Blackwell v Chief Commissioner of State Revenue

[2008] NSWADT 130

CITATION:	Blackwell v Chief Commissioner of State Revenue [2008] NSWADT 130
DIVISION:	Revenue Division
PARTIES:	APPLICANT Peter Blackwell RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	076139, 076140
HEARING DATES:	4 April 2008
SUBMISSIONS CLOSED:	4 April 2008
DATE OF DECISION:	2 May 2008
BEFORE:	Verick A - Judicial Member
CATCHWORDS:	First Home Owners Grant - First Home Plus Scheme - approval of application
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Mental Health Act 1990 (NSW) Real Property Act 1900 (NSW)
CASES CITED:	Brunker v Perpetual Trustee Co Ltd (1937) 57 CLR 555 Commonwealth of Australia v The State of New South Wales & Anor (1923-1924) CLR 1 Corin v Patton (1990) 169 CLR 540
REPRESENTATION:	APPLICANT In person RESPONDENT H El Hage, solicitor
ORDERS:	The Chief Commissioner’s decision to refuse to grant the Applicant a first home grant under the First Home Owner Grant Act 2000 and the First Home Plus Scheme (FHP) concession under the Duties Act 1997 is set aside. In substitution, a decision is made to approve the applicant’s application for a first home owner grant and his application for the FHP concession.

REASONS FOR DECISION

Introduction

1 The Applicant seeks a review of a decision of the Chief Commissioner of State Revenue (the “Chief Commissioner”) refusing to grant him a First Home Owner Grant of $7,000 (“the Grant”) under the First Home Owner Grant Act 2000 (NSW) (the “FHOG Act”). The Applicant also seeks a review of the decision of the Chief Commissioner to refuse his application for an exemption from duty in accordance with the First Home Plus Scheme (the “FHP Concession”) under the provisions of the Duties Act 1997 (NSW) (the “Duties Act”).

2 Both applications are in respect of a property situated at Evans Head, New South Wales (“the Property”). The essential issue common to both applications is whether the Applicant is ineligible for the Grant and the FHP Concession because he held a relevant interest in another residential property in New South Wales before 1 July 2000. By agreement the applications were jointly heard by the Tribunal.

Factual Background

3 The facts are not in dispute and are as follows.

4 The Applicant on 1 February 2007 entered into a contract for the purchase of the Property. Prior to the purchase of the Property, on 23 January 2007, the Applicant made an application for the Grant. In early March 2007, the Applicant also made an application for the FHP Concession in respect of the purchase of the Property.

5 In both applications, the Applicant brought to the attention of the Chief Commissioner that he was a signatory to a bank loan to purchase a property in Brooklyn, New South Wales with another person, Ian Whitmore Tyler, as tenants in common in equal shares, in March 1997. A transfer relating to the Brooklyn property was signed on 26 March 1997 on behalf of both purchasers by a solicitor. On 7 April 1997, the Applicant signed a transfer, transferring his one-half share in the Brooklyn property to the sister of Ian Whitmore Tyler who held the other one-half share in the Brooklyn property.

6 The Applicant also stated in the application, and which was confirmed at the hearing, that he made no financial payment on the loan or any other financial contribution in respect of the purchase. He also indicated that he never occupied the Brooklyn property.

7 In his application, the Applicant also brought to the attention of the Chief Commissioner that he was an inpatient at the Manly Hospital from 18 March 1997 until 4 April 1997 and was scheduled under the Mental Health Act 1990 (NSW). At the hearing the Applicant confirmed that he was in the custody of the hospital pursuant to an order made by a magistrate. It was claimed by the Applicant in his application that he “received legal advise (sic) stating that as per Mental Health Act 1990 (he) was not legally able to sign documents being under the care of the State and therefore the documents are nul and void”.

8 On 20 April 2007, the Chief Commissioner rejected the application for the FHP Concession on the grounds that the Applicant was ineligible under section 71 of the Duties Act because the Applicant “has previously been the registered owner of residential property in Australia”.

9 On 1 May 2007, the Chief Commissioner rejected the application for the Grant on the grounds that “with the information provided the applicant has held relevant interest in a property, therefore is not a first home buyer” and fails to satisfy section 11 Criterion 4 of the FHOG Act.

10 The Applicant objected to both decisions, which were disallowed on similar grounds as those in refusing his applications. On 21 November 2007, the Applicant filed at the Tribunal two applications, one to review the Chief Commissioner’s decision to refuse the Grant, and the other in respect of the decision made by the Chief Commissioner not to grant the FHP Concession.

