(a) secures the amount of the
balance outstanding under an earlier mortgage that is discharged or to be
discharged as part of the arrangements for the new mortgage, and
(b) is
created to secure an advance to the same borrower as under the earlier
mortgage, and
(c) is over the same or substantially the same property or part
of the property as the earlier mortgage.
(2) For the purposes of subsection
(1), mortgages are created to secure an advance to the same borrower if,
either directly by the mortgages themselves or indirectly through one or more
collateral arrangements, the same person obtains the advances secured by them.
(3A) For the purposes of this section, the
"duty-free refinancing amount" is the lesser of the following amounts--
(a)
the amount secured by the earlier mortgage on which duty has been paid under
this Act or in relation to which an exemption from duty has been obtained,
(b) $1,000,000.
(3B) However, if the refinancing mortgage is over
land used for primary production or land used for aquaculture, the
"duty-free refinancing amount" is the maximum amount payable under or secured
by the earlier mortgage (being an amount in relation to which mortgage duty
has been paid or in relation to which an exemption from duty has been
obtained).
Note : "Land used for primary production" is defined in the Dictionary.
(4)
If an advance is refinanced by more than one lender, so that mortgages given
to the lenders together secure the balance outstanding under an earlier
mortgage, the definition of
"refinancing mortgage" in subsection (1) is to be construed as though--
(a)
the reference to a mortgage securing the outstanding balance were a reference
to the aggregate of such mortgages, and
(b) the reference to property were a
reference to the property securing the aggregate of refinancing advances made
by the lenders under their combined mortgages, 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 mortgage.
(5) If, as provided by subsection (4), each of a number
of lenders is the holder of a refinancing mortgage, a refinancing mortgage
held by each lender is taken to have been duly stamped with ad valorem duty as
a mortgage in respect of an amount equal to the same proportion of the
duty-free refinancing amount as the amount secured by that mortgage bears to
the total amount secured by the refinancing mortgages held by all the lenders.
(6) If each of two or more refinancing mortgages severally secures the same
advance--
(a) the provisions of subsection (3) or (5), as the case may be,
apply to such one of the mortgages as the Chief Commissioner determines, and
(b) no duty is chargeable in respect of any of the others.
(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 mortgage (not being a mortgage on
which, by virtue of subsection (6) (b), no duty is chargeable) exceeds--
(b) the proportion of that amount
referred to in subsection (5), in the case of a refinancing to which
subsection (4) applies.
(8A) If a borrower is a related body corporate of a
borrower under an earlier mortgage, the firstmentioned borrower is taken to be
the same borrower or the same person for the purposes of subsection (1) or
(2).
(9) If a borrower under an earlier mortgage dies, or is a party to a
marriage that has been dissolved or annulled or, in the opinion of the Chief
Commissioner, has broken down irretrievably or is party to a de facto
relationship that, in the opinion of the Chief Commissioner, has been
terminated, the remaining borrower is, or the remaining borrowers are, taken
to be the same borrower or the same person for the purposes of subsection (1)
or (2).
(10) A party to a marriage or de facto relationship may provide a
statement to the Chief Commissioner, in the form of a statutory declaration,
to the effect that--
(a) in the case of a marriage--
(i) the party intends to
apply for a dissolution or an annulment of the marriage, or
(ii) the parties
to the marriage have separated, and there is no reasonable likelihood of
cohabitation being resumed, or
(b) in the case of a de facto relationship,
the de facto relationship has been terminated.
The Chief Commissioner is
required to have regard to any such statement in exercising his or her
functions under subsection (9).
