Britten v Chief Commissioner of State Revenue

[2008] NSWADT 38

CITATION:	Britten v Chief Commissioner of State Revenue [2008] NSWADT 38
DIVISION:	Revenue Division
PARTIES:	APPLICANT Paul Britten RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	066119
HEARING DATES:	19 June 2007
SUBMISSIONS CLOSED:	28 June 2007
DATE OF DECISION:	1 February 2008
BEFORE:	Greenwood J - Judicial Member
CATCHWORDS:	First Home Owners grant - reversal by administrator
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	First Home Owners Grant Act 2000
CASES CITED:	Bramley v Chief Commissioner of State Revenue (2003) NSW ADT 135 Chief Commissioner of State Revenue v Bramley (GD) (2003) NSW ADT AP 63 Maguire v Chief Commissioner of State Revenue (2001) NSW ADT 172
REPRESENTATION:	APPLICANT In person RESPONDENT S Benjamin, agent
ORDERS:	The Chief Commissioners decision is affirmed.

REASONS FOR DECISION

The application and the legislative scheme

1 The applicant received a first homeowner grant of $7,000.00 under the First Home Owner Grant 2000 (“the Act”) on 8 March 2004 in respect of a property at 30 Gordon Street Wyndham (“the Wyndham property”). The settlement date for the transaction was not provided, however a Transfer date is given in documents produced in evidence as 19 September 2003, and indicates the application for the grant was made after settlement and the grant was also paid after settlement.

2 The administrator of the Act and the respondent, the Chief Commissioner of State Revenue (“the Commissioner”), has now required the applicant to repay the grant of $7,000.00 plus penalty interest at the rate of 100 percent because the applicant, in the opinion of the Commissioner, has failed to satisfy the following preconditions to the grant:

a) The applicant had a prior relevant interest in land prior to 1 July 2000 pursuant to section 11(1a)

b) The prior property was defined as capable of being “ residential property” to which the FOHG legislation exclusion conditions could apply.

3 The applicant has applied to the Tribunal for review of the Commissioner’s refusal to accede to his objection to the decision. The applicant’s case was that the prior property was not capable of being a residential property, sufficient to disallow his right to the grant.

4 The right to make an application for a grant is given by section 7 of the Act. The applicant must satisfy the eligibility criteria. Section 45 gives the Commissioner the power to request the repayment of a grant and to impose a penalty for non-compliance with such a request, or with the conditions of a grant. See also subsection 23 and 24 of the Act.

5 The grant is commonly made in advance of the applicant moving into occupation, however in this case the grant was paid on 8th March 2004 after settlement. As a result of an audit and a letter of enquiry sent to the applicant, the Commissioner concluded that the criterion and the conditions to the grant had not been satisfied.

The Legislation

6 Section 11 Criterion 4 (1)(a) provides:

“(1) An applicant for a first home owner grant is ineligible for…