Relevant Legislative Provisions

FHOG ACT

11 Historically, the FHOG Act was introduced to encourage and assist home ownership and to offset the effect of the Goods and Services Tax on the acquisition of a first home. The scheme has been continued to assist first home buyers to purchase or build their first homes. The entitlement requirements for a grant are set out in section 7(1) of the FHOG Act as follows:

“A first home owner grant is payable on an application under this Act if:

(a) the applicant or, if there are 2 or more of them, each of the applicants complies with the eligibility criteria, and

(b) the transaction for which the grant is sought:

(i) is an eligible transaction, and

(ii) has been completed.”

12 The eligibility criteria is set out in Division 2 of Part 2 of the FHOG Act which requires an applicant to satisfy 5 “Eligibility Criteria” to obtain a grant.

13 The matter at issue arises out of the provision of section 11 of the FHOG Act, which sets out criterion 4 of eligibility for a grant. The relevant historical version applicable in this matter provides as follows:

“ 11 Criterion 4 – Applicant (or applicant’s spouse) must not have had relevant interest in residential property

(1) An applicant for a first home owner grant is ineligible for the grant if the applicant or the applicant’s spouse has, before 1 July 2000, held:

(a) a relevant interest in residential property in New South Wales, or

(b) an interest in residential property in another State or a Territory that is a relevant interest under the corresponding law of that State or Territory.

(2) In working out for the purposes of sub-section (1) whether an applicant held a relevant interest (within the meaning of this Act or a corresponding law) in residential property at a particular time, any deferment of the applicant’s right of occupation (because the property was subject to a lease) is to be disregarded.

(3) An applicant is also ineligible if the applicant or the applicant’s spouse has at any time before the commencement date of the eligible transaction to which the application relates:

(a) held a relevant interest in residential property in New South Wales or an interest in residential property in another State or a territory that is a relevant interest under the corresponding law of that State or Territory, and

(b) occupied the property as a place of residence for a continuous period of at least 6 months.”

14 The expression “relevant interest” is defined in section 5 of the FHOG Act and the relevant historical version provides as follows:
“ 5 Ownership of land and homes

(1) A person is an owner of a home or a home owner if the person has a relevant interest in land on which a home is being built.

(2) Each of the following is, subject to subsection (3), a relevant interest in land:

(a) an estate in fee simple in the land,

(b) a life estate in the land approved by the Chief Commissioner,

(c) a perpetual lease of the land granted by the Commonwealth or the State,

(d) a leasehold interest in the land granted by the Commonwealth or the State that may be converted under the terms of the lease or by statute into an estate in fee simple,

(e) an interest as purchaser under a contract for the purchase from the Commonwealth or the State of an estate in fee simple in the land by instalments,

(f) a licence or right of occupancy granted by the Commonwealth or the State in relation to the land that gives, in the Chief Commissioner’s opinion, the licensee or the holder of the right reasonable security of tenure,

(g) an interest in a company’s shares or in units in a unit trust scheme, if the Chief Commissioner is satisfied that:

(i) the interest entitles the holder of the interest to exclusive occupation of a specified home situated on the land and owned by the company or trustees, and

(ii) the value of the shares is not less than the value of the company’s or trustees’ interest in the home.

(3) Subject to sub-section (4):

(a) an interest is not a relevant interest at a particular time unless the holder of the interest has, or will have within 12 months after that time (or a longer time allowed by the Chief Commissioner), a right to immediate occupation of the land, and

(b) an interest is not a relevant interest in the hands of a person who holds it subject to a trust.

(4) The Chief Commissioner may recognise an interest (a non-conforming interest) as a relevant interest in land even though the interest may not conform with the above provisions (and even though the interest may not be recognised at law or in equity as an interest in land) if there is, in the Chief Commissioner’s opinion, good reason to do so.

(5) If the Chief Commissioner recognises a non-conforming interest as a relevant interest in land and, in consequence, a first home owner grant is to be paid, the Chief Commissioner may impose appropriate conditions on the payment of the grant to ensure its recovery if suppositions about future conduct or events made by the Chief Commissioner in recognising the interest later prove to be incorrect.

(6) If a person holds an interest on trust as guardian for a person under a legal disability and that interest would be a relevant interest but for sub-section (3)(b), then for the purposes of this Act:

(a) the person under the legal disability is taken to be the person who holds a relevant interest in the land, and

(b) the guardian is take not to hold that interest.

