spa> ; N-GB>The Commissioner for Stamp Duties, ins, in an a an affidaffidavit sworn on 26th April 2000 confirmed that she had requested the
Plaintiff to provide a variation of mortgage documents “instead of upstamping the original documents”. She said that this was the
practice whenever there was an increase or reduction in the amount secured by a mortgage. She said that this practice was in line
with section 66 of the Land Transfer Act and the Consumer Credit Act 1999.
The matter was heard on 26th May 2000. Counsel made both oral and written submissions. Mr Parshfor the Plaintiff submitted that the
Plaintiff was clearly arly entitled to exemption from stamp duty because the debt was to be used on residential property, and that
the Commissioner had no right to demand any other document in the exercise of her statutory discretion.
Mr Kumar for the Defendant submitted that all title documents weblic records, and that the Commissioner of Stamp Duties had a public
duty to ensure that that the amount for which land was mortgaged was accurately recorded on documents. He said that the stamp duty
process should be a transparent one so that the public was accurately informed about the status of titles of leases.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Section 3 of the Stamp Duties Act, as amended by section 2 of the Stamp Duties provides as follows:
“Subject to the exemptions and provisions as to the conditional exemptions contained in the Schedule, tshall be raised, levied cold
collected and paid unto Her Majesty for the public uses of Fiji upon and in respect of the several instruments specified in the column
of Part 1 of the Schedule headed “Nature of Instrument” the several duties specified in the column of that Part of the Schedule headed “Amount
of Duty”.”
Under the Schedule as amended by the 1982 Act, a mortgage which is the only or primary security for the payment or repayment of moneys,
is conditionally exempt from stamp duty, if it is executed after 1st January 1982, and if the application for exemption is accompanied
by a declaration stating the appropriate conditions of entitlement.
Paragraph 2 of the Schedule provides:
“The conditions of entitlementhe conditional exemption from stamp duty under Paragraph 1 of this Part of this Schedule oule of the
instruments described in sub-paragraph (1) of that paragraph shall be as follows: that is to say -
(b) ;&nbssp; &nsp; &nsp; p; p;& bsp; in the case case of a mortgage is exclusively for the purpose of enabling the applicant, alone or jointly with any otersonpan>
(i) ;&nbssp; &&bsp;;&bsp; &nbp; &nnbp;&&nbp;; to m>to meet all orll or some of the cost of buildidwellhich pplicntends to occupy in whole or in part, or to meet all or some some
of thof the cose cost of t of rebuilding a residential property as a dwelling which he intends to occupy in whole or in part.”
Under the provisions of the Act a mortgage is therefore exempt (including further advances on existing mortgages) if the advances
are used for rebuilding of residential property. Under the Act, the applicant must make an application and provide a declaration
within 6 months of the execution of documents. Once he/she has satisfactorily complied with these requirement, Paragraph 1(1) of
the amendment Act 1982 applies. That paragraph provides that the mortgage instrument (including further advances) shall be granted conditional exemption.
Section 43 of the Stamp Duties Act provides:
p class=MsoNormoNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “Where an instrument is brought to the head office for assessment the Commissioner shalte whether it is liable fore for duty and if
he is of the opinion that-
(a) & p; &nsp; &nsp; ;&nbpp;; & bsp;an/span>it is t is nois not so liable, he shall impress thereon the Commissioner’s seal and
the particular stamp denoting thais noliabl
(b) &nbbsp;& p;&bsp; &bsp; &&nbp;; t is liable to duto duto duty or fine he shall assess the duty or withh it is in his opinion chargeable and on payment of the payment
so assessed, shal shall stal stamp the instrument, with the Commissioner’s seal and a particular stamp denoting the amount of duty
or fine so paid.”
In this case the Plaintiff submitted the Mortgage document and asked for further exemption on further sums secured.
The Commissioner asked for a variation of mortgage document, not to allow her to decide whether or not, the docuwas exempt from duty,
but bbut because she wanted the records in the Titles Office to accurately reflect the status of titles including total sums secured
against mortgages.
It is clear from the provisions of section 66 of the Land Transfer Act, that variation of mortgages need not be registered. That section provides:
“In the case of every mortgage under this Act -
(a) ;&nbssp; &nsp;&nbbsp;&bsp; &nbssp;&nnbsp;&nsp; the mthegage mage may be varied as follows:
