Western Australian Numbered Acts Western Australian Numbered Acts (1) A reference to a
conditional agreement is to an agreement for the transfer of dutiable property
where —
(a)
completion of the agreement is conditional on the happening of one or more of
the events described in subsection (2) and specified in an instrument
effecting or evidencing the agreement; and
(b) the
parties to the agreement do not have control over the happening of the event,
except to the extent that they are required under the agreement to use their
best endeavours to secure the happening of the event; and
(c) a
person related to a party to the agreement does not have control over the
happening of the event,
unless —
(d) it
is a call option of a simultaneous put and call option taken to be an
agreement for the transfer of option property under section 45; or
(e) it
is an agreement that is subject to a condition which, in the opinion of the
Commissioner, constitutes a scheme or arrangement, or part of a scheme or
arrangement, the sole or dominant purpose of which is to defer the payment of
duty.
(2) The following
events are specified for the purposes of subsection (1)(a) —
(a) the
obtaining by a purchaser under the agreement of a satisfactory private
taxation ruling by the Commissioner of Taxation of the Commonwealth as to the
consequences of the agreement with respect to taxation under a law of the
Commonwealth;
(b) the
obtaining, to the satisfaction of a purchaser under the agreement, of funds or
of approval to obtain funds to finance the purchase;
(c) the
obtaining by a purchaser under the agreement of a satisfactory building
inspection, geotechnical or environmental report from a third party in
relation to the property the subject of the agreement;
(d) the
obtaining by a vendor under the agreement of the consent of the Minister
responsible for administering the Land Administration Act 1997 to
transfer a lease of leasehold land to a purchaser under the agreement;
(e) the
authorisation of the payment to a purchaser under the agreement of a first
home owner grant under the First Home Owner Grant Act 2000 in relation
to a property the subject of the agreement;
(f) the
obtaining by a purchaser under the agreement of a licence to trade or the
grant of a franchise;
(g)
where the subject of the agreement is a commercial property, the obtaining by
a vendor under the agreement of the renewal of an existing lease of the
property;
(h) the
obtaining from the landlord of a leasehold business by a vendor of the
business the subject of the agreement, of a new lease, or of an assignment of
the current lease to a purchaser under the agreement;
(i)
the sale of another property by a purchaser under the
agreement;
(j) the
obtaining by a vendor under the agreement of —
(i)
the approval under the
Planning and Development Act 2005 section 135 for the subdivision
of the land, or part of the land, the subject of the agreement; or
(ii)
the registration of a strata/survey-strata plan under the
Strata Titles Act 1985 ;
(k) the
obtaining by a purchaser under the agreement of approval from a regulatory
body;
(l) the
results of the making of due diligence inquiries by a purchaser under the
agreement where the results are to be measured against objective criteria set
out in an instrument that effects or evidences the agreement;
(m) the
issue of a certificate of title (however described) for the property the
subject of the agreement;
(n) the
obtaining by a purchaser of consent required under the Mining Act 1978
for the transfer of a mining tenement the subject of the agreement;
(o) a
prescribed event.
(3) A conditional
agreement is terminated on relevant grounds if —
(a) it
is not carried into effect because the condition to which it is or was subject
cannot be fulfilled for reasons that are not within the control of a party to
the agreement, or a person that is related to a party to the agreement; and
(b) duty
is not chargeable on the agreement under section 107 because it is a
cancelled transaction.
(4) A conditional
agreement becomes unconditional when the condition to which its completion was
subject is fulfilled.
(5) For the purposes
of subsections (1)(c) and (3)(a), the following persons are related
persons —
(a)
joint owners of property;
(b)
individuals who are in partnership with each other;
(c)
participants in the same joint venture;
(d)
family members;
(e)
related corporations;
(f) a
trustee and another trustee if there is any beneficiary common to the trusts
of which they are trustees, whether the beneficiary has a vested share or is
contingently entitled or may benefit from a discretionary trust;
(g) an
individual and a corporation, if the individual is a majority shareholder,
director or secretary of the corporation or a related corporation;
(h) an
individual and a trustee, if the individual is a beneficiary under the trust
of which the trustee is a trustee, whether the beneficiary has a vested share
or is contingently entitled or is a potential beneficiary under a
discretionary trust;
(i)
a corporation and a trustee if —
(i)
the corporation or a majority shareholder, director or
secretary of the corporation is a beneficiary under the trust of which the
trustee is a trustee; or
(ii)
a related corporation to the corporation is a beneficiary
under the trust of which the trustee is a trustee,
whether the
beneficiary has a vested share or is contingently entitled or is a potential
beneficiary under a discretionary trust.
(6) A reference in
subsection (5)(d) to a family member of a person is to —
(a) a
child or remoter lineal descendant of the person; or
(b) a
parent or remoter lineal ancestor of the person; or
(c) a
brother or sister of the person or remoter lineal descendant of a brother or
sister of the person; or
(d) an
aunt or uncle of the person; or
(e) the
spouse, former spouse, de facto partner or former de facto partner of the
person; or
(f) a
family member referred to in paragraph (a), (b), (c)
or (d) of a person referred to in paragraph (e); or
(g) the
spouse or de facto partner of a person mentioned in
paragraph (a), (b), (c) or (d),
or more than one of
them.