(7) In this section:

unit in a unit trust scheme means:

(a) a right or interest (whether described as a unit or a sub-unit or otherwise) of a beneficiary under the scheme, or

(b) a right to any such right or interest.

Unit trust scheme means any arrangements made for the purpose, or having the effect, of providing facilities for persons participating in the arrangements, as beneficiaries under a trust, for occupying any property pursuant to the trust.”

15 Section 17 of the FHOG Act gives the Chief Commissioner power to authorise the payment of a grant if he is satisfied that a first home owner grant is payable on an application.

DUTIES ACT

16 In tandem with the grant scheme, the government has from 4 April 2004 introduced the FHP Concession scheme under the Duties Act. Section 69 of the Duties Act sets out the scheme as follows:

“ 69 The nature of the scheme

This scheme is intended to help people who are acquiring their first home. Under the scheme, the acquisition and any mortgage given to assist the financing of the acquisition is subject to a concession or exemption from duty.”

17 Under section 80 of the Duties Act no duty is chargeable on an agreement or transfer of a dwelling valued up to $500,000 or $300,000 in the case of a vacant block of residential land if the application concerning an eligible agreement or transfer is approved by the Chief Commissioner.

18 There are restrictions on eligibility for the concession which are set out in section 71 as follows:

“ 71 Restrictions on eligibility – previous ownership of residential property or first home concession

(1) A purchaser or transferee under an agreement or transfer may apply under the scheme, but will be eligible only if the purchaser or transferee:

(a) has not at any time owned residential property in Australia (either solely or with someone else), and

(b) has not previously been a party to an application under the scheme that was approved by the Chief Commissioner.

(2) If a purchaser or transferee under an agreement or transfer has a spouse, the purchaser or transferee is eligible only if the spouse of the purchaser or transferee:
(a) has not at any time owned residential property in Australia (either solely or with someone else), and

(b) has not previously been a party to an application under the scheme that was approved by the Chief Commissioner.

(3) If there is more than one purchaser or transferee under an agreement or transfer, they may apply under the scheme, but will be eligible only if all of them are eligible under sub-sections (1) and (2).

(4) For the purpose of this section, a person is the spouse of another person if:

(a) they are legally married, or

(b) they are living together as a couple in a de facto relationship.

(5) If the Chief Commissioner is satisfied that, at the time of making an application under the scheme, a purchaser or transferee:
(a) is legally married but not cohabiting with the person to whom the applicant is legally married, and

(b) has no intention of resuming cohabitation,

the person to whom the purchaser or transferee is legally married is not to be regarded as the applicant’s spouse.

(6) Despite the other provisions of this section, the ownership at any time of another residential property, or a previous application under the scheme, may be disregarded if the Chief Commissioner is satisfied that:
(a) the other residential property owned by the purchaser or transferee is or was vested in the purchaser or transferee on trust, or as an executor under a will, or the application was made by the purchaser or transferee in his capacity as trustee or executor, or

(b) the purchaser or transferee who owns or owned the other residential property, or who has previously been a party to an application, is acquiring an interest in the property that is the subject of the application solely for the purpose of assisting the eligible persons under the scheme in financing the acquisition.”

Submissions

19 The Applicant’s case was that the relevant purchase transactions relating to the Brooklyn property were entered into whilst he was in the hospital receiving treatment under the Mental Health Act 1990 and they should be treated as “nul and void” because he at that time lacked the legal capacity to be a party to the transactions.

20 Alternatively, the Applicant submitted that because he contributed no money to the purchase nor resided at the Brooklyn property he was not disqualified either under section 11 Criterion 4 of the FHOG Act or under section 71 of the Duties Act to the grant and the concession respectively.

21 The Chief Commissioner contended that the Tribunal had no jurisdiction to “go behind” the transaction relating to the acquisition of the Brooklyn property in 1997 to determine the “applicant’s capacity to enter into the transaction and ultimately, to nullify the applicant’s acquisition of his half-share interest in that property”.

