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In REW08 Projects Pty Ltd v PNC Lifestyle Investments [2017] NSWCA 269, REW08 entered into a contract to sell land to PNC. A special condition allowed the two parties to perform quarterly rescissions and subsequent re-entry into new contracts. Following a dispute, PNC sought an order to enforce one of the subsequent contracts. REW08 alleged that the contract was void for illegality because it had been entered into to avoid stamp duty. PNC then paid the full stamp duty amount.

The Court held that the Duties Act 1997 (NSW) and Taxation Administration Act 1996 (NSW) do not expressly nor impliedly render a contract unenforceable if it is made to avoid stamp duty. In this case a delay in the stamp duty payment was not essential to the bargain and did not invalidate the transaction. Depriving PNC of the benefit of the sale of land would have been a disproportionate penalty given PNC eventually paid stamp duty and REW08 suffered no loss. The Court ordered the contract to be enforced. Read full case

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