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  • In the recent case of Benidorm, the NSW Court of Appeal clarified the definition of ‘declaration of trust’ for the purposes of charging duty under the Duties Act 1997.
  • The Court of Appeal found that a document which does not effect a transaction but which merely acknowledges an existing legal position is not liable to duty under the Act.

On 13 November 2020 the Court of Appeal delivered judgment in Chief Commissioner of State Revenue v Benidorm P/L [2020] NSWCA 285 (‘Benidorm). Benidorm has the status of a test case for the meaning of a ‘declaration of trust’ for stamp duty purposes. It considered for the first time at an appellate level and in a determinative manner  the definition of ‘declaration of trust’ in s 8(3) of the Duties Act 1997 (NSW) (‘the Act’) for the purposes of charging duty in s 8(1)(b)(ii). Given the Act is now 23 years old, this definition by the Court of Appeal has been a long time coming.

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