22 The Chief Commissioner further submitted that the “Tribunal must proceed on the basis of the transaction having taken place and that the applicant previously held a 50 percent share in the Brooklyn Property as tenant in common with Ian Whitmore Tyler”. The Chief Commissioner relied on the following arguments:

“42 Under the Transfer of 26 March 1997, the transferor, Fay Chehab, transferred to the applicant and Ian Whitmore Tyler the estate in fee simple in the land comprising the Brooklyn Property. It is of no consequence that the Transfer may not have been registered on title at that point. The applicant’s (unregistered) interest in the Brooklyn Property would have been recognised by the courts as well as under the Real Property Act 1900 (NSW): see, for example, Brunker v Perpetual Trustee Co Ltd (1937) 57 CLR 555, at 581, per Latham CJ:
“… where there is a transaction for value which is recorded in a contract followed by an instrument of transfer, or where there is a transaction for value which itself is recorded in a transfer ( Mathieson v. Mercantile Finance and Agency Co. Ltd. ), then ‘the transaction behind the instrument’ and upon which it rests may create an equitable interest in the land which will be recognized in the courts, such interest being subject to the risk of being defeated by a transfer to a bona fide purchaser for value which obtains prior registration. As Isaacs J. says in Barry v. Heider , sec. 41 of the Real Property Act 1900 in denying effect to an instrument until registration, does not touch whatever rights are behind it.”
43 See further Woodman & Nettle, The Torrens System in NSW . Loose leaf service, LBC, at paras. [41.40]-[41-60]; see also P Butt, Land Law , 4th ed., (2001) (“Butt”) at para. [2021]. The applicant subsequently transferred his interest in the Brooklyn Property to Gabrielle Louise Tyler.”
23 The Chief Commissioner accordingly submitted that as the Applicant has “held a 50 percent interest (as tenant in common) in the Brooklyn property … he had a ‘relevant interest’ in residential property before 1 July 2000 within section 5(2) of the FHOG Act” and was ineligible for the First Home Owner Grant. It was also submitted that section 5(3) of the FHOG Act did not apply “as a tenant in common, the applicant had a right to immediate occupation of the property”. In relation to the FHP Concession, it was submitted that the Applicant was not entitled to the FHP Concession because “the applicant had previously owned residential property in Australia for the purposes of section 71(1)(a) of the Duties Act”.

Reasons and Decision

24 The Chief Commissioner’s case was essentially that the Applicant was ineligible for the grant under section 11(1)(a) because he had, prior to 1 July 2000 held in terms of section 5(2)(a) of the FHOG Act a “relevant interest” in land, which was an estate in fee simple in the land in respect of the Brooklyn property. And in the case of the FHP Concession, the Applicant is not eligible under section 71 of the Duties Act for the concession because he has previously “owned residential property in Australia”.

25 These submissions were made by the Chief Commissioner on the basis that the Applicant was a tenant in common in respect of the Brooklyn property and as such owned an estate in fee simple.

26 In Commonwealth of Australia v The State of New South Wales and Another (1923-1924) 33 CLR 1 at page 42, Issacs J in explaining the legal status of a fee simple title, cited with approval the following passage from Challis’s Real property, 3rd edition:

“A fee simple is the most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law. It confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination, including the right to commit unlimited waste; and, for all practical purposes of ownership, it differs from the absolute dominion of a chattel, in nothing except the physical indestructibility of its subject. Besides these rights of ownership, a fee simple at the present day confers an absolute right, both of alienation inter vivos and of devise by will.”
27 The real question for determination in this matter is whether the Applicant held an interest in the Brooklyn property, which amounted to “an estate in fee simple in the land” for purposes of the grant application and in the case of the FPH Concession the interest was “ownership of residential property”.

28 The facts of this matter are quite unusual. The Applicant was very honest in both applications and drew the attention of the Chief Commissioner to certain transactions that he was a party to in 1997. On 26 March 1997, whilst the Applicant was in the custody of the Manly Hospital pursuant to an order made by a magistrate under the Mental Health Act 1990, a transfer was signed on behalf of both the Applicant and Mr Tyler as transferees and tenants in common in equal shares by their solicitor in respect of the Brooklyn property. The Applicant made no financial contributions to the purchase other than being a party to a loan agreement. On release from the Manly Hospital, the Applicant considered his position and came to the view that he did not have the financial means to proceed with the purchase of the Brooklyn property and, on 7 April 1997 with agreement of Mr Tyler, a transfer was signed by the Applicant as transferor of his one half share in the Brooklyn property to Mr Tyler’s sister. For reasons not known to the Applicant both the original transfer and the subsequent transfer were not registered until 29 June 1999.

