The Court held that s 12(4) of the Duties Act 1997 (NSW) operates only in relation to electronic registry instruments that effect a transfer within the meaning of s 12(2); it does not cause an unexecuted draft instrument uploaded to the eDuties portal to crystallise a duty liability as if a transfer had occurred. Where a transfer is effected by an electronic registry instrument that is digitally signed, liability arises under s 12(4)(a) on the date of first digital signing, not under s 12(4)(b) on the earlier date the Chief Commissioner received an unsigned draft. The Court left open the broader question of whether the availability of exemptions under ss 54(3) and 104ZK is always to be assessed by reference to the date liability arises under s 12 rather than the date the transfer actually occurs, noting the Duties Act charges transactions rather than instruments.
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