a marketable security, stamp duty is to be calculated on the premium paid on the option or the consideration for the sale or purchase of the marketable security, whichever is the greater amount (and a reference in subsection (1) or (2) to the consideration is to be construed as a reference to the greater amount).

(1A)    (Repealed)

(2)  Instead of the stamp duty provided for by subsection (1) (b), a New South Wales dealer is required to pay, in the case of:

(a)  any sale made by the dealer, on the dealer’s own account or behalf, of marketable securities or rights in respect of marketable securities purchased by the dealer on or within 3 months of the day of sale, or

(b)  any purchase made by the dealer, on the dealer’s own account or behalf, of marketable securities or rights in respect of marketable securities sold by the dealer on or within 3 months of the day of purchase, or

(c)  any sale or purchase of marketable securities or rights in respect of marketable securities:

(i)  made on behalf of an options trader in his or her capacity as such and as principal, and

(ii)  made for hedging purposes, and

(iii)  of a type in respect of which options are traded or the price of which is included in the calculation of an index in respect of which options are traded, or

(d)  any sale or purchase of marketable securities or rights in respect of marketable securities:

(i)  made on behalf of a futures broker in his or her capacity as a futures broker and as principal, and

(ii)  made for hedging purposes, and

(iii)  of a type in respect of which futures contracts are traded or the price of which is included in the calculation of an index in respect of which futures contracts are traded, or

(e)  any sale or purchase of marketable securities or rights in respect of marketable securities:

(i)  made on behalf of a warrant-issuer in his or her capacity as a warrant-issuer and as principal, and

(ii)  made for hedging purposes, or

(f)  any sale or purchase of marketable securities or rights in respect of marketable securities of a body corporate incorporated under the law of New Zealand or Papua New Guinea,

an amount calculated on the consideration for the sale or purchase at the rate of 0.25 cents for every $100 and also for any remaining fractional part of $100 of the sale price or purchase price, as the case may be.

(2A)  No stamp duty shall be payable in accordance with the provisions of subsection (1) or (2) in respect of any sale or purchase of a corporate debt security, where the sale or purchase occurs on or after 15 November 1984.

(3)  A person who contravenes a provision of subsection (1) of this section is liable to a fine not exceeding 5 penalty units.

s 97AB: Ins 1966 No 55, sec 7 (e). Am 1971 No 75, sec 4 (1); 1974 No 110, sec 7 (n); 1979 No 150, Sch 1 (1); 1980 No 93, Sch 1 (3); 1984 No 171, Sch 1 (5); 1985 No 219, Sch 3 (15); 1986 No 193, Sch 1 (2); 1990 No 45, Sch 1 (12); 1992 No 112, Sch 1; 1994 No 48, Sch 9 (14); 1994 No 72, Sch 4 (17); 1995 No 17, Sch 1 (4); 1998 No 44, Sch 5 [10].

97AC Endorsement as to payment of duty

(1)  After:

(a)  recording the details of a sale or purchase as required by section 97AA (1),

(b)  making a sale or purchase to which that subsection does not apply by virtue of the operation of section 97AA (3) (c), (d), (e), (f) or (g), or

(c)  effecting a transfer of shares for the sole purpose of:

(i)  lending the shares to the transferee, or

(ii)  returning shares previously borrowed from the transferee, being such shares as are necessary to restore the shareholding of the transferee to the exact number and class of shares of which the transferee would have otherwise become the registered holder, if the loan had not taken place, or

(iii)  a securities lending transaction,

the New South Wales dealer shall endorse the transfer with a statement that the stamp duty (if any) has been or will be paid by the dealer, and shall affix the dealer’s stamp to the transfer and note thereon the date of the endorsement.

(1A)  A New South Wales dealer who is an SCH participant may, if the sale, purchase or transfer referred to in subsection (1) is an SCH-regulated transfer, instead of endorsing the transfer as required by that subsection, include the dealer’s identification code in the transfer document in accordance with section 94G.

(2)  A New South Wales dealer who so endorses the transfer, or includes the dealer’s identification code in the transfer document, before the record required by subsection (1) of section 97AA of this Act is made shall be liable to a fine for such offence not exceeding 10 penalty units.

(3)  Subject to subsection (4), the instrument of transfer on being endorsed in respect of the sale and the purchase, or the transfer document on having the dealer’s identification code included in it in accordance with the SCH business rules, in accordance with the provisions of this section or of any corresponding Act shall be deemed to be duly stamped.

(4)  Where a law in force in a State or Territory of the Commonwealth is declared to be a corresponding Act subject to an exception in relation to a class of sales or purchases, subsection (3) of this section does not apply to or in respect of an instrument of transfer or transfer document giving effect to a sale or purchase of that class notwithstanding that the instrument of transfer is endorsed, or the dealer’s identification code is included in the transfer document, in accordance with the corresponding Act.

(5)  Expressions used in this section that are defined in section 94B have the same meanings as in that section.

s 97AC: Ins 1966 No 55, sec 7 (e). Am 1984 No 26, Sch 5 (2); 1985 No 219, Sch 3 (16); 1986 No 193, Sch 6 (1); 1990 No 95, Sch 1 (38); 1992 No 86, Sch 6 (14); 1992 No 112, Sch 1; 1994 No 48, Sch 9 (22).

97AD Dealer to have power to recover duty

Any New South Wales dealer who in respect of any sale or purchase pays any amount to the Chief Commissioner under subsection (1) or (1A) of section 97AB of this Act may recover that amount from the vendor or the purchaser for whom he has or is deemed to have made the sale or purchase respectively:

(a)  by retaining the amount out of any money in his hands belonging to the vendor or the purchaser of the marketable security or the right thereto, or

(b)  by recovering the amount from the said vendor or purchaser, as the case may be, as a debt in a court of competent jurisdiction.

s 97AD: Ins 1966 No 55, sec 7 (e). Am 1980 No 93, Sch 1 (4).

97ADA (Repealed)

s 97ADA: Ins 1987 No 85, Sch 4 (2). Subst 1992 No 86, Sch 6 (12). Rep 1994 No 72, Sch 4 (18).

97ADB Sales and purchases to be recorded by options traders

(1)  An options trader must, forthwith on a sale or purchase of marketable securities, or rights in respect of marketable securities, in respect of which stamp duty is payable under section 97AB (2) being made by a dealer on behalf of the options trader in his or her capacity as such, make a record of the sale or purchase showing:

(a)  the date of the sale or purchase, and

(b)  the name of the dealer by whom the sale or purchase was effected, and

(c)  the quantity and full description of the marketable securities or rights sold or purchased, and

(d)  the purchase or selling price of each marketable security or right and in total, and

(e)  in the case of the sale of marketable securities or rights, the date on which the marketable securities or rights were purchased.

(2)  An options trader keeping the record may incorporate in it additional information for his or her own use.

(3)  The record must be kept in a permanent form and must be retained by the options trader by whom it is made for a period of at least 3 years from the date of the sale or the purchase.

(4)  The record required to be kept under this section by an options trader must be kept separately from any record required to be kept by the options trader in any capacity other than as an options trader.

(5)  The Chief Commissioner may require an options trader to keep such additional records, as the Chief Commissioner considers necessary, of sales or purchases.

(6)  An options trader who, in contravention of the provisions of this section, fails to make or keep and retain any such record or additional records is liable to a fine for each such offence not exceeding 5 penalty units.

s 97ADB: Ins 1987 No 85, Sch 4 (2). Am 1992 No 112, Sch 1. Subst 1992 No 86, Sch 6 (12). Am 1994 No 72, Sch 4 (19).

97ADC Returns to be lodged and duty paid

(1)  An options trader must, not later than 7 days after the end of each month:

(a)  lodge with the Chief Commissioner a return, in a form approved by the Chief Commissioner, of sales and purchases details of which have been recorded in accordance with section 97ADB being:

(i)  in the case of a sale of marketable securities or rights, those sales during the month which have occurred more than 3 months after the purchase of the marketable securities or rights, and

(ii)  in the case of the purchase of marketable securities or rights, those marketable securities or rights which, during the month, have been held for more than 3 months from the date of their purchase, and

(b)  pay to the Chief Commissioner as stamp duty, in respect of sales and purchases included in the return, an amount calculated on the consideration for each such sale and each such purchase at the rate of 14.75 cents for every $100 and also for any remaining fractional part of $100 of the sale price or purchase price, as the case may be.

(2)  A registered trader is not required to lodge a return if a “NIL” return would otherwise be lodged.

(3)  A person who contravenes this section is liable to a fine not exceeding 5 penalty units.

s 97ADC: Ins 1987 No 85, Sch 4 (2). Am 1992 No 112, Sch 1. Subst 1992 No 86, Sch 6 (12). Am 1994 No 72, Sch 4 (20); 1995 No 17, Sch 1 (5).

97ADD (Repealed)

s 97ADD: Ins 1992 No 86, Sch 6 (12). Rep 1994 No 72, Sch 4 (21).

97ADE Sales and purchases to be recorded by futures brokers

(1)  A futures broker must, forthwith on a sale or purchase of marketable securities, or rights in respect of marketable securities, in respect of which stamp duty is payable under section 97AB (2) being made by a dealer on behalf of the futures broker as principal, make a record of the sale or purchase showing:

(a)  the date of the sale or purchase, and

(b)  the name of the dealer by whom the sale or purchase was effected, and

(c)  the quantity and full description of the marketable securities or rights sold or purchased, and

(d)  the purchase or selling price of each marketable security or right and in total, and

(e)  in the case of the sale of marketable securities or rights, the date on which the marketable securities or rights were purchased.

(2)  A futures broker keeping the record may incorporate in it additional information for his or her own use.

(3)  The record must be kept in a permanent form and must be retained by the futures broker by whom it is made for a period of at least 3 years from the date of the sale or purchase.

(4)  The record required to be kept under this section by a futures broker must be kept separately from any record required to be kept by the futures broker in any capacity other than as a futures broker.

(5)  The Chief Commissioner may require a futures broker to keep such additional records, as the Chief Commissioner considers necessary, of sales or purchases.

(6)  A futures broker who, in contravention of the provisions of this section, fails to make, keep or retain any such record or additional records is liable to a fine for each such offence not exceeding 5 penalty units.

s 97ADE: Ins 1992 No 86, Sch 6 (12). Am 1993 No 47, Sch 1; 1994 No 72, Sch 4 (22).

97ADF Returns to be lodged and duty paid

(1)  A futures broker must, not later than 7 days after the end of each month:

(a)  lodge with the Chief Commissioner a return, in a form approved by the Chief Commissioner, of sales and purchases details of which have been recorded in accordance with section 97ADE, being:

(i)  in the case of a sale of marketable securities or rights in respect of marketable securities, those sales during the month which have occurred more than 3 months after the purchase of the marketable securities or rights, and

(ii)  in the case of the purchase of marketable securities or rights in respect of marketable securities, those marketable securities or rights which, during the month, have been held for more than 3 months from the date of their purchase, and

(b)  pay to the Chief Commissioner as stamp duty, in respect of sales and purchases included in the return, an amount calculated on the consideration for each such sale and each such purchase at the rate of 14.75 cents for every $100 and also for any remaining fractional part of $100 of the sale price or purchase price, as the case may be.

(2)  A futures broker is not required to lodge a return if a “NIL” return would otherwise be lodged.

(3)  A person who contravenes this section is liable to a fine not exceeding 5 penalty units.

s 97ADF: Ins 1992 No 86, Sch 6 (12). Am 1994 No 72, Sch 4 (23); 1995 No 17, Sch 1 (5).

97ADG (Repealed)

s 97ADG: Ins 1994 No 48, Sch 10 (11). Rep 1994 No 72, Sch 4 (24).

97ADH Sales and purchases to be recorded by warrant-issuers

(1)  A warrant-issuer must, forthwith on a sale or purchase of marketable securities, or rights in respect of marketable securities, in respect of which stamp duty is payable under section 97AB (2) being made by a dealer on behalf of the warrant-issuer in his or her capacity as a warrant-issuer, make a record of the sale or purchase showing:

(a)  the date of the sale or purchase, and

(b)  the name of the dealer by whom the sale or purchase was effected, and

(c)  the quantity and full description of the marketable securities or rights sold or purchased, and

(d)  the purchase or selling price of each marketable security or right and in total, and

(e)  in the case of the sale of marketable securities or rights, the date on which the marketable securities or rights were purchased.

(2)  A warrant-issuer keeping the record may incorporate in it additional information for his or her own use.

(3)  The record must be kept in a permanent form and must be retained by the warrant-issuer by whom it is made for a period of at least 5 years from the date of the sale or purchase or at least 3 years from the last day on which the warrant may be exercised, whichever period ends last.

(4)  The record required to be kept under this section by a warrant-issuer must be kept separately from any record required to be kept by the warrant-issuer in any capacity other than as a warrant-issuer.

(5)  The Chief Commissioner may require a warrant-issuer to keep such additional records, as the Chief Commissioner considers necessary, of sales or purchases.

(6)  A warrant-issuer who, in contravention of the provisions of this section, fails to make or keep and retain any such record or additional records is liable to a fine for each such offence not exceeding 5 penalty units.

s 97ADH: Ins 1994 No 48, Sch 10 (11). Am 1994 No 72, Sch 4 (25).

97ADI Returns to be lodged and duty paid

(1)  A warrant-issuer must, not later than 7 days after the end of each month:

(a)  lodge with the Chief Commissioner a return, in a form approved by the Chief Commissioner, of sales and purchases details of which have been recorded in accordance with section 97ADH being:

(i)  in the case of a sale of marketable securities or rights in respect of marketable securities, those sales during the month which have occurred more than 30 days after the last day on which the relevant warrant could be exercised, and

(ii)  in the case of a purchase of marketable securities or rights in respect of marketable securities, those marketable securities or rights which, during the month, have been held for more than 30 days after the last day on which the relevant warrant could be exercised, and

(b)  pay to the Chief Commissioner as stamp duty, in respect of sales and purchases included in the return, an amount calculated on the consideration for each such sale and each such purchase at the rate of 14.75 cents for every $100 and also for any remaining fractional part of $100 of the sale price or purchase price, as the case may be.

(2)  A warrant-issuer is not required to lodge a return if a “NIL” return would otherwise be lodged.

(3)  A person who contravenes this section is liable to a fine not exceeding 5 penalty units.

s 97ADI: Ins 1994 No 48, Sch 10 (11). Am 1994 No 72, Sch 4 (26); 1995 No 17, Sch 1 (5).

Division 27A Takeovers of New South Wales public companies

pt 3, div 27A (ss 97ADJ–97ADN): Ins 1997 No 41, Sch 1 [2].

97ADJ Definitions

(1)  In this Division:

capital reduction means:

(a)  the redemption, surrender or cancellation of a share (including cancellation as part of a buy-back of shares in accordance with Division 4B of Part 2.4 of the Corporations Law), or

(b)  a reduction in the paid up value of a share.

company means a NSW company that is a public company within the meaning of the Corporations Law.

person includes persons who are related persons for the purposes of Division 30 of Part 3.

rights alteration, in relation to voting shares, means a variation, abrogation or alteration of rights relating to the shares.

voting shares has the same meaning as in section 9 of the Corporations Law.

(2)  For the purposes of this Division, if voting shares acquired by related persons severally do not, but taken in the aggregate would, confer an entitlement to which this Division applies, the voting shares acquired by the related persons are taken to be aggregated and are taken to confer the entitlement on the related person who last acquired any of those voting shares.

(3)  If, by subsection (2), an entitlement to voting shares is taken to exist as the aggregate of voting shares of related persons, the related persons are jointly and severally liable for payment of the duty chargeable on the statement required to be lodged under this Division.

pt 3, div 27A (ss 97ADJ–97ADN): Ins 1997 No 41, Sch 1 [2].

97ADK Entitlement to voting shares arising from capital reduction or rights alteration

(1)  If:

(a)  a person becomes entitled to at least 50% of the voting shares of a company by means of capital reduction or rights alteration, or both, or

(b)  a person who is entitled to at least 50% of the voting shares of a company becomes entitled to at least 10% more of the voting shares over a period of not more than 12 months by means of capital reduction or rights alteration, or both,

the person must lodge a statement with the Chief Commissioner in respect of the entitlement.

(2)  The statement must be lodged within 2 months after the entitlement arises or within such longer period as the Chief Commissioner may approve in writing.

pt 3, div 27A (ss 97ADJ–97ADN): Ins 1997 No 41, Sch 1 [2].

97ADL Form of statement

The statement required to be lodged under this Division by a person is to be in a form approved by the Chief Commissioner and is to contain the following information:

(a)  the name and address of the person,

(b)  the name of the company,

(c)  the date on which each relevant capital reduction or rights alteration, or both, occurred,

(d)  if the person’s entitlement has arisen:

(i)  from capital reduction—the total of the unencumbered value, immediately prior to each relevant capital reduction, of the shares that increased the person’s entitlement, or

(ii)  from rights alteration—the total of the unencumbered value, immediately prior to each relevant rights alteration, of the shares that increased the person’s entitlement, or

(iii)  from capital reduction and rights alteration—the aggregate of the totals under subparagraphs (i) and (ii),

(e)  the total consideration paid to the person in relation to all relevant capital reductions or rights alterations, or both,

(f)  such other information as may be required by the Chief Commissioner.

pt 3, div 27A (ss 97ADJ–97ADN): Ins 1997 No 41, Sch 1 [2].

97ADM Assessment and payment of duty

(1)  A statement required to be lodged under this Division by a person is chargeable with duty:

(a)  in the case of a company whose shares are quoted on the market operated by the Australian Stock Exchange Limited—at the rate of 30 cents for every $100, or part, of the higher of:

(i)  the total or aggregate obtained under section 97ADL (d), and

(ii)  the total obtained under section 97ADL (e), or

(b)  in the case of a company whose shares are not quoted on the market operated by the Australian Stock Exchange Limited—at the rate of 60 cents for every $100, or part, of the higher of:

(i)  the total or aggregate obtained under section 97ADL (d), and

(ii)  the total obtained under section 97ADL (e).

(2)  The duty with which the statement is chargeable is to be paid at the time of lodgment of the statement with the Chief Commissioner by the person required to lodge the statement.

pt 3, div 27A (ss 97ADJ–97ADN): Ins 1997 No 41, Sch 1 [2].

97ADN Offences relating to statements

A person:

(a)  who fails to lodge a statement under this Division within the period specified in, or approved under, this Division, or

(b)  who lodges a statement that is false or misleading in a material particular,

is guilty of an offence and liable to a fine not exceeding 50 penalty units.

pt 3, div 27A (ss 97ADJ–97ADN): Ins 1997 No 41, Sch 1 [2].

Division 28 Transfer etc of certain mortgages and debentures

pt 3, div 28: Ins 1982 No 133, Sch 2 (5).

97AE Charging of duty on transfer etc of certain mortgages

Notwithstanding any other provision of this Act, duty shall not be chargeable on a transfer or assignment of any mortgage or any interest in a mortgage, being a transfer or assignment made on or after 1 January 1983, or on any declaration of trust made on or after 1 January 1995 over property that is identified in the declaration of trust as a mortgage.

s 97AE: Ins 1982 No 133, Sch 2 (5). Am 1984 No 171, Sch 1 (6); 1992 No 33, Sch 1 (13); 1995 No 98, Sch 7 (18).

97B Assignment of mortgages etc to be marked before registration

No assignment or transfer of a mortgage, being an assignment or transfer made before 1 January 1983, or of a debenture shall be registered or recorded in any office unless the assignment or transfer is stamped as a conveyance or is marked by the Chief Commissioner as exempt from stamp duty. If any person or corporation registers or records such assignment or transfer in contravention of this section that person or corporation (and in the case of the corporation the directors or managers thereof) shall be liable to a fine not exceeding 0.5 penalty unit.

s 97B: Ins 1931 No 13, sec 4 (hh). Am 1965 No 36, Sch, 1982 No 133, Sch 2 (6); 1992 No 112, Sch 1.

Division 28A Transfer of shares—London Stock Exchange

pt 3, div 28A: Ins 1985 No 219, Sch 2 (3).

97C Definitions

(1)  In this Division:

broker means a person, firm or corporation who or which is a member of the London Stock Exchange.

London Stock Exchange means The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited.

market maker means a person who is a market maker according to the rules and practices of the London Stock Exchange and who is acting in the capacity of such a market maker.

month means a month designated by name in the calendar.

prescribed corporation means a corporation declared by the Governor under section 97D to be a prescribed corporation for the purposes of this Division.

relevant transaction means any procedure by which:

(a)  as a consequence of the disposition of the beneficial interest in marketable securities vested in a prescribed corporation as trustee for a person, and

(b)  without any further vesting of the marketable securities,

the prescribed corporation ceases to hold the marketable securities as trustee for that person and commences to hold the marketable securities as trustee for another person.

(2)  In this Division, a reference to marketable securities is a reference to marketable securities, or rights to marketable securities, of:

(a)  a NSW company, or

(b)  a corporation incorporated outside Australia if the marketable securities or rights are registered on a register of members of the corporation kept in New South Wales.

(c), (d)    (Repealed)

s 97C: Ins 1985 No 219, Sch 2 (3). Am 1986 No 193, Sch 4 (1); 1989 No 113, Sch 2 (5); 1990 No 108, Sch 2; 1994 No 48, Sch 9 (15).

97D Declarations by the Governor

(1)  The Governor may, by order published in the Gazette, declare a specified corporation that is a NSW company or, not being a NSW company, carries on business in New South Wales, to be a prescribed corporation for the purposes of this Division.

(2), (3)    (Repealed)

s 97D: Ins 1985 No 219, Sch 2 (3). Am 1986 No 193, Sch 4 (2); 1994 No 48, Sch 9 (16).

97E Duty payable in relation to relevant transactions

(1)  A prescribed corporation shall, on or before the 28th day of each month (other than the month in which this Division commences):

(a)  lodge with the Chief Commissioner a return in an approved form setting forth the prescribed particulars and information relating to all relevant transactions to which effect was given by the prescribed corporation during the last preceding month, and

(b)  pay to the Chief Commissioner as stamp duty an amount calculated at the rate of 30 cents for every $100, and also for any remaining part of $100, of the consideration for each disposition of marketable securities upon which a relevant transaction to which the return relates is consequential.

(2)  Subsection (1) does not apply to or in respect of a relevant transaction that is consequential upon a disposition of any marketable securities that:

(a)  is specified in paragraph (a), (b), (c) or (d) of the exemptions appearing under the heading “TRANSFER OF SHARES” in the Second Schedule,

(b)  is made by or to a person who is a New South Wales dealer as defined in section 97A (1),

(c)  is, in accordance with the rules and practices of the London Stock Exchange, a stock loan transaction,

(d)  is made to a member of the London Stock Exchange as principal, where the beneficial interest of the member in the marketable securities is disposed of within the period of 10 clear days (not including any day on which the London Stock Exchange is closed for business) that next succeeds the acquisition of the marketable securities by the member,

(e)  is made by a member of the London Stock Exchange as principal within the period of 10 clear days (not including any day on which the London Stock Exchange is closed for business) that next succeeds the acquisition of the marketable securities by the member as principal, or

(f)  is made by a market maker to another market maker.

(3)  Where a relevant transaction is made:

(a)  by a prescribed corporation as trustee for a broker to the prescribed corporation as trustee for a market maker, or

(b)  by a prescribed corporation as trustee for a market maker to the prescribed corporation as trustee for a broker,

the amount payable under subsection (1) (b) in respect of that relevant transaction shall be one half of the amount that would otherwise be payable.

(4)    (Repealed)

(5)  A payment of duty under this section by a prescribed corporation shall be deemed to be a payment on behalf of the transferee to whom the disposition by reference to which the duty was calculated relates, and the proportion of the duty attributable in relation to any such transferee:

(a)  may be deducted by the prescribed corporation from any money payable to the transferee by the corporation, or

(b)  may be recovered as a debt owing by the transferee to the prescribed corporation.

(6)  In the case of a transfer of shares to or by a prescribed corporation that is exempted under paragraph (f) of the exemptions appearing under the heading “TRANSFER OF SHARES” in the Second Schedule, a prescribed corporation that, but for the exemption, would be liable to pay the duty must:

(a)  endorse the instrument with the following words:
NO NEW SOUTH WALES STAMP DUTY IS PAYABLE

See paragraph (f) of the exemptions appearing under the heading “TRANSFER OF SHARES” in the Second Schedule to the Stamp Duties Act 1920

(b)  affix its stamp to the instrument and note on the instrument the date of the endorsement.

(7)  An instrument endorsed in accordance with subsection (6) shall be deemed to be duly stamped.

(8)  A prescribed corporation that contravenes subsection (1) is guilty of an offence and liable to a penalty not exceeding 20 penalty units and, in addition, to a penalty not exceeding double the amount of duty that would have been payable but for the contravention.

s 97E: Ins 1985 No 219, Sch 2 (3). Am 1986 No 193, Schs 1 (3), 4 (3); 1989 No 113, Sch 2 (6); 1990 No 45, Sch 1 (13); 1992 No 112, Sch 1; 1995 No 17, Sch 1 (6); 1996 No 34, Sch 1.4 (9).

Division 29 Returns of financial institutions etc

pt 3, div 29: Ins 1982 No 133, Sch 1 (3).

Subdivision 1 Preliminary

98 Definitions

(1)  For the purposes of this Division and of the matter appearing under the heading “Receipts Return” or “Short Term Dealers Return” in the Second Schedule to this Act, unless inconsistent with the context or subject-matter:

bank means a bank within the meaning of the Banking Act 1959 of the Parliament of the Commonwealth as amended and in force for the time being or a bank constituted by a law of a State or of the Commonwealth, but does not include the Reserve Bank of Australia.

broker means a member organisation of Australian Stock Exchange Limited.

broker receipts means:

(a)  receipts (after the deduction of any trading losses) in the nature of profits from trading, including dividends, or

(b)  receipts of brokerage (whether from trading in equities, options, futures, fixed interest or any other source), or

(c)  receipts of underwriting or sub-underwriting commissions (after deduction of sub-underwriting commissions paid), or

(d)  dividends received otherwise than from trading, or

(e)  receipts of interest and management fees, or

(f)  receipts of fees from a member of the group of which the broker is a member, or

(g)  receipts from the sale of capital assets not traded in the ordinary course of the business of the broker,

calculated on a monthly basis in such a way that a net loss in any month is taken to be a nil net receipt for that month, and cannot be transferred to or be considered in the calculations for any subsequent month.

building society means a building society registered under the Financial Institutions (NSW) Code.

cash management trust unit means any right or interest (whether described as a unit or a sub-unit or otherwise) of a beneficiary in an undertaking, scheme, enterprise, contract or arrangement of the kind commonly known as a cash management trust.

charitable organisation means:

(a)  a religious or public benevolent institution, or a public hospital, or

(b)  a hospital that is carried on by a society or association otherwise than for the purpose of profit or gain to the individual members of the society or association, or

(c)  a school or college that is carried on by a body corporate, society or association otherwise than for the purpose of profit or gain to the individual members of the body corporate, society or association, and that provides education at or below, but not above, the secondary level of education, or

(d)  a non-profit organisation having as one of its objects a charitable, benevolent, philanthropic or patriotic purpose, or

(e)  an organisation that:

(i)  was, immediately before the repeal of the Charitable Collections Act 1934, a charity within the meaning of that Act and registered or exempted from registration under that Act, and

(ii)  has not, since the repeal of that Act, altered its constitution in so far as its constitution relates to its charitable objects, or

(f)  a society or institution (other than a school or college or a statutory body):

(i)  that, in the opinion of the Chief Commissioner, is a charitable society or institution, and

(ii)  that is for the time being approved by the Chief Commissioner for the purposes of this paragraph, or

(g)  a statutory body that:

(i)  in the opinion of the Minister, is a charitable statutory body, and

(ii)  is for the time being approved by the Minister for the purposes of this paragraph,

(h)  a trust, the funds of which are applied solely for charitable purposes.

co-operative society means a society registered under the Co-operatives Act 1992 or under a law that corresponds to that Act, being a law of another State or of a Territory, but does not include a building society.

corresponding Act means any of the following:

(a)  the Financial Institutions Duty Act 1982 of Victoria,

(b)  the Financial Institutions Duty Act 1983 of South Australia,

(c)  the Financial Institutions Duty Act 1983 of Western Australia,

(d)  the Financial Institutions Duty Act 1986 of Tasmania,

(e)  the Financial Institutions Duty Act 1987 of the Australian Capital Territory,

(f)  the Financial Institutions Duty Act 1989 of the Northern Territory.

corresponding State or Territory means another State or a Territory of the Commonwealth that is declared by the Governor by an order for the time being in force under subsection (16) to be a corresponding State or Territory for the purposes of this Division.

credit contract has the same meaning as in the Credit Act 1984, and includes a contract or agreement which, but for sections 18, 19 and 19A of that Act, would be a credit contract within the meaning of that Act.

credit provider has the same meaning as in the Credit Act 1984, and includes a person who, but for sections 18, 19 and 19A of that Act, would be a credit provider within the meaning of that Act.

credit union means a society or other body of persons:

(a)  that is registered or incorporated as a credit union or credit society, under the law in force in a State or a Territory relating to credit unions or credit societies, or

(b)  the principal business of which consists of borrowing money from its members or intended members and lending money so borrowed to its members and which is registered or incorporated under the law in force in a State or a Territory,

but does not include an association of credit unions, a union of associations of credit unions or an amalgamated association of credit unions or a building society.

dealer has the same meaning as in the Corporations Law, but does not include a broker.

dealing, in relation to securities, has the same meaning as in the Securities Industry (New South Wales) Code.

designated person means:

(a)  a financial institution, or

(aa)  a broker, or

(b)  a retailer, or

(c)  a pastoral finance company, or

(d)  the Protective Commissioner.

designated receipts means:

(a)  receipts of a financial institution, or

(aa)  broker receipts of a New South Wales broker, being receipts received in or outside New South Wales, or

(b)  receipts of a retailer (including interest and charges) received in relation to the repayment of the whole or any part of the amount financed under a finance contract or a hiring arrangement, or

(c)  receipts of a pastoral finance company (including interest and charges) received in relation to the repayment of the whole or any part of the amount financed under a finance contract or a hiring arrangement, or

(d)  receipts of the Protective Commissioner.

dutiable receipts means:

(a)  the designated receipts of a designated person who is:

(i)  registered under this Division, or

(ii)  required to apply to the Chief Commissioner for registration under this Division,

(b)  the designated receipts to which the provisions of section 98K (1), other than paragraph (c) (i) of that subsection, apply, or

(c)  a receipt referred to in section 98LA (1) which is not lodged or deposited with a registered person or designated person or to the credit of an exempt account as referred to in that subsection.

excluded person means any of the following:

(a)  a corporation whose sole or principal business is the operation of a complying superannuation fund,

(b)  a corporation that is registered under the Life Insurance Act 1945 of the Commonwealth,

(c)  a corporation whose sole or principal business is insurance business within the meaning of the Insurance Act 1973 of the Commonwealth,

(d)  a corporation that is a registered medical benefits organisation or a registered hospital benefits organisation under the National Health Act 1953 of the Commonwealth,

(e)  a dealer (not being a person referred to in paragraph (a), (c), (d) or (e) of the definition of financial institution) who does not carry on a business of dealing in securities except:

(i)  in the capacity of official receiver or trustee within the meaning of the Bankruptcy Act 1966 of the Commonwealth, or

(ii)  in the capacity of administrator, liquidator or provisional liquidator of a corporation, or of controller of property of a corporation, or as a person appointed by a court to carry on the business concerned,

(f)  a dealer (being a corporation that is not a person referred to in paragraph (a), (c), (d) or (e) of the definition of financial institution) that carries on, or holds itself out as carrying on, a business of dealing in debentures of that corporation but does not carry on a business of dealing in any other securities,

(fa)  a broker,

(g)  a licensed insurer under the Workers Compensation Act 1987,

(h)  a retailer,

(i)  a pastoral finance company.

exempt account means an account in respect of which a certificate issued under section 98U is in force.

finance contract means:

(a)  a credit contract, or

(b)  a contract or agreement made with a body corporate that, if made with a natural person, would be a credit contract.

financial institution means:

(a)  a bank,

(b)  a dealer,

(c)  a trustee company,

(d)  a credit provider, or

(e)  a management company under a deed approved under Division 5 of Part 7.12 of the Corporations Law or a corresponding previous law or under a corresponding law of another State or a Territory,

and includes any person whose sole or principal business is that of the provision of finance, but does not include an excluded person.

foreign exchange hedging agreement means a contract or agreement the effect of which is to hedge, cover or change a liability to pay or an entitlement to receive:

(a)  in foreign currency (or Australian dollar equivalent) into another foreign currency (or Australian dollar equivalent) or into Australian dollars, or

(b)  in Australian dollars into a foreign currency (or Australian dollar equivalent).

group means a group constituted for the purposes of this Division.

group return means a return made out in accordance with section 98JA by a registered person on behalf of a group of which the person is a member, where the receipts specified in the return are the sum of the dutiable receipts of each member of the group.

hiring arrangement means a hiring arrangement within the meaning of section 74D.

loan has the meaning ascribed thereto in section 83 (1).

month means January, February, March, April, May, June, July, August, September, October, November or December.

mortgage has the same meaning as in Division 21A.

mortgage-backed security has the same meaning as in Division 21A.

New South Wales broker means a broker:

(a)  that lodges quarterly returns with the Australian Stock Exchange in New South Wales, or

(b)  that conducts business in New South Wales and that lodges quarterly returns with the Australian Stock Exchange in another State or a Territory of the Commonwealth that is not a corresponding State or Territory.

pastoral finance company means:

(a)  a person whose sole or principal business is that of financing pastoral pursuits or whose sole or principal business is that of a stock or station agent to whom an order in force under section 11 of the Banking Act 1959 of the Commonwealth applies, or

(b)  a person, a substantial part of whose business is, in the Chief Commissioner’s opinion, that of financing pastoral pursuits or a substantial part of whose business is, in the Chief Commissioner’s opinion, that of a stock or station agent to whom such an order applies and who is approved by the Chief Commissioner as a pastoral finance company.

prescribed short term dealer means a short term dealer who:

(a)  except as provided by paragraph (b), is not a registered person, or

(b)  is a registered person in respect of whom the Chief Commissioner has imposed a condition as referred to in section 98O (2).

Protective Commissioner means the person holding the office of Protective Commissioner under the Protected Estates Act 1983.

receipt includes a payment, repayment, deposit or subscription and the crediting of an account.

receipts return means a return made out as referred to in section 98J, 98K or 98LA.

registered person means a person who, pursuant to section 98I, is registered under this Division.

retailer means:

(a)  a person whose sole or principal business is that of selling goods by retail, or

(b)  a person, a substantial part of whose business is, in the Chief Commissioner’s opinion, that of selling goods by retail and who is approved by the Chief Commissioner as a retailer.

rollover of a term deposit means the renewal with or the retention by a financial institution of the whole or part of the term deposit (either at call or for a further specified period) at the end of the specified period for which the term deposit was previously made.

RTGS transaction means:

(a)  a transaction governed by the regulations of the Reserve Bank Information and Transfer System, or

(b)  a transaction governed by the regulations of Austraclear, or

(c)  a transaction governed by the regulations of the Society for Worldwide Interbank Financial Telecommunications Payment Delivery System.

securities has the same meaning as in the Securities Industry (New South Wales) Code.

short term dealer means a person whose certification as a short term dealer pursuant to section 98O is in force.

short term dealer’s account means the account kept by a short term dealer under section 98P.

short term dealers return means a return made out as referred to in section 98R.

short term dealing means:

(a)  the making or receiving of a deposit (other than a deposit to the credit of an account with a bank that is repayable on demand or to the credit of a current account, in either case, kept by the bank for another person) if the amount of the deposit is not less than $50,000 and is deposited:

(i)  at call, or

(ii)  for a term not exceeding 185 days, or

(iii)  for a term not exceeding 185 days and thereafter at call, or

(b)  the making or receiving of a loan or advance if the amount of the loan or advance is not less than $50,000 and is loaned or advanced:

(i)  at call, or

(ii)  for a term not exceeding 185 days, or

(iii)  for a term not exceeding 185 days and thereafter at call, or

(c)  a dealing in securities, mortgage-backed securities, bills of exchange, promissory notes, certificates of deposit, or interest bearing deposits, if the amount involved in the dealing is not less than $50,000 or the dealing (not being a dealing in a security) is in a bill of exchange, promissory note, certificate of deposit or interest bearing deposit having a nominal value on the day on which the dealing is entered into or a face value of not less than $50,000, and the amount involved in the dealing is invested:

(i)  at call, or

(ii)  for a term not exceeding 185 days, or

(iii)  for a term not exceeding 185 days and thereafter at call, or

(iv)  in respect of a dealing in a security, bill of exchange, promissory note, certificate of deposit or interest bearing deposit having a term exceeding 185 days, but the dealing is completed not later than 185 days after the date of investment of the amount, or

(d)  a dealing in securities for the purpose of a securities lending arrangement, if the dealing is completed within 185 days, or

(e)  a foreign exchange dealing for the purposes of a foreign exchange hedging agreement if the amount involved in the dealing is not less than $50,000, and the dealing is completed not later than 185 days after the date on which the agreement was entered into, or

(f)  a futures contract within the meaning of section 72 of the Corporations Law if the amount involved in the contract is not less than $50,000, and the contract is completed within 185 days.

short term liability, in relation to a short term dealer or a person (whether or not the person is included in the reference in section 98 (3) (b)) who is a member of a group, includes a deposit with or financial accommodation received, whether by a loan or borrowing (including a borrowing in respect of which a security, bill of exchange or promissory note is issued) or for the acquisition of a cash management trust unit or otherwise by the short term dealer or person of an amount of not less than $50,000 (except in the case of a securities lending arrangement or, in the case of a short term dealer being a bank, a deposit to the credit of an account with the bank which is repayable on demand or to the credit of a current account in either case, kept by the bank for another person), where:

(a)  in the case of a deposit, the amount deposited is deposited at call or for a term not exceeding 185 days or for a term not exceeding 185 days and thereafter at call, or

(b)  in the case of a borrowing, the amount borrowed, irrespective of the nature of the borrowing, is repayable at call or within a term not exceeding 185 days or within a term not exceeding 185 days and thereafter at call, or

(c)  in the case of an amount received for the acquisition of a cash management trust unit, that amount is repayable at call or within a term not exceeding 185 days or within a term not exceeding 185 days and thereafter at call,

and any other liability of a short term nature which may be prescribed for the purposes of this definition, but does not include a liability which is prescribed not to be a short term liability for the purposes of this definition.

Territory means a Territory of the Commonwealth.

trustee company means:

(a)  the Public Trustee,

(b)  a trustee company within the meaning of the Trustee Companies Act 1964,

(c)  a corporation that is constituted under the law of another State or of a Territory and, in the opinion of the Chief Commissioner, corresponds in that State or Territory to the Public Trustee or a trustee company referred to in paragraph (b), or

(d)  a corporation or class of persons prescribed as a corporation or class of persons for the purposes of this definition.

(1A)  The amount of $50,000 referred to in the definition of short term liability in subsection (1) is, in the case of a term deposit that is rolled over, taken to include any amount of money added to the deposit when it is rolled over. (The purpose of this subsection is to ensure that the amount added is not, for the purposes of this Division, treated as a separate deposit.)

(2)  In this Division, a reference to the provision of finance includes a reference to:

(a)  the borrowing of money or the obtaining of other financial accommodation, including the issue of share capital by a building society,

(b)  the dealing in:

(i)  securities,

(ii)  bills of exchange,

(iii)  promissory notes,

(iv)  certificates of deposit,

(v)  interest bearing deposits, or

(vi)  a mortgage-backed security,

(c)  the lending of money, with or without security,

(d)  the purchase, acquisition, discounting or factoring of debts due to another person, and

(e)  the provision of credit within the meaning of the Credit Act 1984 pursuant to a credit contract or proposed credit contract by a credit provider.

(3)  In this Division and in the matter appearing under the heading “Receipts Return” or “Short Term Dealers Return” in the Second Schedule to this Act, unless inconsistent with the context or subject-matter:

(a)  a reference to a receipt is a reference to a receipt of money,

(b)  a reference (except in Subdivision 2) to a person, a designated person, a registered person or a short term dealer includes a reference to a person, a designated person, a registered person or a short term dealer who is resident or domiciled in New South Wales, or carries on business wholly or partly in New South Wales, who enters into a transaction as a consequence of which he receives a receipt, a designated receipt or a dutiable receipt, who receives a receipt, a designated receipt or a dutiable receipt in New South Wales, who receives a receipt, a designated receipt or a dutiable receipt, outside New South Wales as a consequence of any act, matter or thing done by the person in New South Wales or who is prescribed for the purposes of this paragraph, and

(c)  a reference to a receipt, a designated receipt or a dutiable receipt includes a reference to:

(i)  a receipt, a designated receipt or a dutiable receipt received within New South Wales, or

(ii)  a receipt, a designated receipt or a dutiable receipt received outside New South Wales, but only where the receipt, the designated receipt or the dutiable receipt received relates to, and to the extent only that it relates to, goods supplied or to be supplied in New South Wales, services rendered or to be rendered in New South Wales, property situated in New South Wales, any matter or thing done or to be done in New South Wales or such contracts, arrangements or transactions as may be prescribed for the purposes of this subparagraph.

(4)  In this Division, a reference to a person who, or an act, matter or thing which, may be prescribed for the purposes of this Division, a provision of this Division or the matter appearing under the heading “Receipts Return” or “Short Term Dealers Return” in the Second Schedule to this Act includes a reference to a person of a class or description of persons who, or an act, matter or thing of a class or description of acts, matters or things which, may be so prescribed.

(5)  In this Division, a reference to a person, a designated person, a registered person or a short term dealer who is resident or domiciled in New South Wales includes, in the case of a corporation, a reference to a corporation within the meaning of the Corporations Law that carries on business in New South Wales, whether or not it is a NSW company.

(6)  Where money is, after it is received (otherwise than by the crediting of an account) by a designated person, credited by the designated person to an account in the records of the designated person (being an exempt account, an account the receipts to the credit of which are dutiable receipts or a prescribed account), the money shall, for the purposes of this Division, be deemed not to have been received by the designated person before it is first so credited.

(7)  Where money received is or includes an amount of money in a currency other than Australian currency, the value of the money shall, for the purposes of this Division, be expressed at the equivalent rate of exchange current at the time at which the money was received.

(8)  The exchange of money for money shall not, for the purposes of this Division, constitute a receipt, except to the extent, if any, to which a party to the exchange receives an amount which is greater than the amount paid or given by him.

(9)  Subsection (8) does not apply to or in respect of an exchange involving a bill of exchange (other than the issuing of a cheque that a financial institution draws on itself, the issuing of travellers cheques or the cashing of a cheque) or a promissory note.

(10)  Where a person receives a consideration, other than money (whether or not in consideration of his having given credit to any person), whereby any debt or obligation or part of a debt or obligation owing to that person is settled, satisfied, discharged or met, the person shall, when he receives the consideration, be deemed, for the purposes of this Division, to have received an amount of money equal to the amount of the debt or obligation or part of the debt or obligation that has been settled, satisfied, discharged or met.

(11)  Unless the contrary intention appears, a reference in this Division to a preceding month or to a preceding number of months is a reference to the month of the year or the number of months of the year preceding the month in which the question arises.

(12)  For the purposes of this Division, a reference to the crediting of an account includes a reference to:

(a)  the depositing of money to the credit of the account by the person in whose name the account is kept or by another person,

(b)  without limiting the generality of paragraph (a), the transfer of money to the credit of the account from another account of the person in whose name the account is kept or from an account of another person, and

(c)  the transfer between ledgers or divisions in an account of a person where different terms and conditions apply in respect of those ledgers or divisions.

(13)  For the purposes of this Division, the crediting of an account of a person, including the crediting of an account effected by means of an entry or record made by use of a machine or device, shall be deemed to constitute a receipt of money by the person whose account is so credited.

(14)  A receipt to the credit of a bank account which is an exempt account shall, unless the receipt has been credited to an account or accounts in the records of the person in whose name the bank account is kept, be deemed to be a receipt of that person otherwise than to the credit of the bank account.

(15)  If a term deposit constitutes a short term dealing and the amount involved in the dealing is rolled over into a deposit or investment that does not constitute a short term dealing, the amount rolled over is taken to be a receipt for the purposes of this Division.

(16)  The Governor may, by an order published in the Gazette, declare another State or a Territory of the Commonwealth to be a corresponding State or Territory for the purposes of this Division.

s 98: Rep 1924 No 33, sec 7 (f) (i). Ins 1982 No 133, Sch 1 (3). Am 1983 No 72, Schs 1 (1), 3 (2)–(7); 1984 No 100, Sch 2; 1987 No 87, Sch 1 (5); 1991 No 93, Schs 3 (10), 5 (15); 1992 No 86, Sch 6 (22) (23); 1994 No 48, Schs 8 (1), 11 (27); 1994 No 72, Sch 4 (27); 1995 No 7, Sch 1; 1995 No 98, Sch 7 (19); 1996 No 34, Sch 1.4 (10)–(12); 1996 No 125, Sch 1 (21); 1998 No 11, Sch 6.21 [2] [3]; 1998 No 44, Sch 5 [11]; 1998 No 104, Sch 7 [1] [2].

98A Receipts to which this Division does not apply

(1)  This Division does not apply to or in respect of a receipt of a designated person, being:

(a)  a receipt to the extent that it is for the sale of goods by the designated person, otherwise than under a credit contract, a hiring arrangement within the meaning of section 74D or a lease within the meaning of section 76, or

(b)  a receipt of money constituted solely by reason of the reversing of an entry previously made in an account kept by the designated person in error, or

(ba)  a receipt that is reversed because a cheque is dishonoured, or

(bb)  a receipt comprising the reversal of a debit because a cheque is dishonoured, or

(c)  a receipt comprising the crediting of an exempt account, or

(ca)  a receipt comprising the crediting of an account of the designated person (not being a customer’s account) where there is a corresponding debit to a customer’s account in respect of a payment of duty under this Division or a payment of tax under the Debits Tax Act 1990, or

(cb)  a receipt comprising the rollover of a term deposit, except as provided by section 98 (15), or

(d)  in relation to a dealer, a receipt by the dealer (not being a fee, brokerage, commission or other charge made by the dealer) from:

(i)  the initial issue by the Commonwealth of securities or Treasury Notes,

(ii)  the initial issue, negotiating or giving, as agent for a principal, of securities, bills of exchange, promissory notes or certificates of deposit, not being a receipt received in such circumstances as may be prescribed, or

(iii)  a dealing by the dealer in a marketable security or a right or interest (whether described as a unit or sub-unit or otherwise) of a beneficiary under a unit trust scheme, being a dealing in respect of which duty has been paid or is payable under this Act or the Duties Act 1997, or

(da)  a receipt in relation to an offshore banking activity (within the meaning of section 121D of the Income Tax Assessment Act 1936 of the Commonwealth) of a designated person who is an offshore banking unit (within the meaning of Division 11A of Part III of that Act), or

(e)  in relation to a trustee company, the initial receipt by the trustee company of the assets of a deceased person, or

(ea)  a receipt to the credit of a farm management deposit as a consequence of a transfer of an amount held in an income equalisation deposit or a farm management bond by the Department of Primary Industry and Energy of the Commonwealth, or

(f)  a receipt by or to the credit of an account kept on behalf of the Association of New South Wales Credit Unions Limited, Credit Union Financial Services (Australia) Limited, Credit Union Settlement Services Limited or the Co-operative Federation of N.S.W. Limited, or

(g)  a receipt in relation to any one of, or a combination of 2 or more of, the following transactions (not being a receipt comprising the crediting of an account of a customer of a bank with the proceeds of any such transaction or transactions):

•  an interest rate, currency or commodity swap,

•  an interest rate, currency or commodity option,

•  a forward exchange rate agreement,

•  a forward interest rate agreement,

•  a futures contract traded on the Sydney Futures Exchange, or

(h)  a receipt by the manager or trustee of assets the subject of a deed approved under Division 5 of Part 7.12 of the Corporations Law or a previous corresponding law of another State or a Territory, being a receipt of money for the purpose of:

•  subsequent payment, or reimbursement of payment, to holders of prescribed interests (within the meaning of the Corporations Law) under the deed, or

•  reimbursement of money expended by the manager or trustee on behalf of the trust, not being a receipt for a fee, brokerage or commission or other charge made by the manager or trustee, or

(i)  a receipt by the manager of assets the subject of a deed approved under Division 5 of Part 7.12 of the Corporations Law or a previous corresponding law of another State or a Territory (not being a receipt for a fee, brokerage, commission or other charge made by the manager), being a receipt that is subsequently to be paid to the trustee of the assets, or

(ia)  the initial receipt by the Protective Commissioner of the assets of a patient or incapable person within the meaning of the Mental Health Act 1990 or a protected person within the meaning of the Protected Estates Act 1983, or

(ib)  a receipt resulting from the transfer of a credit or debit balance from one account to another (being accounts kept by the designated person in the name of the same customer), but only if the transfer has arisen because:

•  a branch of the designated person has closed or branches of that person have been amalgamated, or

•  the customer has lost a passbook or automatic teller machine card, or

•  the designated person has changed the processing system by which it records customers’ transactions,

except so much of the receipt (if any) as comprises the crediting of interest not previously credited to an account, or

(ic)  a receipt by a financial institution of:

(i)  a payment of farm household support made under the Farm Household Support Act 1992 of the Commonwealth, or

(ii)  payment of a pension under the Veterans’ Entitlements Act 1986 of the Commonwealth or of a pension, benefit or allowance under the Social Security Act 1991 of the Commonwealth, or

(iii)  a benefit or allowance under the A New Tax System (Family Assistance) Act 1999 of the Commonwealth, or

(iv)  a bonus payment under the A New Tax System (Bonuses for Older Australians) Act 1999 of the Commonwealth, or

(ica)  a receipt by a bank that is the consequence of a loan repayment made in respect of a Defence Service Homes Corporation loan, or

(id)  a receipt by a company to which section 84EBA applies, or

(ie)  a receipt comprising the crediting of an account kept solely for clearing amounts in respect of transactions for the purposes of the Solicitors’ Electronic Information Settlement Interchange Network, or

(j)  a receipt by or to the credit of an account kept on behalf of a person with respect to the person’s business of being a clearing house for, or of enabling or effecting settlements between, 2 or more persons, being:

(i)  building societies, or

(ii)  dealers within the meaning of section 97A (1), or

(iii)  futures brokers, or

(iv)  wool buyers or sellers, or

(k)  in relation to a dealer:

(i)  a receipt of money by the dealer as a consequence of the transfer of the money from a trust account of the dealer to another account of the dealer, where the receipt of the money to the trust account of the dealer is included in a receipts return made out by the dealer in accordance with section 98J (1), or

(ii)  a receipt of money by the dealer as a consequence of the transfer of the money to a trust account of the dealer from another account of the dealer, where the receipt of the money to the other account of the dealer is included in a receipts return made out by the dealer in accordance with section 98J (1), or

(l)  a receipt to the credit of a clients’ segregated account (within the meaning of the Corporations Law) of a futures broker (within the meaning of that Law) with a bank, or

(m)  a receipt by a person (other than a bank) for the credit of an account kept on behalf of:

(i)  a Department of the Government of the Commonwealth or of a State or Territory (other than a Department the sole or principal function of which is to carry on an activity in the nature of a business, whether or not for profit), or

(ii)  an authority of the Commonwealth or of a State or Territory (other than an authority the sole or principal function of which is to carry on an activity in the nature of a business, whether or not for profit), or

(iii)  a local government council (other than a council the sole or principal function of which is to carry on an activity in the nature of a business, whether or not for profit),

not being an account kept in relation to a transaction or transactions entered into by or on behalf of the Department, authority or council in connection with the carrying on of an activity in the nature of a business, whether or not for profit, or

(n)  a receipt of a foreign exchange dealer, being a receipt that forms part of a transaction entered into by the dealer under the general authority granted to the dealer, but not including, if the dealer is a bank, a receipt comprising the crediting of an account by the bank of a customer of the bank with the whole or any part of the proceeds of any such transaction, not being:

(i)  a receipt comprising the crediting of an exempt account, or

(ii)  a receipt referred to in paragraph (z), or

(o)  a receipt by a bank that is a registered person, being a receipt that is the consequence of a customary general clearance:

(i)  of the kind referred to in section 64 of the Banking Act 1959 of the Commonwealth, or

(ii)  effected under an agreement between 2 or more banks for the settlement of balances arising between them, being an agreement contemplated by the terms and conditions of any agreement between banks relating to customary general clearance, or

(iii)  effected under an agreement between a bank and a registered person (other than a bank that is a registered person) for the settlement of balances arising between them, being an agreement contemplated by the terms and conditions of any agreement between banks and registered persons (other than banks) relating to customary general clearance, or

(oa)  a receipt as a consequence of the credit to an exchange settlement account of a financial institution kept by the Reserve Bank of Australia, being a receipt from an RTGS transaction, or

(p)  a receipt received outside New South Wales by a New South Wales broker, being a receipt in respect of which a liability to pay duty under a corresponding Act exists, or

(q)  a receipt received outside New South Wales by a financial institution constituting a receipt referred to in section 98 (3) (c) (ii), being a receipt in respect of which a liability to pay duty under a corresponding Act exists, or

(r)  a receipt by a financial institution, being a receipt that comprises the crediting of an account in New South Wales for the purpose only of recording, in accordance with the operation of a system of centralised data processing, a receipt of money first received by the financial institution outside New South Wales that is not a receipt referred to in section 98 (3) (c) (ii), or

(s)  a receipt by a financial institution that is the consequence of a person becoming the holder of shares in the capital of the financial institution, if:

(i)  the financial institution is a company that has been formed by the registration of a building society as a company under the Corporations Law, and

(ii)  the person has become the holder of the shares by reason only of being the holder of shares in the society immediately before its registration as the company, or

(t)  a receipt of money by a financial institution from or on behalf of a person for whose benefit the financial institution has drawn, accepted or endorsed a bill of exchange, being a receipt to satisfy the amount of the financial institution’s engagement on the bill of exchange, if:

(i)  the term of the bill of exchange is not more than 185 days, and

(ii)  the face or nominal value of the bill of exchange is not less than $50,000, or

(u)  a receipt by a financial institution (not being a fee, brokerage, commission or other charge made by the financial institution) from the initial issue or making of a mortgage-backed security, or

(v)  a receipt by a financial institution in respect of a payment to it by another financial institution under a mortgage or a mortgage-backed security, if the payment represents a receipt of the other financial institution:

(i)  that is received under the mortgage or a mortgage in relation to which the mortgage-backed security has been issued, and

(ii)  in respect of which duty under this Division has been paid or is liable to be paid by the other financial institution, or

(w)  a receipt by a building society that is the consequence of:

(i)  the conversion of withdrawable share capital of the society to a deposit with the society, or

(ii)  the conversion of withdrawable share capital of the society to fixed share capital of the society, or

(iii)  a redesignation in connection with or as a consequence of a transfer of engagements between, or the merger of, 2 or more building societies, or

(iv)  the transfer between accounts of a society in connection with or as a consequence of any such transfer or merger, or

(wa)  a receipt by a credit union that is a consequence of:

(i)  a redesignation in connection with or as a consequence of a transfer of engagements between, or the merger of, 2 or more credit unions, or

(ii)  the transfer between accounts of a credit union in connection with or as a consequence of any such transfer or merger, or

(x)  a receipt by a building society or credit union (a recognised financial institution) that is the consequence of a customary general clearance:

(i)  effected under an agreement between 2 or more recognised financial institutions (whether or not a bank that is a registered person is also party to that agreement) for the settlement of balances arising between them, being an agreement contemplated by the terms and conditions of any agreement between recognised financial institutions relating to customary general clearance, or

(ii)  effected under an agreement between a recognised financial institution and a registered person (other than a recognised financial institution) for the settlement of balances arising between them, being an agreement contemplated by the terms and conditions of any agreement between recognised financial institutions and registered persons (other than recognised financial institutions) relating to customary general clearance, or

(y)  a receipt by or to the credit of an account that is kept on behalf of, and to which payments are made only in respect of transactions wholly and exclusively in the furtherance of the objects of:

(i)  the New South Wales Aboriginal Land Council, or

(ii)  a Regional Aboriginal Land Council, or

(iii)  a Local Aboriginal Land Council, or

(z)  a receipt by or on behalf of a charitable organisation, being a receipt that is applied wholly and exclusively in the furtherance of the objects of the organisation, or

(za)  a receipt by a financial institution comprising a direct credit of a payment under the First Home Owner Grant Act 2000 or under a corresponding law, being:

(i)  a payment of a grant by the Chief Commissioner (or corresponding officer or authority under a corresponding law) to an account as directed by the applicant for the grant, or

(ii)  a payment of a grant by the Chief Commissioner to a party to an administration agreement entered into by the Chief Commissioner under section 32 of that Act, or

(iii)  a payment by such a party to an account as directed by the applicant for the grant.

(2)  For the purposes of subsection (1) (d) (ii), the prescribed circumstances, in relation to a receipt, are circumstances where the dealer, as a term or condition of acting as agent, has not been satisfied that, or has not received a certificate from the principal in or to the effect that, the receipt has been or will be paid into:

(a)  if the principal is a registered person—an account kept by the principal, or

(b)  whether or not the principal is a registered person—an account kept by a bank that is a registered person.

(3)  This Division does not apply to or in respect of a receipt prescribed by the regulations for the purposes of this section, either generally or in relation to a specified person or class of persons.

(4)  In this section:

foreign exchange dealer means a designated person in respect of whom a general authority is in force.

general authority means a general authority to engage in foreign currency transactions granted and issued under Regulation 38A of the Banking (Foreign Exchange) Regulations of the Commonwealth to a person named in the authority.

merger and transfer of engagements have the same meanings as in the Financial Institutions (NSW) Code.

redesignation means the process by which an account kept by a building society or a credit union (a recognised financial institution) on behalf of a person ceases to be kept by that recognised financial institution and is instead kept by another recognised financial institution on behalf of the same person and on the same terms and conditions as the account that ceased to be so kept.

s 98A: Ins 1982 No 133, Sch 1 (3). Am 1992 No 86, Sch 6 (24); 1993 No 41, Sch 1 (3); 1994 No 48, Schs 8 (2), 11 (18); 1994 No 72, Sch 4 (28) (am 1995 No 16, Sch 2); 1995 No 98, Sch 7 (21) (22); 1996 No 34, Sch 1.4 (13)–(16); 1996 No 125, Sch 1 (22) (23); 1997 No 123, Sch 2.2 [12]; 1998 No 104, Sch 7 [3] [4]; 2000 No 21, sec 53; 2000 No 105, Sch 5 [2].

98B Crown bound by Division etc

This Division, the provisions of this Act which relate to the interpretation of words and expressions used in this Division and the provisions of this Act which relate to or are necessary or convenient for the implementation and enforcement of this Division bind the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

s 98B: Ins 1982 No 133, Sch 1 (3).

Subdivision 2 Constitution of groups

98BA Definitions

In this Subdivision, business includes:

(a)  a trade or profession,

(b)  any other activity carried on for fee, gain or reward, and

(c)  the activity, carried on by an employer, of employing one or more persons where that person performs or those persons perform duties for or in connection with another business.

s 98BA: Ins 1983 No 72, Sch 2 (2).

98C Membership of a group of persons engaged in provision of finance

(1)  For the purposes of this Division, a person is a member of a group if:

(a)  that person is one of the persons who constitute a group for the purposes of this Division, and

(b)  there is not in force a determination under subsection (2) by the Chief Commissioner that that person is not a member of the group.

(2)  Where the Chief Commissioner is satisfied, having regard to the nature and degree of ownership or control of the businesses, the nature of the businesses or any other matters that he considers relevant, that a business carried on by a member of a group is carried on substantially independently of, and is not substantially connected with the carrying on of, a business carried on by any other member of that group, the Chief Commissioner may determine that the member is not, for the purposes of this Division, a member of the group.

(3)  The Chief Commissioner may, notwithstanding subsection (2), refuse to make a determination that a person is not, for the purposes of this Division, a member of a group if the person is a corporation to which section 98D applies.

(4)  A determination made under subsection (2) shall come into force on and from the date specified in the notice given by the Chief Commissioner under subsection (5) (being a date that is the date of the notice or before the date of the notice) and shall continue in force until it is revoked by the Chief Commissioner and notice of the revocation has been served on the person in respect of whom the determination was made.

(5)  Notice of a determination under subsection (2) shall be given by the Chief Commissioner to the person in respect of whom the determination was made and to all the persons who, in the opinion of the Chief Commissioner, are members of the group concerned.

(6)  The Chief Commissioner may at any time revoke a determination made under subsection (2).

(7)  Notice of the revocation of a determination made under subsection (2) shall be given by the Chief Commissioner to the person in respect of whom the determination was made and to all the persons who, in the opinion of the Chief Commissioner, are members of the group in respect of which the determination was made.

s 98C: Ins 1982 No 133, Sch 1 (3). Am 1983 No 72, Sch 2 (3); GG No 126 of 16.9.1983, p 4266.

98D Grouping of corporations

For the purposes of this Division, corporations constitute a group if they are related to each other (within the meaning of the Companies (New South Wales) Code) or associated with each other (within the meaning of that Code).

s 98D: Ins 1982 No 133, Sch 1 (3). Am 1983 No 72, Sch 2 (4).

98E Grouping where employees used in another business

For the purposes of this Division, if:

(a)  an employee of an employer, or 2 or more employees of an employer, performs or perform duties solely or mainly for or in connection with a business carried on by that employer and another person or other persons or by another person or other persons, or

(b)  an employer has, in respect of the employment of, or the performance of duties by, one or more of his employees, an agreement, arrangement or undertaking (whether formal or informal, whether expressed or implied and whether or not the agreement, arrangement or undertaking includes provisions in respect of the supply of goods or services or goods and services) with another person or other persons relating to a business carried on by that other person or those other persons, whether alone or together with another person or other persons,

that employer and:

(c)  each such other person, or

(d)  both or all of those other persons,

constitute a group.

ss 98E–98H: Ins 1982 No 133, Sch 1 (3).

98F Grouping of commonly controlled businesses

(1)  In this section, voting share has the meaning ascribed thereto in section 5 (1) of the Companies (New South Wales) Code.

(2)  A reference in this section to 2 businesses does not include a reference to 2 businesses both of which are owned by the same person, not being a trustee, or by the trustee or trustees of a trust.

(3)  For the purposes of this Division, where the same person has, or the same persons have together, a controlling interest, as referred to in subsection (4), in each of 2 businesses, the persons who carry on those businesses constitute a group.

(4)  For the purposes of subsection (3), the same person has, or the same persons have together, a controlling interest in each of 2 businesses if that person has, or those persons have together, a controlling interest under any of the following paragraphs in one of the businesses and a controlling interest under the same or another of the following paragraphs in the other business:

(a)  a person has, or persons have together, a controlling interest in a business, being a business carried on by a corporation, if the directors, or a majority of the directors, or one or more of the directors, being a director or directors who is or are entitled to exercise a majority in voting power at meetings of the directors of the corporation, are or is accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions, or wishes of that person or of those persons together,

(b)  a person has, or persons have together, a controlling interest in a business, being a business carried on by a corporation that has a share capital, if that person or those persons together could (whether directly or indirectly) exercise, control the exercise of or substantially influence the exercise of, half or more than half of the voting power attached to voting shares issued by the corporation,

(c)  a person has, or persons have together, a controlling interest in a business, being a business carried on by a partnership, if that person or those persons:

(i)  owns, or own together (whether beneficially or not) half or more than half of the capital of the partnership, or

(ii)  is, or are together, entitled (whether beneficially or not) to half or more than half of the profits of the partnership,

(d)  a person has, or persons have together, a controlling interest in a business, being a business carried on under a trust, if that person (whether or not as the trustee of another trust) is the beneficiary, or those persons (whether or not as the trustees of another trust) are together the beneficiaries, in respect of half or more than half of the value of the interests in the trust first mentioned in this paragraph,

(e)  a person has a controlling interest in a business if, whether or not he is a trustee of a trust, he is the sole owner of the business, or persons, being 2 or more trustees of a trust, have a controlling interest in a business if they are the owners of the business.

(5)  Where a corporation has a controlling interest under subsection (4) in a business, it shall be deemed to have a controlling interest in any other business in which another corporation that is related to it (within the meaning of the Companies (New South Wales) Code) has a controlling interest.

(6)  Where:

(a)  a person has, or persons have together, a controlling interest under subsection (4) in a business, and

(b)  the person or persons who carry on that business has or have such a controlling interest in another business,

the person or persons referred to in paragraph (a) shall be deemed to have a controlling interest in the other business referred to in paragraph (b).

(7)  Where:

(a)  a person is a beneficiary under a trust, or

(b)  2 or more persons together are beneficiaries under a trust,

in respect of half or more than half of the value of the interests in that trust and the trustee or trustees of that trust has or have under subsection (4) a controlling interest in a business, that beneficiary or those beneficiaries shall, for the purpose of subsection (4), be deemed to have a controlling interest in that business.

ss 98E–98H: Ins 1982 No 133, Sch 1 (3).

98G Smaller groups subsumed into larger groups

(1)  Notwithstanding any other provision of this Division (except subsection (2)), where a person is, whether or not by virtue of this subsection, a member of 2 or more groups (each of which is in subsection (2) referred to as a smaller group), all of the members of those groups constitute, for the purposes of this Division, one group.

(2)  Except for the purpose of determining whether a group is constituted under subsection (1), a group which, but for this subsection, would be a smaller group ceases to be a group if its members are members of a group constituted under subsection (1).

ss 98E–98H: Ins 1982 No 133, Sch 1 (3).

