New South Wales Repealed Acts New South Wales Repealed ActsThis legislation has been repealed.
(1) For the purposes of this Division, unless inconsistent with the context or subject-matter:
"acquisition", in relation to an interest or land use entitlement in a landholder, includes an acquisition by which a person becomes entitled to an interest or land use entitlement (or an increase in an interest or land use entitlement) by means of:(a) the purchase, gift, allotment or issue of any share in a private company or unit in a private unit trust scheme,(b) the variation, abrogation or alteration of a right attaching to any share in a private company or unit in a private unit trust scheme, or(c) the redemption, surrender or cancellation of any share in a private company or unit in a private unit trust scheme."de facto partner" and "de facto relationship" have the same meanings as in the De Facto Relationships Act 1984 .
"designated landholder" means a landholder which is entitled to land:(a) the unencumbered value of which (not including the unencumbered value of land the subject of a land use entitlement) comprises not less than 80 per cent of the unencumbered value of all assets to which it is entitled, not including assets consisting of:(i) cash, whether in Australian currency or otherwise,(ii) money on deposit with a bank, negotiable instruments or corporate debt securities,(iii) loans which by their terms are to be repaid on demand by the lender or within 12 months of the date of the loan,(iv) loans to persons who, in relation to the landholder, are related persons or to the spouse, de facto partner, child, parent, brother or sister of:(A) if the landholder is a private company--a majority shareholder, director or secretary of the company, or(B) if the landholder is a private unit trust scheme--a trustee of, or beneficiary under, the scheme,(v) land use entitlements, or(vi) assets which the landholder is unable to satisfy the Chief Commissioner were obtained otherwise than in order to reduce, for the purposes of the application of this Division, the ratio of the unencumbered value of the land to which the landholder is entitled to the unencumbered value of all its assets, and(b) the unencumbered value of which, in so far as the land is in New South Wales, is not less than $1,000,000."discretionary trust" means:(a) a trust under which the vesting of the whole or any part of the capital of the trust estate, or the whole or any part of the income from that capital, or both:(i) is required to be determined by a person either in respect of the identity of the beneficiaries, or the quantum of interest to be taken, or both, or(ii) will occur in the event that a discretion conferred under the trust is not exercised, or(iii) has occurred but under which the whole or any part of that capital or the whole or any part of that income, or both, will be divested from the person or persons in whom it is vested in the event that a discretion conferred under the trust is exercised, or(b) a trust which is, by or under the regulations, declared to be a discretionary trust for the purposes of this Division,but does not include:(c) a trust which is solely a charitable trust, or(d) a trust which is, by or under the regulations, declared not to be a discretionary trust for the purposes of this Division."interest" means an interest (other than a land use entitlement) in a landholder, acquired:(a) in the case of a landholder, being a private company--on or after 21 November 1986, or(b) in the case of a landholder, being a private unit trust scheme--on or after the date of assent to the Stamp Duties (Amendment) Act 1987 ,which, if the landholder were to be wound up immediately after the acquisition of the interest, would entitle the person acquiring the interest to participate (otherwise than as a creditor or other person to whom the landholder was liable at the time of the acquisition) in a distribution of the property of the landholder.
"land" means any estate or interest in land, whether the land is situated in New South Wales or elsewhere, but does not include the estate or interest of a mortgagee, chargee or other encumbrancee in land.
"land use entitlement" means an interest in a landholder which gives the person acquiring the interest an entitlement to the exclusive possession, or substantially exclusive possession, of land in New South Wales (not being such an entitlement in respect of a dwelling in a building containing more than one separate dwelling conferred by the ownership of shares in a private company or of units in a private unit trust scheme).
"landholder" means:(a) a private company, or(b) a private unit trust scheme."majority interest" means an interest (other than a land use entitlement) in a landholder which, if the landholder were to be wound up:(a) in the case of an interest acquired by a single acquisition--immediately after that acquisition, or(b) in the case of an interest acquired by 2 or more acquisitions--immediately after the later or latest of those acquisitions,would entitle the person who acquired the interest or that person together with any related person to participate (otherwise than as a creditor or other person to whom the landholder was liable at the time of the acquisition) in a distribution of the property of the landholder to an extent greater than 50 per cent of the value of the property distributable to all the holders of interests in the landholder.
"majority shareholder", in relation to a private company, means a person who would have a substantial shareholding in the company in accordance with section 136 of the Companies (New South Wales) Code if the reference in that section to the prescribed percentage were a reference to 50 per cent.
"prior acquisition", in relation to a designated landholder, means the acquisition by a person or a related person of an interest in the designated landholder:(a) on or at any time during the period of 3 years before the date of a relevant acquisition by the person of an interest in the designated landholder; but(b) not earlier than:"prior land use entitlement", in relation to a landholder, means a land use entitlement which is acquired in relation to the landholder by a person or a related person:(i) in the case of a designated landholder, being a private company--21 November 1986, or(ii) in the case of a designated landholder, being a private unit trust scheme--the date of assent to the Stamp Duties (Amendment) Act 1987 .(a) on or at any time during the period of 3 years before the date of the acquisition of a land use entitlement in relation to the landholder by the person, the acquisition of which required the person to lodge a statement under section 99C; but(b) not earlier than:"private company" means a company (other than a company the shares of which are listed on a recognised stock exchange) whether or not it is a NSW company:(i) in the case of a landholder, being a private company--21 November 1986, or(ii) in the case of a landholder, being a private unit trust scheme--the date of assent to the Stamp Duties (Amendment) Act 1987 .(a) which is entitled to land in New South Wales, or(b) which carries on business wholly or partly in New South Wales."private unit trust scheme" means a unit trust scheme (other than a public unit trust scheme) whether or not its trustees are resident in New South Wales:(a) the trustees of which are entitled to land in New South Wales, or(b) which carries on business wholly or partly in New South Wales."relevant acquisition", in relation to a designated landholder, means the acquisition by a person of an interest in the designated landholder which requires the lodgment of a statement under section 99E (1) by the person.
