New South Wales Consolidated Acts

DUTIES ACT 1997 - SECT 227A

227A Transfer of mortgages

(1) If a mortgage is transferred (whether or not at the request or direction of any party) to:

(a) a person who, either in connection with the transfer or at a later time, makes an advance or further advance under or secured by the mortgage, or

(b) a person who is a party to arrangements (referred to in section 215) relating to such an advance or further advance,

the transferred mortgage is taken, for the purpose of determining its liability to duty under this Act, to be a new mortgage on which no duty has been paid and is liable to duty in respect of the advance or further advance accordingly.

(2) The date of first execution of the transferred mortgage is taken to be:

(a) in the case of a mortgage where the advance or further advance was made in connection with the transfer-the date of first execution of the transfer, and

(b) in the case of a mortgage where the advance or further advance was made at a later time-the date of the first such advance or further advance.

(3) If an insufficient amount of duty has been paid on a mortgage to which this section applies before it is taken by this section to be a new mortgage, the Chief Commissioner is not prevented from recovering at any time the amount of duty with which, in the Chief Commissioner’s opinion, the mortgage was properly chargeable from the mortgagor or person bound.

(4) This section does not apply to the following:

(a) a mortgage referred to in section 220 (3B),

(b) a transfer of a mortgage by a corporation to another corporation if the Chief Commissioner is satisfied that, had the transfer been a dutiable transaction, it would not be chargeable with duty under section 281 (relating to transfers between members of the same group of corporations),

(c) a transfer of a mortgage in connection with, or in preparation for creating, issuing, marketing or securing, a mortgage-backed security,

(d) a transfer of a mortgage from a person who holds the mortgage as trustee for another person to a new trustee appointed in substitution for the former trustee.

(5) This Chapter applies to a mortgage referred to in subsection (1) in the same way as it applies to any other mortgage, except as provided by subsection (6).

(6) For the purposes of section 210, a transferred mortgage is not considered to have been duly stamped in respect of any duty paid before the transfer on advances made before the transfer.