83   Definitions

(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.