(2) For the purposes of this Division, a reference to land owned by a landholder is:(a) in the case of a landholder, being a private company--a reference to land owned by the private company beneficially, and(b) in the case of a landholder, being a private unit trust scheme--a reference to land owned by the trustee (in the capacity of trustee) of the private unit trust scheme.
(3) For the purposes of this Division, a private company or a private unit trust scheme (referred to in this Division as a "first landholder") is entitled to an asset (including land) if:(a) the asset is owned by a first landholder, or(b) the asset is owned by a landholder (referred to in this Division as the "actual landholder") which, if the actual landholder and all other persons (if any, including a private unit trust scheme but not including a company the shares of which are listed on a recognised stock exchange or a public unit trust scheme, and whether in New South Wales or elsewhere) interposed between the actual landholder and the first landholder in a chain of ownership of interests in landholders were to be wound up, would entitle the first landholder, by reason of that chain of ownership of interests, to participate in a distribution of the property of the actual landholder.
(4) For the purposes of this Division, the unencumbered value of an asset (including land) to which a landholder is entitled at any particular date is the sum of:(a) in the case of an asset owned by the landholder--the unencumbered value of the asset at that date, and(b) in the case of an asset owned by an actual landholder, the amount to which, if the actual landholder and all other landholders (if any) interposed between the actual landholder and the first landholder in a chain of ownership of interests in landholders were to be wound up on that date, the first landholder would be entitled (without regard to any liabilities of the actual landholder or any other landholder in the chain of ownership of interests) in respect of the unencumbered value at that date of assets owned by the actual landholder at that date.
(5) For the purposes of this Division, the entitlement of a person, first landholder, actual landholder or landholder to participate (otherwise than as a creditor or other person to whom the private company or private unit trust scheme is liable) in the distribution of the property of a private company or private unit trust scheme on a winding up of the private company or private unit trust scheme is an entitlement to an amount calculated:(a) as if the winding up were carried out in accordance with the memorandum and articles of association of the private company or the instrument constituting the private unit trust scheme and with any law relevant to the winding up of such a private company or such a private unit trust scheme, respectively, as the memorandum, articles, instrument and law exist at the date of the winding up, or(b) as if the person, first landholder, actual landholder or landholder had, immediately prior to the date of the winding up, exercised all powers and discretions exercisable by the person, first landholder, actual landholder or landholder by reason of having acquired an interest in a landholder:whichever of the amounts under paragraph (a) or (b) results in the greater amount, unless the Chief Commissioner determines, after consideration of the circumstances of the case, and where the calculation under paragraph (b) results in the greater amount, that the amount of the entitlement should be calculated under paragraph (a).(i) to effect or compel an alteration to the memorandum or articles of association of the private company or to the instrument constituting the private unit trust scheme,(ii) to vary the rights conferred by shares in the private company or by units in the private unit trust scheme, or(iii) to effect or compel the substitution or replacement of shares in the private company or units in the private unit trust scheme with other shares in the private company or other units in the private unit trust scheme,in such manner as to maximise that amount,
(6) For the purposes of this Division (including any actual or notional winding-up), if a person (including any landholder or person in a chain of interests in landholders):(a) is a person or a member of a class of persons in favour of whom, by the terms of a discretionary trust, capital the subject of the discretionary trust may be applied:(i) in the event of the exercise of a power or discretion in favour of the person or class, or(ii) in the event that a discretion conferred under a discretionary trust is not exercised, or(b) is a person or a member of a class of persons who could become a person or a member of a class of persons referred to in paragraph (a) in respect of a discretionary trust, the settlor or trustee of which is not at arms' length from the person,the person shall be deemed to own or to be otherwise entitled to the property the subject of the discretionary trust, unless the Chief Commissioner determines that the person shall not be deemed to own or to be otherwise entitled to the property.
(6A) In subsection (6), "person" includes a unit trust scheme.
(7) For the purposes of this Division, any property which is (or is deemed by this subsection to be) the subject of a discretionary trust (which is referred to in this subsection as "the first discretionary trust") shall be deemed to be the subject of any discretionary trust which is, or any trustee of which (in the capacity of trustee) is, a person or a member of a class of persons referred to in subsection (6) (a) or (b) in relation to the first discretionary trust, unless the Chief Commissioner determines that the property shall not be deemed to be the subject of the discretionary trust.
(8) For the purposes of this Division:(a) natural persons are related persons if:(i) they are partners, or(ii) the relationship between them is that of a married couple, de facto partners or parent and child,(b) private companies are related persons if they are related corporations within the meaning of the Companies (New South Wales) Code ,(c) trustees are related persons if any person is a beneficiary common to the trusts of which they are trustees,(d) a natural person and a private company are related persons if the natural person is a majority shareholder, director or secretary in or of the company or a private company which is a related corporation within the meaning of the Companies (New South Wales) Code ,(e) a natural person and a trustee are related persons if the natural person is a beneficiary under the trust of which the trustee is a trustee, and(f) a private company and a trustee are related persons if:(i) the company, a majority shareholder, director or secretary in or of the company is a beneficiary of the trust of which the trustee is a trustee, or(ii) a related corporation (within the meaning of the Companies (New South Wales) Code ) of the company is a beneficiary of the trust of which the trustee is a trustee.