When valuing real property for stamp duty under s 63(3)(b)(i)(B) of the Stamps Act 1958 (Vic), the hypothetical open market price must be determined on the basis that the vendor offered to sell on the same terms as the actual sale (including contractual restrictions on use), save for the price and save that encumbrances (security interests, mortgages and charges) are disregarded. Contractual restrictions imposed by the vendor as conditions of sale are not 'encumbrances' and must be taken into account in the valuation, potentially reducing the assessable value below the property's unrestricted highest-and-best-use value. The question is unlikely to arise again in the same form given the 1997 amendments inserting sub-ss (3A)-(3C).
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