Amarasingham v Chief Commisioner of State Revenue

[2002] NSWADT 152

CITATION:	Amarasingham -v- Chief Commisioner of State Revenue [2002] NSWADT 152
DIVISION:	General Division
PARTIES:	APPLICANT Amaranath Parimerlalahan Amarasingham RESPONDENT Chief Commisioner of State Revenue
FILE NUMBER:	023090
HEARING DATES:	12/07/02, 08/08/02
SUBMISSIONS CLOSED:	08/08/2002
DATE OF DECISION:	08/23/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	first home owners grant - approval of application - First Home Owners Grant Act - first home owners grant - approval of application
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 First Home Owners Grant Act 2000
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT C Puckering, agent
ORDERS:	The Chief Commissioner’s decision not to approve the additional grant of $7,000 is affirmed.

Introduction

1 On 2 May 2002 Mr Amarasingham lodged an application with the Tribunal requesting a review of a decision of the Chief Commissioner, Office of State Revenue (Chief Commissioner). The decision was not to approve Mr Amarasingham’s application for an additional $7,000 grant under the First Home Owners Grant Scheme (FHOGS).

2 To be eligible for the additional grant the contract for the purchase of the property must be made after 8 March 2001. The Chief Commissioner refused Mr Amarasingham’s application because he was satisfied that the contract for the purchase of a property in Auburn dated 13 March 2001 replaced a contract for the purchase of the same property made on 1 March 2001.

3 On 23 August 2001 Mr Amarasingham wrote to the Chief Commissioner objecting to the decision to decline his application for the additional $7,000. The Chief Commissioner affirmed the original decision.

Relevant Legislation

4 The eligibility requirements for an additional $7,000 grant under the FHOG scheme are set out in s 18A of the First Home Owners Grant Act 2000 (FHOG Act):

(1) The amount of the first home owner grant for a special eligible transaction is the amount payable under this section instead of the amount payable under section 18.

(2) If the commencement date of the special eligible transaction is after 8 March 2001 and before 1 January 2002, the amount payable is the lesser of the following:

(a) the consideration for the transaction,

(b) $14000.

(3) If the commencement date of the special eligible transaction is after 31 December 2001 and before 1 July 2002, the amount payable is the lesser of the
(a) the consideration for the transaction,

(b) $10000.

5 The FHOG Act requires an applicant to comply with certain eligibility criteria. Section 13A(2) states that:
(2) Subject to subsection (6), an eligible transaction that is a comprehensive home building contract for a new home is a special eligible transaction if:
(a) the contract is made after 8 March 2001 and before 9 October 2001, and

(b) the building work starts within 16 weeks after the contract is made, or any longer period the Chief Commissioner may allow for delay caused by circumstances beyond the control of the parties, and

(c) the contract states that the eligible transaction must be completed within 12 months after the building work is started or, in any other case, the eligible transaction is completed within 12 months after the building work is started.

(6) A eligible transaction that is a contract is not a special eligible transaction if the Chief Commissioner is satisfied that:
(a) the contract replaces a contract made before 9 March 2001, and

(b) the replaced contract was:

(i) a contract for the purchase of the same home, or

(ii) a comprehensive home building contract to build the same or a substantially similar home. (Emphasis added.)

Issue

6 The issue in this case is whether the Chief Commissioner made the “correct and preferable” decision in refusing Mr Amarasingham’s application for the additional grant. (See s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act). The sole question in dispute in these proceedings is whether the contract dated 13 March 2001 “replaced” the contract dated 1 March 2001.

Evidence

7 The factual circumstances of this case are not in dispute. Mr Amarasingham successfully applied for the initial $7,000 grant available under the FHOG Act. His application for the additional grant was refused.

8 Mr Amarasingham exchanged contracts for the property in question on 1 March 2001. A letter from Mr Amarasingham’s solicitors dated 6 January 2002 confirms that the original contract for sale was exchanged on 1 March 2001 with a cooling off period.

9 On 6 March 2001 Mr Amarasingham wrote to the vendor’s solicitors, Bud Cham and Associates, asking for an extension of the cooling off period because they had problems getting their finances together. On 8 March 2001 the solicitors for the vendor wrote back agreeing to the extension of the cooling off period. Mr Amarasingham then applied for a personal loan of $10,000 from the Commonwealth Bank. The application was rejected.

10 Mr Amarasingham stated that as he could not arrange finance before the cooling off period expired he was compelled to rescind the contract and lose his deposit and legal costs.

11 On 13 March 2001 Mr Amarasingham arranged a loan through a friend, Shanthini SriRanjan. Mr Amarasingham told Ms SriRanjan that he could pay her back as soon he got the $14,000 grant. A new contract was drawn up and exchanged on 13 March 2001.

Reasons and Decision

12 The question in these proceedings is whether, as a matter of statutory construction, the second contract “replaces” the first contract. It is not in dispute that the contract was for the purchase of the same home. “Replace” is defined in The Macquarie Dictionary (3rd edition, The Macquarie Library) to mean “to fill or take the place of; substitute for (a person or thing) or to provide a substitute or equivalent in the place of”.

13 In my view the ordinary meaning of the work “replace” applies to the situation in this case. There is no suggestion in the legislation that the applicant’s intention should be taken into account in assessing whether one contract has replaced another. It may be considered unfair that a person will be denied the extra grant in circumstances where he or she did not enter into a new contract for the purpose of obtaining the grant. Nevertheless the meaning of the provision is clear. The extra grant is not payable if there is a contract made after 8 March 2001 which replaces a contract made before 8 March 2001 for the same home. These requirements are all present in this case.

Orders

14 The Chief Commissioner’s decision not to approve the additional grant of $7,000 is affirmed.