• Download transmission application form

When is a transmission of an oyster lease required?

The transmission of an oyster lease is required to distribute a deceased lessee’s lease holdings in accordance with a will or tenancy arrangement.

What are the two types of tenancy arrangements for oyster leases?

A lease may be held under either a ‘tenancy in common’ or ‘joint tenancy’ arrangement.

Under joint tenancy, upon the death of a lessee, the lease does not legally become part of the deceased’s estate.  It is automatically transmitted to any surviving lessee(s).

Under tenancy in common the proportion of the lease(s) held by the deceased lessee may be transmitted according to the deceased’s ‘Last Will and Testament’ following a Grant of Probate.  For a deceased lessee who died intestate (without a will), transmission of the lease(s) may occur following issue of the Letters of Administration.

Please note: tenancy arrangements do not apply to a lease held by a sole individual or company.  In these cases the tenancy is taken to be ‘common’.

What is required to transmit an oyster lease which is held under a “joint tenancy” arrangement?

A transmission application is not required for leases held under a “joint tenancy” arrangement.  NSW Department of Primary Industries (NSW DPI) requires only a copy of the Death Certificate and the original lease deeds.  No application fee is applicable.

What is required to transmit an oyster lease which is held under “tenancy in common”?

For each lease recorded as “tenancy in common”, NSW DPI will require:

• A copy of the Death Certificate;
• A copy of the Last Will and Testament including a copy of the Grant of Probate, or a copy of the Letters of Administration;
• A completed Aquaculture Lease Transmission application form;
• The original lease deeds and plan;
• The prescribed application fee (refer to fee schedule).

When can an oyster lease be transmitted?

A transmission may be applied for after the death of the lessee.  Any lease which has expired, been surrendered or cancelled may not be transmitted.  If a mortgage or other interest is noted on the lease, a transmission cannot proceed without the written consent of the mortgagee or other party with an interest in the lease.  If a deceased lessee has overdue rent, contributions or other amounts payable to the Minister in respect to that or any other lease, the executor of the estate will be notified of the monies owing to NSW DPI.

Are there exemptions from transmission requirements?

• Yes.  Where a lease is bequeathed to a person as part of an estate but not noted specifically in the will, the person or the executor of the estate may transfer the lease directly to another party to convert the interest in the lease to another form.  For further details on transfer requirements please refer to the Lease Transfer Information Kit.
• Where a lease is bequeathed to a person and the lease particulars are detailed in the will, the lease must first be transmitted to the beneficiary before the lease (benefaction) can be transferred to another party.

How is an application duly made to transmit an oyster lease?

• Submit a copy of the Death Certificate to NSW DPI, together with an application to transmit the lease(s).
• Submit a copy of the Last Will and Testament including a Grant of Probate, or the Letters of Administration, to NSW DPI.
• Complete the transmission application form.  This involves completing every section of the form in clear and legible print.
• Attach the current original lease deeds.  If the deeds are lost or destroyed the statutory declaration on the back of the form must be completed and replacement documents applied for with the relevant fee (see fee schedule).
• Submit all payments with the application.  The applicant must submit the prescribed transmission application fee (see fee schedule). If payment is made at a local office of NSW DPI, a copy of the receipt must be attached to the application.  Any overdue account matters relating to the relevant aquaculture account should be settled prior to an application being lodged.

Does the transmission of an oyster lease attract stamp duty?

If the beneficiary is related to the deceased lessee, stamp duty may not be payable. An “Application for Exemption – Intergenerational Rural Transfers and Leases” (available from the Office of State Revenue) may be completed and lodged with that Office. If the beneficiary is not related to the deceased then stamp duty may be payable.  The Office of State Revenue (OSR) would need to be contacted by the executor of the estate or the beneficiary, for clarification.

To assist industry, NSW DPI acts as an agent for the OSR and stamp duty can be paid through NSW DPI by attaching:

• a separate cheque for the duty amount made payable to the “Commissioner of State Revenue”, and lodging it with the application.  Do not pay stamp duty with the credit card facility provided; and
• a Certified Copy of Client Identification.

Alternatively, stamp duty may be paid directly to the Office of State Revenue.  For further details please contact the Office of State Revenue on

Phone: 1300 139 814,
Fax: 02 9689 8280, or
Email: duties@osr.nsw.gov.au.

