Re Di Donato & Brown [2015] NSWSC 1923

Supreme Court New South Wales

Medium Neutral Citation: Re Di Donato & Brown [2015] NSWSC 1923 Hearing dates: 4 December 2015 Date of orders: 07 December 2015 Decision date: 18 December 2015 Jurisdiction: Equity Before: White J Decision: Refer to para [1] of judgment. Catchwords: DUTIES AND TAXES – mortgage duty – whether a charge created by solicitors' costs agreement secured an "advance" within s 206 of the Duties Act – whether a forbearance to require payment was a "constructive" provision or obtaining of funds, and therefore an advance – consideration of Bondi Beachside Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCA 6; (2014) 85 NSWLR 443 – held that the forbearance was not an advance because it did not result in the provision or obtaining of funds in a real or effective sense Legislation Cited: Civil Procedure Act 2005 (NSW) Duties Act 1997 (NSW) Legal Profession Act 2004 (NSW) Cases Cited: Rix v Mahony [2009] NSWSC 675 Rix v Mahony [2011] NSWSC 1308 Rix v Mahony [2012] NSWCA 241 Rix v Mahony (No. 2) [2012] NSWCA 332; (2012) 16 BPR 31,315 Rix v Wells [2013] NSWSC 672 Rix v Wells (No. 2) [2013] NSWSC 1608 Jackson v Richards [2005] NSWSC 630; (2005) 12 BPR 23,091 Prime Wheat Association Limited v Chief Commissioner of Stamp Duties (1997) 42 NSWLR 505 Tozer Kemsley & Millbourn (Australasia) Pty Ltd v Point (1961) SR (NSW) 751 Bondi Beachside Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCA 6; (2014) 85 NSWLR 443 Bondi Beachside Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 21; (2013) 87 ATR 722 Bellissimo v JCL Investments Pty Ltd [2009] NSWSC 1260 Texts Cited: Pannam, The Law of Money Lenders in Australia and New Zealand (1965) Law Book Company Category: Procedural and other rulings Parties: Romano Natalino Di Donato (1st Plaintiff) Malcolm George Brown (2nd Plaintiff) Benjamin & Khoury (Applicant) Mr and Mrs Mahony (Applicants) Frederick George Rix (Applicant) R W Washington (Applicant) Representation: Counsel: P R Glissan (Benjamin & Khoury) M Oakes SC (Mr and Mrs Mahoney) In Person (F Rix) T Bray, solicitor (Estate of R W Washington)