New South Wales Repealed Acts

This legislation has been repealed.

STAMP DUTIES ACT 1920 - SECT 41

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.

(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.