Bondi Beachside Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCA 6

Bondi Beachside Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCA 6

The seventh to ninth deeds of variation extended the time for payment of the purchase price and capitalised interest but did not involve an actual or constructive provision or obtaining of funds by way of financial accommodation. Because s 206(a)(iii) of the Duties Act 1997 (NSW) required a forbearance that resulted in such a provision or obtaining of funds, the variations were not advances and did not trigger additional mortgage duty under s 208(2).

Jurisdiction
Australia
Judgment Date
07 February 2014
Procedural Posture
Appeal and Cross Appeal Concerning Mortgage Duty Assessment Under the Duties Act 1997 (nsw) / Court of Appeal From the Decision of Gzell J in Bondi Beachside Pty Ltd V Chief Commissioner of State Revenue [2013] NSWSC 21
Outcome
Appeal allowed; cross-appeal dismissed with costs.
Legal Topics
['mortgage Duty' 'additional Mortgage Duty' 'advance by Forbearance' 'deferred Purchase Arrangements' 'capitalised Interest' 'duties Act 1997 (nsw) S 206(a)(iii)']
['taxes and Duties' 'stamp Duties' 'statutory Construction'] ['mortgage Duty' 'additional Mortgage Duty' 'advance by Forbearance' 'deferred Purchase Arrangements' 'capitalised Interest' 'duties Act 1997 (nsw) S 206(a)(iii)']

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Procedural Posture

Appeal and Cross Appeal Concerning Mortgage Duty Assessment Under the Duties Act 1997 (nsw) / Court of Appeal From the Decision of Gzell J in Bondi Beachside Pty Ltd V Chief Commissioner of State Revenue [2013] NSWSC 21

Legal Issues

  1. 1 ['Whether the extension of the Termination Date effected by deeds of variation after July 2009 constituted an advance by way of forbearance to require payment within s 206(a)(iii) of the Duties Act 1997 (NSW).' 'Whether there was an obligation to upstamp the Charge under s 208(2) of the Duties Act 1997 (NSW).' 'If the Bondi entities failed on the appeal, whether the amount secured by the Charge upon which duty was chargeable included capitalised interest.']

Ratio Decidendi

The seventh to ninth deeds of variation extended the time for payment of the purchase price and capitalised interest but did not involve an actual or constructive provision or obtaining of funds by way of financial accommodation. Because s 206(a)(iii) of the Duties Act 1997 (NSW) required a forbearance that resulted in such a provision or obtaining of funds, the variations were not advances and did not trigger additional mortgage duty under s 208(2).

Court Disposition

Appeal allowed; cross-appeal dismissed with costs.

Orders

  • ['Appeal allowed.' 'Judgment and orders of Gzell J on 30 January 2013 be set aside and judgment entered for the plaintiffs in the proceedings before his Honour.' 'Cross-appeal dismissed with costs.' "Respondent to pay the appellants' costs of the appeal and the proceedings at first instance."]