Part 5226 Payment on mortgages associated with debenture issues
(1) This section applies if:(a) a corporation is or will be under a liability to repay money received or to be received by it in respect of its debentures, and(b) the repayment is secured by a mortgage first executed before the cut-off date, and(c) the corporation is a party to an instrument of trust relating to the debentures.(2) If the corporation and the trustee for the debenture holders give a written undertaking in the approved form to the Chief Commissioner:(a) a mortgage first executed by the corporation before the cut-off date and solely securing the repayment of money received or to be received by the corporation in respect of its debentures is not liable to mortgage duty in respect of advances made before the debenture concession closure date arising from debentures subscribed for before the cut-off date, and(b) a mortgage, not executed by the corporation, and first executed before the cut-off date, solely securing the repayment of such money is liable to duty of $10 in respect of advances made before the debenture concession closure date arising from debentures subscribed for before the cut-off date, and(c) a mortgage, whether executed by the corporation or by another party, and first executed before the cut-off date, and securing in part the repayment of such money is not liable to mortgage duty in respect of advances made before the debenture concession closure date arising from debentures subscribed for before the cut-off date.Note. The State Revenue Legislation Amendment Act 2003 terminated the concession provided for by this section in respect of mortgages executed, or debentures subscribed for, on or after the cut-off date.(3) The undertaking binds the corporation and the trustee to lodge with the Chief Commissioner, in July each year, a statutory declaration setting out, in the following categories, the total amount subscribed for in New South Wales before the cut-off date in respect of the corporation’s debentures during the year ending on the previous 30 June (but not including amounts repayable at call or in less than 30 days) and binds the corporation to pay duty in the following amounts:
Money repayable at or after the expiration of not less than 30 days and not more than 3 months
$2 for every $10,000, or part
Money repayable at or after the expiration of not less than 3 months and not more than 6 months
$2 for every $1,000, or part
Other money (except money repayable at call or in less than 30 days)
$4 for every $1,000, or part
Money repayable at call after a specified period is taken to be money repayable at the expiration of that period.
(3A) The obligation to lodge a statutory declaration in July each year ceases after July 2003.(3B) Section 208 (2) applies in respect of a mortgage referred to in subsection (2), or a collateral mortgage that secures the same money as is secured by a mortgage referred to in subsection (2), if an advance or further advance is made on or after the debenture concession closure date, as if the reference to the amount secured by the mortgage at the time a liability to duty last arose were a reference to the total of:(a) the disclosed debenture amount, and(b) any advances or further advances made on or after the cut-off date in respect of which duty has been paid under this Chapter.(3C) (Repealed)(3CA) A mortgage executed before the cut-off date that is not liable to duty under subsection (2) and in respect of which no further advances have been made on or after the debenture concession closure date is taken to have been duly stamped.(3D) For the purposes of this section, the disclosed debenture amount is the total amount of debentures subscribed for in New South Wales before the cut-off date and disclosed to the Chief Commissioner in a statutory declaration referred to in subsection (3).(4) In this section, a reference to an amount subscribed for in respect of debentures includes a reference to an amount represented by debentures issued on the conversion or renewal of an existing holding of debentures or other marketable securities.(4A) To avoid any doubt, subsection (3B) extends to a mortgage executed on or after 1 January 1975 and before 1 January 1999.(5) In this section:cut-off date means the date of commencement of Schedule 1 to the State Revenue Legislation Amendment Act 2003.
debenture concession closure date means the date on which the Bill for the State Revenue Legislation Further Amendment Act 2005 was introduced into the Legislative Assembly.
227 Unregistered mortgages protected by caveats (anti-avoidance provision)
(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.(2) The amount of duty is:(a) if the mortgage is chargeable, but not stamped, with mortgage duty—the same amount as is chargeable on the mortgage, or(b) if the mortgage is stamped, or is not chargeable, with mortgage duty—$50.(3) The person liable to pay the duty is the mortgagor.(4) This section does not apply to a caveat lodged in respect of a mortgage that is exempt from mortgage duty under Part 4.
(1) If a mortgage is transferred (whether or not at the request or direction of any party) to:(a) a person who, either in connection with the transfer or at a later time, makes an advance or further advance under or secured by the mortgage, or(b) a person who is a party to arrangements (referred to in section 215) relating to such an advance or further advance,the transferred mortgage is taken, for the purpose of determining its liability to duty under this Act, to be a new mortgage on which no duty has been paid and is liable to duty in respect of the advance or further advance accordingly.(2) The date of first execution of the transferred mortgage is taken to be:(a) in the case of a mortgage where the advance or further advance was made in connection with the transfer—the date of first execution of the transfer, and(b) in the case of a mortgage where the advance or further advance was made at a later time—the date of the first such advance or further advance.(3) If an insufficient amount of duty has been paid on a mortgage to which this section applies before it is taken by this section to be a new mortgage, the Chief Commissioner is not prevented from recovering at any time the amount of duty with which, in the Chief Commissioner’s opinion, the mortgage was properly chargeable from the mortgagor or person bound.(4) This section does not apply to the following:(a) a mortgage referred to in section 220 (3B),(b) a transfer of a mortgage by a corporation to another corporation if the Chief Commissioner is satisfied that, had the transfer been a dutiable transaction, it would not be chargeable with duty under section 281 (relating to transfers between members of the same group of corporations),(c) a transfer of a mortgage in connection with, or in preparation for creating, issuing, marketing or securing, a mortgage-backed security,(d) a transfer of a mortgage from a person who holds the mortgage as trustee for another person to a new trustee appointed in substitution for the former trustee.(5) This Chapter applies to a mortgage referred to in subsection (1) in the same way as it applies to any other mortgage, except as provided by subsection (6).(6) For the purposes of section 210, a transferred mortgage is not considered to have been duly stamped in respect of any duty paid before the transfer on advances made before the transfer.
228 Stamping counterpart or collateral instrument if mortgage is lost, destroyed or cannot be produced
A counterpart of a mortgage or a collateral security for an amount secured by a mortgage is taken to be the mortgage and may accordingly be stamped or upstamped for mortgage duty purposes if, on application by or on behalf of a person who is a party to the mortgage, the Chief Commissioner is satisfied that the mortgage has been lost or destroyed or, because of being deposited in the Land Titles Office or from other reasonable cause, cannot conveniently be produced.