29 The Chief Commissioner placed a great deal of reliance on the statement made by Latham CJ in Brunker v Perpetual Trustee Co Ltd, that “a transaction for value which is recorded in a contract followed by an instrument of transfer, or where there is a transaction for value which itself is recorded in a transfer … then ‘the transaction behind the instrument’ and upon which it rests may create an equitable interest in the land which will be recognized in the courts … ” The applications for the grant and the FHP Concession were accordingly rejected on the grounds that the Applicant’s unregistered interest in the Brooklyn Property would have been recognised by the courts as well under the Real Property Act 1900 (NSW). Some reliance was also placed on the fact that the original title was in any case registered on 29 June 1999.

30 In Brunker and subsequently in Corin v. Patton [1990] HCA 12; (1990) 169 CLR 540 the High Court considered the legal status of gifts made by donors who died prior to doing things that were necessary resulting in what the court said were gifts that were imperfect or incomplete. It is not necessary in this matter to examine these cases in any detail other than to rely on statements that explain the status of unregistered transfers.

31 His Honour Brennan J (as he then was) at page 562 in Corin by way of a useful summary stated the position of unregistered transfers of property as follows:

“A proposed transferee of Torrens title land in New South Wales does not acquire an estate or interest in the land merely by the delivery to him of a registrable transfer (whether with or without the relevant certificate of title) or by lodging the instrument (whether with or without the relevant certificate of title) for registration. Section 41(1) of the Real Property Act 1900 (NSW) provides:
“No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable to security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature.”
Although a proposed transferee of land has no legal estate or interest in the land to be transferred prior to registration of the transfer, he may acquire an equitable estate or interest “by reason of some fact or circumstance which a court of equity regards as binding the legal owner in conscience to hold the property upon trust for the (transferee)”: per Kitto J. in Olsson v. Dyson [1969] HCA 3 ; (1969) 120 CLR 365, at p 375. Section 41, “in denying effect to an instrument until registration, does not touch whatever rights are behind it”: Barry v. Heider [1914] HCA 79 ; (1914) 19 CLR 197, per Isaacs J. at p 216. It is for this reason that a purchaser under a contract of sale of land under the Real Property Act has an equitable estate or interest in the land corresponding with the protection which equity gives to rights acquired under the contract: Bahr v. Nicolay (No.2) [1988] HCA 16 ; (1988) 164 CLR 604, at pp 612,645-646; Chan v. Cresdon Pty. Ltd. (1989) 64 ALJR 111. At p 117; 89 ALR 522, at pp 531-532. The source of that estate or interest is the contract, not the transfer. Where, as in the present case, a registrable transfer of land under the Real property Act is delivered voluntarily to enable the proposed transferee to secure registration, there is no fact or circumstance on which a court of equity might fasten as binding the conscience of the donor to hold the land on trust for the transferee. Equity neither compels an owner of property who intends to give it to another to do anything to perfect the gift nor impresses the property with a trust which the owner did not intend to create: Milroy v. Lord (1862) 4 De GF & J 264, at pp 274-275 (45 ER 1185, at pp 1189-1190); Federal Commissioner of Taxation v. Clarke [1927] HCA 49 ; (1927) 40 CLR 246, at pp 283-284. When Turner LJ. In Milroy v. Lord spoke of a “valid and effectual” voluntary settlement, he was speaking of a settlement which was effective to pass to the intended donee title to the intended gift, and his observation that there is no equity to perfect an imperfect gift relates to the absence of an equity to compel the donor to vest or to procure the vesting of title in an intended donee.”
32 In Corin Toohey J at page 588 also importantly highlighted that:
“… there is no neat equation between legal and equitable interests on the one hand and registered and unregistered instruments on the other. An instrument of transfer is not effectual of itself to vest in the transferee either a legal or an equitable estate in the land: see Latham CJ. In Brunker v. Perpetual Co, (Ltd) [1937] HCA 29 ; (1937) 57 CLR 555, at p 581. Where, however, there is a transaction for value which is recorded in a contract followed by an instrument of transfer or which is recorded in the transfer itself, there will result an equitable interest in the land commensurate with the transferee’s ability to obtain specific performance of the contract: see Bahr v. Nicolay (No.2) [1988] HCA 16 ; (1988) 164 CLR 604, at pp 612, 645-646. But where the transaction is not for value, the transferee acquires no estate in the land merely by force of execution and delivery of the transfer …”
33 In the present case, the Applicant held some kind of interest in the Brooklyn property from 26 March 1997 until 7 April 1997 when he transferred the interest to Mr Tyler’s sister. The question that arises for determination is the legal status of that interest held by him for less than two weeks. The Chief Commissioner has, in rejecting the application for the grant, taken the view that that interest was “an estate in fee simple in the land” within the terms of section 5(2)(a) of the FHOG Act and in refusing to grant the FHP Concession, the Chief Commissioner has treated that interest as “ownership of a residential property” within the restrictions on eligibility set out in section 71(1) of the Duties Act. More simply, the Chief Commissioner has described that interest as “a 50 percent interest (as tenant in common) in the Brooklyn Property” which he submitted was held by the Applicant prior 1 July 2000.

