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

1   Name of Act

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

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.

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.

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.

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.

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.

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.

5   (Repealed)

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.

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.

6A   (Repealed)

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.

Part 2 Administration

Division 1 General

8–10   (Repealed)

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.

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.

13, 14   (Repealed)

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.

Division 2 Hardship Review Board

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.

15B–15F   (Repealed)

Part 3 Duties on instruments

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)

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.

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.

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)

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.

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.

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)

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.

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.

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.

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)

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.

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.

35B–36   (Repealed)

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.

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.

38A   (Repealed)

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.

38C   Payment of duty by return in certain cases

(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.

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.

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.

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.

39   Variation instruments

(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).

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)

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).

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.

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.

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)

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.

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.

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

(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.

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.

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.

Division 3A Transactions otherwise than by dutiable instruments

44   Transactions to which this Division applies

(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.

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.

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.

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.

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.

44E   (Repealed)

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.

Division 3B First home purchase scheme

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.

Division 3C Rental-purchase schemes

45AA   Rental-purchase schemes

Schedule 2B has effect.

Division 3D Flood-prone housing scheme

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

67   (Repealed)

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.

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.

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.

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.

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”.

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.

Division 11 Conveyances by possessory application

73A   Valuation of land in possessory application

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.

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.

Division 11A Copies of instruments

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).

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.

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.

Division 13 Discount arrangements

74A   Definitions

(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.

74B, 74C   (Repealed)

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.

Division 14 Divorce—family law instruments

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.

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.

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.

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.

Division 15 Hiring arrangements

74D   Definitions

(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.

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.

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.

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)

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.

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.

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

(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)

75B–75E   (Repealed)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

78G   (Repealed)

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)

80   (Repealed)

Division 19 Superannuation

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.

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.

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.

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.

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.

Division 20

82A–82E (Repealed)

Division 21 Loan securities

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.

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.

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.

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.

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.

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.

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.

84CAB   (Repealed)

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.

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.

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.

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.

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.

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.

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.

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.

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.

Division 21A Mortgage-backed securities

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.

Division 21B Loan-backed securities

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.

Division 22 Motor vehicle certificates of registration

84G   Duty on motor vehicle certificates of registration

(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 1998, 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).

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.

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.

Division 24 Policies of insurance etc

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.

86A   (Repealed)

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.

87A   (Repealed)

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.

88AA   (Repealed)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

89–89AB   (Repealed)

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.

Division 25A Transfer of units in unit trust schemes

90   Definitions

(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.

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).

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.

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.

94   Concessional rates of duty

(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.

Division 26 Shares—issue or allotment by direction

94A   Issue of shares by direction

(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.

Division 26A SCH-regulated transfers

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Division 27 Shares—transfer

Subdivision 1 Off market share transfers

95–96   (Repealed)

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.

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.

Subdivision 2 Requirement to stamp transfer of marketable securities before registration

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.

Subdivision 3 Transfers involving brokers

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.

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)

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.

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.

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.

97ADA   (Repealed)

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.

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.

97ADD   (Repealed)

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.

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.

97ADG   (Repealed)

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.

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.

Division 27A Takeovers of New South Wales public companies

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.

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.

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.

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.

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.

Division 28 Transfer etc of certain mortgages and debentures

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.

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.

Division 28A Transfer of shares—London Stock Exchange

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)

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)

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