Chief Commissioner of State Revenue v Ferrington

[2004] NSWADTAP 41

Appeal Panel - Internal

CITATION:	Chief Commissioner of State Revenue -v- Ferrington (GD) [2004] NSWADTAP 41
PARTIES:	APPELLANT Chief Commissioner of State Revenue RESPONDENT Kate Eliza Ferrington
FILE NUMBER:	049013
HEARING DATES:	16/07/2004
SUBMISSIONS CLOSED:	07/16/2004
DATE OF DECISION:	09/24/2004
DECISION UNDER APPEAL:	Ferrington -v- Chief Commissioner of State Revenue (17 February 2004)
BEFORE:	Chesterman M - ADCJ (Deputy President); Molony P - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	033281
DATE OF DECISION UNDER APPEAL:	02/17/2004
LEGISLATION CITED:	First Home Owners Act 1983 (Cth) First Home Owners Grant Act 2000 Land Tax Management Act 1956 Liquor Act 1982 Rates and Land Tax Act 1926 (ACT) Stamp Act 1894 (QLD)
CASES CITED:	Allison v Lowe [1998] Tas R 21 Bates v Chief Commissioner of State Revenue [2004] NSWADT 13 Baulkham Hills Shire Council v Meko Pty Ltd (1970) 20 WN (NSW) 553 Commissioner of Taxation v Miller (1946) 73 CLR 93 Deane v Commissioner of Stamp Duties [1996] 2 Qd R 557 Department of Community Services and Health v Andrew Theologidis (Unreported, Federal Court of Australia, 31 December 1991) Fincher v Commissioner for ACT Revenue (1996) 96 ATC 2030 Harris v McKenzie (1986) 9 NSWLR 139 Hartwell v Grayson Rollo and Clover Docks Ltd [1947] KB 901 Levene v Inland Revenue Commissioners (1928) AC 217 McKellar v Chief Commissioner of State Revenue [2004] NSWADT 22 Newman v Commissioner for ACT State Revenue (1993) 93 ATC 2087 Re Alison Lesley Gaines and Secretary Department of Health, Housing and Community Services (Unreported, AAT, 30 June 1992, No. W91/5) Re Einav Kedem and the Secretary, Department of Community Services and Health (Unreported, AAT, Decision No. 7249; 19 August 1991) Re Stanley Parzatka and The Secretary, Department of Health, Housing and Community Services (1992) 28 ALD 386 Secretary, Department of Community Services and Health v Paul Theologidis (unreported, Full Court of the Federal Court, 13 December 1991) Tomasian v Chief Commissioner of State Revenue [2004] NSWADT 37 Wheat v E Lacon & Co Ltd [1966] AC 552 Zakariya v. Chief Commissioner, Office of State Revenue [2003] NSWADT 26
REPRESENTATION:	APPELLANT I Mesher, barrister RESPONDENT In person
ORDERS:	Appeal dismissed.

1 This is an appeal by the Chief Commissioner of State Revenue against a decision of the Tribunal made on 17 February 2004 to set aside a decision of the Commissioner reversing an earlier decision to pay the Respondent, Ms Ferrington, a grant under the First Home Owners Grant Act 2000. The Commissioner had also imposed a penalty of 20 per cent of the grant on Ms Ferrington, which the Tribunal set aside. The Tribunal ordered the Commissioner to repay the amounts paid by Ms Ferrington in compliance with the decisions which it set aside.

2 The appeal raises for consideration what is required for an applicant for a grant under the First Home Owners Grant Act 2000 to satisfy the requirement of s 12(1), as it was at the time, that they “occupy the home to which the application relates as the applicant’s principal place of residence within twelve months” after becoming entitled to possession of their new home. Section 12(1) has since been amended by inserting a requirement that an applicant occupy the as his or her principal place of residence “for a continuous period of at least six months”.

The legislative scheme

3 The First Home Owner Grant Act 2000 establishes a scheme to assist persons buying or building their first home by providing them with a grant. To be eligible for a grant, an applicant must satisfy the five eligibility criteria that are contained in Division 2 of Part II of that Act, and the purchase of the property for which the grant is sought must be an “eligible transaction”.

4 The eligibility criterion in issue in this application is the fifth criterion, which is set out in s 12(1). This relevantly provides:

12(1) An applicant for a first home owner grant must occupy the home to which the application relates as the applicant’s principal place of residence within twelve months after completion of the eligible transaction or a longer period approved by the Commissioner.
The contract for the purchase of the property by Ms Ferrington, was an “eligible transaction” under the Act.

5 Section 13(5) provides that where the transaction relates to a contract for the purchase of a home, that transaction is completed when the purchaser becomes entitled to possession of the home under that contract.