98H Beneficiaries under discretionary trusts

A person who, as the result of the exercise of a power or discretion by the trustee of a discretionary trust or by any other person or by that trustee and any other person, may benefit under that trust shall be deemed, for the purposes of this Division, to be a beneficiary in respect of half or more than half of the value of the interests in that trust.

ss 98E–98H: Ins 1982 No 133, Sch 1 (3).

Subdivision 3 Duty in relation to receipts returns

98I Registration

(1)  A designated person (not being a member of a group) who, and each designated person who is a member of a group which:

(a)  during the year ending 30 November 1982, had receipts of not less than $5,000,000, which, if this Division had been in force at the time those receipts were received, would have been designated receipts, or

(b)  during the month of November 1982, had receipts of not less than $416,666 which, if this Division had been in force at the time those receipts were received, would have been designated receipts,

shall, before 1 January 1983, apply to the Commissioner for registration under this Division.

(2)  A designated person (who is not a registered person or a member of a group) and each designated person (who is not a registered person) who is a member of a group, being a person who or group which:

(a)  in the preceding period of 12 months had receipts of not less than $5,000,000 (or, where some other amount is prescribed, the prescribed amount), or

(b)  in the preceding month had receipts of not less than $416,666 (or, where some other amount is prescribed, the prescribed amount),

which are (or, in so far as this Division was not in force at the time those receipts were received, would, if this Division had been so in force, have been) designated receipts, shall, within 15 days after the end of that period of 12 months or that month, as the case may require, apply to the Chief Commissioner for registration under this Division.

(2A)  Subsection (2), in its application to a designated person who is a broker, applies only to a New South Wales broker.

(3)  A person, not being a person to whom subsection (1) or (2) applies, may, at any time, apply to the Chief Commissioner for registration under this Division.

(4)  The Chief Commissioner:

(a)  shall, upon receipt of an application under subsection (1) or (2), register the applicant, and

(b)  may, upon receipt of an application under subsection (3), register the applicant.

(5)  The Chief Commissioner, at his discretion, or upon an application being made to him by a registered person who is registered pursuant to subsection (4) (a), may cancel the registration under this Division of the person:

(a)  if:

(i)  in the preceding month, the person (not being a member of a group) or the group of which the person is a member had designated receipts of less than $416,666 (or, where some other amount is prescribed, the prescribed amount), or

(ii)  in the preceding period of 12 months, the person (not being a member of a group) or the group of which the person is a member had designated receipts of less than $5,000,000 (or, where some other amount is prescribed, the prescribed amount), and

(b)  if the Chief Commissioner is satisfied, from a consideration of such matters as he thinks relevant, that the receipts of the designated person, at any time during the succeeding period of 12 months, are likely to be such that the person will not be required to re-apply to the Chief Commissioner for registration under this Division during that period.

(6)  The Chief Commissioner, at his discretion, may, at any time, cancel the registration of a registered person who is registered pursuant to subsection (4) (b).

(7)  A person who fails to comply with this section is guilty of an offence and liable to a fine not exceeding 50 penalty units.

(8)  Nothing in this section requires a designated person to apply to the Chief Commissioner for registration under this Division in respect of receipts received:

(a)  in a period of 12 months ending on or after 30 June 2001, or

(b)  in a month ending on or after 30 June 2001.

s 98I: Ins 1982 No 133, Sch 1 (3). Am GG No 126 of 16.9.1983, p 4266; 1984 No 153, Sch 16; 1992 No 112, Sch 1; 1994 No 72, Sch 4 (29); 2000 No 44, Sch 10 [1].

98J Return to be made out in respect of dutiable receipts

(1)  A registered person and a designated person who, pursuant to section 98I, is required to apply to the Chief Commissioner for registration under this Division shall, within 21 days after the end of:

(a)  except as provided by paragraph (b), each month, or

(b)  where, in relation to a registered person, the Chief Commissioner approves a period longer than a month, each such longer period,

make out a return.

(2)  For the purposes of subsection (1), a return:

(a)  shall be in a form approved by the Chief Commissioner, and

(b)  shall, in addition to such other matters as may be required to be specified in the form, specify:

(i)  the total amount of dutiable receipts, not being dutiable receipts referred to in subparagraph (ii), and

(ii)  the number of dutiable receipts, the amount of which was a single amount of not less than $2,000,000 (or, where some other amount is prescribed, the prescribed amount),

received during the month or longer period, as the case may be, to which the return relates, by the person required to make out the return.

(3)  A person who is required under subsection (1) to make out a return shall, within 21 days after the end of the month or the longer period, as the case may be, to which the return relates:

(a)  lodge the return with the Chief Commissioner, and

(b)  pay to the Chief Commissioner, as stamp duty, the amount of stamp duty payable in respect of the dutiable receipts to which the return relates.

(3A)  The Chief Commissioner may, in the case of a retailer or pastoral finance company that has lodged a return under subsection (3), exempt the retailer or company from payment of stamp duty in respect of the dutiable receipts to which the return relates if:

(a)  no certificate under section 98U (1) of the Act is in force in respect of an account of the retailer or company, being either an account referred to in paragraph (a) of that subsection or an account to which paragraph (g2) of that subsection applies, and

(b)  the Chief Commissioner is otherwise satisfied that it is proper to do so.

(3B)  The Chief Commissioner may reduce, refund or adjust stamp duty paid or payable by a financial institution whose sole or principal business is not that of the provision of finance.

(4)  A registered person or a designated person who, pursuant to section 98I, is required to apply to the Chief Commissioner for registration under this Division and who fails to comply with this section is guilty of an offence and liable to a fine not exceeding 50 penalty units together with twice the amount of duty of which Her Majesty has been deprived by any such failure.

(5)  This section does not apply to a member of a group to the extent that section 98JA is complied with in respect of the member.

s 98J: Ins 1982 No 133, Sch 1 (3). Am 1989 No 223, Sch 1 (6); 1992 No 112, Sch 1; 1994 No 48, Sch 8 (3).

98JA Return made out by group member in respect of group dutiable receipts

(1)  A registered person who is a member of a group may apply to the Chief Commissioner for approval to lodge group returns under this section on behalf of the members of the group.

(2)  An application must contain such information relating to the members of the group as the Chief Commissioner requires.

(3)  The Chief Commissioner may, for the purposes of this section, approve or refuse to approve the group member making the application, and must notify the group member in writing of the decision.

(4)  The members of a group are not required to comply with section 98J (1) if, within 21 days after the end of:

(a)  except as provided by paragraph (b)—each month, or

(b)  where the Chief Commissioner approves a longer period than a month—each such longer period,

an approved group member makes out a group return for those members.

(5)  The group return:

(a)  must be in a form approved by the Chief Commissioner, and

(b)  must, in addition to any other matters required to be specified in the form, specify:

(i)  the total amount of dutiable receipts, not being dutiable receipts referred to in subparagraph (ii), and

(ii)  the number of dutiable receipts, the amount of which was a single amount of not less than $2,000,000 (or, where some other amount is prescribed by the regulations, the prescribed amount),

received during the month or longer period to which the return relates by the members of the group.

(6)  An approved group member who makes out a return under this section must, within 21 days after the end of the month or longer period to which the group return relates:

(a)  lodge the return with the Chief Commissioner, and

(b)  pay to the Chief Commissioner, as stamp duty, the amount of stamp duty payable in respect of the dutiable receipts to which the return relates.

(7)  An approved group member who fails to comply with subsection (6) is guilty of an offence.

Maximum penalty: 50 penalty units and twice the amount of duty of which Her Majesty has been deprived by any such failure.

(8)  If an approved group member who makes out a group return is also a short term dealer, no other member of the group who is a short term dealer is required to make out a short term dealers return if, because of section 98R (3B), no duty would be payable on such a return.

(9)  The Chief Commissioner may, by notice in writing to the group member whose application under this section is approved, cancel the approval at any time for any reason the Chief Commissioner thinks sufficient. The cancellation has effect from the date specified for the purpose in the notice of cancellation.

s 98JA: Ins 1994 No 48, Sch 8 (4).

98K Transactions with unregistered persons

(1)  Where:

(a)  a person is a party to any transaction (whether within or outside New South Wales) with a designated person who:

(i)  is resident or domiciled within or outside New South Wales, or

(ii)  carries on business wholly or partly within or outside New South Wales,

and who is not registered under this Division,

(b)  the designated person, pursuant to the transaction, receives, in any month, a designated receipt from the firstmentioned person, and

(c)  the designated receipt:

(i)  is a dutiable receipt, or

(ii)  would, if the designated person were subject to this Division, be a dutiable receipt,

the firstmentioned person shall, within 42 days after the end of the month in which the designated receipt is received by the designated person, make out a return.

(2)  For the purposes of subsection (1), a return:

(a)  shall be in a form approved by the Chief Commissioner,

(b)  shall, in addition to such other matters as may be required to be specified in the form, specify:

(i)  the total amount of dutiable receipts, not being dutiable receipts referred to in subparagraph (ii), and

(ii)  the number of dutiable receipts, the amount of which was a single amount of not less than $2,000,000 (or, where some other amount is prescribed, the prescribed amount),

received during the month to which the return relates, by the designated person from the person required to make out the return,

(c)  shall be duly stamped with duty (which, in so far as the amount of the duty does not exceed $10, may be denoted by an adhesive stamp) as duty on a receipts return (and for that purpose, notwithstanding section 26, be deemed to be first executed at the time the return is made out), and

(d)  shall be retained by the person required, under subsection (1), to make out the return for a period of 12 months after the return is made out.

(3)  This section does not apply to or in respect of a person who is an approved person for the purposes of section 98L.

(4)  A person who fails to comply with this section is guilty of an offence and liable to a fine not exceeding 10 penalty units together with twice the amount of duty of which Her Majesty has been deprived by any such failure.

(5)  It is a defence to a prosecution under this section if the defendant proves that he used all due diligence to determine, but was unable to determine, from information which he could reasonably be expected to acquire whether:

(a)  the designated person who received the designated receipt was not registered under this Division,

(b)  the designated receipt was a dutiable receipt, or

(c)  the designated receipt would, if the designated person were subject to this Division, have been a dutiable receipt.

(6)  For the purposes of this Division, the Chief Commissioner may, from time to time, publish in the Gazette a list of registered persons and may forward a copy of a list so published to a person who is an approved person for the purposes of section 98L or any other person.

s 98K: Ins 1982 No 133, Sch 1 (3). Am 1989 No 223, Sch 1 (6); 1992 No 112, Sch 1; 1997 No 123, Sch 2.2 [13].

98L Payment by person, other than designated person, of duty on receipts other than by stamping

(1)  A person liable to the payment of duty under section 98K may apply to the Chief Commissioner in a form approved by the Chief Commissioner for approval to pay duty in respect of dutiable receipts in accordance with the provisions of this section.

(2)  The Chief Commissioner may approve or refuse to approve an application under subsection (1).

(3)  Where the Chief Commissioner approves an application under subsection (1), he shall specify in his approval the date upon which the approval comes into force.

(4)  A person whose application under subsection (1) has been approved by the Chief Commissioner is, while the approval is in force, an approved person for the purposes of this section.

(5)  Except as provided by this section, an approved person is not liable to pay duty, as duty on a receipts return, in respect of any dutiable receipt received from him by a designated person.

(6)  An approved person, within 42 days after the end of:

(a)  except as provided by paragraph (b), each month, or

(b)  where, in relation to the approved person, the Chief Commissioner approves a period longer than a month, each such longer period,

shall:

(c)  lodge with the Chief Commissioner a return in a form approved by the Chief Commissioner specifying, in addition to such other matters as may be required to be specified in the form:

(i)  the total amount of dutiable receipts, not being dutiable receipts referred to in subparagraph (ii), and

(ii)  the number of dutiable receipts, the amount of which was a single amount of not less than $2,000,000 (or, where some other amount is prescribed, the prescribed amount),

received, during the month or the longer period, as the case may be, to which the return relates, by the designated person from the approved person, and

(d)  pay to the Chief Commissioner, as stamp duty, the amount of stamp duty that, but for subsection (5), would have been payable in respect of the dutiable receipts to which the return relates.

(7)  A person who fails to comply with this section is guilty of an offence and liable to a fine not exceeding 50 penalty units together with twice the amount of duty of which Her Majesty has been deprived by any such failure.

(8)  It is a defence to a prosecution under this section if the defendant proves that he used all due diligence to determine, but was unable to determine, from information which he could reasonably be expected to acquire whether:

(a)  the designated person who received the designated receipt was not registered under this Division,

(b)  the designated receipt was a dutiable receipt, or

(c)  the designated receipt would, if the designated person were subject to this Division, have been a dutiable receipt.

(9)  The Chief Commissioner may, by an instrument in writing, cancel any approval granted under this section:

(a)  on application by the person to whom the approval was granted, or

(b)  for any reason he considers sufficient,

and shall, in any such instrument, specify the date on and from which the approval ceases to be in force.

(10)  An approval cancelled as referred to in subsection (9) shall cease to be in force on and from the date specified in the instrument by which the approval is cancelled.

s 98L: Ins 1982 No 133, Sch 1 (3). Am 1989 No 223, Sch 1 (6); 1992 No 112, Sch 1.

98LA Liability to lodge or deposit money

(1)  Where a person (in this section referred to as the dutiable person), being:

(a)  a person (other than a registered person) who is not a member of a group and who receives receipts in excess of $100,000 (or, where some other amount is prescribed, the prescribed amount) in a month, or

(b)  a person (other than a registered person) who is a member of a group (whether or not the other members of the group are persons included in the reference in section 98 (3) (b)), being a group the aggregated receipts of the members of which are in excess of $100,000 (or, where some other amount is prescribed, the prescribed amount) in a month,

does not, within 14 days after a receipt is received by:

(c)  in the case of a person to whom paragraph (a) applies—the person, or

(d)  in the case of a person to whom paragraph (b) applies—the person or any one or more of the members of the group of which the person is a member,

lodge or deposit the receipt:

(e)  with a registered person who, in relation to that lodgement or deposit, is liable to pay stamp duty under this Division and who will include that lodgement or deposit in a receipts return required to be made out by the registered person,

(f)  with a designated person who is not registered and who is not required to apply to the Chief Commissioner for registration under this Division and who will lodge or deposit the receipt with a registered person who is liable to pay stamp duty under this Division and who will include that lodgement or deposit in a receipts return required to be made out by the registered person,

(g)  except in so far as the regulations may otherwise provide, with a short term dealer who is not a prescribed short term dealer and in relation to whom the lodgement or deposit of the receipt creates a short term liability, being a short term liability which shall be taken into account in determining the amount to be specified in a short term dealers return required to be made out by the short term dealer,

(h)  except in so far as the regulations may otherwise provide, with a registered person in respect of whom the Chief Commissioner has imposed a condition as referred to in section 98O (2) and in relation to whom the lodgement or deposit of the receipt creates a credit in his short term dealer’s account, being a credit which shall be taken into account in determining the amount to be specified in a short term dealers return required to be made out by the registered person, or

(i)  except in so far as the regulations may otherwise provide, to the credit of an exempt account in his name,

the dutiable person shall, within 21 days after the end of:

(j)  except as provided by paragraph (k), each month, or

(k)  where, in relation to a dutiable person, the Chief Commissioner approves a period longer than a month, each such longer period,

make out a return.

(2)  For the purposes of subsection (1), a return:

(a)  shall be in a form approved by the Chief Commissioner,

(b)  shall, in addition to such other matters as may be required to be specified in the form, specify:

(i)  the total amount of dutiable receipts, not being receipts referred to in subparagraph (ii), and

(ii)  the number of dutiable receipts, the amount of which was a single amount of not less than $2,000,000 (or, where some other amount is prescribed, the prescribed amount),

received during the month or the longer period, as the case may be, to which the return relates, by the dutiable person,

(c)  shall be duly stamped with duty of an amount equivalent to the amount of duty that would have been payable by a registered person as duty on a receipts return had the dutiable receipts been received by the registered person (and for that purpose, notwithstanding section 26, be deemed to be first executed at the time the return is made out), and

(d)  shall be retained by the dutiable person for a period of 3 years after the return is made out.

(3)  This section does not apply to:

(a)  a receipt of a person to the extent that it is for the sale of goods by the person, otherwise than under a credit contract, a hiring arrangement within the meaning of section 74D or a lease within the meaning of section 76,

(b)  except in so far as the regulations may otherwise provide, a receipt of a charitable organisation, being a receipt that may be applied wholly and exclusively in the furtherance of the objects of the organisation,

(c)  a receipt of cash (not including a cheque), or a receipt of a class or description of such receipts, in respect of which a dutiable person is able to satisfy the Chief Commissioner either generally or in any particular case or class of cases:

(i)  that he would have used the cash in the ordinary conduct of his business and would not, before so using the cash, have lodged or deposited the cash with a registered person to whom subsection (1) (e) applies or a designated person to whom subsection (1) (f) applies, and

(ii)  that the failure to lodge or deposit the cash with a registered person to whom subsection (1) (e) applies or a designated person to whom subsection (1) (f) applies did not occur solely or substantially for the purpose of reducing or avoiding payment of stamp duty by any person under this Division,

(d)  in the case of a dutiable person, being a member of a group, who is not resident or domiciled in New South Wales or who is not carrying on business wholly or partly in New South Wales, a receipt received by any other member of the group, unless the dutiable person was involved directly or indirectly in any of the circumstances giving rise to the receipt of the receipt by the other member,

(e)  a receipt by a person of the proceeds of an amount deposited or invested in that person’s name with a registered person, or with a short term dealer, or

(f)  a receipt prescribed by the regulations for the purposes of this subsection, either generally or in relation to a specified person.

(4)  A receipt shall be deemed to have been lodged or deposited by a dutiable person with a registered person or designated person or to the credit of an exempt account as referred to in subsection (1) if it is lodged or deposited as so referred to within the period of 14 days so referred to by a member of the group of which the dutiable person is a member.

(5)  A person who pays duty under section 98K or 98L in respect of a dutiable receipt is not liable to pay duty under this section in respect of that receipt.

(6)  Where a person who is a member of a group pays duty under this section in respect of a dutiable receipt, the liability of any other person who is a member of the group to pay duty under this section in respect of that dutiable receipt shall be reduced to the extent to which that duty has been paid by the firstmentioned person.

(7)  A person who fails to comply with this section is guilty of an offence and liable to a fine not exceeding 50 penalty units together with twice the amount of duty of which Her Majesty has been deprived by any such failure.

(8)  It is a defence to a prosecution under this section if the defendant proves that he used all due diligence to determine, but was unable to determine, from information which he could reasonably be expected to acquire, whether a person with whom he lodged or deposited a receipt was or was not:

(a)  a registered person to whom subsection (1) (e) applies and who was liable to pay stamp duty under this Division and would include the lodgement or deposit in a receipts return required to be made out by the registered person,

(b)  a designated person to whom subsection (1) (f) applies and who proposed to lodge or deposit the receipt with a registered person who was liable to pay stamp duty under this Division and would include the deposit in a receipts return required to be made out by the registered person,

(c)  except in so far as the regulations may otherwise provide, a short term dealer who is not a prescribed short term dealer and in relation to whom the lodgement or deposit of the receipt creates a short term liability, being a short term liability which shall be taken into account in determining the amount to be specified in a short term dealers return made out by the short term dealer, or

(d)  except in so far as the regulations may otherwise provide, a registered person in respect of whom the Chief Commissioner has imposed a condition as referred to in section 98O (2) and in relation to whom the lodgement or deposit of the receipt creates a credit in his short term dealer’s account, being a credit which shall be taken into account in determining the amount to be specified in a short term dealers return required to be made out by the registered person.

(9)  Without affecting the construction of any other provision of this Division, a reference in this section to a person who is a dutiable person and who is a member of a group is a reference to a person who is resident or domiciled in New South Wales, who carries on business wholly or partly in New South Wales, who enters into a transaction as a consequence of which he receives a receipt, a designated receipt or a dutiable receipt, who receives a receipt, a designated receipt or a dutiable receipt in New South Wales, who receives a receipt, a designated receipt or a dutiable receipt outside New South Wales as a consequence of any act, matter or thing done by the person in New South Wales or who is prescribed for the purposes of this subsection.

(10)    (Repealed)

s 98LA: Ins 1983 No 72, Sch 1 (2). Am GG No 126 of 16.9.1983, p 4266; 1989 No 223, Sch 1 (6); 1991 No 69, Sch 1; 1992 No 112, Sch 1; 1996 No 34, Sch 1.4 (17) (18); 1996 No 125, Sch 1 (24).

98M Circumstances in which secs 98K and 98L do not apply

Nothing in section 98K or 98L requires a person, in relation to a designated receipt, to:

(a)  make out a receipts return,

(b)  duly stamp the return with the duty as duty on a receipts return,

(c)  lodge a return with the Chief Commissioner, or

(d)  pay to the Chief Commissioner any amount as stamp duty,

where stamp duty or any amount as stamp duty is paid to the Chief Commissioner, before the expiration of the period limited for payment of that duty under those sections, by the designated person who receives the designated receipt.

s 98M: Ins 1982 No 133, Sch 1 (3).

98MA Receipts returns not required for periods after 1 July 2001

Nothing in this Subdivision requires a person (including a designated person or a registered person) in respect of any period commencing on or after 1 July 2001:

(a)  to make out a receipts return, or

(b)  to stamp a return with duty as on a receipts return, or

(c)  to lodge a return with the Chief Commissioner, or

(d)  to pay to the Chief Commissioner an amount as stamp duty.

s 98MA: Ins 2000 No 44, Sch 10 [2].

Subdivision 4 Short term dealings

98N Application for certification as short term dealer

A person may apply to the Chief Commissioner for certification as a short term dealer.

s 98N: Ins 1982 No 133, Sch 1 (3).

98O Certification as a short term dealer

(1)  The Chief Commissioner may certify as a short term dealer a person who has made an application under section 98N.

(1A)  The Chief Commissioner must not certify as a short term dealer an applicant who is not a registered person and who fails to lodge with the Chief Commissioner an undertaking that complies with subsection (1C).

(1B)  The Chief Commissioner may refuse to certify as a short term dealer an applicant who is a registered person but who fails to lodge with the Chief Commissioner an undertaking that complies with subsection (1C) if required by the Chief Commissioner to lodge such an undertaking.

(1C)  The undertaking must be in writing in a form determined by the Chief Commissioner and be to the effect that, in relation to the applicant’s short term dealer’s account, the applicant:

(a)  will use the account only for making:

(i)  payments to another bank account of the dealer or to another member of the group (if any) of which the dealer is a member, or

(ii)  payments in respect of short term dealings, or

(iii)  payments of such class as the Chief Commissioner specifies or approves, and

(b)  will maintain the account in credit.

(2)  The Chief Commissioner may, in certifying a registered person as a short term dealer, impose a condition that the registered person comply with section 98P.

s 98O: Ins 1982 No 133, Sch 1 (3). Am 1994 No 48, Sch 8 (5).

98P Short term dealer’s account

(1)  Where a prescribed short term dealer pays amounts received by him in respect of his short term dealings (being amounts in respect of which stamp duty is not payable pursuant to section 98S) into an account with a bank which is a registered person, he shall not pay any other amounts received by him into that account.

(2)  This section does not apply to an amount paid into an account on or after 1 July 2001.

s 98P: Ins 1982 No 133, Sch 1 (3). Am 2000 No 44, Sch 10 [3].

98Q Cancellation of certificate as short term dealer

The Chief Commissioner may, at any time, cancel the certification of a person certified as a short term dealer, if:

(a)  the person fails, at any relevant time, to satisfy the requirements of an undertaking made under section 98O or breaches, at any time, a condition imposed under section 98O (2),

(b)  the person contravenes this Act, or

(c)  in the opinion of the Chief Commissioner, any circumstance arises which has the effect of removing the liability of the short term dealer to pay duty in respect of a short term dealers return.

s 98Q: Ins 1982 No 133, Sch 1 (3). Am 1995 No 98, Sch 7 (23).

98R Return to be made out in respect of short term liabilities

(1)  A short term dealer shall, within 21 days after the end of:

(a)  except as provided by paragraph (b), each month, or

(b)  where, in relation to a short term dealer, the Chief Commissioner approves a period longer than a month, each such longer period,

make out a return.

(2)  For the purposes of subsection (1), a return:

(a)  shall be in a form approved by the Chief Commissioner, and

(b)  shall, in addition to such other matters as may be required to be specified in the form, specify:

(i)  in the case of a short term dealer who is not a prescribed short term dealer and who is not a member of a group—the amount comprising one-third of the sum of the short term liabilities in respect of his Australian based operations at the close of each day during the month or the longer period, as the case may be, to which the return relates divided by the number of days in that month, or that longer period, as the case may be,

(ii)  in the case of a short term dealer who is not a prescribed short term dealer and who is a member of a group—the amount comprising one-third of the sum of the short term liabilities of the group in respect of their Australian based operations at the close of each day during the month or the longer period, as the case may be, to which the return relates divided by the number of days in that month, or that longer period, as the case may be, and

(iii)  in the case of a prescribed short term dealer—the amount comprising the sum of the credit balances in his short term dealer’s account at the close of each day during the month or the longer period, as the case may be, to which the return relates divided by the number of days in that month or that longer period, as the case may be.

(3)  A short term dealer who is required under subsection (1) to make out a return shall, within 21 days after the end of the month or the longer period, as the case may be, to which the return relates:

(a)  lodge the return with the Chief Commissioner, and

(b)  pay to the Chief Commissioner, as stamp duty, the amount of stamp duty payable in respect of:

(i)  in the case of a short term dealer who is not a prescribed short term dealer and who is not a member of a group—the amount comprising one-third of the sum of the short term liabilities in respect of his Australian based operations at the close of each day during the month or the longer period, as the case may be, to which the return relates divided by the number of days in that month, or that longer period, as the case may be,

(ii)  in the case of a short term dealer who is not a prescribed short term dealer and who is a member of a group—the amount comprising one-third of the sum of the short term liabilities of the group in respect of their Australian based operations at the close of each day during the month or the longer period, as the case may be, to which the return relates divided by the number of days in that month, or that longer period, as the case may be, and

(iii)  in the case of a prescribed short term dealer—the amount comprising the sum of the credit balances in his short term dealer’s account at the close of each day during the month or the longer period, as the case may be, to which the return relates divided by the number of days in that month or that longer period, as the case may be.

(3A)  The Chief Commissioner may enter into such arrangements as the Chief Commissioner thinks fit for the payment of stamp duty in accordance with subsection (3) with short term dealers who are not prescribed short term dealers but are members of a group.

(3B)  If a short term dealer who is not a prescribed short term dealer but is a member of a group pays duty in accordance with subsection (3), the amount of duty payable by each other member of the group is reduced by the extent to which that amount has been paid by that dealer.

(4)  A short term dealer who fails to comply with this section is guilty of an offence and liable to a fine not exceeding 50 penalty units together with twice the amount of duty of which Her Majesty has been deprived by any such failure.

(5)  Nothing in this section requires a short term dealer in respect of any period commencing on or after 1 July 2001:

(a)  to make out a return, or

(b)  to lodge a return with the Chief Commissioner, or

(c)  to pay to the Chief Commissioner an amount as stamp duty.

s 98R: Ins 1982 No 133, Sch 1 (3). Am 1992 No 112, Sch 1; 1994 No 48, Sch 8 (6); 2000 No 44, Sch 10 [4].

98RA Return relating to contraventions

(1)  A short term dealer into whose exempt bank account payment of an amount (in this section called the irregular payment) has been made otherwise than in accordance with this Act must, within 28 days after the payment is made:

(a)  lodge a return in the approved form with the Chief Commissioner in relation to the irregular payment and, at the same time, pay to the Chief Commissioner an amount equal to the duty that would have been payable in respect of the irregular payment had it been a payment into an account that is not an exempt account, or

(b)  if, within that time, the irregular payment is transferred to an account that is not an exempt account, lodge a return in the approved form with the Chief Commissioner in relation to the irregular payment and its subsequent transfer.

Maximum penalty: 100 penalty units.

(2)  A short term dealer who is liable to pay an amount under subsection (1) is also liable to pay to the Chief Commissioner at the same time, by way of additional duty, double that amount. The Chief Commissioner may, however, for reasons the Chief Commissioner thinks sufficient, remit the additional duty or any part of it.

(3)  Nothing in this section requires a short term dealer in respect of a payment into an exempt bank account made on or after 1 July 2001:

(a)  to lodge a return with the Chief Commissioner, or

(b)  to pay an amount to the Chief Commissioner.

s 98RA: Ins 1995 No 98, Sch 7 (24). Am 2000 No 44, Sch 10 [5].

98S Exemption from payment of certain duty

Nothing in Subdivision 3 requires a short term dealer to specify in any receipts return required to be made out by him, as a dutiable receipt, or to pay stamp duty in respect of a receipt received by him, being:

(a)  the proceeds derived from a short term dealing,

(b)  a receipt creating a short term liability (not being, where the short term dealer is a bank, a deposit to the credit of an account with the bank which is repayable on demand or to the credit of a current account, in either case, kept by the bank for another person),

(c)  the repayment or redemption of an amount deposited or invested in a short term dealing, or

(d)  an amount prescribed for the purposes of this section,

but not being a receipt comprising a fee, brokerage, commission or other charge made by the short term dealer or any profit or other gain or interest received otherwise than as an integral part of the repayment of principal.

s 98S: Ins 1982 No 133, Sch 1 (3). Am 1992 No 86, Sch 6 (25).

Subdivision 5 Miscellaneous

98T Applications for exempt accounts

A person may apply to the Chief Commissioner for approval of an account as an exempt account and shall, in his application, give full particulars of the receipts which are or are proposed to be deposited to the credit of the account.

s 98T: Ins 1982 No 133, Sch 1 (3).

