Stamp Act Amendment Act 1986 (Qld)

1 05 ANNO TRICESIMO QUINTO ELIZABETHAE SECUNDAE REGINAE No. 8 of 1986 An Act to amend the Stamp Act 1894-1985 in certain particulars and for a related purpose [ASSENTED TO 20TH MARCH, 1986]

106 Stamp Act Amendment Act 1986, No. 8 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title and citation . (1) This Act may be cited as the Stamp Act Amendment Act 1986. (2) In this Act the Stamp Act 1894-1985 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Stamp Act 1894-1986. 2. Amendment of s. 30. Penalty for registering instrument not duly stamped . Section 30 of the Principal Act is amended by- (a) numbering the existing provisions as subsection (1); (b) adding at the end of the section the following subsection:- "(2) Notwithstanding any other Act or law, a person whose office it is to receive caveats claiming an estate or interest in land under the Real Property Act 1861-1985 or the Real Property Act 1877-1981 shall not accept such a caveat for lodgement unless it is duly stamped.". 3. New s, 61B. The Principal Act is amended by inserting after section 61A the following section:- "61 B. Instrument amending a trust deed constituting, a public unit trust scheme . (1) For the purposes of this section, "public unit trust scheme" means a unit trust scheme in respect of which there is an approved deed for the purposes of Division 6 of Part IV of the Companies (Queensland) Code or the corresponding provisions of the Companies Code or Companies Act of any other State or a Territory. (2) Where the Commissioner is satisfied- (a) in the case of an instrument of settlement- (i) that the instrument is made for the sole purpose of effecting a variation of the terms or the manner of operation of a public unit trust scheme; (ii) that the instrument does not effect a conveyance or transfer of property or represent an agreement or arrangement to convey or transfer property; and that the rights of unitholders in respect of a trust fund of the public unit trust scheme and the interests of unitholders in the trust fund (as they were immediately prior to the date of the execution of the instrument) are preserved and are not diminished or intended to be diminished under the variation; or

Stamp Act Amendment Act 1986, No. 8 107 (b) in the case of an instrument declaring that property vested or to be vested in the person executing the same is or shall be held in trust- (i) that the instrument is made- (A) for the sole purpose of effecting a variation of the terms or the manner of operation of a public unit trust scheme; or (B) consequential upon the making of another instrument made for the sole purpose of effecting a variation of the type specified in subparagraph (A); (ii) that neither the instrument nor the other instrument (if any) effecting the variation effects a conveyance or transfer of property or represents an agreement or arrangement to convey or transfer property; and (iii) that the rights of unitholders in respect of a trust fund of the public unit trust scheme and the interests of unitholders in the trust fund ( as they were immediately prior to the execution of the instrument or the other instrument , if any, effecting the variation , whichever is the earlier in time) are preserved and are not diminished or intended to be diminished under the variation, the amount of duty chargeable in respect of the instrument shall, notwithstanding the other provisions of this Act , be the amount specified under the heading "INSTRUMENT AMENDING A TRUST DEED CONSTITUTING A PUBLIC UNIT TRUST SCHEME" in the First Schedule.". 4. Amendment of s. 65. Meaning of "Mortgage ". Section 65 of the Principal Act is amended by adding at the end of the section the following subsections:- "(3) An instrument creating or agreeing to create a charge over property for the payment of any definite and certain sum of money advanced or lent at any time, or previously due and owing or forborne to be paid, being payable, or for the repayment of money to be thereafter lent, advanced, or paid, or which may become due upon an account current, together with or without any sum already advanced or due, as the case may be, shall be chargeable with ad valorem duty as if it were a mortgage. (4) Where a caveat chargeable with duty under section 66A has been duly stamped with ad valorem duty, a mortgage or

108 Stamp Act Amendment Act 1986, No. 8 charge under which an estate or interest in land is claimed in the caveat shall be chargeable with duty- (a) where the duty chargeable on the mortgage or charge is greater than that paid on the caveat, of an amount equal to the difference between those duties; or (b) in any other case , of $1-00.". 5. Amendment of s. 66. Agreement to grant mortgage . Section 66 of the Principal Act is amended by inserting after the word "An" the words "agreement for the deposit of title deeds to secure the payment or the repayment of a sum of money or an". 6. New s. 66A. The Principal Act is amended by inserting after section 66 the following section:- "66A. Caveats. A caveat under the Real Property Act 1861- 1985 or the Real Property Act 1877-1981 claiming an estate or interest in land pursuant to- (a) a mortgage; (b) an instrument of a kind referred to in section 65 (3) or 66; or (c) an arrangement whereby title deeds are deposited to secure the payment or repayment of a sum of money advanced or lent at any time, or previously due and owing or forborne to be paid, being payable, or for the repayment of money to be thereafter lent, advanced, or paid, or which may become due upon an account current, together with or without any sum already advanced or due, as the case may be, shall be chargeable with duty of the same amount as is chargeable on a mortgage or charge to secure the payment or repayment of the same sum of money as is secured by the mortgage or the instrument or pursuant to the arrangement, unless the Commissioner is satisfied that ad valorem duty chargeable under the heading "MORTGAGE, BOND, DEBENTURE, and COVENANT" in the First Schedule on an amount no less than that sum, has or will be paid- (d) in the case of a mortgage or an instrument of the kind referred to in paragraph (b), on that mortgage or instrument or some other instrument pursuant to the arrangement in relation to which the mortgage or instrument was executed; or (e) in the case of an arrangement of a kind referred to in paragraph (c), on some other instrument pursuant to that arrangement.".

