166Refinancing of loans

166 Refinancing of loans S. 166(1) amended by No. 30/2002 s. 8(3). (1) In this section— ***refinancing mortgage*** means a mortgage that secures the amount of the balance outstanding immediately before the execution of that mortgage under an earlier mortgage to the same borrower duly stamped under this or a corresponding Act (whether over the same property or a property previously owned by the borrower) that is discharged or to be discharged as part of the arrangements for the new mortgage. (2) For the purposes of subsection (1), mortgages are created to secure an advance to the same borrower if, either directly by the mortgages themselves or indirectly through one or more collateral arrangements, the same person obtains the advances secured by them. S. 166(3) amended by No. 46/2001 s. 16. (3) A refinancing mortgage is taken to have been stamped with ad valorem duty as a mortgage in respect of the amount required to discharge the earlier mortgage (being an amount in relation to which the earlier mortgage was duly stamped), except as provided by subsection (5). (4) If an advance is refinanced by more than one lender, so that mortgages given to the lenders together secure the balance outstanding under an earlier mortgage, the definition of ***refinancing mortgage*** in subsection (1) is to be construed as though— (a) the reference to a mortgage securing the outstanding balance were a reference to the aggregate of such mortgages; and (b) each lender were the holder of a refinancing mortgage. (5) If, as provided by subsection (4), each of a number of lenders is the holder of a refinancing mortgage, a refinancing mortgage held by each lender is taken to have been duly stamped with ad valorem duty as a mortgage in respect of an amount equal to the same proportion of the amount required to discharge the earlier mortgage as the amount secured by that mortgage bears to the total amount secured by the refinancing mortgages held by all the lenders. (6) If each of 2 or more refinancing mortgages severally secures the same advance— (a) the provisions of subsection (3) or (5), as the case may be, apply to such one of the mortgages as the Commissioner determines; and (b) no duty is chargeable in respect of any of the others (insofar as it is a refinancing mortgage) but the Commissioner may denote any of them in the approved manner. (7) For the purposes of section 165— (a) a refinancing mortgage that is taken, by the operation of subsection (3) or (5), to be duly stamped is in either case a stamped mortgage; and (b) duty is taken to have been paid on it to the extent provided by whichever of those subsections applies. (8) Duty at the rate of $0.80 per $200 or part of $200 is payable on the amount by which the advance made under a refinancing mortgage (not being a mortgage on which, by virtue of subsection (6)(b), no duty is chargeable) exceeds— (a) the amount required to discharge the earlier mortgage; or (b) the proportion of that amount referred to in subsection (5), in the case of a refinancing to which subsection (4) applies. (9) If the number of original borrowers is reduced, the remaining borrower or borrowers is or are taken to be the same borrower or the same person for the purposes of subsection (1) or (2).