98U Exempt accounts

(1)  On receipt of an application under section 98T, the Chief Commissioner, if he is satisfied that the account is:

(a)  an account with a bank that is a registered person, being an account of a registered person into which only receipts of that registered person are deposited, or

(b)  an account of a short term dealer kept in respect of his short term dealings in accordance with section 98P, or

(c)  an account with a bank which is a registered person of a Department of the Government of the Commonwealth or of a State or Territory, an authority of the Commonwealth or of a State or Territory or a local government council (other than such a Department, authority or council the sole or principal function of which is to carry on an activity in the nature of a business, whether or not for profit), not being an account kept in relation to a transaction or transactions entered into by or on behalf of the Department, authority or council in connection with the carrying on of an activity in the nature of a business, whether or not for profit, or

(d)  a clearing or settlement account kept with a bank which is a registered person by 2 or more persons, or by another person on behalf of 2 or more persons, being:

(i)  building societies,

(ii)  co-operative societies,

(iii)  credit unions,

(iv)  dealers within the meaning of section 97A (1),

(v)  futures brokers,

(vi)  wool buyers or sellers, or

(vii)  livestock agents, or

(viii)  persons prescribed for the purposes of this paragraph, or

(e)  subject to subsection (7), a clearing or settlement account kept, otherwise than with a bank, by the trustee or manager of assets the subject of a deed approved under Division 5 of Part 7.12 of the Corporations Law or a previous corresponding law of another State or a Territory or a deed approved under a regulation made for the purposes of Division 1A of Part 3 of the Permanent Building Societies Act 1967 or under a corresponding law of another State or a Territory, or

(e1)  a clearing or settlement account kept by FTS (NSW) Pty Ltd with a bank which is a registered person for the purpose of enabling money to be credited or debited directly to permanent building societies’ accounts, or

(f)  an account kept with a bank which is a registered person, being the trust account of a dealer or broker, or

(f1)  an account with a bank which is a registered person of:

(i)  a New South Wales broker who is a registered person, or

(ii)  a broker who lodges quarterly returns with the Australian Stock Exchange in a corresponding State or Territory (within the meaning of section 98 (1)),

(g)  an account kept with a bank which is a registered person, being a foreign exchange clearing account or foreign exchange settlement account, or

(g1)  an account kept with a bank which is a registered person, being a settlement account of Lawpoint Pty Limited in which only receipts for the purposes of the Solicitors Electronic Information and Settlement Interchange Network are deposited, or

(g2)  an account kept with a bank which is a registered person by a retailer or pastoral finance company (being in either case a registered person), being an account:

•  in which the retailer or company deposits designated receipts or receipts that are not designated receipts, or both, and

•  in respect of which the retailer or company has given the Chief Commissioner a written undertaking in accordance with subsection (1A), or

(g3)  an account kept with a bank which is a registered person by ASX Settlement and Transfer Corporation Pty Limited, being an account in which only amounts that are to be used for the payment of stamp duty on transactions under Division 26A of this Act or Division 1 of Part 4 of Chapter 2 of the Duties Act 1997 and the corresponding Acts of other States and Territories are deposited, or

(g4)  an account with a bank which is a registered person, being an account to which are credited only amounts that are received by The Newcastle Chamber of Fruit and Vegetables Industry Co-operative Limited in respect of farm produce (within the meaning of the Farm Produce Act 1983) sold at Newcastle Regional Markets, being amounts that are to be paid to farm produce sellers or producers (within the meaning of that Act), or

(g5)  an account of MasterCard International Inc. with a bank which is a registered person, being an account that is a settlement account for credit and debit card transactions, or

(g6)  an account with a bank which is a registered person, being an account of a person approved under section 38D that is used solely for the payment of duty under the Taxline system, or

(g7)  an account kept with a bank that is a registered person by the International Air Transport Association, being a clearing or a settlement account between agents and airline principals,

(h)  an account of Flemington Markets Commercial Services Co-operative Limited with a bank that is a registered person, to the credit of which there is paid only receipts by the Co-operative of deposits:

(i)  that are lodged with the Co-operative in respect of farm produce (within the meaning of the Farm Produce Act 1983) sold at Flemington Markets, and

(ii)  that are to be paid to farm produce sellers or producers (within the meaning of that Act), or

(i)  an account with a bank that is a registered person, being an account of an insurer (including any licensed insurer or former licensed insurer within the meaning of the Workers Compensation Act 1987), in which the insurer deposits only receipts arising directly or indirectly from the transfer to the insurer of the assets or the proceeds of the assets of another insurer, if the transfer is made under the Workers Compensation Act 1987 and at the direction of the WorkCover Authority, or

(j)  an account of Australian Stock Exchange Limited with a bank that is a registered person, being an account in which Australian Stock Exchange Limited deposits only:

(i)  receipts by Australian Stock Exchange Limited of deposits lodged with it by its member organisations out of money in trust accounts of those organisations under Part 7.8 of the Corporations Law, and

(ii)  receipts by Australian Stock Exchange Limited of repayments of such deposits invested by it under Part 7.8 of the Corporations Law, and

(iii)  receipts by Australian Stock Exchange Limited by way of interest in respect of such deposits invested by it under Part 7.8 of the Corporations Law, or

(k)  a clearing or settlement account kept by Combined Financial Processing Pty Ltd with a bank that is a registered person (being an account used solely for the clearing of direct entry transactions between the Reserve Bank of Australia and one or more credit unions), or

(l)  a clearing or settlement account kept with a bank that is a registered person by an SCH participant (as defined in section 9 of the Corporations Law) who is not a registered person or by ASX Settlement and Transfer Corporation Pty Limited, being an account:

(i)  that is used solely for the purpose of depositing receipts from SCH-regulated transfers (as defined in section 9 of the Corporations Law) or depositing funds or transferring funds from another account for the purpose of meeting the SCH participant’s settlement obligations, and

(ii)  from which all funds are transferred on a daily basis to other accounts, or

(m)  an account with a bank that is a registered person, being an account that is kept by either the Sydney Organising Committee for the Olympic Games or by Sydney Paralympic Organising Committee Limited, or

(n)  an account with a bank that is a registered person, being an account:

(i)  that is kept by either the Australian Olympic Committee Incorporated or the New South Wales Olympic Council Incorporated, and

(ii)  that is used solely for the purpose of receipts in connection with the year 2000 Olympic Games (but not in connection with the administrative or operating costs of either account-holder), or

(o)  an account with a bank that is a registered person, being an account kept by the New South Wales Electricity Transmission Authority and used solely for the purposes of the administration of the Market Settlements Fund, or

(p)  an account kept with a bank which is a registered person by an organisation entitled to privileges and immunities under section 6 of, and the First Schedule to, the Commonwealth International Organisations (Privileges and Immunities) Act 1963, or

(p1)  a settlement account kept by a registered person in the name of a customer (other than a registered person), being an account that is used solely for the purposes of recording RTGS transactions and the balance of which is swept by the end of each day to another account in the name of the same customer, or

(q)  an account prescribed for the purposes of this paragraph,

may issue to the applicant a certificate of approval of the account as an exempt account and specify, in the certificate, the receipts, or the receipts of a class or description of receipts, which may be deposited to the credit of the account.

(1A)  For the purposes of subsection (1) (g2), an undertaking must be in a form determined by the Chief Commissioner to the effect that, if the Chief Commissioner issues a certificate under subsection (1) in respect of the account concerned, the retailer or pastoral finance company will, within 14 days (or such other period as may be specified in the certificate) after depositing a non-designated receipt in the account, deposit that receipt or an equivalent amount in an account with a bank that is a registered person, not being an exempt amount.

(2)  The Chief Commissioner shall, in a certificate issued under subsection (1), specify the date on and from which the account to which the certificate relates shall be an exempt account, being the date of the certificate or a date which is before or after the date of the certificate.

(3)  Where a certificate in force under subsection (1) is issued in respect of an account kept with a registered person, the registered person shall, on the production to it of the certificate, designate the account as an exempt account.

(4)  A person shall not direct the payment before 1 July 2001 of any amount to the credit of an exempt account unless the amount comprises a receipt, or a receipt of a class or description of receipts, specified in the certificate issued in respect of the account.

(5)  The Chief Commissioner:

(a)  may cancel the certificate issued in respect of an exempt account, if the Chief Commissioner is satisfied that an amount has been paid to the credit of the account in contravention of this Act or any undertaking made under this Act, or that the account is not being maintained in accordance with such an undertaking, and

(b)  must cancel such a certificate after cancelling the registration of a registered person or the certification of a short term dealer who keeps an exempt account or on whose behalf an exempt account is kept.

(5A)  Cancellation under subsection (5) is effected by notice in writing to the person to whom the certificate was issued, and where the account was an account kept by a registered person, a copy of the notice is to be sent by the Chief Commissioner to the registered person concerned.

(6)  Where a copy of a notice of cancellation of a certificate is, under subsection (5), sent to a registered person, the registered person shall, on receipt of the copy of the notice, cancel the designation, as an exempt account, of the account to which the notice relates.

(7)  Where the Chief Commissioner has issued a certificate of approval of an account referred to in subsection (1) (e) kept by a trustee as so referred to as an exempt account, he shall not issue such a certificate in respect of such an account kept by a manager as so referred to, and where the Chief Commissioner has issued such a certificate in respect of such an account kept by the manager, he shall not issue such a certificate in respect of such an account kept by the trustee.

(8)  The Chief Commissioner is not to issue a certificate of approval on the ground referred to in subsection (1) (c) in respect of an account held for or on behalf of a person or body the subject of an order in force under section 145.

s 98U: Ins 1982 No 133, Sch 1 (3). Am 1988 No 130, Sch 5 (15); 1992 No 86, Sch 6 (26); 1993 No 41, Sch 1 (4); 1994 No 48, Sch 8 (7) (8); 1994 No 72, Sch 4 (30); 1995 No 98, Sch 7 (25) (26); 1996 No 34, Sch 1.4 (19)–(21); 1996 No 125, Sch 1 (25)–(27); 1997 No 123, Sch 2.2 [14]; 1998 No 44, Sch 5 [12]; 1998 No 104, Sch 7 [5]–[8]; 2000 No 44, Sch 10 [6].

98V (Repealed)

s 98V: Ins 1982 No 133, Sch 1 (3). Am 1987 No 87, Sch 1 (6); 1992 No 112, Sch 1. Rep 1997 No 123, Sch 2.2 [5].

98W Duty can be passed on

(1)  A designated person who is required to pay stamp duty in respect of a receipt may charge or receive from the person from whom the receipt is received an amount purporting to be stamp duty payable under this Division if the amount is not more than the amount of stamp duty paid or payable by the designated person under this Division in respect of the receipt.

(2)  Subsection (1) allows a designated person to charge or receive an amount from a person that is not more than the amount of stamp duty paid or payable under this Division in respect of the total amount of receipts received by the designated person from the person concerned in the course of a month or other period determined by the designated person.

(3)  A designated person must not charge a person an amount referred to in subsection (1) or (2) unless the charge is made within 12 months after the day on which the designated person receives the relevant receipt.

(4)  If an amount referred to in this section comprises or includes a fraction of a cent, the fraction is to be disregarded for the purposes of this section. However, if in rounding down an amount of stamp duty a fraction of a cent is so disregarded, the fraction can nevertheless be included in the next periodic charge (if any) that the designated person imposes on the person concerned in respect of stamp duty.

(5)  A designated person who contravenes this section is guilty of an offence.

Maximum penalty: 50 penalty units.

s 98W: Ins 1982 No 133, Sch 1 (3). Am 1983 No 72, Sch 3 (8). Subst 1994 No 48, Sch 8 (9).

99 (Repealed)

s 99: Rep 1924 No 32, sec 7 (f) (i).

Division 30 Acquisitions of company and unit trust interests dutiable as conveyances of land

pt 3, div 30: Ins 1987 No 85, Sch 2.

99A Definitions

(1)  For the purposes of this Division, unless inconsistent with the context or subject-matter:

acquisition, in relation to an interest or land use entitlement in a landholder, includes an acquisition by which a person becomes entitled to an interest or land use entitlement (or an increase in an interest or land use entitlement) by means of:

(a)  the purchase, gift, allotment or issue of any share in a private company or unit in a private unit trust scheme,

(b)  the variation, abrogation or alteration of a right attaching to any share in a private company or unit in a private unit trust scheme, or

(c)  the redemption, surrender or cancellation of any share in a private company or unit in a private unit trust scheme.

de facto partner and de facto relationship have the same meanings as in the De Facto Relationships Act 1984.

designated landholder means a landholder which is entitled to land:

(a)  the unencumbered value of which (not including the unencumbered value of land the subject of a land use entitlement) comprises not less than 80 per cent of the unencumbered value of all assets to which it is entitled, not including assets consisting of:

(i)  cash, whether in Australian currency or otherwise,

(ii)  money on deposit with a bank, negotiable instruments or corporate debt securities,

(iii)  loans which by their terms are to be repaid on demand by the lender or within 12 months of the date of the loan,

(iv)  loans to persons who, in relation to the landholder, are related persons or to the spouse, de facto partner, child, parent, brother or sister of:

(A)  if the landholder is a private company—a majority shareholder, director or secretary of the company, or

(B)  if the landholder is a private unit trust scheme—a trustee of, or beneficiary under, the scheme,

(v)  land use entitlements, or

(vi)  assets which the landholder is unable to satisfy the Chief Commissioner were obtained otherwise than in order to reduce, for the purposes of the application of this Division, the ratio of the unencumbered value of the land to which the landholder is entitled to the unencumbered value of all its assets, and

(b)  the unencumbered value of which, in so far as the land is in New South Wales, is not less than $1,000,000.

discretionary trust means:

(a)  a trust under which the vesting of the whole or any part of the capital of the trust estate, or the whole or any part of the income from that capital, or both:

(i)  is required to be determined by a person either in respect of the identity of the beneficiaries, or the quantum of interest to be taken, or both, or

(ii)  will occur in the event that a discretion conferred under the trust is not exercised, or

(iii)  has occurred but under which the whole or any part of that capital or the whole or any part of that income, or both, will be divested from the person or persons in whom it is vested in the event that a discretion conferred under the trust is exercised, or

(b)  a trust which is, by or under the regulations, declared to be a discretionary trust for the purposes of this Division,

but does not include:

(c)  a trust which is solely a charitable trust, or

(d)  a trust which is, by or under the regulations, declared not to be a discretionary trust for the purposes of this Division.

interest means an interest (other than a land use entitlement) in a landholder, acquired:

(a)  in the case of a landholder, being a private company—on or after 21 November 1986, or

(b)  in the case of a landholder, being a private unit trust scheme—on or after the date of assent to the Stamp Duties (Amendment) Act 1987,

which, if the landholder were to be wound up immediately after the acquisition of the interest, would entitle the person acquiring the interest to participate (otherwise than as a creditor or other person to whom the landholder was liable at the time of the acquisition) in a distribution of the property of the landholder.

land means any estate or interest in land, whether the land is situated in New South Wales or elsewhere, but does not include the estate or interest of a mortgagee, chargee or other encumbrancee in land.

land use entitlement means an interest in a landholder which gives the person acquiring the interest an entitlement to the exclusive possession, or substantially exclusive possession, of land in New South Wales (not being such an entitlement in respect of a dwelling in a building containing more than one separate dwelling conferred by the ownership of shares in a private company or of units in a private unit trust scheme).

landholder means:

(a)  a private company, or

(b)  a private unit trust scheme.

majority interest means an interest (other than a land use entitlement) in a landholder which, if the landholder were to be wound up:

(a)  in the case of an interest acquired by a single acquisition—immediately after that acquisition, or

(b)  in the case of an interest acquired by 2 or more acquisitions—immediately after the later or latest of those acquisitions,

would entitle the person who acquired the interest or that person together with any related person to participate (otherwise than as a creditor or other person to whom the landholder was liable at the time of the acquisition) in a distribution of the property of the landholder to an extent greater than 50 per cent of the value of the property distributable to all the holders of interests in the landholder.

majority shareholder, in relation to a private company, means a person who would have a substantial shareholding in the company in accordance with section 136 of the Companies (New South Wales) Code if the reference in that section to the prescribed percentage were a reference to 50 per cent.

prior acquisition, in relation to a designated landholder, means the acquisition by a person or a related person of an interest in the designated landholder:

(a)  on or at any time during the period of 3 years before the date of a relevant acquisition by the person of an interest in the designated landholder; but

(b)  not earlier than:

(i)  in the case of a designated landholder, being a private company—21 November 1986, or

(ii)  in the case of a designated landholder, being a private unit trust scheme—the date of assent to the Stamp Duties (Amendment) Act 1987.

prior land use entitlement, in relation to a landholder, means a land use entitlement which is acquired in relation to the landholder by a person or a related person:

(a)  on or at any time during the period of 3 years before the date of the acquisition of a land use entitlement in relation to the landholder by the person, the acquisition of which required the person to lodge a statement under section 99C; but

(b)  not earlier than:

(i)  in the case of a landholder, being a private company—21 November 1986, or

(ii)  in the case of a landholder, being a private unit trust scheme—the date of assent to the Stamp Duties (Amendment) Act 1987.

private company means a company (other than a company the shares of which are listed on a recognised stock exchange) whether or not it is a NSW company:

(a)  which is entitled to land in New South Wales, or

(b)  which carries on business wholly or partly in New South Wales.

private unit trust scheme means a unit trust scheme (other than a public unit trust scheme) whether or not its trustees are resident in New South Wales:

(a)  the trustees of which are entitled to land in New South Wales, or

(b)  which carries on business wholly or partly in New South Wales.

relevant acquisition, in relation to a designated landholder, means the acquisition by a person of an interest in the designated landholder which requires the lodgment of a statement under section 99E (1) by the person.

(2)  For the purposes of this Division, a reference to land owned by a landholder is:

(a)  in the case of a landholder, being a private company—a reference to land owned by the private company beneficially, and

(b)  in the case of a landholder, being a private unit trust scheme—a reference to land owned by the trustee (in the capacity of trustee) of the private unit trust scheme.

(3)  For the purposes of this Division, a private company or a private unit trust scheme (referred to in this Division as a first landholder) is entitled to an asset (including land) if:

(a)  the asset is owned by a first landholder, or

(b)  the asset is owned by a landholder (referred to in this Division as the actual landholder) which, if the actual landholder and all other persons (if any, including a private unit trust scheme but not including a company the shares of which are listed on a recognised stock exchange or a public unit trust scheme, and whether in New South Wales or elsewhere) interposed between the actual landholder and the first landholder in a chain of ownership of interests in landholders were to be wound up, would entitle the first landholder, by reason of that chain of ownership of interests, to participate in a distribution of the property of the actual landholder.

(4)  For the purposes of this Division, the unencumbered value of an asset (including land) to which a landholder is entitled at any particular date is the sum of:

(a)  in the case of an asset owned by the landholder—the unencumbered value of the asset at that date, and

(b)  in the case of an asset owned by an actual landholder, the amount to which, if the actual landholder and all other landholders (if any) interposed between the actual landholder and the first landholder in a chain of ownership of interests in landholders were to be wound up on that date, the first landholder would be entitled (without regard to any liabilities of the actual landholder or any other landholder in the chain of ownership of interests) in respect of the unencumbered value at that date of assets owned by the actual landholder at that date.

(5)  For the purposes of this Division, the entitlement of a person, first landholder, actual landholder or landholder to participate (otherwise than as a creditor or other person to whom the private company or private unit trust scheme is liable) in the distribution of the property of a private company or private unit trust scheme on a winding up of the private company or private unit trust scheme is an entitlement to an amount calculated:

(a)  as if the winding up were carried out in accordance with the memorandum and articles of association of the private company or the instrument constituting the private unit trust scheme and with any law relevant to the winding up of such a private company or such a private unit trust scheme, respectively, as the memorandum, articles, instrument and law exist at the date of the winding up, or

(b)  as if the person, first landholder, actual landholder or landholder had, immediately prior to the date of the winding up, exercised all powers and discretions exercisable by the person, first landholder, actual landholder or landholder by reason of having acquired an interest in a landholder:

(i)  to effect or compel an alteration to the memorandum or articles of association of the private company or to the instrument constituting the private unit trust scheme,

(ii)  to vary the rights conferred by shares in the private company or by units in the private unit trust scheme, or

(iii)  to effect or compel the substitution or replacement of shares in the private company or units in the private unit trust scheme with other shares in the private company or other units in the private unit trust scheme,

in such manner as to maximise that amount,

whichever of the amounts under paragraph (a) or (b) results in the greater amount, unless the Chief Commissioner determines, after consideration of the circumstances of the case, and where the calculation under paragraph (b) results in the greater amount, that the amount of the entitlement should be calculated under paragraph (a).

(6)  For the purposes of this Division (including any actual or notional winding-up), if a person (including any landholder or person in a chain of interests in landholders):

(a)  is a person or a member of a class of persons in favour of whom, by the terms of a discretionary trust, capital the subject of the discretionary trust may be applied:

(i)  in the event of the exercise of a power or discretion in favour of the person or class, or

(ii)  in the event that a discretion conferred under a discretionary trust is not exercised, or

(b)  is a person or a member of a class of persons who could become a person or a member of a class of persons referred to in paragraph (a) in respect of a discretionary trust, the settlor or trustee of which is not at arms’ length from the person,

the person shall be deemed to own or to be otherwise entitled to the property the subject of the discretionary trust, unless the Chief Commissioner determines that the person shall not be deemed to own or to be otherwise entitled to the property.

(6A)  In subsection (6), person includes a unit trust scheme.

(7)  For the purposes of this Division, any property which is (or is deemed by this subsection to be) the subject of a discretionary trust (which is referred to in this subsection as the first discretionary trust) shall be deemed to be the subject of any discretionary trust which is, or any trustee of which (in the capacity of trustee) is, a person or a member of a class of persons referred to in subsection (6) (a) or (b) in relation to the first discretionary trust, unless the Chief Commissioner determines that the property shall not be deemed to be the subject of the discretionary trust.

(8)  For the purposes of this Division:

(a)  natural persons are related persons if:

(i)  they are partners, or

(ii)  the relationship between them is that of a married couple, de facto partners or parent and child,

(b)  private companies are related persons if they are related corporations within the meaning of the Companies (New South Wales) Code,

(c)  trustees are related persons if any person is a beneficiary common to the trusts of which they are trustees,

(d)  a natural person and a private company are related persons if the natural person is a majority shareholder, director or secretary in or of the company or a private company which is a related corporation within the meaning of the Companies (New South Wales) Code,

(e)  a natural person and a trustee are related persons if the natural person is a beneficiary under the trust of which the trustee is a trustee, and

(f)  a private company and a trustee are related persons if:

(i)  the company, a majority shareholder, director or secretary in or of the company is a beneficiary of the trust of which the trustee is a trustee, or

(ii)  a related corporation (within the meaning of the Companies (New South Wales) Code) of the company is a beneficiary of the trust of which the trustee is a trustee.

s 99A: Ins 1987 No 85, Sch 2. Am 1988 No 130, Sch 2 (1); 1989 No 113, Sch 2 (7); 1990 No 45, Sch 1 (14); 1990 No 95, Sch 1 (34); 1994 No 48, Sch 11 (28).

99B Acquisitions to which this Division does not apply

(1)  This Division does not apply to or in respect of the acquisition by a person of a land use entitlement or prior land use entitlement in relation to a landholder or an interest in a designated landholder if:

(a)  the acquisition is by a person in the capacity of:

(i)  a receiver or trustee in bankruptcy,

(ii)  a liquidator, or

(iii)  an executor or administrator of the estate of a deceased person,

(b)  the acquisition occurred solely as the result of:

(i)  the making of a compromise or arrangement under Part VIII of the Companies (New South Wales) Code which has been approved by the court,

(ii)  the distribution of the estate of a deceased person, including an acquisition occurring as the result of:

(A)  a will, a codicil or an order of a court varying or modifying the application of the provisions of a will or codicil, or

(B)  an intestacy or an order of a court varying or modifying the application, in relation to the estate of a deceased person, of the provisions of a law relating to the distribution of the assets of persons who die intestate,

(c)  the acquisition is by:

(i)  a person who was a partner in a marriage and has occurred solely as the result of the dissolution of the marriage, or

(ii)  a person who was a de facto partner in a de facto relationship and has occurred solely as the result of the termination of the relationship, or

(d)  the land to which the land use entitlement, prior land use entitlement or interest relates could have been acquired by the person under an agreement or conveyance which is not chargeable with ad valorem duty.

(2)  This Division does not apply to or in respect of an acquisition if the Chief Commissioner is satisfied that it would not be just and reasonable in the circumstances for the Division to apply.

s 99B: Ins 1987 No 85, Sch 2. Am 1989 No 113, Sch 2 (8); 1990 No 95, Sch 1 (35).

99C Statement of acquisition of land use entitlement

(1)  If a person acquires a land use entitlement in relation to a landholder, the person shall lodge with the Chief Commissioner a statement in respect of the acquisition.

(2)  The statement shall be lodged within 2 months after the land use entitlement is acquired or within such longer period as the Chief Commissioner may approve in writing.

(3)  The statement shall be in a form approved by the Chief Commissioner and shall contain the following information:

(a)  the name and address of the person who has acquired the land use entitlement,

(b)  the reference to title of the land to which the land use entitlement applies,

(c)  the date of acquisition of the land use entitlement,

(d)  the unencumbered value of the land to which the land use entitlement applies as at the date of acquisition,

(e)  the same information as is specified in paragraphs (a)–(d) in respect of each prior land use entitlement acquired in relation to the landholder by the person or a related person,

(f)  the amount of stamp duty (or duty of a like nature) paid in respect of the acquisition of each such prior land use entitlement, and

(g)  such other information as may be required by the Chief Commissioner.

(4)  The statement shall, for the purposes of this Act, be deemed to be an instrument and is chargeable with ad valorem duty in accordance with section 99D.

ss 99C–99E: Ins 1987 No 85, Sch 2.

99D Assessment and payment of duty—statement of acquisition of land use entitlement

(1)  A statement lodged under section 99C in respect of a land use entitlement is chargeable with duty at the rates specified in paragraph (1) under the heading “Conveyances of Any Property” in the Second Schedule on the unencumbered value of the land the subject of the land use entitlement as at the date of acquisition aggregated with the unencumbered value of any land which is the subject of any prior land use entitlement required to be included in the statement as at the date of acquisition of the prior land use entitlement.

(2)  The duty chargeable under this section shall be reduced by the sum of the stamp duty (or duty of a like nature), if any, paid:

(a)  under this Division in respect of a prior land use entitlement, and

(b)  on an instrument which effected or evidences the acquisition of:

(i)  any land use entitlement, or

(ii)  any prior land use entitlement in respect of which duty under this Division has not previously been paid,

but only in proportion to the extent to which the duty so paid is attributable to the unencumbered value of the land the subject of the land use entitlement or any prior land use entitlement.

(3)  If the Chief Commissioner is satisfied that it would not be just and reasonable in the circumstances, the Chief Commissioner may determine that values shall not be aggregated for the purposes of this section.

(4)  The duty with which the statement is chargeable shall be paid at the time of lodgment of the statement with the Chief Commissioner by the person required to lodge the statement.

(5)  If duty is chargeable under this section on a statement in respect of a land use entitlement acquired by a person and any prior land use entitlement acquired by a related person, the person and the related person are jointly and severally liable for the duty.

ss 99C–99E: Ins 1987 No 85, Sch 2.

99E Statement of entitlement concerning designated landholder

(1)  If a person:

(a)  acquires a majority interest,

(b)  acquires an interest which results in the person having a majority interest,

(c)  acquires an interest which, together with the interest of a related person, is a majority interest, or

(d)  having a majority interest (including an interest which, together with the interest of a related person, is a majority interest) acquires a further interest,

in a designated landholder, the person shall lodge with the Chief Commissioner a statement in respect of the acquisition.

(2)  The statement shall be lodged within 2 months after the interest is acquired or within such longer period as the Chief Commissioner may approve in writing.

(3)  The statement shall be in a form approved by the Chief Commissioner and shall contain the following information:

(a)  in relation to the relevant acquisition of an interest:

(i)  the name or names and address or addresses of the person or persons who has or have acquired the interest,

(ii)  the date of the relevant acquisition,

(iii)  the interest acquired,

(iv)  the total interest of the person or the person and any related person in the designated landholder at that date,

(v)  the unencumbered value of all land in New South Wales to which the designated landholder is entitled at that date,

(vi)  the unencumbered value of the assets of the designated landholder at that date,

(b)  in relation to each prior acquisition of an interest:

(i)  the name or names and address or addresses of the person or persons who has or have acquired the interest,

(ii)  the date of the prior acquisition,

(iii)  the interest acquired,

(iv)  the unencumbered value of all land in New South Wales to which the designated landholder is entitled at that date,

(v)  the unencumbered value of the assets of the designated landholder at that date,

(vi)  the amount of stamp duty (or duty of a like nature) paid in respect of the prior acquisition,

(c)  such other information as may be required by the Chief Commissioner.

(4)  The information in relation to an interest referred to in subsection (3) (a) (iii) or (b) (iii) shall include:

(a)  the maximum percentage of the property of the designated landholder to which the person required to lodge the statement, or that person together with any related person, would be entitled on a winding up of the designated landholder immediately after the acquisition of the interest (otherwise than as a creditor or other person to whom the designated landholder was liable at the time of the acquisition) in a distribution of the property of the landholder, and

(b)  the basis and method of calculation of the percentage included pursuant to paragraph (a).

(5)  The statement shall, for the purposes of this Act, be deemed to be an instrument and is chargeable with ad valorem duty in accordance with section 99F.

ss 99C–99E: Ins 1987 No 85, Sch 2.

99F Assessment and payment of duty—statement of relevant acquisition of an interest etc

(1)  A statement lodged under section 99E is chargeable with duty at the rates specified in paragraph (1) under the heading “Conveyances of Any Property” in the Second Schedule on:

(a)  in the case of a relevant acquisition of an interest in a designated landholder and where there are no prior acquisitions of interests in the designated landholder—the amount calculated by multiplying the unencumbered value of all land in New South Wales to which the designated landholder is entitled at the date of the relevant acquisition by the percentage of the interest acquired by the relevant acquisition and required to be included in the statement, or

(b)  in the case of a relevant acquisition of an interest in a designated landholder and one or more prior acquisitions of interests in the designated landholder—the aggregate of:

(i)  in respect of the relevant acquisition—the amount calculated in accordance with paragraph (a), and

(ii)  in respect of each prior acquisition—each amount calculated by multiplying the unencumbered value of all land in New South Wales to which the designated landholder was entitled at the date of the prior acquisition by the percentage of the interest acquired by the prior acquisition and required to be included in the statement.

(2)  The duty chargeable under this section shall be reduced by the sum of the stamp duty (or duty of a like nature), if any, paid:

(a)  under this Division, or under the law of another State or a Territory, in respect of a prior acquisition, and

(b)  on an instrument which effected or evidences or comprises an agreement for the acquisition of:

(i)  the relevant acquisition, or

(ii)  any prior acquisition in respect of which duty under this Division has not previously been paid,

but only in proportion to the extent to which the duty so paid is attributable to the amount calculated under subsection (1).

(3)  If the Chief Commissioner is satisfied that it would not be just and reasonable in the circumstances, the Chief Commissioner may determine that an amount calculated in accordance with subsection (1) (b) (ii) and specified in the Chief Commissioner’s determination shall not be aggregated for the purposes of this section.

(4)  The duty with which the statement is chargeable shall be paid at the time of lodgment of the statement with the Chief Commissioner by the person required to lodge the statement.

(5)  If duty is chargeable under this section on a statement in respect of a relevant acquisition acquired by a person and any prior acquisition acquired by a related person, the person and the related person are jointly and severally liable for the duty.

s 99F: Ins 1987 No 85, Sch 2. Am 1990 No 45, Sch 1 (15).

99G Ascertainment of value of property

Section 68 (Ascertainment of the value of property conveyed) applies to and in respect of a statement under section 99C or 99E in the same way as it applies to and in respect of a conveyance chargeable with ad valorem duty under this Act.

s 99G: Ins 1987 No 85, Sch 2.

99H Date of first execution of statements under this Division

For the purposes of this Act:

(a)  a statement under section 99C shall be deemed to have been first executed on:

(i)  in the case of the acquisition of a land use entitlement—the date on which the land use entitlement is acquired, or

(ii)  in the case of the acquisition of a prior land use entitlement—the date on which the land use entitlement in respect of which the prior land use entitlement is a prior land use entitlement is acquired, and

(b)  a statement under section 99E shall be deemed to have been first executed on:

(i)  in the case of a relevant acquisition—the date of the relevant acquisition, or

(ii)  in the case of prior acquisition—the date of the relevant acquisition in respect of which the prior acquisition is a prior acquisition.

s 99H: Ins 1987 No 85, Sch 2.

99I Offences relating to statements

(1)  A person:

(a)  who fails or refuses to lodge a statement under section 99C or 99E:

(i)  within the period of 6 months, or

(ii)  if, under section 99C (2) or 99E (2), the Chief Commissioner has approved a longer period for the lodgement of the statement, within the period which is the sum of 4 months and that longer period,

after the date on which the statement is deemed, under section 99H, to have been executed, or

(b)  who lodges a statement under section 99C or 99E which is false or misleading in a material particular,

is guilty of an offence and liable to a fine not exceeding 50 penalty units.

(2)  Proceedings for an offence under this section:

(a)  may not be instituted without the consent of the Minister,

(b)  subject to that consent, may be instituted at any time, and

(c)  may be disposed of:

(i)  before a Local Court constituted by a Magistrate sitting alone, or

(ii)  before the Supreme Court in its summary jurisdiction.

(3)  The consent of the Minister to the institution of proceedings for an offence under this section shall be presumed unless the contrary is proved.

s 99I: Ins 1987 No 85, Sch 2. Am 1992 No 112, Sch 1.

99J Rescission of agreement for sale or conveyance of land

(1)  If an agreement (whether or not in writing) for the sale or conveyance of land to a person which causes that person or any other person to become a landholder or designated landholder or to become entitled to land is rescinded, annulled or otherwise terminated (except by completion):

(a)  any requirement to lodge a statement under section 99C or 99E in relation to the entitlement ceases, and

(b)  the Chief Commissioner shall assess or reassess the liability to duty or fine of any statement under section 99C or 99E relating to the landholder or designated landholder as if no entitlement to the land had ever been created by the agreement.

(2)  If, on a reassessment, the amount of duty payable in respect of the statement is less than the amount actually paid, the Chief Commissioner shall refund the difference and any fine paid in respect of the difference, less $25.

s 99J: Ins 1988 No 130, Sch 2 (2).

99K Application of Division to certain financial arrangements

(1)  If the person lodging a statement under section 99C or 99E relating to the acquisition of a land use entitlement in relation to a landholder or a majority interest or an interest, referred to in section 99E (1), in a designated landholder:

(a)  informs the Chief Commissioner at the time the statement is lodged that the acquisition is effected for the purpose of securing financial accommodation, and

(b)  the Chief Commissioner is satisfied that the acquisition is effected for that purpose,

the statement, in so far as it relates to that acquisition, is not chargeable with duty, except as provided by subsection (2).

(2)  The statement is chargeable with duty at the expiration of the period of 5 years after the date of the acquisition (or such longer period as may be determined by the Chief Commissioner in any particular case) if the land use entitlement, majority interest or interest the subject of the acquisition is not:

(a)  reacquired by the person from whom it was acquired, or

(b)  in the case of an acquisition by way of mortgage, conveyed by the mortgagee to a third person in exercise of the mortgagee’s power of sale,

within that period (or that longer period).

(3)  Sections 99C and 99E do not apply to the reacquisition by a person of the land use entitlement, majority interest or interest concerned.

s 99K: Ins 1988 No 130, Sch 2 (2).

