The consent orders named the mother. The PEXA transfer added the daughter. The exemption held anyway.
Your client’s consent orders required her ex-husband to transfer the matrimonial home to her. She added her daughter to the PEXA transfer as co-transferee. Revenue NSW reassessed for full ad valorem duty. MacIntyre SM held the s 68 exemption still applied: an unwritten agreement inferred from conduct was enough.
Marshall and Anor v Chief Commissioner of State Revenue [2026] NSWCATAD 116.
The facts
The mother and Mr Marshall divorced in May 2023. Consent orders under the Family Law Act 1975 on 15 February 2024 required Mr Marshall to transfer his 50% interest in the property to the mother [6, 8]. Communication between them was difficult.
On 7 March 2024 the transfer settled through PEXA with the daughter added as transferee taking 33% of the transferred interest, a step initiated by the mother with no written variation to the orders [9, 10]. Revenue NSW reassessed for ad valorem duty on 3 February 2025 [12].
Why the exemption held
Section 68(1) Duties Act 1997 (NSW) exempts transfers of matrimonial property. The gate is s 68(1)(b): transfer effected by (amongst other ways) a court order (such as consent orders) or an agreement for the purpose of dividing matrimonial property.
The consent orders named only the mother and could not cover a transfer to the daughter [30].
An agreement for the purpose of dividing matrimonial property was found. The Commissioner argued a formal written agreement was required. MacIntyre SM rejected that. Sections 10 and 15 Duties Act contemplate unwritten dutiable transactions, the s 68(1)(b)(iii) auction limb has no formality requirements, and Parliament could not have intended only formal written agreements to qualify [46]-[50]. Agreements can be inferred from conduct: Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39 (Kiefel CJ and Gageler J) applied at [68]. Mr Marshall’s legal representation, knowledge of the transferees and instructions to proceed were offer and acceptance [65]-[67], [71].
The PEXA transfer also served as a “note” satisfying s 54A Conveyancing Act 1919 (NSW), read with the Electronic Transactions Act 2000 (NSW) [81]-[85]. Assessment revoked [88].
The practitioner lesson
First, s 68(1)(b)(iia) may be broader than many treat it.
Second, where the transfer departs from the court order, the “agreement for the purpose of dividing matrimonial property” limb may still save the exemption. A PEXA workspace populated and instructed by represented parties may itself evidence an agreement made for the purpose of dividing matrimonial property.
Third, push for documentation. Difficult post-separation communication is common, but a one-page side agreement before lodgment removes the Commissioner’s argument at the outset.
General information only. This note was accurate when written. The law may have changed since and the note is not updated. It is not legal or tax advice, does not take account of your circumstances and must not be relied upon as a substitute for advice on your own matter. If the issue is live for you or your client, email arda@nortonquaytaxlaw.com.au for advice on the current position.