AC & Ad v Chief Commissioner of State Revenue

[2007] NSWADT 82

CITATION:	AC & AD v Chief Commissioner of State Revenue [2007] NSWADT 82
DIVISION:	Revenue Division
PARTIES:	APPLICANTS AC AD RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	066123
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	23 February 2007
DATE OF DECISION:	11 April 2007
BEFORE:	Hole M - Judicial Member
CATCHWORDS:	Late application to Tribunal
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	First Home Owner Grant Act 2000
REPRESENTATION:	APPLICANTS In person RESPONDEN T Y Chen, solicitor
ORDERS:	Extension of time to allow the filing of the application for review of the decision of the Chief Commissioner of State Revenue is refused.

REASONS FOR DECISION

1 The applicants have applied for a review of the decision of the respondent to recall the Grant made to them in respect of the purchase of a property which was settled on 15 December 2003. The applicants purchased the property as joint tenants. The applicants have also applied for an extension of the time for the filing of the application. The time limit for filing the application would normally be 15 December 2004.

2 The matter was set down for hearing on 23 February 2007. The applicants and the respondent requested that consideration of the application for extension of time be made on the papers and that the substantive application to review the decision of the respondent to recall the Grant be deferred awaiting the decision in respect of the application for extension of time.

3 The papers disclose that the applicants purchased the property on 15 December 2003. The applicants forwarded a letter to the Office of State Revenue on 15 July 2005 disclosing that due to unforeseen and extremely difficult circumstances they were unable to comply with the requirement to move into the property as their principal place of residence within the twelve (12) month period, that is before 15 December 2004.

4 The papers do not disclose when a letter was forwarded from the Office of State Revenue to the applicants in respect of compliance. It would seem that there may have been a compliance check forwarded to the applicants on or before 24 April 2005.

5 The application to extend the time to permit the application to be lodged has been supported by submissions from the applicants and copies of medical certificates in relation to the health of one of the applicants.

6 This application was lodged on 3 November 2006. Accordingly the extension requested is for the period from 27 February 2006 to 3 November 2006. The Tribunal has the discretion to allow an application to proceed even though the sixty (60) days has expired. The letter from the Office of State Revenue to the applicants which provides a time limit for lodgement of an application in the Tribunal is dated 27 February 2006. The appeal to the Tribunal, to be within the time limit prescribed, would need to have been lodged within sixty (60) days of that date, that is on or before 28 April 2006. The delay in the lodgement being a period in excess of six months is the subject of this decision.

7 The applicants have supplied evidence of the debilitating illness of one of the joint tenants. There is no evidence as to why the other joint tenant could not have made the application to the Tribunal.

8 The material supplied by the applicants discloses that the relationship between the applicants broke up during the period and whilst this is unfortunate both joint tenants have the responsibility to comply with the reasonable requirements of the Act and of the provisions of the First Home Owners Grant.

9 Whilst it is regrettable that one of the joint tenants suffered an illness which precluded him from attending to normal reasonable requirements of the Act and the First Home Owners Grant, the other joint tenant was aware of the obligations and had equal responsibility to make either an application at that time for an extension of the time to allow an application to be made to the Tribunal or alternatively to lodge an application with the Tribunal to allow the substantive matter to proceed.

10 The time for lodgement of an application in these circumstances may be extended at the discretion of the Tribunal. Any extension must be fair and reasonable in the particular circumstances. Each application where an application is made to extend the time must be considered on the particular circumstances in that application.

11 In view of the position of the applicants and taking into consideration the illness of one of the joint tenants it is not considered that this is sufficient to support an extension of time for the application to be lodged and accordingly the following orders are made.

ORDER

Extension of time to allow the filing of the application for review of the decision of the Chief Commissioner of State Revenue is refused.