34 It is correct that the Applicant had some kind of interest in the Brooklyn property before 1 July 2000. But on the authorities of both Brunker and Corin that interest at the highest level was no more than an equitable interest in the Brooklyn property. That equitable interest was not from the unregistered transfers, which under section 41(1) of the Real Property Act 1900, as pointed out by his Honour Brennan J in Corin were ineffective to create any rights in the land. The basis of the equitable interest was, as observed by his Honour Toohey J in Corin, obtained by the Applicant from the exchange of the contract to purchase the Brooklyn property.

35 The Applicant accordingly never had a legal estate or interest in the Brooklyn property that could be described as a fee simple title conferring on the Applicant a compete form of ownership of the Brooklyn Property to make him ineligible for the grant under section 11(1)(a). Similarly, for purposes of section 71(1) of the Duties Act, the Applicant did not own any residential property prior to his application for the FHP Concession. The Applicant merely had, for less than 2 weeks, an equitable interest in a residential property.

36 A fee simple title confers on the owner a compete form of ownership of property. In the absence of a fee simple title, the Applicant was also entitled to the aid of section 5(3)(a) of the FHOG Act. Under that provision, “an interest is not a relevant interest at a particular time unless the holder of the interest has, or will have within 12 months after that time (or longer time allowed by the Chief Commissioner), a right to immediate occupation of the land”. In this matter, the Applicant, during the short period he held the equitable interest did not have any such right of immediate occupation of the Brooklyn property.

37 In passing, the Tribunal also notes that the legislature has in a way recognised the dilemma faced by applicants in situations like the Applicant. Under the current provisions of section 11(3) of the FHOG Act which apply from 7 December 2005 an applicant with a relevant interest in a residential property acquired after 1 July 2000, is only ineligible for the grant if he or she has “occupied the property as a place of residence for a continuous period of at least 6 months”. Unfortunately, that concession is not available to the Applicant.

38 Some reliance was also placed by the Chief Commissioner on the subsequent registration of the original transfer in which he was included with Mr Tyler as holding one half share in the Brooklyn Property. It is not clear, nor is the Applicant aware, as to the reasons for the long delay in registering the transfer, which only occurred on the same date in 1999 along with the transfer dated 7 April 1997. When the Applicant executed the transfer on 7 April 1997 prior to the registration, he effectively also extinguished any equitable interest that he may have had in the Brooklyn property. The transfers were in the possession of the Tylers or their solicitor and beyond any control of the Applicant when they were registered. The Chief Commissioner had suggested at the hearing that merely because the registration of the original transfer would have preceded the registration of the subsequent transfer, the Applicant should be taken to have a legal interest in the Brooklyn property, even if that was for a few seconds. As the Applicant had made no financial contribution and had signed the subsequent transfer in 1997, the registration in 1999 was no more than a formality to allow the Tylers to register the subsequent transfer. The Applicant held no interest, equitable or legal, when the transfers were finally registered on 29 June 1999. In any case, the Applicant did not have the required “relevant interest” because, at the time the registrations occurred, the Applicant did not have in terms of section 5(3)(a) of the FHOG Act a right to immediate occupation of the Brooklyn property.

39 The matter that remains is the submission made by the Applicant relating to his legal capacity to enter into the transactions relating to the purchase of the Brooklyn property. I do not think sufficient evidence was produced to allow the Tribunal to make any finding on that question. It does raise a fairly serious issue but having concluded favourably for the Applicant, it is really not necessary to conclusively deal with that issue.

Order

The Chief Commissioner’s decision to refuse to grant the Applicant a grant under the FHOG Act and the FHP Concession under the Duties Act is set aside. In substitution, a decision is made to approve the Applicant’s application for a first home owner grant and the Applicant’s application for the FHP concession.