Parts 4, 5

100–124G   (Repealed)

pt 4: Rep 1991 No 93, Sch 3 (11).

pt 4, div 1: Rep 1991 No 93, Sch 3 (11).

s 100: Am 1933 No 12, sec 4 (a); 1939 No 30, sec 2 (a); 1964 No 65, sec 2 (a); 1970 No 94, sec 3 (a); 1972 No 79, sec 2 (a). Rep 1991 No 93, Sch 3 (11).

s 100A: Ins 1933 No 12, sec 4 (b). Rep 1991 No 93, Sch 3 (11).

s 101: Am 1924 No 32, sec 13 (a); 1933 No 12, sec 4 (c); 1965 No 36, Sch; 1967 No 23, sec 2 (g). Rep 1991 No 93, Sch 3 (11).

s 101A: Ins 1931 No 13, sec 10. Rep 1991 No 93, Sch 3 (11).

s 101B: Ins 1931 No 13, sec 10. Rep 1991 No 93, Sch 3 (11).

s 101C: Ins 1933 No 12, sec 4 (d). Rep 1991 No 93, Sch 3 (11).

s 101D: Ins 1939 No 30, sec 2 (b). Am 1952 No 41, sec 2 (a); 1958 No 47, sec 2 (a); 1963 No 41, sec 2 (a); 1964 No 65, sec 2 (b); 1965 No 36, sec 3 (f); 1970 No 94, sec 3 (b); 1973 No 79, sec 2 (a) (b); 1975 No 75, sec 4 (a); 1977 No 13, Sch 1 (1); 1978 No 139, Sch 2 (4). Rep 1991 No 93, Sch 3 (11).

s 101E: Ins 1939 No 30, sec 2 (b). Am 1965 No 36, sec 3 (g). Rep 1991 No 93, Sch 3 (11).

s 101F: Ins 1940 No 50, sec 2. Rep 1991 No 93, Sch 3 (11).

s 101G: Ins 1966 No 55, sec 2 (q). Rep 1991 No 93, Sch 3 (11).

s 101H: Ins 1967 No 23, sec 2 (h). Rep 1991 No 93, Sch 3 (11).

s 102: Am 1922 No 20, sec 2 (d); 1924 No 32, sec 13 (b); 1931 No 13, sec 6 (a) (b); 1933 No 12, sec 4 (e); 1939 No 30, sec 2 (c); 1940 No 50, secs 3 (a), 4 (a); 1952 No 41, sec 2 (b); 1964 No 65, sec 3; 1965 No 36, Sch; 1966 No 55, sec 2 (r); 1967 No 23, sec 2 (i); 1972 No 79, sec 2 (b). Rep 1991 No 93, Sch 3 (11).

s 102A: Ins 1939 No 30, sec 2 (d). Rep 1940 No 50, sec 3 (b). Ins 1952 No 41, sec 2 (c). Rep 1991 No 93, Sch 3 (11).

ss 102B–102D: Ins 1952 No 41, sec 2 (c). Rep 1991 No 93, Sch 3 (11).

s 102E: Ins 1972 No 79, sec 2 (c). Rep 1991 No 93, Sch 3 (11).

s 103: Am 1924 No 32, sec 13 (c); 1931 No 13, sec 6 (c). Rep 1991 No 93, Sch 3 (11).

s 103A: Ins 1931 No 13, sec 6 (d). Am 1933 No 12, sec 4 (f); 1939 No 30, sec 2 (e); 1967 No 92, sec 3 (f). Rep 1991 No 93, Sch 3 (11).

s 104: Subst 1924 No 32, sec 13 (d). Am 1931 No 13, sec 6 (e). Rep 1991 No 93, Sch 3 (11).

s 105: Subst 1924 No 32, sec 13 (d). Am 1939 No 30, sec 2 (f); 1940 No 50, sec 3 (c); 1952 No 41, sec 2 (d). Rep 1991 No 93, Sch 3 (11).

s 105A: Ins 1939 No 30, sec 2 (g). Rep 1940 No 50, sec 3 (d). Ins 1952 No 41, sec 2 (e). Am 1965 No 36, sec 3 (h). Rep 1991 No 93, Sch 3 (11).

s 106: Rep 1924 No 32, sec 13 (e).

s 107: Am 1937 No 35, Second Sch; 1965 No 36, sec 12, Sch; 1967 No 23, sec 2 (j); 1970 No 22, sec 80. Rep 1991 No 93, Sch 3 (11).

s 108: Am 1931 No 13, sec 6 (f). Rep 1991 No 93, Sch 3 (11).

s 109: Subst 1931 No 13, sec 6 (g). Rep 1991 No 93, Sch 3 (11).

s 110: Rep 1991 No 93, Sch 3 (11).

s 111: Am 1924 No 32, sec 13 (f). Rep 1931 No 13, sec 6 (h).

s 112: Am 1924 No 32, sec 13 (g); 1931 No 13, sec 6 (i). Rep 1991 No 93, Sch 3 (11).

s 112A: Ins 1933 No 12, sec 4 (g). Rep 1991 No 93, Sch 3 (11).

s 112B: Ins 1939 No 30, sec 2 (h). Am 1940 No 50, sec 4 (b). Rep 1991 No 93, Sch 3 (11).

s 112C: Ins 1952 No 41, sec 2 (f). Am 1958 No 47, sec 2 (b); 1963 No 41, sec 2 (b); 1964 No 65, sec 2 (c); 1965 No 36, sec 3 (i); 1970 No 94, sec 3 (c); 1973 No 79, sec 2 (c); 1975 No 75, sec 4 (b). Rep 1991 No 93, Sch 3 (11).

s 112D: Ins 1952 No 41, sec 2 (f). Am 1958 No 47, sec 2 (c); 1963 No 41, sec 2 (c); 1964 No 65, sec 2 (d); 1965 No 36, sec 3 (j); 1970 No 94, sec 3 (d); 1973 No 79, sec 2 (d); 1975 No 75, sec 4 (c); 1977 No 13, Sch 1 (2). Rep 1991 No 93, Sch 3 (11).

s 112E: Ins 1952 No 41, sec 2 (f). Rep 1991 No 93, Sch 3 (11).

s 112F: Ins 1970 No 94, sec 4. Rep 1991 No 93, Sch 3 (11).

pt 4, div 1A: Ins 1971 No 75, sec 2 (b). Rep 1991 No 93, Sch 3 (11).

s 112G: Ins 1971 No 75, sec 2 (b). Am 1982 No 43, Sch 2 (6). Rep 1991 No 93, Sch 3 (11).

s 112H: Ins 1971 No 75, sec 2 (b). Am 1973 No 79, sec 2 (e); 1974 No 110, sec 6 (a); 1975 No 75, sec 4 (d); 1977 No 135, Sch 1 (1); 1979 No 150, Sch 1 (2). Rep 1991 No 93, Sch 3 (11).

s 112I: Ins 1971 No 75, sec 2 (b). Am 1972 No 79, sec 2 (f); 1974 No 110, sec 6 (b); 1975 No 75, sec 4 (e); 1977 No 135, Sch 1 (2); 1979 No 150, Sch 1 (3). Rep 1991 No 93, Sch 3 (11).

ss 112J–112L: Ins 1971 No 75, sec 2 (b). Rep 1991 No 93, Sch 3 (11).

pt 4, div 2: Rep 1991 No 93, Sch 3 (11).

s 113: Rep 1991 No 93, Sch 3 (11).

s 114: Am 1939 No 30, sec 2 (i); 1940 No 50, sec 3 (e); 1952 No 41, sec 2 (g). Rep 1991 No 93, Sch 3 (11).

s 114A: Ins 1939 No 30, sec 2 (j). Rep 1940 No 50, sec 3 (f). Ins 1952 No 41, sec 2 (h). Rep 1991 No 93, Sch 3 (11).

s 115: Am 1931 No 13, sec 6 (j); 1933 No 12, sec 4 (h); 1939 No 30, sec 2 (k); 1940 No 50, sec 3 (g); 1952 No 41, sec 2 (i). Rep 1991 No 93, Sch 3 (11).

s 115A: Ins 1939 No 30, sec 2 (1). Rep 1940 No 50, sec 3 (h). Ins 1952 No 41, sec 2 (j). Rep 1991 No 93, Sch 3 (11).

s 116: Rep 1991 No 93, Sch 3 (11).

s 117: Am 1924 No 32, sec 14 (a); 1931 No 13, sec 6 (k); 1933 No 12, sec 4 (i); 1965 No 36, Sch; 1970 No 52, Second Sch; 1974 No 110, sec 7 (o); 1979 No 173, Sch 1 (1); 1990 No 95, Sch 1 (36). Rep 1991 No 93, Sch 3 (11).

s 117A: Ins 1967 No 92, sec 3 (g). Rep 1991 No 93, Sch 3 (11).

s 118: Am 1931 No 13, sec 6 (1); 1965 No 36, Sch. Rep 1991 No 93, Sch 3 (11).

s 119: Am 1924 No 32, sec 14 (b). Rep 1991 No 93, Sch 3 (11).

s 120: Am 1924 No 32, sec 14 (c); 1931 No 13, sec 6 (m); 1933 No 12, sec 4 (j); 1939 No 30, sec 2 (m); 1940 No 50, sec 3 (i); 1952 No 41, sec 2 (k); 1965 No 36, Sch. Rep 1991 No 93, Sch 3 (11).

s 121: Subst 1924 No 32, sec 14 (d). Am 1931 No 13, sec 6 (n); 1933 No 12, sec 4 (k); 1965 No 36, Sch; 1985 No 219, Sch 3 (17). Rep 1991 No 93, Sch 3 (11).

s 122: Am 1924 No 32, sec 14 (e); 1931 No 13, sec 6 (o); 1933 No 12, sec 4 (l); 1965 No 36, Sch; 1967 No 92, sec 3 (h); 1972 No 79, sec 2 (d); 1974 No 110, sec 6 (c); 1981 No 90, Sch 1; 1987 No 87, Sch 1 (7). Rep 1991 No 93, Sch 3 (11).

s 123: Am 1924 No 32, sec 14 (f); 1931 No 13, sec 6 (p); 1939 No 30, sec 2 (n); 1940 No 50, sec 3 (j); 1952 No 41, sec 2 (l); 1965 No 36, Sch. Rep 1991 No 93, Sch 3 (11).

pt 4, div 3, hdg: Ins 1980 No 161, Sch 1 (3). Rep 1991 No 93, Sch 3 (11).

pt 4, div 3: Rep 1991 No 93, Sch 3 (11).

s 123A: Ins 1978 No 139, Sch 1 (2). Am 1980 No 161, Sch 1 (4). Rep 1991 No 93, Sch 3 (11).

s 123B: Ins 1980 No 161, Sch 1 (5). Rep 1991 No 93, Sch 3 (11).

pt 5, hdg: Subst 1992 No 86, Sch 6 (27). Rep 1997 No 123, Sch 2.2 [15].

pt 5: Rep 1997 No 123, Sch 2.2 [15].

s 124: Am 1952 No 41, sec 2 (m); 1965 No 12, sec 10; 1965 No 36, Sch; 1967 No 92, sec 3 (i); 1970 No 52, Second Sch; 1974 No 110, sec 7 (p); 1978 No 139, Sch 2 (5); 1983 No 13, Sch 1 (6A) (am 1984 No 153, Sch 16). Subst 1986 No 193, Sch 9 (8). Am 1987 No 227, Sch 1 (15); 1989 No 223, Sch 1 (7); 1990 No 108, Sch 2; 1992 No 33, Sch 1 (14); 1995 No 98, Sch 7 (27). Rep 1997 No 123, Sch 2.2 [15].

s 124A: Ins 1989 No 223, Sch 1 (9). Rep 1997 No 123, Sch 2.2 [15].

s 124B: Ins 1989 No 223, Sch 1 (9). Am 1995 No 98, Sch 7 (28). Rep 1997 No 123, Sch 2.2 [15].

s 124C: Ins 1989 No 223, Sch 1 (9). Am 1996 No 34, Sch 1.4 (22). Rep 1997 No 123, Sch 2.2 [15].

s 124D: Ins 1989 No 223, Sch 1 (9). Rep 1997 No 123, Sch 2.2 [15].

s 124E: Ins 1989 No 223, Sch 1 (9). Am 1992 No 33, Sch 1 (15). Rep 1997 No 123, Sch 2.2 [15].

s 124F: Ins 1989 No 223, Sch 1 (9). Rep 1997 No 123, Sch 2.2 [15].

s 124G (previously s 124A): Ins 1933 No 12, sec 4 (m). Am 1952 No 41, sec 2 (n); 1965 No 36, Sch. Rep 1967 No 23, sec 2 (k). Ins 1967 No 92, sec 3 (j). Am 1970 No 52, Second Sch; 1989 No 223, Sch 1 (8). Rep 1997 No 123, Sch 2.2 [15].

Part 6 Miscellaneous

pt 6, hdg: Ins 1992 No 86, Sch 6 (28).

125 Valuation of property

(1)  Subject to section 73A of this Act, in every case in which the Chief Commissioner deems it necessary to ascertain the value of any property for the purpose of assessing duty under this Act he may ascertain such value by such means as he thinks fit including the service of a notice under section 129A.

(1A), (1B)    (Repealed)

(2)  Where the Chief Commissioner authorises a person to inspect any property and report to him the value thereof for the purposes of this Act, the person having the custody or possession of the property shall permit the person so authorised to inspect the same at such reasonable time as the Chief Commissioner deems necessary.

(3)  The Chief Commissioner may assess the duty payable on the footing of the value so ascertained as aforesaid, subject to appeal therefrom in accordance with section 124.

s 125: Am 1933 No 12, sec 4 (n); 1965 No 36, Sch; 1974 No 110, sec 7 (q); 1979 No 28, sec 3 (b); 1982 No 43, Sch 1 (2); 1986 No 193, Sch 9 (9).

125A Ascertainment of value of certain interests

In every case in which it is necessary for the purpose of assessing duty under this Act to ascertain the value of any estate or annuity or interest for the life of any person or of any estate, annuity, or interest determinable on or subject to any contingency or the happening of any event or of any estate, annuity, or interest in remainder expectant on the death of any person or expectant on or subject to any contingency or the happening of any event, regard may be had in ascertaining the value of any such property as aforesaid to the death of the person having the life estate or annuity or interest or the happening of the contingency or event at any time before the assessment of duty under this Act is actually made.

s 125A: Ins 1931 No 13, sec 7 (a).

125AA (Repealed)

s 125AA: Ins 1971 No 75, sec 2 (c). Rep 1991 No 93, Sch 3 (12).

125B Ascertainment of value of property subject to powers etc

In any case in which it is necessary to ascertain the value of any property for the purpose of assessing ad valorem duty on any instrument, the existence of any overriding power of revocation or of defeasance or of creating charges or of new appointment or reconveyance in such or any other instrument may be disregarded in determining the value of such property.

s 125B: Ins 1931 No 13, sec 7 (a).

126 Payment of expense of obtaining valuation

Where the Chief Commissioner appoints a person to make a valuation and assess duty in respect of any instrument or matter on the footing thereof, then:

(a)  if there is no appeal against the assessment, the Chief Commissioner may, having regard to the merits of the case, charge the whole or any part of the expenses incident to such valuation against the person primarily liable with respect to the instrument or matter, and in that case such expenses shall be deemed to be a debt of such person due to His Majesty and recoverable accordingly, or in the case of death duty the Chief Commissioner may recover such expenses as part of the duty, and

(b)  if there is an appeal, the payment of such expenses shall be in the discretion of the court.

127 Valuation of shares

(1) 

(a)  For the purposes of this Act, the valuation of shares in any company, whether or not it is a NSW company, shall be made upon the basis that the memorandum and articles of association or rules of the company satisfy the requirements prescribed by the committee or governing authority of the stock exchange at the place where the share register in which the shares being valued are registered is, to enable that company to be placed on the current official list of such stock exchange at the relevant time.

(b)  No provision in the memorandum or articles of association or rules of any company whereby or whereunder the value of the shares of a deceased or other member is to be determined shall be applicable in determining the value of the shares for the purposes of this Act.

(c)  Notwithstanding anything contained in the foregoing provisions of this subsection the Chief Commissioner may in his discretion adopt as the value of a share of any class in any company the shares of which of that class are not listed on a stock exchange such sum as in the opinion of the Chief Commissioner the holder of that share would have received in respect of that share in the event of the company being voluntarily wound up on the date upon which the value of the share is to be ascertained for the purposes of this Act.

(2)  This section applies to all companies whether incorporated before or after the passing of the Stamp Duties (Further Amendment) Act 1924, other than those registered under section 52 of the Companies Act 1899 or section 34 of the Companies Act 1936 or section 24 of the Companies Act 1961 or under any similar provision in the law of any place out of New South Wales and other than companies in respect of which a licence is for the time being in force under section 66 of the Companies (New South Wales) Code or under any corresponding provision of a law in force in any place out of New South Wales.

(3)  No agreement whereby the value of the share of a deceased partner or of a partner upon the dissolution of the partnership in any of the partnership assets is determined as between the partners shall be conclusive as to the value thereof for the purposes of this Act.

s 127: Subst 1924 No 32, sec 15 (ii). Am 1931 No 13, sec 7 (b); 1937 No 35, Second Sch; 1939 No 30, sec 2 (o); 1982 No 43, Sch 2 (7); 1994 No 48, Sch 9 (17).

127A Particulars as to shares in companies etc

(1)  In all cases in which it is necessary for the purposes of this Act to ascertain the value of any shares or stock in any corporation, company, or society, any director or member of the governing body, or the manager or public officer of the corporate body shall, at the request of the Chief Commissioner, deliver to him such balance-sheets and accounts of that body, and such other information as the Chief Commissioner may require for the purpose of ascertaining the value of the shares.

(2)  If any such director, member, manager, or public officer fails to comply with any provision of this section he shall be liable to a fine not exceeding 1 penalty unit, and a further fine not exceeding 0.1 penalty unit for every day after the first during which such default continues.

s 127A: Ins 1924 No 32, sec 15 (ii). Am 1965 No 36, Sch; 1992 No 112, Sch 1.

127B Default assessment of stamp duty

(1)  If a person is required by or under this Act:

(a)  to lodge a return or statement with the Chief Commissioner and to pay duty to the Chief Commissioner at the time of lodgment of the return or statement or within the period within which the return or statement is required to be lodged, or

(b)  to cause an instrument to be duly stamped within a specified time after the date of execution of that instrument (other than an instrument in respect of which stamp duty is paid by way of return under this Act),

and:

(c)  the person who is required to lodge the return or statement or to cause an instrument to be duly stamped, fails or refuses to lodge the return or statement or to cause the instrument to be duly stamped as and when required by or under this Act, or

(d)  the Chief Commissioner is not satisfied with the return or statement lodged or the instrument produced for stamping,

the Chief Commissioner may cause an assessment to be made of the amount of duty which, in the opinion of the Chief Commissioner, should have been paid by the person if the person had lodged the return or statement or produced the instrument, or when the person lodged the return or statement or produced the instrument, as the case may be.

(2)  If an amount is assessed under subsection (1) in relation to a return, statement or instrument:

(a)  that amount shall be deemed to be the duty payable by the person in respect of the return, statement or instrument, and

(b)  without affecting the generality of paragraph (a), fines are payable:

(i)  in the case of a return, under section 127C, in respect of that amount as if that amount had been payable as duty at the time the person was required by or under this Act to lodge the return,

(ii)  in the case of a statement, under section 25, in respect of that amount as if that amount had been payable as duty from the deemed date of first execution of the statement, or

(iii)  in the case of an instrument, under section 25, in respect of that amount as if that amount had been payable from the date of first execution of that instrument.

(3)  Subsection (2) shall not apply if:

(a)  the amount of duty is shown to be erroneous upon an objection or appeal under section 124, or

(b)  the Chief Commissioner makes a further assessment under this section in relation to the return, statement or instrument.

(4)  If an assessment has been made under subsection (1) that includes any duty that has not been paid to the Chief Commissioner, the Chief Commissioner shall cause notice in writing to be given to the person who is required to lodge the return or statement or to produce the instrument.

(5)  A notice required to be given under subsection (4) shall specify:

(a)  the name of the person in respect of whom the assessment was made,

(b)  the details in respect of which the assessment was made, including the period in the case of a return,

(c)  the amount deemed by subsection (2) to be the duty payable to the Chief Commissioner, and

(d)  the date on or before which the duty is to be paid to the Chief Commissioner.

(6)  A notice required to be given under subsection (4) may, without prejudice to any other method of giving notice, be given by post, and shall be properly addressed if it is addressed to the person in respect of whom the assessment was made at the last address of that person known to the Chief Commissioner.

(7)  The amount of duty specified in a notice given under subsection (4) shall be paid on or before the date specified in the notice pursuant to subsection (5) (d) by the person who failed or refused to lodge the return or statement or produce the instrument for stamping or marking or with whose return, statement or instrument the Chief Commissioner is not satisfied.

(8)  A person who contravenes subsection (7) is guilty of an offence and liable to a penalty not exceeding 20 penalty units.

(9)  If the amount of duty specified in a notice given under subsection (4) includes an amount that has been paid before the time the assessment was made, nothing in this section requires the amount so paid to be paid again.

(10)  If, in relation to a return, statement or instrument, the Supreme Court in an appeal under section 124 assesses a different amount of duty from that assessed by the Chief Commissioner under this section, the amount assessed by the Court shall be deemed to have been assessed by the Chief Commissioner under this section, and the provisions of this Act (section 124 and subsection (3) (a) excepted) shall apply accordingly.

(11)  If an assessment under subsection (1) has been made in respect of an instrument required to be duly stamped under this Act (other than an instrument in respect of which stamp duty is paid by way of return) and the instrument has not been produced to the Chief Commissioner for stamping, the original instrument shall, in the absence of evidence to the contrary, be deemed to have been executed on a date which, in the opinion of the Chief Commissioner, was the date of first execution of the instrument.

(12)  If an instrument the subject of an assessment under subsection (1) is produced for stamping after the payment of the duty assessed and any fine which may be payable, the instrument may be stamped with the amount of duty so paid.

s 127B: Ins 1974 No 110, sec 7 (r). Am 1982 No 133, Sch 1 (4); 1982 No 134, Sch 10 (6). Subst 1987 No 85, Sch 5 (11). Am 1992 No 112, Sch 1.

127C–142 (Repealed)

s 127C: Ins 1974 No 110, sec 7 (r). Am 1982 No 133, Sch 1 (5); 1982 No 134, Sch 10 (7); 1989 No 113, Sch 2 (9). Rep 1997 No 123, Sch 2.2 [16].

s 128: Am 1933 No 12, sec 4 (o); 1952 No 41, sec 2 (o); 1967 No 23, sec 2 (1); 1990 No 46, Sch 2. Rep 1997 No 123, Sch 2.2 [16].

s 129: Am 1989 No 113, Sch 2 (10). Rep 1997 No 123, Sch 2.2 [16].

s 129A: Ins 1967 No 92, sec 3 (k). Am 1986 No 193, Sch 9 (10); 1987 No 85, Sch 5 (12); 1987 No 87, Sch 1 (8). Rep 1997 No 123, Sch 2.2 [16].

s 129B: Ins 1967 No 92, sec 3 (k). Am 1982 No 134, Sch 10 (8); 1985 No 219, Sch 3 (18); 1986 No 193, Sch 9 (11); 1987 No 85, Sch 5 (13); 1987 No 87, Sch 1 (9); 1992 No 112, Sch 1. Rep 1997 No 123, Sch 2.2 [16].

s 129C: Ins 1982 No 134, Sch 10 (9). Am 1992 No 33, Sch 1 (16). Rep 1997 No 123, Sch 2.2 [16].

s 129CA: Ins 1994 No 48, Sch 11 (19). Rep 1997 No 123, Sch 2.2 [16].

s 129D: Ins 1985 No 219, Sch 3 (19). Am 1996 No 34, Sch 1.4 (23) (24). Rep 1997 No 123, Sch 2.2 [16].

s 129E: Ins 1989 No 113, Sch 2 (11). Rep 1997 No 123, Sch 2.2 [16].

s 130: Am 1924 No 32, sec 15 (iii); 1983 No 13, Sch 1 (7). Rep 1997 No 123, Sch 2.2 [16].

s 131: Am 1924 No 32, sec 15 (i); 1965 No 36, Sch; 1987 No 87, Sch 1 (10); 1992 No 112, Sch 1. Subst 1994 No 48, Sch 11 (20). Rep 1997 No 123, Sch 2.2 [16].

s 131A: Ins 1965 No 36, sec 13. Am 1965 No 36, Sch; 1982 No 134, Sch 10 (10); 1983 No 13, Sch 1 (8); 1985 No 219, Sch 3 (20); 1986 No 91, sec 2. Subst 1987 No 87, Sch 1 (11). Am 1987 No 209, Sch 43; 1992 No 57, Sch 1; 1992 No 112, Sch 1; 1994 No 48, Schs 11 (21), 12. Rep 1997 No 123, Sch 2.2 [16].

s 131AA: Ins 1994 No 48, Sch 11 (22). Rep 1997 No 123, Sch 2.2 [16].

s 132: Am 1970 No 52, Second Sch. Rep 1997 No 123, Sch 2.2 [16].

s 133: Am 1970 No 52, Second Sch. Rep 1997 No 123, Sch 2.2 [16].

s 134: Subst 1970 No 52, Second Sch. Rep 1997 No 123, Sch 2.2 [16].

s 135: Am 1965 No 36, Sch; 1983 No 13, Sch 1 (13). Subst 1987 No 87, Sch 1 (12). Rep 1997 No 123, Sch 2.2 [16].

s 135A: Ins 1987 No 87, Sch 1 (12). Rep 1997 No 123, Sch 2.2 [16].

s 136: Am 1965 No 36, Sch; 1992 No 112, Sch 1. Rep 1997 No 123, Sch 2.2 [16].

s 136A: Ins 1966 No 55, sec 2 (s). Rep 1997 No 123, Sch 2.2 [16].

s 137: Rep 1991 No 93, Sch 3 (12).

s 138: Am 1931 No 13, sec 7 (c); 1939 No 30, sec 2 (p); 1965 No 36, sec 3 (k). Rep 1991 No 93, Sch 3 (12).

s 139: Rep 1924 No 32, sec 15 (iv).

s 140: Am 1924 No 32, sec 15 (v); 1931 No 13, sec 7 (d); 1933 No 12, sec 4 (p); 1970 No 52, Second Sch. Rep 1991 No 93, Sch 3 (12).

s 141: Rep 1991 No 93, Sch 3 (12).

s 142: Subst 1924 No 32, sec 15 (vi). Rep 1930 No 44, sec 30 (2).

143 No abatement of legal proceedings

No action or proceeding civil or criminal by the Chief Commissioner and no civil action or proceeding against the Chief Commissioner shall determine or abate by reason of the death of the Chief Commissioner or of his removal or retirement from office but it shall be continued as if the vacancy had not happened and it may be enforced by or against a Chief Commissioner subsequently appointed as if he had been the Chief Commissioner by or against whom it was brought.

s 143: Ins 1931 No 13, sec 7 (e).

144 Construction of Act

This Act shall be read and construed so as not to exceed the legislative power of the State to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

s 144: Ins 1931 No 13, sec 7 (e).

145 Application of Act to persons or bodies having Crown immunity

(1)  The Governor may, by order published in the Gazette, apply the whole or any specified provisions of this Act to any specified person or body (whether statutory or otherwise) that has Crown immunity.

(2)  While any such order is in force, the specified person or body is subject to the requirements of this Act accordingly.

s 145: Ins 1939 No 30, sec 2 (q). Rep 1940 No 50, sec 3 (k). Ins 1952 No 41, sec 2 (p). Am 1965 No 36, Sch; 1982 No 133, Sch 1 (6); 1986 No 193, Sch 9 (12). Rep 1991 No 93, Sch 3 (12). Ins 1995 No 98, Sch 7 (29).

144A Savings, transitional and other provisions

The Tenth Schedule has effect.

s 144A: Ins 1987 No 85, Sch 5 (14).

146 Regulations

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2)  A regulation may create an offence punishable by a penalty not exceeding 20 penalty units.

s 146: Ins 1997 No 123, Sch 2.2 [69] [70].

First Schedule

Reference to Act	Title or short title	Extent of repeal
1898 No 27	Stamp Duties Act 1898	The whole
1899 No 31	Friendly Societies Act 1899	Section 29 (the unrepealed section)
1900 No 53	Stamp Duties (Amendment) Act 1900	The whole
1904 No 24	Stamp Duties (Amendment) Act 1904	The whole
1907 No 8	Stamp Duties (Amendment) Act 1907	The whole
1914 No 3	Stamp Duties (Amendment) Act 1914	The whole

