In the recent case of Bondi Beachside Pty Ltd v Chief
Commissioner of State Revenue [2013] NSWSC 21, Justice Gzell of the
NSW Supreme Court held that an agreement (whether or not in
writing) to extend the payment date for the purchase of a loan note
under a deferred purchase price/loan note financing arrangement
amounted to a forbearance to pay (and therefore was an
"advance" for the purposes of section 206 of the Duties
Act 1997 (NSW)).
We are aware that there have been differing views on this issue
and consequently there could be lenders in the market whose current
security arrangements are unenforceable because stamp duty has not
been paid in respect of their securities (under section 11 of the
Act, "A mortgage on which duty is required by this Chapter to
be paid is unenforceable to the extent of any amount secured by the
mortgage on which duty has not been paid.").
