Bailey v Chief Commissioner of State Revenue (Rd)

[2007] NSWADTAP 59

Appeal Panel - Internal

CITATION:	Bailey v Chief Commissioner of State Revenue (RD) [2007] NSWADTAP 59
PARTIES:	APPELLANT Stephen Bruce Bailey RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	079012
HEARING DATES:	19 September 2007
SUBMISSIONS CLOSED:	19 September 2007
DATE OF DECISION:	8 October 2007
BEFORE:	Needham J SC - Deputy President; Hole M - Judicial Member; Bennett C - Non Judicial Member
CATCHWORDS:	First Home Owner Grant Act and duty concession under Duties Act - no error of law - extension of appeal to the merits - application of legal principles to factual findings
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	066023
DATE OF DECISION UNDER APPEAL:	01/17/2007
LEGISLATION CITED:	Duties Act 1997 First Home Owners Grant Act 2000
REPRESENTATION:	APPELLANT In person RESPONDENT S Benjamin, agent
ORDERS:	The appeal is dismissed

1 Mr Stephen Bailey fulfilled a lifetime ambition of owning real estate when he bought a unit at Wanniassa Street, Queanbeyan (“the property”) with the assistance of a grant under the First Home Owner Grant Act 2000 in the sum of $7,000 and an exemption from duty under the Duties Act 1997 in the sum of $802.00. He occupied the property for about a week in late November or early December 2003 but then returned to occupy his former home, and soon sold the property for a profit.

2 The Chief Commissioner of State Revenue (the Commissioner”) sought to recall the grant and revoked the duty concession, decisions which Mr Bailey sought to review.

3 Judicial Member Mr Verick heard Mr Bailey’s application. He found against Mr Bailey on the grounds that Mr Bailey failed to fulfil the “residence requirement” which appears in s 3 and 1 of the First Home Owner Grant Act 2000, and s 76 of the Duties Act 1997 in respect of each matter. In particular, Mr Verick found that Mr Bailey did not occupy the property as his principal place of residence, and cited the passage in Chief Commissioner of State Revenue v. Ferrington [2004] NSWADTAP 41 par [42] in which the Appeal Panel set out the principles relating to permanence issues in short occupancies.

4 Mr Bailey appealed from that decision.

5 Mr Bailey represented himself at the appeal. He was impassioned and often emotional. Despite this, he was able to present his case adequately, which was as follows:-

when he bought the property it was tenanted by a Mr Wotton;

he had difficulties in removing the tenant, and sought to do so because he was living in a transportable home which was an unsuitable environment for his three children, who visited him there;

he occupied the property for a week at the end of November or beginning of December 2003;

he was forced to move out of the property by a combination of circumstances, including his inability to get electricity connected, his son’s distress at the move, and his need to stay with his transportable home for reasons which were unclear but appear to involve the regulations of the residential park in which it was located as well as security concerns.

6 Mr Bailey contends that Mr Verick erred in both legal and factual matters. He also contends that he was denied procedural fairness at the hearing.

7 Mr Bailey’s Notice of Appeal seeks leave to extend the appeal to the merits. Mr Benjamin, who appeared for the Commissioner, did not object to the Appeal Panel granting such leave. Given that Mr Bailey was not represented, it was difficult to distil errors of law from errors of fact, and so probably in the circumstances the best course is to extend the appeal to the merits and to deal with Mr Bailey’s submissions as they could be extracted from the material.

Error of law or procedural unfairness?

8 The question to be decided is whether Mr Bailey occupied the property as his principal place of residence so as to satisfy the relevant residence requirements.