Second Schedule Stamp duties and exemptions

Part 1 Stamp duty payable

Nature of Instrument	Amount of Duty $  c		Persons primarily liable
ACKNOWLEDGMENT by executor or administrator in lieu of conveyance under section 83 of the Wills, Probate and Administration Act 1898, as amended.	10.00		The devisee.
AGREEMENT OR MEMORANDUM OF AN AGREEMENT, and not otherwise specifically charged with any duty:
(1)  Under hand only:			}	The parties thereto.
(a)  Whether the same is only evidence of a contract, or obligatory on the parties from its being a written instrument, including every schedule, receipt, or other matter put or indorsed thereon or annexed thereto.	2.00
(b)  Where divers letters are offered in evidence to prove any agreement between the writers thereof it shall be sufficient if any one of such letters is stamped with the duty of:	2.00
Exemptions: Any agreement or memorandum under hand: (a)    (Repealed) (b)  made between a master and any mariner of any ship or vessel for wages on any voyage coastwise from port to port in the State of New South Wales.
(2)  Under seal	10.00
Exemption—Any agreement made by a council (within the meaning of the Local Government Act 1993) with the Crown or with any corporation or person representing the Crown that would but for this exemption have been chargeable only with the said fixed duty of fifty cents or $10 is exempt from such duty.
AGREEMENT FOR THE SALE OR CONVEYANCE (INCLUDING EXCHANGE) OF ANY PROPERTY:	The same duty as on a conveyance of the property.		The purchaser or person deemed to be the purchaser, or the person to whom the property is agreed to be conveyed.
APPOINTMENT OF TRUSTEES:
For every appointment of a trustee by any instrument or by order of the Supreme Court or a Judge thereof.	10.00		The person making or executing the appointment (in the case of an instrument) and the trustee or trustees in any other case.
Exemptions: (a)  The appointment of a trustee by a will. (b)  Every instrument for the appointment of a trustee or trustees of property held in trust for any corporation or body of persons associated for religious, charitable, or educational purposes.
APPOINTMENT in execution of a power:	(Repealed)
AWARD	(Repealed)
BANK NOTES	(Repealed)
BETTING TICKETS	(Repealed)
BILL OF EXCHANGE, PROMISSORY NOTE AND CHEQUE	(Repealed)
BILL OF LADING OR RECEIPT	(Repealed)
CHARTER PARTY	(Repealed)
COMPANIES	(Repealed)
CONTRACT NOTE	(Repealed)
CONVEYANCES OF ANY PROPERTY:
(1)  Upon every conveyance of any property (other than shares or rights to shares, CUFS or IRs or a mortgage referred to in paragraph (1) under the heading “Mortgage” herein or units in a unit trust scheme) on a sale for a consideration in money or money’s worth of not less than the unencumbered value of the property:			The purchaser or, in the case of an exchange, the person deemed to be the purchaser.
(a)  where the amount of such consideration does not exceed $14,000	$1.25 for every $100 or part thereof.
(b)  where the amount of such consideration exceeds $14,000 but does not exceed $30,000	$175 plus $1.50 for every $100 or part thereof by which the amount exceeds $14,000.
(c)  where the amount of such consideration exceeds $30,000 but does not exceed $80,000	$415 plus $1.75 for every $100 or part thereof by which the amount exceeds $30,000.
(d)  where the amount of such consideration exceeds $80,000 but does not exceed $300,000	$1,290 plus $3.50 for every $100 or part thereof by which the amount exceeds $80,000.
(e)  where the amount of such consideration exceeds $300,000 but does not exceed $1,000,000	$8,990 plus $4.50 for every $100 or part thereof by which the amount exceeds $300,000.
(f)  where the amount of such consideration exceeds $1,000,000	$40,490 plus $5.50 for every $100 or part thereof by which the amount exceeds $1,000,000.
(2)  Upon every conveyance of any property (other than shares or rights to shares, CUFS or IRs or a mortgage referred to in paragraph (1) under the heading “Mortgage” herein or units in a unit trust scheme) made without consideration in money or money’s worth:			The parties to the conveyance or any one or more of them.
On whichever is the greater of:
(a)  the unencumbered value of the property, or (b)  the amount or value of all encumbrances (whether certain or contingent) subject to which the property is conveyed.	}	The same duty as on a conveyance under paragraph (1) above as if the greater of the amounts under paragraphs (a) and (b) opposite hereto were the amount of the consideration.
(3)  Upon every conveyance of any property (other than shares or rights to shares, CUFS or IRs or a mortgage referred to in paragraph (1) under the heading “Mortgage” herein or units in a unit trust scheme) made upon a bona fide consideration in money or money’s worth of less than the unencumbered value of the property:			The parties to the conveyance or any one or more of them.
On whichever is the greater of:
(a)  the unencumbered value of the property, or (b)  the amount obtained by aggregating together: (i)  the amount or value of the consideration ascertained in accordance with this Act, and (ii)  the amount or value of all encumbrances (whether certain or contingent) subject to which the property is conveyed.	}	The same duty as on a conveyance under paragraph (1) above as if the greater of the amounts under paragraphs (a) and (b) opposite hereto were the amount of the consideration.
(3A)  Upon every conveyance of any property (other than shares or rights to shares, CUFS or IRs or a mortgage referred to in paragraph (1) under the heading “Mortgage” herein or units in a unit trust scheme) made upon a bona fide consideration in money or money’s worth of not less than the unencumbered value of the property, not being a conveyance on sale of the property:			The parties to the conveyance or any one or more of them.
On the amount obtained by aggregating together:
(a)  the amount or value of the consideration ascertained in accordance with this Act, and (b)  the amount or value of all encumbrances (whether certain or contingent) subject to which the property is conveyed.	}	The same duty as on a conveyance under paragraph (1) above as if the aggregate of the amounts under paragraphs (a) and (b) opposite hereto were the amount of the consideration.
(3B)  On the transfer of shares, or the redemption and issue of shares, of any company, being shares which confer an entitlement to exclusive possession of a company title dwelling, whether or not the company is a NSW company or has a register of members in New South Wales.	The same duty as on a conveyance under paragraph (1), (2), (3) or (3A) above, as the case may require, as if a reference in those paragraphs to the unencumbered value of the property were a reference to the unencumbered value of the shares.		The same persons as are primarily liable on a conveyance under paragraph (1), (2), (3) or (3A) above, as the case may require.
(4)  Upon each of the following instruments:
(a)   (i)  an instrument appointing a new trustee, or (ii)  an instrument appointing an additional trustee, or (iii)  an instrument by which a trustee retires from a trust without any new trustee being appointed in his place, or (iv)  a declaration by an executor under section 11 of the Trustee Act 1925, as amended.	}	10.00	}	The parties to the instrument or any one or more of them.
(b)  A conveyance not made for valuable consideration and made to a beneficiary under and in conformity with the trusts contained in a conveyance, declaration of trust or other instrument on which ad valorem stamp duty imposed by an Act in force at the time of its execution has been paid or which, by an Act so in force, was exempt from stamp duty, but only to the extent that the conveyance to the beneficiary is a conveyance of property that the Chief Commissioner is satisfied is wholly or substantially the same as: (i)  property that, at the time of the execution of the instrument containing the trusts, was held or to be held by the trustees upon those trusts and was property in respect of which that ad valorem duty was paid or that exemption applied, (ii)  property representing the proceeds of re-investment of property referred to in paragraph (i) of this subparagraph, or (iii)  property referred to in both paragraph (i) and paragraph (ii) of this subparagraph. (c)  An instrument made or executed bona fide by way of completion or confirmation of title whereby no greater benefit, legal or equitable, accrues to the person in whose favour the instrument is made or executed than he originally had or was entitled to have by virtue of some other instrument which is duly stamped with ad valorem duty as a conveyance or declaration of trust. (d)  A conveyance following upon a decree or order for foreclosure where ad valorem duty has been paid upon such decree or order (e)  A conveyance whereby the apparent purchaser of property that is vested in him upon trust for the person who was the real purchaser and who has actually paid the purchase money therefor, conveys the same to the real purchaser.	}	10.00	}	The transferee.
(f)  A conveyance referred to in section 73 (2A) or (2AD)	2.00		The transferee.
(g)  A conveyance not made for valuable consideration and made to a beneficiary by a trustee under and in conformity with the trusts contained in a will or arising on an intestacy and in either case in respect of property on which death duty or duty under an Act imposing duties on the estates of deceased persons has been paid or which by such an Act is exempt from death duty or in respect of which no death duty is, by virtue of such an Act, chargeable (h)  A conveyance first executed on or after 19 July 1985, not made for valuable consideration and made to a beneficiary by a trustee, being a conveyance of property the subject of a trust for sale contained in a will and in respect of property on which death duty or duty under an Act imposing duties on the estates of deceased persons has been paid or which, by such an Act, is exempt from death duty or in respect of which no death duty is, by virtue of such an Act, chargeable	}	10.00	}	The transferee.
(i)  Any instrument (being an instrument which, but for this subparagraph, would be chargeable with ad valorem duty) which amends or varies the effect of an instrument establishing a public unit trust scheme, where the firstmentioned instrument: (i)  is not an instrument of the kind referred to in subparagraph (a), (ii)  does not convey, or have the effect of conveying, any property the subject of the scheme to any person who is a trustee under the scheme or to any person who does not hold units in the scheme, and (iii)  does not have the effect of reducing the number of persons who hold units in the scheme.	200.00		The parties to the instrument.
(j)–(k)    (Repealed)
(5)  Upon every conveyance made in conformity with an agreement where ad valorem duty has been paid on the agreement and the agreement is produced to the Chief Commissioner or he is satisfied that it has been duly stamped	2.00 or (if it be lower) the ad valorem duty as hereinbefore by this Act provided.		The transferee.
(6)  Upon a conveyance whereby a trustee of a superannuation scheme transfers to a member of the scheme on his retirement from the scheme a policy of insurance on the life of the member:			The transferee.
On the first of such transfers	3.00
On each subsequent transfer	2.00
(7)  Upon the conveyance of a lot within a strata plan where the Chief Commissioner is satisfied: (a)  that the conveyance is part of an arrangement under which the transferee will take an interest in the lot conveyed similar in effect to and as a substitute for the interest he had in the lot immediately before the registration of the strata plan in which the lot is contained, and (b)  that the transferee was, immediately before registration of the strata plan in which the lot is contained, entitled to exclusive occupation of the lot by reason of: (i)  his being the registered owner of certain shares in a company that had a memorandum or articles of association conferring that entitlement upon the transferee, (ia)  the transferee being the registered owner of units in a unit trust scheme that under the trust deed for the scheme conferred that entitlement on the transferee, (ii)  his being a lessee having that entitlement conferred upon him under a duly stamped lease having a term exceeding fifty years, or (iii)  his rights under an agreement where those rights were dependent upon his being a co-owner of a parcel within the meaning of that Act.	}	10.00	}	The transferee.
COPY OF INSTRUMENT:
Being a copy referred to in section 73D.	The same duty as the original instrument.		The person primarily liable in respect of the original instrument.
DECLARATION OF TRUST:
(1)  Any instrument declaring that a person in whom property is vested as the apparent purchaser thereof holds the same in trust for the person or persons who have actually paid the purchase-money therefor.	10.00		The person declaring the trust.
(2) (a)  Any instrument declaring that any property vested or to be vested in the person executing the instrument is or shall be held in trust for the person or persons or purpose or purposes mentioned therein notwithstanding that the beneficial owner or person entitled to appoint that property may not have joined therein or assented thereto.	200.00 or the same duty as would be chargeable if the instrument were a conveyance of the property comprised therein, whichever is the greater.		The person declaring the trust or the person directing the declaration of the trust.
(b)  Any instrument declaring that any property not identified therein and to be vested in the person executing the instrument shall be held in trust for the person or persons or purpose or purposes mentioned therein notwithstanding that the beneficial owner or person entitled to appoint that property may not have joined therein or assented thereto.	200.00		The person declaring the trust or the person directing the declaration of the trust.
(c)    (Repealed)
(3)  Any such instrument as aforesaid by which (a) the same trusts are declared as have been declared in respect of the same property by an instrument duly stamped with ad valorem duty under this Act or (b) the trusts declared are the same trusts as those upon or subject to which the same property was conveyed to the person declaring the trust by an instrument duly stamped with ad valorem duty under this Act or (c) the same trusts are declared as have been declared by a will in respect of the same property and any death duty payable in respect of that property by reason of the death of the testator who made such will has been paid.	10.00		The person declaring the trust.
(4)    (Repealed)
DEED:
(1)  Deed of any kind whatever not otherwise charged in this Schedule. (2)  Any instrument which under the provisions of any statute is given the operation or effect of a deed before registration.	}	10.00	}	The parties to the deed, or any one of them.
DISCOUNT ARRANGEMENT other than a Short Term Discount Arrangement	(Repealed)
DUPLICATE OR COUNTERPART of an agreement for the hire of a motion picture film.	(Repealed)
DUPLICATE OR COUNTERPART of any instrument chargeable with any duty	2.00		The person chargeable on the original instrument.
EXCHANGE:
Any instrument effecting an exchange of any property or any instrument partly effecting such an exchange.	The same duty as on a conveyance.		The person to whom any property is conveyed by way of exchange.
In any other case	10.00
FORECLOSURE ORDER:
On the unencumbered value of the property included in the order.	The same duty as on a conveyance under paragraph (1) of the matter herein under the heading “Conveyances of any Property”.		The mortgagee.
GUARANTEE	(Repealed)
HIRING ARRANGEMENT:
On the total amount payable under the hiring arrangement.	2.00 or an amount equal to 1½ per centum of such total amount payable under the hiring arrangement whichever is the greater, but in any case not exceeding $10,000 in respect of any one hiring arrangement, but only if the hiring arrangement precludes the inclusion within it of other goods in replacement of, or in addition to, the original goods to which it relates (whether the other goods are of a class the same as, or of a class different from, the original goods). (Any remaining fractional part of one cent shall be disregarded.)		The owner.
INSTALMENT PURCHASE ARRANGEMENTS	(Repealed)
LEASE OR PROMISE OF OR AGREEMENT FOR LEASE OR HIRE of any Property not being a Ship or Vessel:
(1)  In respect of the total rent payable during the term without any consideration by way of premium, fine, or foregift:
Where such rent:
does not exceed $100	0.35		}	The lessee or tenant.
exceeds $100—for every $100 and also for any remaining fractional part of $100	0.35
(2)  In consideration of a sum of money by way of premium, fine, or foregift, without rent (3)  In consideration of a sum of money by way of premium, fine, or foregift, and also of rent whether real or nominal On the amount of premium	}	The same duty as on a conveyance under paragraph (1) under the heading “Conveyances of any Property” herein.	}	The lessee or tenant.
And on the rent	The same duty as on a lease under paragraph (1) hereof.
(4)  Where the consideration is nominal, or where there is no consideration in money or money’s worth	The same duty as would be chargeable on a conveyance under paragraph (1) under the heading “Conveyances of any Property” herein as if the unencumbered value of the lease in question were the amount of the consideration.		}	The lessee or tenant.
(5)    (Repealed)
(6)  Of any other kind whatsoever	10.00		}	The lessee or tenant.
(7)  A lease made subsequently to and in conformity with a contract or agreement to grant such lease duly stamped	2.00
(8)–(10)    (Repealed)
Exemptions: (a)  A lease for a term of less than 1 year where the sole consideration is a rent of not more than $3,000. (b)  A lease for a term of not less than 1 year where the sole consideration is a rent of not more than $3,000 per annum.
LETTER OF ALLOTMENT AND LETTER OF RENUNCIATION	(Repealed)
LETTER OR POWER OF ATTORNEY or other instrument in the nature of:	(Repealed)
LOAN INSTRUMENT	(Repealed)
LOAN SECURITY:
(1)  Upon every loan security other than a mortgage referred to in paragraph (2):
Where the amount or the maximum amount that is or may become payable or repayable under or that is secured by the loan security does not exceed $16,000. (If the loan security is a debenture, an adhesive stamp may be used.)	5.00		The borrower or person bound.
Where that amount or maximum amount exceeds $16,000:
For the first $16,000	5.00
And, in addition, for every $1,000 and also for any remaining fractional part of $1,000 in excess of the first $16,000	4.00
(2)  A mortgage that is the subject of a caveat on which ad valorem duty has been paid	10.00		The mortgagor.
Exemptions: (a)  Any loan security where that amount or that maximum amount does not exceed $500. (a1)  Any loan security in respect only of additional advances secured by the loan security, if the total additional advances so secured do not exceed $10,000 in any 12 month period, not being the 12 month period after the initial advance. (b)  An eligible mortgage under Schedule 2A where the eligible contract with which it is associated is eligible to be stamped under clause 11 or 28 of that Schedule. (b1)  A loan security in support of any such eligible mortgage. (c)  A mortgage created solely for the purpose of providing security in accordance with a condition imposed on the grant of bail in connection with criminal proceedings.
MORTGAGE:
(1)  Upon every transfer or assignment of any mortgage on a sale thereof for a consideration in money or money’s worth of not less than the unencumbered value of the mortgage:			The transferee or assignee.
For every $10 and also for any fractional part of $10 of the consideration for the transfer or assignment	0.06
(2)  Upon every transfer or assignment of any mortgage made without consideration in money or money’s worth:			The parties to the transfer or assignment or any one or more of them.
On the unencumbered value of the mortgage.	The same duty as would be chargeable under paragraph (1) above as if the unencumbered value of the mortgage were the amount of the consideration.
(3)  Upon every transfer or assignment of any mortgage made upon a consideration in money or money’s worth of less than the unencumbered value of the mortgage:			The parties to the transfer or assignment or any one or more of them.
On the unencumbered value of the mortgage.	The same duty as would be chargeable under paragraph (1) above as if the unencumbered value of the mortgage were the amount of the consideration.
(4)  Upon every transfer or assignment of any mortgage made without valuable consideration from an administrator or trustee to the person beneficially entitled thereto under and in conformity with the trusts contained in a conveyance, declaration of trust or other instrument on which stamp duty imposed by any Act in force at the time of its execution has been paid or which is exempt from stamp duty under such Act or with the trusts contained in a will or arising on an intestacy and in either case in respect of a mortgage on which death duty or duty under any Act imposing duties on the estates of deceased persons has been paid or which shall be exempt from death duty by such Act or in respect of which no death duty is, by virtue of such Act, chargeable.	10.00 or ad valorem duty at the rate of 6c for every $10 (or part thereof) of the unencumbered value of the mortgage, whichever is the lower.		The transferee or assignee.
MOTOR VEHICLE CERTIFICATE OF REGISTRATION:
On a motor vehicle certificate of registration:
(a)  for a motor vehicle, other than a motor vehicle to which paragraph (b) applies.	$2.50 for every $100 and also for any fractional part of $100 of the value of the motor vehicle.		}	The person in whose name the certificate is issued.
(b)  for a passenger vehicle, being a vehicle: (i)  constructed primarily for the carriage of not more than 9 occupants, including a sedan, station wagon, coupe, convertible, four wheel drive vehicle with seats and windows, two wheel drive panel van with seats and windows, three wheel car, forward control passenger vehicle, small bus (seating not more than 9 persons, including the driver), motor home, and snow vehicle, but not including a motor cycle (with or without a side car), large bus (seating more than 9 persons, including the driver), hearse or invalid conveyances, and (ii)  the value of which is not less than $45,000.	}	$1,350 plus $4.50 for every $100 and also for any fractional part of $100 by which the value of the motor vehicle exceeds $45,000.
PARTITION:
(1)  The principal or only instrument effecting a partition of any property.	A fixed duty of $10.00 and in addition a case where the divided parts of the property are unequal in unencumbered value the same ad valorem duty as if it were a conveyance of similar property of an unencumbered value equal to the amount by which the unencumbered value of the undivided share of each partitioner is exceeded by the unencumbered value of the divided part taken by him, and any amount paid or given or agreed to be paid or given for equality shall be deemed to be consideration for such conveyance.		}	The persons making the partition or any one or more of them.
(2)  In any other case	10.00
POLICIES OF INSURANCE not being a policy of life insurance:
(1)    (Repealed)
(2)  Upon every transfer or assignment otherwise than by way of mortgage or release of mortgage of any such policy as aforesaid (Adhesive stamp may be used.)	2.00		The transferee or assignee.
(3)    (Repealed)
Exemptions	(Repealed)
POLICIES OF LIFE INSURANCE:
(1)  Upon every policy (other than a temporary or term insurance policy) where the sum insured exceeds $100 and does not exceed $2,000:			}	The company or person issuing the policy.
For every $200 and also for any fractional part of $200 of the sum insured	0.10
Where the sum insured exceeds $2,000:
For every $200 of the first $2,000 of such amount	0.10
And in addition thereto, for every $200 and also for any fractional part of $200 in excess of the first $2,000	0.20
(2)  Upon a temporary or term insurance policy	Five per centum of the first year’s premium on the policy.
Exemption: A policy of life insurance where the sum insured does not exceed $100.
(3)    (Repealed)
(4)  Upon every transfer or assignment of a policy of life insurance otherwise than by way of mortgage or release of mortgage.	The same duty as on a conveyance.		The transferee or assignee.
LIFE INSURANCE RIDERS:
Upon every life insurance rider	Five per centum of the first year’s premium on the life insurance rider.		The company or person issuing the life insurance rider.
REAL PROPERTY ACT 1900, as amended:
(1)  Application to bring land under the Act or to be registered under the Act as the proprietor of an estate in land where not otherwise liable to stamp duty not being a transmission application and not containing an application based on a possessory title.	10.00		The applicant.
(1A)  An application referred to in paragraph (1) which also contains an application based on a possessory title.	The same duty as on a possessory application.		The applicant.
(1B)  An application referred to in paragraph (1) which also contains an application based on a possessory title, where ad valorem duty is paid for a conveyance of the land.	10.00		The applicant.
(2)  Nomination: Where application is made to bring land under the Act, and the applicant nominates any other person as the person for whose estate or interest a folio of the Register is to be created.	The same duty as would have been payable on a conveyance of such land from the applicant, and all other necessary parties, to the person nominated for the estate mentioned in such nomination.		The nominee.
(3)  Instrument of transfer:
(a)  Duty shall be charged in accordance with the provisions under the heading “Conveyances of any Property” herein upon and in respect of every instrument of transfer as a conveyance of the property therein, and the person or persons specified by such provisions for the case shall be primarily liable for the duty on the transfer.
(b)  By way of exchange of the property therein.	The same duty as on an exchange herein.		The transferee.
(c)  By way of partition or division.	The same duty as on a partition herein.		The persons making the partition.
(4)  Foreclosure order	The same duty as on a foreclosure order herein.		The mortgagee.
(5)  Instrument of lease or promise of or agreement therefor.	The same duty as on a lease.		The lessee.
(6)  Transfer or surrender of lease:
(a)  Duty shall be charged in accordance with the provisions under the “Conveyances of any Property” herein upon and in respect of the transfer or surrender as a conveyance of the property therein and the person or persons specified by such provisions for the case shall be primarily liable for the duty on the transfer or surrender.
(b)  By way of exchange of the property therein.	The same duty as on an exchange herein.		The transferee.
(c)  By way of partition or division.	The same duty as on a partition herein.		The persons making the partition.
(7)  Transfer of a mortgage or a charge made otherwise than by way of mortgage or discharge of mortgage.	The same duty as is payable on a conveyance.		The transferee.
(8)  Consent by an executor or administrator to a transmission application by a devisee or person entitled on intestacy.	10.00		The devisee or person entitled on intestacy.
(9)–(13)    (Repealed)
(14)  A transmission application to a devisee who is also the sole executor or administrator.	10.00		The applicant.
(15)  Possessory application.	The same duty as would be payable on an instrument of transfer to the applicant on a sale of the land to which the application relates for a consideration in money of not less than the unencumbered value of the land where that unencumbered value is the value ascertained as provided by section 73A of this Act.		The applicant.
Exemptions: (a)  The same as in the case of conveyances and agreements relating to land not under the provisions of the Real Property Act 1900. (b)  Any application for transmission other than an application for transmission to a devisee who is also the sole executor or administrator. (c)  Any instrument of transfer of land brought under the provisions of the Real Property Act 1900 pursuant to section 31A of that Act, being a transfer by the person in whom the resumed land is vested by or under an Act or Act of the Parliament of the Commonwealth to the person entitled thereto immediately before it was so vested, but only if no compensation has been paid in respect of the resumption.
RECEIPT	(Repealed)
RECEIPTS RETURN:
Upon the dutiable receipts required to be specified in a receipts return:			}	The person who is required to make out the receipts return.
(a)  Upon the total amount of dutiable receipts, not being dutiable receipts referred to in paragraph (b)	An amount equal to 0.06 per centum of the total amount of those dutiable receipts.
(b)  Upon a dutiable receipt where the amount received is a single amount of not less than $2,000,000 (or, where some other amount is prescribed, the prescribed amount)	1,200.00
REPLICA:
Upon every replica.	10.00 or the same duty as that with which the instrument the replica is intended to replace was charged, whichever is the lower.		The parties to the replica or any one or more of them.
SUPERANNUATION FUND INSTRUMENTS	(Repealed)
DIRECTION AS TO ISSUE OR ALLOTMENT OF SHARES:
Any direction in writing executed for the purposes of subsection (1) of section 94A of this Act shall be chargeable with duty, as follows:			The person to whom the shares are to be issued or allotted.
(a)  If the direction is made upon a consideration in money or money’s worth of not less than the unencumbered value of the shares directed to be issued or allotted.	The same duty as is payable under paragraph (1) under the heading “Transfer of Shares” herein on a transfer of shares for a consideration of equal amount.
(b)  In any case other than that mentioned in the preceding subparagraph (a): On the unencumbered value of the shares directed to be issued or allotted.	The same duty as is payable under paragraph (1) under the heading “Transfer of Shares” herein as if the unencumbered value of the shares directed to be issued or allotted were the amount of the consideration.
Exemption—A direction for the issue or allotment of shares in a mining company as defined in section 3 of this Act made upon a consideration in money or money’s worth of not less than the unencumbered value of the shares directed to be issued or allotted.
TRANSFER OF SHARES:
(1)  Upon the transfer of any shares or of the right to any shares in the stock or funds of a NSW company or a corporation or company incorporated outside Australia that has a share register in New South Wales wherein such share or right is registered on a sale thereof for a consideration in money or money’s worth of not less than the unencumbered value of the shares or the right to the shares comprised in the transfer:			The transferee.
(a)    (Repealed)
(b)  Where the shares transferred are shares of a corporation or company: (i)  the shares of which are not listed on a recognized stock exchange, and (ii)  which is not the legal or beneficial owner of land in New South Wales Where the duty is $10, adhesive stamp may be used.	10.00 or ad valorem duty at the rate of 60c for every $100 (or part thereof) of the value of the shares or ad valorem duty at the rate of 60c for every $100 (or part thereof) of the consideration for the sale, whichever is the greatest.
(c)  In any other case:
For every $100 and also for any fractional part of $100 of the consideration for the transfer	0.60
Where the shares or the right to the shares comprised in the transfer are listed on the Sydney Stock Exchange, adhesive stamp may be used, which stamp shall be affixed and cancelled by the transferee as provided by this Act.
(2)  Upon the transfer of shares or of rights to shares made without consideration in money or money’s worth:			The parties to the transfer or any one or more of them.
On the unencumbered value of the shares or the rights to the shares comprised in the transfer.	The same duty as would be chargeable under paragraph (1) above as if the unencumbered value of the shares or the rights to the shares comprised in the transfer were the amount of the consideration.
(3)  Upon the transfer of shares or of rights to shares made upon a consideration in money or money’s worth of less than the unencumbered value of the shares or of the rights to shares comprised in the transfer:			The parties to the transfer or any one or more of them.
On the unencumbered value of the shares or the rights to the shares comprised in the transfer.	The same duty as would be chargeable under paragraph (1) above as if the unencumbered value of the shares or the rights to the shares comprised in the transfer were the amount of the consideration.
(4)  Upon the transfer of shares without valuable consideration to the person beneficially entitled thereto under and in conformity with the trusts contained in a conveyance, declaration of trust or other instrument on which ad valorem stamp duty imposed by an Act in force at the time of its execution has been paid or which, by an Act so in force, was exempt from stamp duty but only to the extent that the shares are any one or more of the following:	10.00 or ad valorem duty at the rate of 60c for every $100 (or part thereof) of the value of the shares, whichever is the lower.		The transferee.
(a)  the same shares as, at the time of the execution of the instrument creating the trusts, were held or to be held by the trustees upon those trusts and were shares in respect of which that ad valorem duty was paid or that exemption applied,
(b)  shares that the Chief Commissioner is satisfied represent the proceeds of re-investment of shares referred to in subparagraph (a) of this paragraph, and
(c)  bonus shares issued by reason of a holding of shares referred to in subparagraph (a) or (b) of this paragraph.
(5)  Where a transfer of shares includes a right to shares and the transfer is duly stamped in respect of such rights:			The transferee.
On any transfer necessary to vest such rights in the transferee.	2.00
(6)  Where as a consequence of a transfer of shares in a company that has been duly stamped, being a transfer not registered in the share register of the company, the transferee in that transfer is, upon a bonus issue or the issue of a right to shares subsequent to the transfer, entitled to other shares registered in the name of the transferor and the transferee pays the amount, if any, necessary to take up the other shares:			The transferee.
On any transfer necessary to vest those other shares in the transferee.	10.00 or ad valorem duty at the rate of 60c for every $100 (or part thereof) of the value of the shares, whichever is the lower.
(7)  Upon the transfer of shares without valuable consideration to the person beneficially entitled thereto under and in conformity with the trusts contained in a will or arising or an intestacy and in either case in respect of shares on which death duty or duty under an Act imposing duties on the estates of deceased persons has been paid or which, by such an Act, were exempt from death duty or in respect of which no death duty is, by virtue of such an Act, chargeable.	10.00 or ad valorem duty at the rate of 60c for every $100 (or part thereof) of the value of the shares, whichever is the lower.		The transferee.
(8)  Upon a transfer of shares first executed on or after 19 July 1985, not made for valuable consideration and made to a beneficiary by a trustee, being a transfer of shares the subject of a trust for sale contained in a will and in respect of shares on which the death duty or duty under an Act imposing duties on the estates of deceased persons has been paid or which, by such an Act, are exempt from death duty or in respect of which no death duty is, by virtue of such an Act, chargeable.	10.00 or ad valorem duty at the rate of 60c for every $100 (or part thereof) of the value of the shares, whichever is the lower.		The transferee.
(9)  In paragraphs (1)–(8) and in the following exemptions from the duties imposed by those paragraphs: (a)  a reference to shares generally includes a reference to CUFS and IRs, and (b)  a reference to shares in relation to any stock or fund includes a reference to CUFS and IRs in relation to that stock or fund.
Exemptions: (a)  Any transfer of bonds, debentures, stock or Treasury Bills of the Commonwealth of Australia or the Government of New South Wales or the Government or Administration of any other State or any Territory of the Commonwealth or of debentures or stock of any public statutory body constituted under the law of the said Commonwealth or of New South Wales or of any other State or any Territory of the said Commonwealth. (b)  Any transfer of shares in a mining company as defined in section 3 of this Act, on a sale thereof for a consideration in money or money’s worth of not less than the unencumbered value of such property sold. (c)    (Repealed) (d)  Any transfer of an interest in or charge over any bonds, debentures, stock or Treasury Bills of the Commonwealth of Australia or the Government of New South Wales or the Government or Administration of any other State or any Territory of the Commonwealth or any debentures or stock of any public statutory body constituted under the law of the Commonwealth or of New South Wales or of any other State or any Territory of the Commonwealth. (e)  Any transfer of shares listed on a stock exchange in Australia if the transfer is for the sole purpose of: (i)  lending the shares to the transferee, or (ii)  returning shares previously borrowed from the transferee, being such shares as are necessary to restore the shareholding of the transferee to the exact number and class of shares of which the transferee would have otherwise become the registered holder, if the loan had not taken place, or (iii)  a securities lending transaction. (f)  Any transfer of shares to or by a prescribed corporation within the meaning of Division 28A of Part 3 that is: (i)  a transfer to the prescribed corporation as trustee for the transferor, (ii)  a transfer to the prescribed corporation as trustee for a person for whose benefit the shares were held by the transferor in trust immediately before the transfer, where the transferor is: (A)  the Public Trustee, (B)  a trustee company within the meaning of the Trustee Companies Act 1964, (C)  a corporation that is constituted under the law of another State or of a Territory of the Commonwealth and, in the opinion of the Chief Commissioner, corresponds in that State or Territory to the Public Trustee or a trustee company referred to in subparagraph (B), or (D)  any of the following: (1)  a nominee corporation (being a corporation whose principal business is the business of holding shares as a trustee or nominee), (2)  a corporation, person or class of persons prescribed by the regulations, (iii)  a transfer by the prescribed corporation, as trustee, to the person recorded by it as the person for whose benefit the shares are held by it in trust, (iv)  a transfer by the prescribed corporation, as trustee, to another person as trustee for: (A)  the person recorded by the prescribed corporation as the person for whose benefit the shares were held by it in trust, or (B)  the beneficial owner of the shares purchased under a relevant transaction upon which duty was paid or which was exempt from duty and on whose behalf the prescribed corporation held the shares in trust,      where the new trustee is: (C)  the Public Trustee, (D)  a trustee company within the meaning of the Trustee Companies Act 1964, (E)  a corporation that is constituted under the law of another State or of a Territory of the Commonwealth and, in the opinion of the Chief Commissioner, corresponds in that State or Territory to the Public Trustee or a trustee company referred to in subparagraph (D), or (F)  any of the following: (1)  a nominee corporation (being a corporation whose principal business is the business of holding shares as a trustee or nominee), (2)  a corporation, person or class of persons prescribed by the regulations, (v)  a transfer by the prescribed corporation, as trustee, to a person (not being a person referred to in subparagraph (iii) or a new trustee referred to in subparagraph (iv)) who is the beneficial owner of the shares purchased under a relevant transaction upon which duty has been paid or which is exempt from duty, and on whose behalf the prescribed corporation held the shares in trust, or (vi)  a transfer which is, in accordance with the rules and practices of the London Stock Exchange, a stock loan transaction. (g)  A transfer, to or by any of the following nominee companies, of a marketable security or right in respect of shares: (i)  a nominee company that holds marketable securities solely for the purpose of facilitating marketable security transaction settlements by a broker as defined in section 97A, (ii)  SECH Nominees Pty Ltd, (iii)  CHESS Depositary Nominees Pty Ltd, (iv)  a nominee company prescribed by the regulations. (h)  A transfer of shares comprising a buy-back of shares in accordance with Division 4B of Part 2.4 of the Corporations Law by a NSW company, unless the buy-back is effected by the purchaser pursuant to an arrangement or understanding that the purchaser is to issue a number of shares: (i)  calculated by reference to the number of shares bought back, and (ii)  at an issue price calculated by reference to the buy-back price of the shares bought back, and (iii)  to, or at the direction of, the seller of the shares bought back.
SHORT TERM DEALERS RETURN:
Upon: (a)  in the case of a short term dealer who is not a prescribed short term dealer and who is not a member of a group—the amount comprising one-third of the sum of the short term liabilities in respect of his Australian based operations at the close of each day during the month or the longer period, as the case may be, to which the return relates divided by the number of days in that month, or that longer period, as the case may be (b)  in the case of a short term dealer who is not a prescribed short term dealer and who is a member of a group—the amount comprising one-third of the sum of the short term liabilities of the group in respect of their Australian based operations at the close of each day during the month or the longer period, as the case may be, to which the return relates divided by the number of days in that month, or that longer period, as the case may be (c)  in the case of a prescribed short term dealer—the amount comprising the sum of the credit balances in his short term dealer’s account at the close of each day during the month or the longer period, as the case may be, to which the return relates divided by the number of days in that month or that longer period, as the case may be	}	An amount equal to 0.005 per centum per month or longer period, as the case may be, of such amount.	}	The short term dealer.

Part 2 General exemptions from stamp duty under Part 3

(1) So much of the consideration on the sale of a holding of a discharged soldier, member of the forces or discharged member of the forces to a discharged soldier, member of the forces or discharged member of the forces as represents the amount due to the Crown as purchase money or advances. Discharged soldier , member of the forces and discharged member of the forces have the same meanings as are ascribed thereto respectively in the War Service Land Settlement Act 1941 , as amended.

(2) Any instrument evidencing the dedication of land for a public purpose.

(3) All bonds to Her Majesty, or any person or authority on her behalf.

(4) Any bond given to a controlling authority within the meaning of Part 5 of the Pastures Protection Act 1934 , as amended, in respect of a lease of a public watering place at a rental of less than one hundred and fifty dollars per annum.

(5) All instruments relating to the services of apprentices, clerks, and servants.

(6) Any instrument for the sale, transfer, or other disposition of any ship or vessel, or any part, interest, share, or property of or in any ship or vessel not being an instrument within the meaning of a hiring arrangement as defined in section 74D of this Act or an instalment purchase arrangement as defined in section 75A of this Act.

(7) In respect of any registration, approval, certificate, agreement, award or instrument effected, given, issued or made under the Industrial Relations Act 1996 .