Who provides the Certified Copy of Client Identification?

All beneficiaries/devisees must provide a certified copy of client identification.

What is a Certified Copy of Client Identification?

A certified copy is a true copy of an original document that has been sighted and certified by an acceptable person and noted as follows:

‘I certify that I have sighted the original document and this is a true copy of it.’

The certification must have the certifier’s name, title, registration number (where applicable) and be signed and dated.

Who can certify?

Acceptable people who may certify documents for the purpose of client identification are:

• Legal practitioner                                         
• Commissioner for Declarations
  
• Licensed conveyancer                                
• Member of Parliament
  
• Justice of the Peace (JP)                            
• Police officer
  
• Certified practising accountant                  
• Pharmacist
  
• Chartered Accountant                                 
• Minister of religion
  
• Magistrate                                                     
• Medical practitioner
  
• Officers of OSR                                            
• Dentist
  
• Public notary                                                 
• Veterinary practitioner

What is a Client Identification document?

For individuals, evidence of their date of birth is required.  A certified copy of one of the following documents must be provided:

• Australian Driver Licence (current) Australian Birth Certificate
• Passport (current)                                        
• Firearms Licence (current)
  
• Proof of Age Card                                       
• Australian Citizenship Certificate
  
• Foreign Passport and Visa used for entry into Australia

For companies, evidence of the ABN/ACN/ARBN number is required.  If this information is displayed on the transfer application no further evidence is required.

Note:  For further information regarding stamp duty and Client Identification documents please refer to the Office of State Revenue website - www.osr.nsw.gov.au.

Who pays the transmission fees and stamp duty?

The person making the application to have the oyster lease(s) transmitted pays the relevant fees and stamp duty.

Does a transmission application attract Goods and Services Tax?

No.  Goods and Services Tax (GST) is not payable on an application to transmit a lease.

Once an application to transmit is lodged, will all accounts relating to the lease be re-directed to the beneficiary?

No.  Lodgement of a transmission application does not in itself constitute a lease transmission.  Only once the Minister consents to the transaction will the transmission become formal and the lease fees and rent be directed to the new owner.

Does the beneficiary have to hold an aquaculture permit?

No.  If the beneficiary does not hold an aquaculture permit, then an application for a subletting arrangement with another permit holder, or an application for an aquaculture permit will need to be lodged with NSW DPI.

Please note: the ownership of a lease alone does not authorise aquaculture to be carried out on the area.

What are the options if the beneficiary of the lease(s) does not want to, or is unable to, retain the lease(s) once the transmission has been completed?

Holding oyster leases attracts significant financial and legal responsibilities.  In such cases where the beneficiary of the lease does not require the lease(s), the lease(s) may be transferred to another individual or company.  The transferee must be an individual or a corporation acceptable to the Minister by meeting the minimum criteria.  An application to transfer the aquaculture lease(s) may be lodged concurrently with the application to transmit.

How can the transmission fee be paid?

There are several methods available for the payment of fees.

• Submit a cheque or money order with your application, made payable to Department of Trade & Investment.
• Pay at any office of NSW DPI using the methods available there and attach the receipt to the application.
• Complete the credit card section on the application form to make payment by credit card.

Where can more information about transmitting an oyster lease be obtained?

More information about transmitting an oyster lease may be obtained from Aquaculture Administration at Port Stephens on 02 4982 1232.

Application checklist

This checklist will help you to lodge a successful application.

• Has the applicant completed every section of the application form?
• Are the lease deeds attached, or a statutory declaration for lost or destroyed documents completed and replacement fee submitted?
• Is the processing fee (made payable to Department of Trade & Investment), or receipt of such fee, or credit card details supplied with the application?
• Is the lease current at the time of application?
• Is the lease covered by current public liability insurance?
• Is the application form signed by the Executor(s), the applicant and witnessed by a person or person’s who are not party to the transaction?
• Does the beneficiary hold an aquaculture permit to authorise the lease, a subletting arrangement with another permit holder, or has an application for an aquaculture permit been lodged with NSW DPI?
• Has stamp duty been paid at the OSR and receipt attached to the application, or a separate payment for the dutiable amount submitted with this application?
• Have any outstanding account matters been settled prior to the application?
• If a mortgage or other interest is noted on the lease documents, has the written consent of the mortgagee or other party been submitted with the application?