Stamp Act Amendment Act 1986, No. 8 109 7. New s. 67A. The Principal Act is amended by inserting after section 67 the following section:- "67A. Loan application or offer to be dutiable in certain circumstances . (1) For the purposes of this section the expression "loan" includes- (a) an advance; (b) money paid for or on account of or on behalf of or at the request of a person; (c) a forbearance to require payment of money owing on any account whatsoever; and (d) a transaction (whatever its terms or form) which in substance effects a loan of money. (2) Where an instrument is executed either within or outside Queensland for the purpose of making an application for a loan or offering to make a loan and- (a) any of the negotiations in respect of the loan take place in Queensland; (b) any of the repayments in respect of the loan are proposed or arranged to be made in Queensland; (c) the loan moneys are obtained for the purpose- of being expended or used wholly or in part in Queensland; or (d) the application or offer is made by or on behalf of a person resident in Queensland or a company incorporated in Queensland, upon a loan being made pursuant to the application or offer, the instrument, if the application or offer is not accepted in writing, shall be chargeable with duty as if the application or offer were accepted by execution of the instrument at the time at which the loan was made: Provided that the instrument shall not be chargeable as provided in this subsection where the Commissioner is satisfied that (a) another instrument in respect of the making of the loan is chargeable with ad ialarein duty on the amount of the loan under either of the headings "BOND. COVENANT. OR INSTRUMENT of any kind whatsoever " or ":MORTGAGE, BOND. DEBENTURE , and COVENANT" in the First Schedule or in accordance with a corresponding provision of a corresponding Act in another State or Territory of the Commonwealth: and

1 10 Stamp Act Amendment Act 1986, No. 8 (b) duty on that other instrument has or will be paid. (3) Where the Commissioner is satisfied that- (a) an instrument chargeable in accordance with this section is also chargeable with ad valorem duty in another State or Territory of the Commonwealth and that duty has or will bew paid in that other State or Territory; and (b) the instrument executed for the purpose of making an application for a loan or an offer to make a loan was made by or on behalf of a person other than a Queensland resident or a company incorporated in Queensland or a foreign company that is registered under Division 5 of Part XIII of the Companies (Queensland) Code, he may stamp the instrument as not being chargeable with duty in Queensland.". 8. Amendment of s. 68B . Prescribed short term debenture . Section 68B of the Principal Act is amended by- (a) inserting after subsection (1) the following subsections:- "(IA) Where in respect of a debenture- (a) the Commissioner is not or has not been satisfied of the matters specified in subsection (1) because the term for which the debenture secures the payment or repayment of money is not fixed or certain; (b) moneys secured by the debenture are subsequently paid or repaid within six months of the debenture being issued; and (c) the Commissioner is satisfied of the matters specified in subsection (1) (b). the debenture shall be a prescribed short term debenture for the purposes of this section, section 68A and the provisions under the heading "MORTGAGE, BOND, DEBENTURE, and COVENANT" in the First Schedule. (I B) For the purposes of subsection (I A). "debenture" means a debenture executed or issued after the commencement of the Stamp Act Amendment Act 1986. (1c) Where a debenture which secures the payment or repayment of money is not for a fixed or certain term and the debenture pursuant to subsection (1A) subsequently becomes a prescribed short term debenture and ad valorem duty under the heading "MORTGAGE, BOND, DEBENTURE, and COVENANT" in the First Schedule has been paid on the

Stamp Act Amendment Act 1986, No. 8 111 debenture or on a trust deed securing the debenture or pursuant to section 68A upon an amount including the amount of the debenture the Commissioner may refund or rebate the amount of the duty on the debenture or in the case of duty being paid on the trust deed or pursuant to section 68A the amount by which the duty payable would have decreased if the amount in respect of the debenture had not been included."; (b) inserting after the words "prescribed short term debenture" where they first occur in subsection (2) the words "or in respect of which duty has been refunded or rebated pursuant to subsection (lc)"; (c) adding at the end thereof the following subsection:- "(4) A person who makes a false declaration for the purpose of having duty in respect of a debenture refunded or rebated pursuant to subsection (lc) commits an offence against this Act and is liable to a penalty of $1,000 and is liable to a penalty equal to double the amount of duty refunded or rebated or sought to be refunded or rebated on or in respect of the debenture.". 9. Amendment of First Schedule. The First Schedule to the Principal Act is amended by- (a) inserting after the heading "BOND or recognisance of any kind whatever not otherwise charged nor expressly exempted from all stamp duty", the following heading and provision:- "CAVEAT- Under the Real Property Act 1861-1985 or the Real Property Act 1877-1981, other than a caveat chargeable with duty under section 66A. . . . . . $1.00"; (b) inserting after the provisions under the heading "INSTALMENT PURCHASE AGREEMENT", the following heading and provision:- "INSTRUMENT AMENDING A TRUST DEED CONSTITUTING A PUBLIC UNIT TRUST SCHEME- Where, in respect of an instrument, the Commissioner is satisfied of the matters specified in paragraph (a) or (b) of section 61 B (2) .... $200".