(8) In the case of registered societies and branches under the Friendly Societies (NSW) Code , and in the case of terminating, non-terminating or permanent building societies registered under the Building and Co-operative Societies Act 1901 or the Co-operation, Community Settlement, and Credit Act 1923 , as amended, the Permanent Building Societies Act 1967 or the Financial Institutions (NSW) Code , the following instruments: (a), (b) (Repealed) (c) Any bond given to or on account of any such society or branch or by the treasurer or other officer thereof. (d) Any agreement to which any such society or branch is a contracting party other than an agreement for the purchase of any property and other than a loan or loan security where the society or branch is not the person described in this Act as the person primarily liable. (e) Any other instrument required or authorised by the said Acts or by the rules of any such society or branch, not being a bill of exchange or order given by a non-terminating or permanent building society registered under the Building and Co-operative Societies Act 1901 , the Co-operation Act 1923 , the Permanent Building Societies Act 1967 or the Financial Institutions (NSW) Code in respect of money payable by virtue of its rules or those Acts. (f) Any request to the Registrar-General under the Real Property (Amendment) Act 1921 , as amended, by any such society or branch for the registration of new trustees in relation to any mortgage being an investment of the society or branch. This paragraph does not apply to any instrument that relates to the business of a pharmacist (within the meaning of the Pharmacy Act 1964 ) that is carried on by a friendly society.

(8A) In the case of registered societies and branches under the Friendly Societies (NSW) Code and co-operative housing societies and Starr-Bowkett societies under the Co-operation Act 1923 —any bill of exchange or order given by any such society or branch in respect of money payable by virtue of its rules or of those Acts. This paragraph does not apply to any instrument that relates to the business of a pharmacist (within the meaning of the Pharmacy Act 1964 ) that is carried on by a friendly society.

(9) Generally any instrument expressly exempted under any Act.

(10) Any instrument executed by or on behalf of or for the purposes of a public hospital not being a conveyance from such hospital or from any person on its behalf or an agreement for such conveyance and not being a loan or loan security where the hospital is not the person described in this Act as the person primarily liable.

(11) (Repealed)

(12) Any Treasury bill issued by the Government of New South Wales.

(13) Any loan security made or given by the Government of the Commonwealth or a Government of a State or Territory of the Commonwealth or by any public statutory body constituted under a law of the Commonwealth or under a law of any State or Territory of the Commonwealth other than a public statutory body which, for the purposes of this paragraph, is specified in a proclamation made by the Governor and published in the Gazette as not being a public statutory authority for the purposes of this paragraph in respect of all transactions or such classes of transactions as may be specified in the proclamation.

(14) Any loan or loan security made or given by a council or county council under the Local Government Act 1993 .

(15) Any release or reconveyance by way of discharge of mortgage, any discharge of mortgage and any transfer or conveyance by way of mortgage or discharge of mortgage, not being a transfer or conveyance by way of mortgage of land, or an estate or interest in land, under the Real Property Act 1900 , if an instrument evidencing the mortgage has been duly stamped as a loan security or is exempt from or not liable to stamp duty as a loan security.

(15A) Any loan security made or given to the WorkCover Authority.

(16) Any preferable lien or lien or mortgage under the Liens on Crops and Wool and Stock Mortgages Act of 1898 , or special lien under the Co-operation, Community Settlement, and Credit Act 1923 , as amended, or any discharge of any such lien.

(17) (Repealed)

(18) Any agreement made by a council with the Roads and Traffic Authority of New South Wales.

(19) In the case of a body, being a council or county council under the Local Government Act 1993 or an electricity distributor constituted under Part 2A of the Electricity Act 1945 , the following: (a) (Repealed) (b) any motor vehicle certificate of registration issued to any such body, (c) any other instrument executed by or on behalf of any such body in respect of which instrument such body is the person described in this Act as the person primarily liable, (d) any insurance taken out by or on behalf of any such body, not being instruments or insurance issued, given, taken out, or executed by, to or on behalf of any such body in connection with or arising from the establishment, acquisition and operation of any trading undertaking, being: (i) the supply of electricity, gas, liquefied petroleum gas or hydraulic power and the supply and installation of associated fittings and appliances, or (ii) the operation of a coal mine and the supply and distribution of coal, or (iii) the operation of a public transport service, or (iv) the supply of building materials.

(20) In the case of a club which before its incorporation under the Companies (New South Wales) Code , the Companies Act 1961 or the Co-operation Act 1923 was an unincorporated club, and the incorporation whereof was for the purpose of complying with the provisions of section 134B of the Liquor Act 1912 , the following instruments: (a) any conveyance whereby property is conveyed to, or any receipt for money given by, the club as so incorporated where that property or money was immediately before incorporation held by or on behalf of the unincorporated club, (b) any request under section 46C of the Real Property Act 1900 relating to the vesting of land pursuant to the said section 134B, (c) the memorandum of association, articles of association and certificate of incorporation of such company, (d) any instrument relating to the reconstitution of a club superannuation scheme where such reconstitution became necessary solely as a result of the incorporation of the company, (e) any other instrument which in the opinion of the Chief Commissioner was executed solely in association with that incorporation.

(21) Any instrument executed by or on behalf of: (a) the Board of Commissioners, or (b) the Commissioners, referred to in the agreement approved by the Nauru Island Agreement Act 1919 of the Parliament of the Commonwealth in respect of which instrument the Board or the Commissioners are the persons primarily liable.

(22) Any instrument executed by or on behalf of a Specialised Agency within the meaning of the Convention on the Privileges and Immunities of the Specialised Agencies that was approved by the General Assembly of the United Nations on 21st November 1947 in respect of which instrument the Specialised Agency is the person primarily liable.

(23) Any instrument evidencing the issue or transfer (pursuant to regulations made under the Dairy Industry Marketing Authority Act 1979 ), for full consideration in money or money’s worth of debentures, bonds, inscribed stock or other securities prescribed under that Act.

(24) Any instrument by which property is conveyed or agreed to be conveyed to, or any loan security given by or on behalf of: (a) any society or institution for the time being approved by the Chief Commissioner for the purposes of this paragraph whose resources are, in accordance with its rules or objects, used wholly or predominantly for: (i) the relief of poverty in New South Wales, or (ii) the promotion of education in New South Wales, or (b) any society or institution which, in the opinion of the Chief Commissioner, is of a charitable or benevolent nature, or has as its primary object the promotion of the interests of Aborigines and where the instrument or loan security is for such purposes as the Chief Commissioner may approve in accordance with guidelines approved by the Treasurer.

(25) Any conveyance of property first executed before 1 January 1996 to a new or additional trustee or any conveyance of property to the remaining trustee or trustees as a consequence of the retirement of a trustee without any new trustee being appointed in place of the retiring trustee, being a conveyance made pursuant to, or in accordance with, the rules of: (a) an association of employees or employers registered as an organization under the Conciliation and Arbitration Act 1904 of the Commonwealth, (b) an industrial union of employers or employees registered under the Industrial Arbitration Act 1940 , (c) the Labor Council of New South Wales, or (d) any body of a kind referred to in subparagraph (a) or (b) which is approved for the time being by the Minister, and where the conveyance is for such purposes as the Minister may approve.

(25A) Any conveyance of property or transaction referred to in section 44 (1) or (1A) between a continued unincorporated industrial organisation or a continued non-industrial organisation as transferror and an industrial organisation or non-industrial organisation as transferee that arises as a result of the unincorporated body becoming incorporated under the Industrial Relations Act 1991 . In this paragraph: continued unincorporated industrial organisation and continued non-industrial organisation have the same meanings as in section 615 of the Industrial Relations Act 1991 . industrial organisation and non-industrial organisation have the same meanings as in section 406 (1) of the Industrial Relations Act 1991 .

(26) Any conveyance of property made pursuant to, or in accordance with, the rules of: (a) an association of employees or employers registered as an organization under the Conciliation and Arbitration Act 1904 of the Commonwealth, (b) an industrial union of employers or employees registered under the Industrial Relations Act 1996 , or (c) or any body of a kind referred to in subparagraph (a) or (b) which is approved for the time being by the Minister, where the conveyance is made to another such association, union or body as a consequence of the amalgamation of 2 or more such associations, unions or bodies.

(27) (Repealed)

(28) Any instrument that, in the opinion of the Chief Commissioner, was executed for the purpose of creating, issuing or marketing mortgage-backed securities.

(29) In the case of an organisation that is the New South Wales Aboriginal Land Council, or a Regional Aboriginal Land Council, or a Local Aboriginal Land Council, within the meaning of the Aboriginal Land Rights Act 1983 : (a) (Repealed) (b) a motor vehicle certificate of registration issued to the organisation, (c) an instrument executed by the organisation, or on its behalf, in respect of which the organisation would, but for this subparagraph, be primarily liable for duty, and (d) insurance taken out by or on behalf of the organisation.

(30) If such information and documents as the Chief Commissioner may require are given to the Chief Commissioner—any instrument executed for the purpose of giving effect to an order under section 17A of the Registered Clubs Act 1976 for the amalgamation of 2 clubs or for the dissolution of 2 clubs and the formation of a new club.

(31) In the case of an offshore banking unit: (a) a loan security (other than a mortgage referred to in section 84E or a debenture the repayment of which is secured by such a mortgage) to which the offshore banking unit is a party and which would not be liable to duty if it were executed outside New South Wales, or (b) an instrument, or an instrument of a class or description, prescribed for the purposes of this paragraph, drawn, given or executed for the purposes of, or to effect, an offshore banking function of the offshore banking unit. In this paragraph: offshore banking unit means: (a) a person in relation to whom a declaration is in force under section 128AE (2) of the Income Tax Assessment Act 1936 of the Commonwealth, or (b) a person, or a person of a class or description, prescribed for the purposes of this definition. offshore banking function , in relation to an offshore banking unit, means any of the following: (a) an offshore borrowing by the offshore banking unit where the proceeds of that offshore borrowing are, or are to be, used by the offshore banking unit for: (i) making an offshore loan, or (ii) repaying an offshore borrowing, or (iii) being placed on deposit pending the making of an offshore loan or repayment of an offshore borrowing, or (iv) being exchanged for an equivalent amount in a different currency where that equivalent amount is, or is to be, used for a purpose or purposes referred to in this definition, or (v) any combination of any of the foregoing, (b) the repayment of an offshore borrowing by the offshore banking unit, (c) the making of an offshore loan by the offshore banking unit, (d) any thing, or any thing of a class or description, prescribed for the purposes of this definition. offshore borrowing has the same meaning as in Division 11A of Part III of the Income Tax Assessment Act 1936 of the Commonwealth (but excludes an offshore borrowing within that meaning where section 128GB of that Act does not apply to the interest on that offshore borrowing by virtue of subsection (3) of that section) and includes any transaction, or a transaction of a class or description, prescribed for the purposes of this definition. offshore loan has the same meaning as in Division 11A of Part III of the Income Tax Assessment Act 1936 of the Commonwealth and includes any transaction, or a transaction of a class or description, prescribed for the purposes of this definition.

(32) An instrument approved by the Chief Commissioner in accordance with guidelines approved by the Treasurer (except to such extent (if any) as may be determined by the Chief Commissioner and in accordance with such conditions (if any) as may be so determined) by which property is conveyed or agreed to be conveyed by a corporation which is a member of a group of corporations to another corporation which is a member of the same group.

(33) Any instrument executed solely for the purpose of complying with section 80G (6) (c) and (6A), 160ZP (7) (c) or (7AA) or 160AFE (1D) (c) or (1DA) of the Income Tax Assessment Act 1936 of the Commonwealth.

(34) A conveyance of property, in compliance with a requirement of the WorkCover Authority, between: (a) a licensed insurer, or a person who was a licensed insurer, under the Workers’ Compensation Act 1926 and an insurer licensed under the Workers Compensation Act 1987 , (b) licensed insurers under the Workers Compensation Act 1987 , or (c) the Authority and a licensed insurer under the Workers Compensation Act 1987 .

(35) An instrument, being: (a) an agreement for the sale or conveyance, or a conveyance, of land, or (b) a loan security executed to finance or assist the purchase of that land (but only to the extent to which the amount secured by the loan security is to finance or assist that purchase) and a loan security in support of that loan security, if the purchaser or borrower, or at least one of the purchasers or borrowers: (c) is a tenant of the Department of Housing, or a tenant under the Community Tenancy Scheme administered within that Department, at the date of first execution of the instrument, (d) will obtain not less than 25 per cent of the beneficial ownership of the land, and (e) intends to use the land as his or her principal place of residence.

(35A) Any instrument executed for the purposes of or in connection with the Community Housing Program administered within the Department of Housing.

(36) A conveyance of property made at the direction of the WorkCover Authority: (a) from an insurer licensed under the Workers Compensation Act 1987 to a custodian nominated by the Authority, or (b) from such a custodian to another such custodian.

(37) A custodian agreement executed by the WorkCover Authority and an insurer licensed under the Workers Compensation Act 1987 (whether or not there are any other parties to the agreement).

(38) An agreement executed at the direction of the WorkCover Authority between a custodian nominated by the Authority and an insurer licensed under the Workers Compensation Act 1987 .

(39) A guarantee executed on or after 1 January 1989.

(40) A letter or power of attorney executed on or after 1 January 1989.

(41) The transfer of, or an agreement for the transfer of, the whole or any part of a corporate debt security, any interest in a corporate debt security or any option to acquire a corporate debt security, or a declaration of trust made on or after 1 January 1995 over property that is identified in the declaration of trust as a corporate debt security.

(42) The issue or transfer of a warrant (being a contract that is an option contract within the meaning of section 9 of the Corporations Law and that is admitted to trading status on the stock market of Australian Stock Exchange Limited in accordance with section 8 of the Business Rules of Australian Stock Exchange Limited).

(42A) The issue or transfer of a share ratio contract.

(43) (Repealed)

(44) An agreement executed under the Aged or Disabled Persons Care Act 1954 of the Commonwealth between an organisation and the Minister administering that Act.

(45) Any lease of premises to the Home Care Service of New South Wales.

(46) A deed of release given to the HomeFund Commissioner in respect of a complaint made under the HomeFund Commissioner Act 1993 .

(47) A deed of release executed by a HomeFund borrower in connection with the restructuring scheme under the HomeFund Restructuring Act 1993 .

(48) A costs agreement under section 184 of the Legal Profession Act 1987 made on or after 4 October 1994.

(49) A conveyance to a solicitor corporation formed under the Legal Profession Act 1987 of property of: (a) a partnership of solicitors formed or originally formed before 8 March 1991, where the conveyance is executed on or after 17 February 1995 and the members of the corporation are the same as the members of the partnership immediately before the conveyance is executed, or (b) a solicitor practising as a sole solicitor before 8 March 1991, where the conveyance is executed on or after 17 February 1995 and the solicitor becomes the sole member of the corporation.

(50) An agreement made by or on behalf of the Department of Training and Education Co-ordination (or any predecessor) on or after 6 March 1995 in connection with the funding of employment or training programs conducted by community employment organisations.

(51) Any debenture granted by a non-profit organisation in conjunction with a lease in respect of which, by virtue of section 78FA (1) (a), no duty is chargeable.

(52) A transfer or transfers, on any one day, of shares or units: (a) to the trustee of an index trust in exchange for the issue of units in the trust, or (b) from the trustee of an index trust in exchange for the redemption of units in the trust, where the total amount of securities so transferred between the transferor and transferee represents a portfolio of securities in such volumes as are contained in the All Ordinaries Index on that day. In this paragraph, index trust means any of the following: Benchmark Australian All Ordinaries Trust Australian Index Trust Industrial Index Trust Resources Index Trust Property Index Trust Gold Index Trust Tower 20 Leaders Index Trust

(53) A contract the making of which under the Home Building Act 1989 is compulsory.

(54) An agreement made under the Commonwealth Income Tax Assessment Act 1936 for the purpose of complying with that Act.

(55) An accommodation bond agreement entered into under the Commonwealth Aged Care Act 1997 .

Second Sch: Am 1922 No 20, secs 3–7; 1924 No 16, sec 2 (b) (ii) (iii) (c) (ii) (d)–(g) (h) (ii) (i) (j); 1924 No 32, secs 5 (ii), 6 (b) (iv), 7 (b) (iii) (d) (ii) (e), 8 (vii) (viii), 9 (c) (d), 10 (a) (ii) (b), 11 (a), 12 (a) (ii); 1931 No 13, secs 4 (h) (ii) (iii) (m) (ii) (n) (ii) (o) (ii) (r) (vi) (u) (ii) (iii) (v) (ii) (iv) (vi) (vii) (w) (ii) (bb) (iv), 5; 1932 No 20, sec 4 (1) (a); 1932 No 53, sec 3; 1933 No 12, secs 2 (c) (d) (ii) (iii) (e) (ii)–(iv) (f) (h) (i) (m) (o) (q) (r) (ii) (s)–(y), 3 (e) (g); 1937 No 35, Second Sch; 1938 No 13, sec 6 (b); 1939 No 30, sec 3 (1) (b) (2); 1940 No 50, sec 5 (1) (d)–(l). Subst 1955 No 30, sec 2 (m). Am 1955 No 30, sec 3 (1) (am 1956 No 25, sec 4 (1) (b)); 1956 No 25, secs 2 (c), 3 (1); 1959 No 32, sec 6; 1962 No 27, secs 2 (b), 3, 4 (1) (a), 5 (1) (c); 1964 No 65, sec 4. Subst 1965 No 36, sec 3 (1). Am 1990 No 95, Sch 1 (7) (a).

Schedule 2A First home purchase scheme

(Section 45)

Part 1 Contracts executed on or after 23 September 1987 and before 1 October 1990 and associated mortgages

1 The nature of the scheme

This scheme is intended to help people who are buying their first home by enabling them to choose to pay stamp duty on the contract by instalments over a period of 5 years (instead of at the time of purchase) or to pay the stamp duty at a discounted rate. Under the scheme, any mortgage given to assist the financing of the purchase may be exempted from payment of stamp duty.

2 Commencement

Contracts and mortgages executed on or after 23 September 1987 and before 1 October 1990 are eligible for consideration under the scheme.

3 Eligible persons

(1)  A single person may apply under the scheme but will only be eligible once as a single person.

(2)  A couple may apply under the scheme as long as one of them has not owned a home in New South Wales solely or with someone else.

(3)  A person who owns or has owned vacant land is not excluded.

4 Ineligible persons

(1)  Companies, partnerships and persons in their capacity as trustees are not eligible.

(2)  A person is not eligible if any stamp duty remains to be paid by the person in connection with a previous application approved under the scheme.

5 Eligible contracts

(1)  The contract must be for the purchase of a first home.

(2)  The total consideration payable under the contract (that is, the amount paid for the house or unit, land, furnishings and other items acquired under the contract or any related document) must not be more than $125,000 or such other amount as may be prescribed by the regulations.

(3)  The amount paid must be the full market value. Wholly or partially gifted property is not eligible.

6 Ineligible contracts

(1)  A contract for the purchase of vacant land is not eligible.

(2)  A contract is not eligible if it involves the acquisition of a business or business premises. However, a contract for the purchase of a farming property on which there is a private dwelling is not excluded.

(3)  A contract for the purchase of a holiday home is not eligible.

(4)  A contract under which there are more than 2 purchasers is not eligible.

7 Other qualifications

(1)  The home must be occupied or intended to be occupied by the purchaser or purchasers on or before settlement, or within a reasonable time after settlement, as the principal place of residence.

(2)  No part of the property purchased may be rented or leased while any instalment of stamp duty remains to be paid.

8 Eligible mortgages

(1)  A mortgage is eligible if it is given to assist the financing of a purchase under a contract which is eligible under the scheme.

(2)  The mortgage must be over the property purchased and the amount secured must not be more than the amount of the total consideration which must not be exceeded under clause 5 (2).

9 Making of applications

(1)  An application is made to the Chief Commissioner by completing a statutory declaration in a form approved by the Chief Commissioner.

(2)  The application must be accompanied by an undertaking in a form approved by the Chief Commissioner to pay the duty on the contract by 5 annual instalments, the amounts of which shall, as nearly as possible, be equal.

10 Determination of applications

An application shall be determined solely at the discretion of the Chief Commissioner whose decision is final.

11 Stamping of documents if application is approved

(1)  If an application concerning an eligible contract is approved and any fine incurred in respect of the contract is paid, the contract will be stamped as if the full amount of duty had been paid.

(2)  The associated transfer or conveyance will be stamped as if the full amount of the duty had been paid.

(3)  The amount of any duty payable on a duplicate contract and any associated transfer or conveyance may be added to the amount to be paid by instalments.

12 Payment of instalments

(1)  Instalments of duty must be paid in accordance with the undertaking. The first instalment is to be paid by a date which is approximately 1 year after the stamping of the contract.

(2)  Although instalments are payable annually, payments may be made at more frequent intervals.

13 Payment of interest

(1)  No interest is payable unless an instalment is overdue. An instalment is overdue if it is not paid within 14 days after the date fixed for its payment in the undertaking.

(2)  Interest of 15% per annum (calculated on a daily rate) is payable on an overdue instalment.

14 Overdue instalments

As well as attracting interest, if an instalment is overdue for more than 3 months, the Chief Commissioner (or the Chief Commissioner’s agent) may sue the defaulter to recover, as a debt, the whole of the outstanding balance of the duty and any accrued interest.

15 Sale or leasing of home before all instalments are paid

If the home is sold, leased (wholly or in part) or otherwise disposed of, or if for some other reason the home ceases to be the principal place of residence of the person or both of the persons having the benefit of the scheme, the whole of the outstanding balance of the duty and any accrued interest becomes immediately payable. The Chief Commissioner (or the Chief Commissioner’s agent) may sue the person or persons owing the duty and any interest to recover, as a debt, the amount involved.

16 Definitions

In this Part:

contract means an agreement for sale or conveyance or a conveyance.

couple means any 2 people residing together or who intend to reside together in the home the subject of the application.

home means a private dwelling and includes a private dwelling which is a company title dwelling and a farming property on which a private dwelling is erected.

single person means a person residing alone (whether or not with children) or who intends to so reside in the home the subject of the application.

Part 2 Contracts exchanged on or after 1 October 1990 and associated mortgages

17 The nature of the scheme

This scheme is intended to help people who are buying their first home by enabling them to choose to pay stamp duty on the contract by instalments over a period of 5 years (instead of at the time of purchase) or to pay the stamp duty at a discounted rate. Under the scheme, any mortgage given to assist the financing of the purchase may be exempted from payment of stamp duty.

18 Commencement

Contracts exchanged on or after 1 October 1990 and mortgages over land the subject of those contracts are eligible for consideration under the scheme.

19 Eligible persons—generally

(1)  A single person may apply under the scheme but will only be eligible once as a single person.

(2)  A couple may apply under the scheme as long as one of them has not owned real property, or a company title dwelling, in Australia either solely or with someone else.

(3)    (Repealed)

20 Eligible persons—net taxable income

(1)  Eligibility is subject to a means test.

(2)  In the case of a couple, with or without dependants, the couple’s combined net taxable income must not exceed $57,000 for the tax year prior to the date of the application.

(3)  In the case of a single person with one or more dependants, the person’s net taxable income must not exceed $57,000 for the tax year prior to the date of the application.

(4)  In the case of a single person with no dependants, the person’s net taxable income must not exceed $39,000 for the tax year prior to the date of the application.

(5)  In this clause, net taxable income means the taxable income (including taxable capital gains) determined in accordance with the Income Tax Assessment Act 1936 of the Commonwealth.

21 Ineligible persons

(1)  Companies, partnerships, and persons in their capacity as trustees, are not eligible.

(2)  A person is not eligible if any stamp duty remains to be paid by the person in connection with a previous application approved under the scheme contained in this Part or Part 1 of the first home purchase scheme which operated before 23 September 1987 under the administration of the Chief Commissioner.

(3)  A person is not eligible if the person owns or has owned real property, or a company title dwelling, in Australia either solely or with someone else. However, this does not apply to a person who is one of an eligible couple under clause 19 (2).

22 Eligible contracts

(1)  The contract must be for the purchase of a first home or for the purchase of a vacant block of residential land intended to be used as the site of a first home.

(2)  The total consideration payable under the contract (that is, the amount paid for the house or unit, or the land and the construction of a house or unit on the land, and any furnishings and other items acquired under the contract or any related document) must not be more than:

(a)  $170,000 if the property is located in the Metropolitan Area and has a private dwelling built on it, or

(b)  $150,000 if the property is located elsewhere than in the Metropolitan Area and has a private dwelling built on it, or

(c)  $80,000 if the property is located in the Metropolitan Area and comprises a vacant block of residential land, or

(d)  $70,000 if the property is located elsewhere than in the Metropolitan Area and comprises a vacant block of residential land.

(3)  The amount paid must be the full market value. Wholly or partially gifted property is not eligible.

(4)  The regulations may vary the amounts specified for the purposes of this clause.

(5)  In this clause, Metropolitan Area means the following:

(a)  County of Cumberland,

(b)  local government area of Wollondilly,

(c)  City of Wollongong,

(d)  local government area of Shellharbour,

(e)  City of Gosford,

(f)  local government area of Wyong,

(g)  City of Blue Mountains.

23 Ineligible contracts

(1)  A contract is not eligible if it involves the acquisition of a business or business premises. However, a contract for the purchase of a farming property on which there is a private dwelling is not excluded.

(2)  A contract for the purchase of a holiday home is not eligible.

(3)  A contract under which there are more than 2 purchasers is not eligible.

24 Other qualifications

(1)  The home must be occupied or intended to be occupied by the purchaser or purchasers on or before settlement, or within a reasonable time after settlement, as the principal place of residence.

(2)  No part of the property purchased may be rented or leased while any instalment of stamp duty remains to be paid.

25 Eligible mortgages

(1)  A mortgage is eligible if it is given to assist the financing of a purchase under a contract which is eligible under the scheme.

(2)  The mortgage must be over the property purchased.

(3)  In the case of a property which has a private dwelling built on it, the amount secured must not be more than the amount of the total consideration permitted under clause 22 (2) (a) or (b), as the case requires.

(4)  In the case of a property which comprises a vacant block of residential land, the amount secured must not be more than the amount of the total consideration permitted under clause 22 (2) (c) or (d), as the case requires, unless the amount secured under the mortgage includes provision for the building of a private dwelling on the property. In such a case, the amount secured must not be more than the amount of the total consideration permitted under clause 22 (2) (a) or (b), as the case requires.

(5)    (Repealed)

26 Making of applications

(1)  An application is made to the Chief Commissioner by completing a statutory declaration in a form approved by the Chief Commissioner.

(2)  Unless the applicant intends (or the applicants intend) to pay the duty at the discounted rate in accordance with clause 28, the application must be accompanied by an undertaking in a form approved by the Chief Commissioner to pay the duty on the contract by 5 annual instalments, the amounts of which are, as nearly as possible, to be equal.

(3)  The Chief Commissioner may at any time (whether before or after the approval of an application) require the applicant or applicants to provide such further information as the Chief Commissioner may consider necessary for the proper administration of the scheme.

27 Determination of applications

An application is to be determined solely at the discretion of the Chief Commissioner whose decision is final.

28 Stamping of documents if application is approved

(1)  If an application concerning an eligible contract is approved, the purchaser is (or the purchasers are) entitled to a 50% discount of the duty otherwise payable in respect of the contract. However, this entitlement ceases if the discounted amount of duty is not paid within 2 months after the date of exchange of the contract.

(2)  If the discounted amount of duty is paid in accordance with this clause, the contract will be stamped as if the full amount of duty has been paid.

(3)  Other wise, if an application concerning an eligible contract is approved, the contract will be stamped as if the full amount of duty had been paid and the duty must be paid in instalments in accordance with the undertaking.

(4)  The associated transfer or conveyance will be stamped as if the full amount of the duty had been paid.

(5)  The amount of any duty payable on a duplicate contract and any associated transfer or conveyance may be added to the amount to be paid by instalments.

29 Payment of instalments

(1)  Where instalments of duty are to be paid in accordance with the undertaking, the first instalment is to be paid by a date which is 1 year after the date of exchange of the contract.

(2)  Although instalments are payable annually, payments may be made at more frequent intervals.

30 Payment of interest

(1)  No interest is payable unless an instalment is overdue. An instalment is overdue if it is not paid within 14 days after the date fixed for its payment in the undertaking.

(2)  Interest of 15% per annum (calculated at daily rests) is payable on an overdue instalment.

(3)  A person having the benefit of the scheme is not liable, in that capacity, for any fine under this Act or any interest other than as provided by this clause.

31 Overdue instalments

As well as attracting interest, if an instalment is overdue for more than 3 months, the Chief Commissioner (or the Chief Commissioner’s agent) may sue the defaulter to recover, as a debt, the whole of the outstanding balance of the duty and any accrued interest and may, in addition, lodge and maintain a caveat over the subject property until all duty has been paid.

32 Sale or leasing of home or land before all instalments are paid

(1)  If the home or land is sold, leased (wholly or in part) or otherwise disposed of, or if for some other reason the home ceases to be the principal place of residence of the person or both of the persons having the benefit of the scheme:

(a)  any entitlement to a discount under clause 36 ceases immediately the home or land is sold, leased or otherwise disposed of or the home so ceases to be the principal place of residence, and

(b)  the whole of the outstanding balance of the duty and any accrued interest becomes immediately payable.

(2)  The Chief Commissioner (or the Chief Commissioner’s agent) may sue the person or persons owing the duty and any interest to recover, as a debt, the amount involved.

33 Offence

A person who makes an application under the scheme knowing:

(a)  that he or she is not an eligible person, or

(b)  that the contract is not an eligible contract, or

(c)  that the mortgage is not an eligible mortgage,

is guilty of an offence.

Maximum penalty: 50 penalty units or imprisonment for 3 months, or both.

34 Definitions

In this Part:

contract means an agreement for sale or conveyance or a conveyance.

couple means any 2 people residing together or who intend to reside together in the home or on the land the subject of the application.

home means a private dwelling and includes a private dwelling which is a company title dwelling and a farming property on which a private dwelling is erected.

single person means a person residing alone (whether or not with children) or who intends to so reside in the home or on the land the subject of the application.

Part 3 Discount for full payment of remaining duty

35 Application of this Part

This Part applies to a person or persons having the benefit of the scheme set out in Part 1 or 2 or the first home purchase scheme which operated before 23 September 1987 under the administration of the Chief Commissioner.

36 Discount for full payment of remaining duty

(1)  A person or persons to whom this Part applies may choose at any time to pay out, at a discount, the total of all instalments of duty remaining at that time. The amount of the discount depends on the number of instalments remaining to be paid and is calculated as follows:

No of instalments remaining	Discount
5	25%
4	20%
3	15%
2	10%
1	—

(2)  There is no entitlement to a discount under this clause at any time when an instalment is overdue or any interest payable on an overdue instalment remains unpaid.

sch 2A: Ins 1987 No 227, Sch 2 (3). Am 1988 No 130, Sch 5 (17); 1989 No 113, Sch 2 (13); 1990 No 45, Sch 1 (18); 1990 No 66, Sch 3 (1) (2); 1991 No 93, Sch 5 (18); 1992 No 33, Sch 1 (20); 1992 No 86, Sch 6 (31); 1994 No 48, Sch 10 (15); 1995 No 11, Sch 1; 1996 No 125, Sch 1 (32); 1998 No 81, Sch 5 [1]–[5].

Schedule 2B Rental-purchase schemes

(Section 45AA)

1 The nature of a rental-purchase scheme

(1)  A rental-purchase scheme is a scheme under which the operator of the scheme purchases land on which there is a house or on which the operator builds a house, leases the house to a prospective purchaser and grants the prospective purchaser an option to purchase the property within a specified period.

(2)  In this clause, house includes a lot within a strata plan comprising a dwelling.

2 Approval of operator of scheme

(1)  A person who operates or proposes to operate a rental-purchase scheme may apply to the Chief Commissioner to be an approved person for the purposes of this Schedule.

(2)  An application for such an approval shall be made in the form and manner determined by the Chief Commissioner.

(3)  The application may be granted unconditionally or subject to conditions or may be refused.

3 Approval of rental-purchase agreement

The Chief Commissioner may, for the purposes of this Schedule, approve rental-purchase agreements entered into or proposed to be entered into by an approved person.

4 Revocation of approvals

The Chief Commissioner may, by giving 30 days’ notice in writing to an approved person, revoke the approval of the person or the approval of the person’s rental-purchase agreements, or both.

5 Exemption from duty—agreements and conveyances

(1)  If an approved person:

(a)  enters into, as purchaser, an agreement for the sale or conveyance or a conveyance of any land, and

(b)  satisfies the Chief Commissioner that the land is being purchased for the purpose of entering into an approved rental-purchase agreement or agreements,

the agreement or conveyance is exempt from duty.

(2)  If:

(a)  any land the subject of an agreement or conveyance referred to in subclause (1):

(i)  does not become the subject of an approved rental-purchase agreement within 12 months after the execution of the agreement or conveyance, or

(ii)  is sold otherwise than as a consequence of the exercise of an option under an approved rental-purchase agreement, or

(b)  the approved person breaches any condition to which the person’s approval is subject, or

(c)  the person’s approval is revoked,

the agreement or conveyance referred to in subclause (1) thereupon becomes liable to duty and becomes so liable as if it were first executed at the time at which it becomes so liable.