9 The decision of Mr Verick, as noted above, applied paragraph [42] of Ferrington which reads as follows:-

“42 First, the words “principal place of residence” should be given their ordinary meaning in the context in which they appear: … Secondly, consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling: … Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue: … Fourthly, to occupy a home as his or her principal place of residence a person’s occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose: … Fifthly, the short length of a person’s residence, while relevant, is not determinative of the issue: … This is so since a recipient’s occupation of a home, while short, may have the requisite degree of permanence to it. But that will not happen if, when considered objectively, the occupation was transient, temporary, contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time on a transient, temporary, or contingent basis, but one can also occupy for a short time as one’s principal place of residence. It is the nature of that occupation which provides the element of permanence. The fact that a period of actual occupation is short, as in the present case, will in practice make it harder for a recipient to show that the occupation was as his or her principal place of residence, but it will not make it impossible, … Sixthly, the reasons for a person’s departure from the home must be both reasonable and adequately explained when considered objectively in the light of their circumstances: …’ (Authorities cited to support each principle have been omitted.)”

10 Mr Verick went on to say (at par [18]):-

18 In addition, as observed by the Tribunal in Zakariya v Chief Commissioner of State Revenue [2003] NSWADT 26, the subjective intention of an applicant at the date of purchase to occupy the premises will not bring the applicant within the eligibility criteria.

11 Mr Verick applied the caselaw, which is the accepted basis of the residence requirements, to the facts in a way which was unexceptionable and the Appeal Panel is unable to find any errors of law which came to the fore.

12 Likewise, Mr Bailey was unable to enunciate ways in which he had been denied procedural fairness, apart from his insistence that Mr Verick should not have believed the assertions in documents emanating from the relevant energy provider. A hearing which is undertaken adversely to a party is not necessarily one which is conducted unfairly; the onus is on Mr Bailey to establish his claims. He has not done so.

13 Accordingly, the matter will revolve around whether, on the merits of the case, the decision was the incorrect one.

Consideration of Factual Issues and Decision

14 Mr Bailey pointed to a number of issues which he said went to the permanency of his residence at the property. Firstly, he said that it was always his dream to turn the key on his own home, and that dream was realised when he entered the property. The Appeal Panel accepts that Mr Bailey intended, when he bought the property, to live there. That is, of course, of limited relevance (see Zakariya, above).

15 Further, Mr Bailey relied upon a disconnection notice from Country Energy in November 2003 by which it appears that Mr Wootton’s energy was disconnected. While that shows that Mr Wotton was likely to have moved out around that time, it does not lend any substance to the permanency of Mr Bailey’s occupation of the property. Nor does the Country Energy letter of 29 August 2007 which was sought to be relied upon by the respondent.

16 Mr Bailey pointed to his reasons for leaving the property. He noted that he was unable either to sell or to rent his transportable home and that the rules of the residential park in which he resided prior to his occupation of the property rendered him unable to leave the transportable home unoccupied. He gave evidence that one of his children was upset that his father was moving to Wanniassa. He said that he brought some items to the property and that after leaving it in early December, he returned a number of times to “lap up the atmosphere”. The returning aspect was not in evidence before Mr Verick, although the balance of the evidence was (except for the letter of 29 August 2007 which was not admitted into evidence).

17 There is nothing in Mr Bailey’s evidence which points to the degree of permanence required for a finding of a principal place of residence; on the contrary, everything about Mr Bailey’s occupation, subjective intention aside, is an illustration of impermanence and transience. He had no electricity (although he says, and the Appeal Panel accepts, that that was of no fault of his own). He was there for only a week. He moved out due to other factors, but they were not compelling ones. He returned to the same place of residence he had occupied prior to moving into the property. He was unable to show any formal matters documenting an objective intention of permanence; that is, he did not change his address with any government body nor did he notify anyone in authority (apart from Country Energy) that he was living there.

Conclusion

18 The brief period in which Mr Bailey occupied the premises, and his subsequent occasional returns, have about them an air of a transient, temporary, or contingent occupation, and are not sufficiently permanent or established to constitute the property as Mr Bailey’s principal place of residence.

19 In the circumstances, the decision to affirm the Chief Commissioner’s decision to recall the grant and to revoke the duty exemption was the correct and preferable decision. Further, no error of law was committed by Judicial Member Verick. No evidence of any breach of procedural fairness is shown.

20 The appeal is dismissed.