(3)  If, on the occurrence of an event referred to in subclause (2) (a), (b) or (c), part of the land the subject of an agreement or conveyance referred to in subclause (1) has, in accordance with this clause, become the subject of an approved rental-purchase agreement or agreements and part has not, the liability to duty of the agreement or conveyance shall be calculated, at the rates specified in paragraph (1) under the heading “Conveyances of Any Property” in the Second Schedule, on the unencumbered value at the date of the agreement or conveyance of the part that has not become the subject of an approved rental-purchase agreement or agreements.

(4)  The Chief Commissioner may from time to time, before or after the expiration of the 12-month period referred to in subclause (2) (a) (i), extend that period.

6 Exemption from duty—approved rental-purchase agreement

An approved rental-purchase agreement is exempt from duty.

7 Liability for certain duty not affected

Nothing in this Schedule exempts from duty an agreement for the sale or conveyance of any property or a conveyance of any property entered into as a consequence of the exercise of an option under an approved rental-purchase agreement.

sch 2B: Ins 1988 No 130, Sch 3 (3). Am 1996 No 139, Sch 2.29 [5].

Schedule 2C Flood-prone housing scheme

(Section 45AB)

1 The nature of the scheme

This scheme is intended to assist a person who, as an owner of a home on flood-prone land, has entered into a contract for the sale of the land to the council of the local government area in which the land is situated and then purchases another home. The scheme enables such a person to choose to pay stamp duty on the contract for the purchase of the new home by instalments over a period of 5 years (instead of at the time of purchase).

2 Commencement

Contracts executed on or after 1 January 1989 are eligible for consideration under the scheme.

3 Eligible persons

A person may apply under the scheme if:

(a)  the person was the owner of at least 50 per cent of the beneficial interest in the land sold or being sold to the council, and

(b)  the person has entered into a contract for the purchase of a home intended to be occupied as the person’s principal place of residence.

4 Eligible contracts

The contract for the purchase of the new home is eligible for consideration under the scheme if the amount paid for the home is the full market value. Wholly or partially gifted property is not eligible.

5 Other provisions

Clauses 7 and 9–15 of Part 1 of Schedule 2A apply to this scheme in the same way as they apply to the First Home Purchase Scheme.

6 Definitions

In this Schedule:

contract means an agreement for sale or conveyance or a conveyance.

home means a private dwelling and includes a farming property on which a private dwelling is erected.

sch 2C: Ins 1988 No 130, Sch 4 (2). Am 1990 No 66, Sch 3 (3).

Schedule 2D Exemption from or reduction in duty for certain conveyances

(Section 73AA)

sch 2D, hdg: Ins 1990 No 95, Sch 2 (2). Am 1994 No 72, Sch 4 (33) (a).

1 The nature of the exemption scheme

The scheme is intended to provide a stamp duty exemption, at the discretion of the Chief Commissioner, in respect of:

(a)  the conveyance of a principal place of residence from a corporation or special trust to certain persons, or

(b)  the conveyance of any land owned as at 31 December 1986 by a special trust from the trust to certain persons.

2 Definitions

In this Schedule:

corporation has the same meaning as in the Companies (New South Wales) Code.

land includes any estate or interest in land.

land tax has the same meaning as in the Land Tax Management Act 1956.

principal shareholder, in relation to a corporation, means:

(a)  any person (other than a corporation) whose voting entitlement (whether or not through the holding of shares) in the corporation is 50 per cent or more, or

(b)  any person (other than a corporation) who has a voting entitlement (whether or not through the holding of shares) in the corporation where all the persons who have a voting entitlement in the corporation have an equal voting entitlement.

shareholder includes member.

special trust has the same meaning as in the Land Tax Management Act 1956.

voting entitlement has the meaning given by clause 3.

3 Meaning of “voting entitlement”

(1)  A person’s voting entitlement in a corporation is that proportion of the total voting rights of all shareholders entitled to vote at general meetings of the corporation which the person is entitled to exercise, as a shareholder, at general meetings of the corporation.

(2)  A person is to be considered to have a voting entitlement in a corporation (“corporation A”) if the person has a voting entitlement in another corporation (“corporation B”) which itself has a voting entitlement in corporation A.

(3)  In a case to which subsection (2) applies, the person’s voting entitlement in corporation A is the proportion which results from multiplying the person’s voting entitlement in corporation B by corporation B’s voting entitlement in corporation A.

(4)  If a person has a voting entitlement in the same corporation under different provisions of this clause, or under different applications of the same provision of this clause, the person’s voting entitlement in the corporation is the aggregate of those entitlements.

(5)  In determining a person’s voting entitlement for the purposes of this clause, proxies and other authorities to vote held by a shareholder are to be disregarded.

4 Conveyance by corporation of principal place of residence to principal shareholder or spouse

(1)  A conveyance of land by a corporation is eligible for exemption under this Schedule if:

(a)  the corporation owned the land on 11 September 1990, and

(b)  the transferee or each of the transferees is a principal shareholder in the corporation or the spouse of such a principal shareholder (whether or not the principal shareholder is one of the transferees), and

(c)  had the transferee or each of the transferees been an owner of the land within the meaning of the Land Tax Management Act 1956 on 31 December that last preceded the date of the conveyance:

(i)  the land would, by the operation of section 10 (1) (r) of the Land Tax Management Act 1956, be exempt from land tax in respect of the year in which the conveyance took effect, or

(ii)  land tax that, but for section 10 (4) of the Land Tax Management Act 1956, would be leviable or payable in respect of the land for the year in which the conveyance took effect would be reduced by the operation of section 10 (4) of that Act.

(2)  If land is conveyed by a corporation to 2 or more persons jointly, each of those persons is, for the purposes of this clause (but without affecting any entitlement to be considered to be a principal shareholder apart from this subclause), to be considered to be a principal shareholder in the corporation if:

(a)  each of the persons has a voting entitlement in the corporation, and

(b)  the aggregate of the voting entitlements in the corporation of each of those persons would be sufficient to qualify any one person as a principal shareholder in the corporation.

5 Conveyance of principal place of residence by special trust to beneficiary etc

A conveyance of land subject to a special trust is eligible for exemption under this Schedule if:

(a)  the land was subject to the special trust on 11 September 1990, and

(b)  the transferee or each of the transferees was:

(i)  the settlor of the land or the person who actually paid the purchase moneys for the land when the land was acquired by the trustee under the trust, or

(ii)  a beneficiary of the special trust immediately before the conveyance took effect and a beneficiary of the trust when the land was acquired by the trustee under the trust, or

(iii)  the spouse of a person referred to in subparagraph (i) or (ii), and

(c)  the transferee or each of the transferees will hold the land beneficially, and

(d)  had the transferee or each of the transferees been an owner of the land within the meaning of the Land Tax Management Act 1956 on 31 December that last preceded the date of the conveyance:

(i)  the land conveyed would, by the operation of section 10 (1) (r) of the Land Tax Management Act 1956, be exempt from land tax in respect of the year in which the conveyance took effect, or

(ii)  land tax that, but for section 10 (4) of the Land Tax Management Act 1956, would be leviable or payable in respect of the land for the year in which the conveyance took effect would be reduced by the operation of section 10 (4) of that Act.

6 Conveyance of principal place of residence by corporation to beneficiary of special trust

A conveyance of land by a corporation (not acting in the capacity of a trustee) is eligible for exemption under this Schedule if:

(a)  the corporation owned the land on 11 September 1990, and

(b)  the transferee or each of the transferees is a person, or the spouse of a person, who is a beneficiary under a special trust and was a beneficiary under the trust when the land was acquired by the corporation, and

(c)  the trustee under the special trust is a principal shareholder in the corporation (or would, if the trustee were not a corporation, be a principal shareholder in the corporation) at the time of the conveyance, and

(d)  had the transferee or each of the transferees been the owner within the meaning of the Land Tax Management Act 1956 on 31 December that last preceded the date of the conveyance:

(i)  the land conveyed would, by the operation of section 10 (1) (r) of the Land Tax Management Act 1956, be exempt from land tax in respect of the year in which the conveyance took effect, or

(ii)  land tax that, but for section 10 (4) of the Land Tax Management Act 1956, would be leviable or payable in respect of the land for the year in which the conveyance took effect would be reduced by the operation of section 10 (4) of that Act.

7 Conveyance by special trust to corporation

(1)  A conveyance of land to a corporation by a person in the person’s capacity as trustee of a special trust is eligible for exemption under this Schedule if:

(a)  the land was subject to the special trust on, and at all times between, 31 December 1986 and 11 September 1990, and

(b)  section 160ZZN (Transfer of asset to wholly-owned company) of the Income Tax Assessment Act 1936 of the Commonwealth applies to the disposal of land effected by the conveyance, and

(c)  pursuant to that section, Part IIIA (Capital Gains and Capital Losses) of that Act (except that section) does not apply to that disposal.

(2)  Division 30 of Part 3 (Acquisitions of company and unit trust interests dutiable as conveyances of land) does not apply to the issue or allotment of shares in a corporation pursuant to a conveyance for which an exemption from the payment of duty is granted under this Schedule.

7A Conveyance of land not used and occupied solely as a principal place of residence

(1)  If:

(a)  a conveyance of land would be eligible for exemption under clause 4, 5 or 6 but for the fact that the land is not land to which clause 4 (1) (c), 5 (d) or 6 (d) applies because it was not used and occupied solely as a principal place of residence at the relevant time, and

(b)  the land value of the land was entitled to be reduced under section 9C of the Land Tax Management Act 1956 at the relevant time,

the amount on which the conveyance is to be charged with ad valorem duty is to be reduced in the same proportion as the land value was entitled to be reduced under section 9C of the Land Tax Management Act 1956.

(2)  This clause applies to a conveyance first executed on or after 14 September 1994.

8 Making of applications

(1)  An application under this Schedule is to be made to the Chief Commissioner in a form approved by the Chief Commissioner, completed as required by that form.

(2)  If the land to which the conveyance relates is or includes land under the Real Property Act 1900, the application must be accompanied by an undertaking from the transferee in a form approved by the Chief Commissioner that:

(a)  the duty which would be payable on the conveyance but for the granting of an exemption under this Schedule will be paid if the transferee does not become the registered proprietor of the land within 2 months (or such longer period as the Chief Commissioner may at any time determine and notify in writing to the transferee) after the conveyance is stamped as exempt from the payment of duty, and

(b)  the transferee will, within 1 month after becoming the registered proprietor of the land (or such longer period as the Chief Commissioner may at any time determine and notify in writing to the transferee), provide evidence of that fact to the satisfaction of the Chief Commissioner.

9 Determination of applications

(1)  An application is to be determined solely at the discretion of the Chief Commissioner whose decision is final.

(2)  An application is not to be granted unless the Chief Commissioner is satisfied that all land tax payable in respect of the land (including any additional land tax payable by way of penalty or otherwise) has been paid.

(3)  If the application is granted, the Chief Commissioner is to stamp the conveyance as exempt from the payment of duty.

10 Recovery of duty if undertaking not met

If a requirement of an undertaking from a transferee is not met, the Chief Commissioner may recover from the person, as a debt in a court of competent jurisdiction, the duty which, but for this Schedule, would be payable on the conveyance.

11 Application of scheme to company titles

This Schedule applies to the transfer of shares in a private company or units in a private trust scheme, the ownership of which entitles the owner to the exclusive possession, or substantially exclusive possession, of a dwelling in a building containing more than one separate dwelling, in the same way as it applies to a conveyance of land, with such modifications as may be necessary.

sch 2D: Ins 1990 No 95, Sch 2 (2). Am 1991 No 93, Sch 5 (19); 1993 No 46, Sch 2; 1994 No 72, Sch 4 (33) (b)–(e).

Third–Ninth Schedules (Repealed)

Third Sch: Am 1924 No 32, sec 14 (g). Rep 1991 No 93, Sch 3 (15).

Fourth, Fifth Schs: Ins 1931 No 13, sec 11. Rep 1991 No 93, Sch 3 (15).

Sixth Sch: Ins 1933 No 12, sec 2 (j). Subst 1952 No 41, sec 2 (q); 1965 No 36, sec 3 (m). Rep 1980 No 161, Sch 2 (3).

Seventh Sch: Ins 1939 No 30, sec 2 (r). Rep 1991 No 93, Sch 3 (15).

sch 7A: Ins 1965 No 36, sec 3 (n). Rep 1991 No 93, Sch 3 (15).

Eighth Sch: Ins 1939 No 30, sec 2 (r). Rep 1991 No 93, Sch 3 (15).

sch 8A: Ins 1965 No 36, sec 3 (o). Rep 1991 No 93, Sch 3 (15).

Ninth Sch: Ins 1965 No 36, sec 7. Rep 1991 No 93, Sch 3 (15).

Tenth Schedule Savings, transitional and other provisions

(Section 144A)

Part 1A Preliminary

1A Regulations

(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:

State Revenue Legislation Further Amendment Act 1995

State Revenue Legislation (Miscellaneous Amendments) Act 1996

State Revenue Legislation Amendment Act 1997

State Revenue Legislation Further Amendment Act 1997

Traffic Legislation Amendment Act 1997, but only in relation to the amendments made to this Act

State Revenue Legislation (Miscellaneous Amendments) Act 1998

State Revenue Legislation Further Amendment Act 2000

(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.

(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

Part 1 Stamp Duties (Amendment) Act 1987

1 Loan securities

The amendments made to this Act by Schedule 8 to, and section 4 of, the Stamp Duties (Further Amendment) Act 1986 and the amendments made to this Act by Schedule 3 to, and section 4 of, the Stamp Duties (Amendment) Act 1987 do not apply to a loan security executed before 1 January 1987.

2 Acquisitions of company and unit trust interests

Division 30 of Part 3 does not apply to or in respect of:

(a)  an interest or land use entitlement acquired in a landholder, being a private company, on or after 21 November 1986 if it was acquired pursuant to an agreement entered into before that date, or

(b)  an interest or land use entitlement acquired in a landholder, being a private unit trust scheme, on or after the date of assent to the Stamp Duties (Amendment) Act 1987 if it was acquired pursuant to an agreement entered into before that date.

Part 2 Stamp Duties (Amendment) Act 1988

3 Acquisition of certain interests not chargeable with duty

No duty is chargeable under Division 30 of Part 3 in respect of the acquisition prior to 1 September 1988 of an interest in a landholder in so far as the landholder’s interest in land was that of a lessee or a mortgagee, chargee or other encumbrancee.

4 Duty in respect of certain guarantees

(1)  A guarantee executed before 16 May 1988 is to be taken to be duly stamped if it has been stamped with the duty applicable to a guarantee which does not relate to more than one distinct matter within the meaning of section 17, even though it may relate to several such distinct matters.

(2)  Despite section 17, a guarantee executed on or after 16 May 1988 having more than one guarantor is liable to duty in respect of:

(a)  not more than one joint guarantee contained in the instrument, and

(b)  each guarantor in the instrument,

and is not otherwise liable to duty as a guarantee.

5 Charging of leases in respect of produce

Section 77 (2), as amended by the Stamp Duties (Amendment) Act 1988, applies to a lease whether executed before, on or after 1 January 1989.

6 Charging of duty in respect of certain loan securities

The provisions of section 84 (3B) and (3C), as inserted by the Stamp Duties (Amendment) Act 1988, apply to:

(a)  a loan security executed on or after 1 January 1989, and

(b)  a guarantee or indemnity whether executed before, on or after 1 January 1989.

7 Exemption from duty—certain agreements entered into by tenants of the Department of Housing

(1)  Paragraph (35) of the General Exemptions from Stamp Duty under Part 3 in the Second Schedule does not apply to an agreement for sale or conveyance, or a conveyance, entered into by a purchaser pursuant to an application made on or before 29 November 1987 to purchase the land the subject of the agreement or conveyance.

(2)  An agreement for sale or conveyance of the kind referred to in paragraph (35) of the General Exemptions from Stamp Duty under Part 3 in the Second Schedule which was executed on or after 1 February 1988 but in respect of which the property the subject of the agreement was not conveyed until on or after 1 May 1988 is exempt from duty.

Part 3 Stamp Duties (Amendment) Act 1989

8 Application of Div 24 of Part 3

(1)  Division 24 of Part 3 (as inserted by the Stamp Duties (Amendment) Act 1989) applies in respect of a premium payable for a policy of insurance issued on or after 1 November 1989 or the renewal of which takes effect on or after that day.

(2)  If a policy of insurance took effect before 1 November 1989 but is varied on or after that day, the policy is, in respect of any premium payable because of the variation, to be taken for the purposes of Division 24 of Part 3 (as inserted by the Stamp Duties (Amendment) Act 1989) to have taken effect on the date of the variation.

(3)  Except as provided by this clause, Division 24 of Part 3, as in force before 1 November 1989, continues to apply to and in respect of insurance which took effect before that day.

9 Persons taken to be registered under Div 24 of Part 3

A person who, immediately before 1 November 1989, was an approved person under section 88AA and who, after that day, is required to be a registered person for the purposes of Division 24 of Part 3 or carries on business as a life insurer is to be taken, on and from that day (subject to this Act), to be such a registered person.

Part 4 Stamp Duties (Further Amendment) Act 1989

10 Application of amendments relating to financial institutions duty

The amendments made to this Act by section 3 of, and Schedule 1 (6) and (10) (g) and (h) to, the Stamp Duties (Further Amendment) Act 1989 do not apply to a dutiable receipt within the meaning of section 98 (1) which is received before 1 December 1989.

11 Pending objections

(1)  In this clause:

former appeal provisions means the provisions of Part 5 as in force immediately before the commencement of Schedule 1 (7) (b) to the Stamp Duties (Further Amendment) Act 1989.

new appeal provisions means the provisions of Part 5, as amended by the Stamp Duties (Further Amendment) Act 1989.

(2)  An objection made under the former appeal provisions before the commencement of the new appeal provisions is to be dealt with as an objection under the new appeal provisions, unless subclause (3) otherwise provides.

(3)  Subclause (2) does not apply to an objection made under the former appeal provisions if an objector has required a case to be stated to the Supreme Court before, or the time for requiring a case to be stated has expired before, the commencement of the new appeal provisions.

Part 5 Stamp Duties (Amendment) Act 1990

12 Application of amendments—generally

(1)  A provision of this Act as in force before the amendment of the provision by the Stamp Duties (Amendment) Act 1990 continues to apply to an instrument referred to in the provision which was executed before the date on which the amendment commenced or is to be taken to have commenced, except as provided by this Part.

(2)  An amendment made by the Stamp Duties (Amendment) Act 1990 does not apply to an instrument the subject of the amendment which was executed before the date on which the amendment commenced or is to be taken to have commenced, except as provided by this Part.

13 Conveyances—special trusts

The amendment made to section 73AA (6) by the Stamp Duties (Amendment) Act 1990 applies to a conveyance whenever executed.

14 Loan securities—guarantees, indemnities and other instruments

The amendments made by the Stamp Duties (Amendment) Act 1990 to section 84 (3C) apply to guarantees and indemnities which were executed before 1 June 1990 but do not apply to instruments referred to in that subsection as other instruments which were executed before 1 June 1990.

15 Statements of relevant acquisitions of interests etc

The amendments made by the Stamp Duties (Amendment) Act 1990 to section 99F (2) apply to a prior acquisition (within the meaning of section 99A (1)) whenever effected and to an instrument whenever executed.

16 Options to acquire corporate debt securities

The exemption provided for in the Second Schedule in paragraph (41) of the General Exemptions from Stamp Duty under Part 3 applies to a transfer of, or an agreement for the transfer of, an option to acquire a corporate debt security made on or after 5 January 1990.

Part 6 Stamp Duties (Further Amendment) Act 1990

17 Definition of cheque

In this Part, cheque has the same meaning as in the Cheques and Payment Orders Act 1986 of the Commonwealth and includes a payment order within the meaning of that Act and a banker’s draft.

18 Refund of duty paid on cheque forms

(1)  A person may apply to the Chief Commissioner for a refund of stamp duty paid before 1 October 1990 by the person in respect of a document intended for use as a cheque but which has not been drawn as a cheque before that date.

(2)  An application must be made by means of the approved form.

(3)  An application must be made before 1 July 1991.

(4)  The Chief Commissioner must, in respect of an application, make a refund of duty unless the Chief Commissioner is satisfied that no refund is payable.

(5)  Section 15 and Regulations 26–32A of the Stamp Duties Regulations 1934 do not apply to or in respect of a refund under this clause.

19 Use of certain cheques from 1 October 1990

A cheque on which stamp duty is expressed to have been paid may be drawn or otherwise dealt with on or after 1 October 1990 even though no such duty has been paid or duty paid has been refunded.

Part 7 Stamp Duties (Miscellaneous Amendments) Act 1990

20 Application of amendments—generally

(1)  A provision of this Act as in force before the amendment of the provision by the Stamp Duties (Miscellaneous Amendments) Act 1990 continues to apply to an instrument referred to in the provision which was executed, or a transaction referred to in the provision that was entered into, before the date on which the amendment commenced or is taken to have commenced, except as provided by this Part.

(2)  An amendment made by the Stamp Duties (Miscellaneous Amendments) Act 1990 does not apply to an instrument which was executed, or a transaction which was entered into, before the date on which the amendment commenced or is taken to have commenced, except as provided by this Part.

21 Instruments amending approved superannuation schemes

An instrument which has the sole purpose of amending an approved superannuation scheme is taken to be duly stamped if, on or after 1 May 1990 and before 1 January 1991, a $20 adhesive stamp was affixed to it.

22 Time for recovery of fines and penalties

Section 13 (2A) applies in respect of a fine or penalty imposed at any time before or after the commencement of that subsection and interest which has accrued at any time before or after that commencement on any such fine or penalty.

23 Loan security duty (small advances)

The amendments made by Schedule 1 (26), (27) and (28) to the Stamp Duties (Miscellaneous Amendments) Act 1990 apply in respect of advances made on or after 1 January 1991.

24 Policies of insurance etc

The amendments made by Schedule 1 (32) and (33) to the Stamp Duties (Miscellaneous Amendments) Act 1990 apply in respect of premiums received after 1 January 1991 in relation to disability income insurance whether or not that insurance was effected before that date.

25 Exemption of certain conveyances

(1)  Section 10A of the Land Tax Management Act 1956, as in force immediately before the commencement of section 73AA of this Act (as enacted by the Stamp Duties (Amendment) Act 1989), continues to apply to and in respect of a conveyance executed before that commencement.

(2)  Section 73AA of this Act, as in force immediately before the commencement of Schedule 2D, continues to apply to and in respect of a conveyance of the kind to which clause 4 or 5 of that Schedule applies, executed before that commencement.

Part 8 Stamp Duties (Amendment) Act 1991

26 Application of amendments—generally

(1)  A provision of this Act as in force before the amendment of the provision by the Stamp Duties (Amendment) Act 1991 continues to apply to an instrument referred to in the provision which was executed, or a transaction referred to in the provision which was entered into, before the date on which the amendment commenced or is taken to have commenced, except as provided by this Part.

(2)  An amendment made by the Stamp Duties (Amendment) Act 1991 does not apply to an instrument which was executed, or a transaction which was entered into, before the date on which the amendment commenced or is taken to have commenced, except as provided by this Part.

27 Removal of provisions concerning abolished duties

Without limiting section 30 of the Interpretation Act 1987, an amendment made by section 3 of, and Schedule 3 to, the Stamp Duties (Amendment) Act 1991 does not affect a liability to duty existing before the date of assent to that Act of any instrument.

28 Refunds—failed instruments and spoiled or unused duty stamps

An application made under section 15 as in force immediately before 1 January 1992 which had not been finally determined before that date is taken to be an application under that section as in force after that date.

Part 9 Stamp Duties (Amendment) Act 1992

29 Application of amendments—generally

(1)  A provision of this Act as in force before the amendment of the provision by the Stamp Duties (Amendment) Act 1992 continues to apply to an instrument referred to in the provision which was executed, or a transaction referred to in the provision which was entered into, before the date on which the amendment commenced or is taken to have commenced, except as provided by this Part.

(2)  An amendment made by the Stamp Duties (Amendment) Act 1992 does not apply to an instrument which was executed, or a transaction which was entered into, before the date on which the amendment commenced or is taken to have commenced, except as provided by this Part.

30 Objections to assessments—section 68

Section 68 (as amended by the Stamp Duties (Amendment) Act 1992) applies to assessments made before or after the commencement of the amendment.

31 Separation agreements between former de facto partners—section 74CB

Section 74CB (as amended by the Stamp Duties (Amendment) Act 1992) applies to separation agreements, and conveyances referred to in section 74CB (3) (as so amended), made within 3 months before the commencement of the amendment or at any time after that commencement.

Part 10 State Revenue Legislation (Further Amendment) Act 1992

32 Application of amendments—generally

(1)  A provision of this Act as in force before the amendment of the provision by the State Revenue Legislation (Further Amendment) Act 1992 continues to apply to an instrument referred to in the provision which was executed, or a transaction referred to in the provision which was entered into, before the date on which the amendment commenced or is taken to have commenced, except as provided by this Part.

(2)  An amendment made to this Act by the State Revenue Legislation (Further Amendment) Act 1992 does not apply to an instrument which was executed, or a transaction which was entered into, before the date on which the amendment commenced or is taken to have commenced, except as provided by this Part.

33 Duty on unit trust dealings—section 98A

Section 98A (d) (iii) (as amended by the State Revenue Legislation (Further Amendment) Act 1992) applies to a dealing carried out before or after the commencement of the provision.

34 Admissibility in evidence

Section 41, as amended by the State Revenue Legislation (Further Amendment) Act 1992, applies to an agreement executed before or after the commencement of the amendment, but not so as to affect the use of evidence admitted before that commencement.

Editorial note—

Clauses 35 and 36 were proposed to be inserted by item (5) of Part 1 of Sch 6 to the State Revenue Legislation (Further Amendment) Act 1992 No 86. The amendment was not commenced and was repealed by the Statute Law (Miscellaneous Provisions) Act 1997 No 55.

Part 11 State Revenue Legislation (Amendment) Act 1994

37 Application of amendments generally

(1)  A provision of this Act as in force before the amendment of the provision by the State Revenue Legislation (Amendment) Act 1994 continues to apply to an instrument referred to in the provision which was executed, or a transaction referred to in the provision which was entered into, before the date on which the amendment commenced or is taken to have commenced, except as provided by this Part.

(2)  An amendment made to this Act by the State Revenue Legislation (Amendment) Act 1994 does not apply to an instrument which was executed, or a transaction which was entered into, before the date on which the amendment commenced or is taken to have commenced, except as provided by this Part or the amendment.

38 Short term dealings

(1)  A transaction that falls within paragraph (b) of the definition of short term dealing, as substituted by the State Revenue Legislation (Amendment) Act 1994, in section 98 (1) and that occurred on or after 24 September 1993 is taken to be a short term dealing to which Division 29 of Part 3 applied as from the date on which the transaction occurred.

(2)  A transaction that falls within paragraph (e) of the definition of short term dealing, as substituted by the State Revenue Legislation (Amendment) Act 1994, in section 98 (1) and that occurred on or after 9 November 1993 is taken to be a short term dealing to which Division 29 of Part 3 applied as from the date on which the transaction occurred.

39 Rollovers—sec 98A (cb)

Section 98A (cb) is taken to have commenced on, and not to have had effect before, 1 July 1994, despite section 2 of the State Revenue Legislation (Amendment) Act 1994.

Part 12 State Revenue Legislation Amendment Act 1995

40 Application of amendments

(1)  A provision of this Act as in force before the amendment of the provision by the State Revenue Legislation Amendment Act 1995 continues to apply to an instrument referred to in the provision that was executed, or a transaction referred to in the provision that was entered into, before 1 July 1995.

(2)  An amendment made to this Act by the State Revenue Legislation Amendment Act 1995 does not apply to an instrument that was executed, or a transaction that was entered into, before 1 July 1995.

Part 13 State Revenue Legislation Further Amendment Act 1995

41 Definition

In this Part, amending Act means the State Revenue Legislation Further Amendment Act 1995.

42 Regulation concerning ADRs

Clause 5 of the Stamp Duties Regulation 1991 is unaffected by the repeal of section 44 (3) by the State Revenue Legislation (Amendment) Act 1994, and continues to have effect (and is taken always to have had effect) for the purposes of section 44 (3), as inserted by the amending Act, and may be amended or repealed accordingly.

43 Contract splitting for transactions beginning before 1.1.1996

Section 41 (3B), as in force immediately before 1 January 1996, is taken to apply to any transaction of the kind referred to in that subsection (being a transaction in respect of which the first agreement for the sale or conveyance of property was executed before 1 January 1996) as if that subsection had not been amended by the amending Act.

44 Transfer of functions from Treasurer to Chief Commissioner

Any decision made before 1 January 1996 by the Treasurer under section 66H is taken to have been made by the Chief Commissioner of Stamp Duties.

45 Transfer of functions from Minister to Chief Commissioner

Anything done before 1 January 1996 by or in relation to either of the Ministers referred to in paragraphs (24) and (32) of the General Exemptions from Stamp Duty in the Second Schedule are taken to have been done by or in relation to the Chief Commissioner of Stamp Duties.

Part 14 State Revenue Legislation (Miscellaneous Amendments) Act 1996

46 Application of amendments

(1)  A provision of this Act as in force before the amendment of the provision by the State Revenue Legislation (Miscellaneous Amendments) Act 1996 continues to apply to an instrument referred to in the provision that was executed, or a transaction referred to in the provision that was entered into, before the amendment took effect, except as provided by regulations made under Part 1A.

(2)  An amendment made to this Act by the State Revenue Legislation (Miscellaneous Amendments) Act 1996 does not apply to an instrument that was executed, or a transaction that was entered into, before the amendment took effect, except as provided by regulations made under Part 1A.

Part 15 State Revenue Legislation Amendment Act 1997

47 Stamp duty on policies of insurance

(1)  The amendments made to Division 24 of Part 3 by the State Revenue Legislation Amendment Act 1997 apply to:

(a)  premiums paid on or after 1 July 1997, and

(b)  premiums paid on or after 7 May 1997 and before 1 July 1997 for policies of insurance and renewals of policies of insurance that take effect on or after 1 July 1997.

(1A)  However, the amendments referred to in subclause (1) do not apply to premiums paid in relation to Class 2 insurance within the meaning of section 86 (1), being:

(a)  premiums received on or after 7 May 1997 for a policy of insurance, or for the renewal of a policy of insurance, that was current before that date but not fully paid and that had a period of cover that extended past 1 July 1997, or

(b)  premiums due before 1 July 1997 but received on or after that date.

(2)  Stamp duty on a premium to which subclause (1) (b) applies that would otherwise be payable before 1 July 1997 is not payable before that date.

Part 16 State Revenue Legislation Further Amendment Act 1997

48 Stamp duty on certain regulated contracts

(1)  This clause applies:

(a)  to a loan security the date of first execution of which occurs on or after 1 November 1996 and before 1 July 1997, and

(b)  as if the Consumer Credit (New South Wales) Code had not commenced, and

(c)  despite section 84EB as in force before 1 July 1997.

(2)  In this clause, regulated contract means:

(a)  a regulated contract within the meaning of the Credit Act 1984 other than a contract deemed by section 73 of that Act to be a regulated contract that would not otherwise be a regulated contract, or

(b)  a contract that would be a regulated contract referred to in paragraph (a):

(i)  if section 18 (1) of that Act had not been enacted, and

(ii)  if the amount of $35,000 were prescribed for the purposes of section 5 (4) of that Act.

(3)  Notwithstanding any other provision of this Act, duty is not chargeable in respect of a loan security in so far as it secures the payment or repayment of an amount payable or repayable under a regulated contract.

Part 17 State Revenue Legislation (Miscellaneous Amendments) Act 1998

49 Abolition of liability for death duties

(1)  Any liability for the payment of death duty under this Act existing before 17 December 1991 (the date of assent to the Stamp Duties (Amendment) Act 1991) is extinguished.

(2)  A person is not entitled to a refund of any death duty paid under this Act before the commencement of this clause.

Tenth Sch: Ins 1987 No 85, Sch 5 (16). Am 1988 No 130, Schs 2 (3), 5 (18); 1989 No 113, Sch 1 (4); 1989 No 223, Sch 1 (11); 1990 No 45, Sch 1 (19); 1990 No 66, Sch 1 (3); 1990 No 95, Sch 3; 1991 No 93, Sch 5 (20); 1992 No 33, Sch 1 (22); 1992 No 86, Sch 6 (32); 1994 No 48, Sch 11 (30); 1994 No 72, Sch 4 (34); 1995 No 17, Sch 1 (7); 1995 No 98, Sch 7 (42) (43); 1996 No 125, Sch 1 (33) (34); 1997 No 37, Sch 6 [16] [69] [70]; 1997 No 41, Sch 1 [4] [5]; 1997 No 115, Sch 4.21 [6]; 1998 No 44, Sch 5 [15]; 1998 No 104, Sch 7 [9]–[11]; 2000 No 105, Sch 5 [3].

ss 9–145 (except ss 98I, 130 (2), 131A (4)): Am 1983 No 13, Sch 1 (6) (“Commissioner” omitted wherever occurring, “Chief Commissioner” inserted instead).