6 Section 20(1)(b) provides that the Commissioner may authorise the payment of a grant in anticipation of compliance with the residence requirement, if the Commissioner is satisfied that the applicant intends to occupy the home as his or her principal place of residence within twelve months after completion of the eligible transaction, or a longer period allowed by the Commissioner. The sub-section also gives the Commissioner power to extend the period within which the applicant must take up occupancy of the property as his or her principal place of residence.

7 Where a grant is paid in anticipation of compliance with the “residence requirement”, s 20(3) of the Act provides that:

20(3) If a first home owner grant is paid in anticipation of compliance with the residence requirement, the payment is made on condition that, if the residence requirement is not complied with, the applicant must within 14 days after the end of the period allowed for compliance:

(a) give written notice of that fact to the Chief Commissioner, and

(b) repay the amount of the grant.

The term “residence requirement” is defined in s.3 of the Act in similar terms to that contained in s 12. A failure to comply with s 20(3) constitutes an offence, which is punishable by a maximum penalty of 50 penalty units.

8 Section 23 gives the Commissioner power, within 5 years of the original decision, to vary or reverse a decision made in respect of an application for a grant where the Commissioner is later satisfied that the decision is incorrect.

9 Section 24(1) provides that where the Commissioner decides to reverse an earlier decision on an application for a grant, the Commissioner is required to give the applicant written notice of the reversal and state in the notice the reasons for the reversal.

10 Section 29(3) provides that an applicant who seeks review of the Commissioner’s determination of an objection has the onus of proving his or her case. That is, the onus of proof rests on the applicant to establish, on the balance of probabilities, those matters, which he or she contends.

11 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. That section provides:

45 (1) The Chief Commissioner may by written notice require an applicant (or a former applicant) for a first home owner grant to repay an amount paid on the application if:

(a) the amount was paid in error, or

(b) the Chief Commissioner reverses the decision under which the amount was paid for any other reason.

(2) If, as a result of an applicant’s dishonesty, an amount is paid by way of a first home owner grant, the Chief Commissioner may, by the notice in which repayment is required or a separate notice, impose a penalty not exceeding the amount the applicant is required to repay.

(3) If an applicant (or a former applicant) for a first home owner grant failed to make a repayment required under this section or the conditions of the grant, the Chief Commissioner may, by written notice, impose a penalty not exceeding the amount the applicant is required to repay.

(4) If an amount is paid in error on an application for a first home owner grant by a third party, the Chief Commissioner may, by written notice, require the third party to repay the amount to the Chief Commissioner”.

12 The Respondent entered into a contract to purchase her home on 24 April 2001. She then applied for a First Home Owners Grant, including the Special Eligible Grant for a new home, of $14,000.00. Her application was approved and she was paid the grant of $14,000.00 on 4 June 2001. On 5 June 2001 settlement of her purchase took place.

13 The Tribunal found that on or about that date the Respondent moved into the property and connected the utilities. The Tribunal also found that on 28 June 2001 the Respondent moved out of the property, and returned to live at her parent’s home, where she had been living before the purchase. After she vacated the property she let it to tenants.

14 Upon becoming aware of these events, and having made inquiries of the Respondent, the Commissioner on 6 May 2003 made a determination under s 45 to reverse the decision to pay the Respondent the grant, and imposed a penalty of $2,800.00 being 20 per cent of the grant. The Commissioner’s reason for reversing the decision to pay the grant was that the Respondent had not satisfied the condition of her grant that she occupy the home as her principal place of residence. The Respondent objected to this decision. On 8 August 2003 the Commissioner disallowed that objection. The Respondent then filed an application for review with this Tribunal.

15 The Tribunal heard the application and delivered its decision on 17 February 2004. In its reasons, the Tribunal said:

The question then is whether Ms Ferrington occupied the premises and, secondly, if she did so, she did so as her principal place of residence. Each of these questions is a question of fact. Counsel for the Chief Commissioner has set out a number of authorities dealing with the meaning of the words "occupied" or "occupy" and, as I said in McKellar [ McKellar v Chief Commissioner of State Revenue [2004] NSWADT 22], I do not think they materially assist the decision in this case, which is whether, as a matter of fact, the applicant occupied the premises.

In my view, occupation has been shown by the documentation annexed to the statutory declaration sworn by Ms Ferrington in reply to the first inquiry by the Chief Commissioner. Those documents show that the gas was connected and used, that the electricity was connected in her name between 5 June and 29 June 2001, and that the telephone was connected for the relevant period and that the telephone bill was paid, showing that she used the telephone at the home at that time.

I am satisfied, therefore, that she occupied the premises for the period 5 June to 28 June. Whether the occupation was by way of her principal place of residence is a question to be answered by reference not only to the purpose of the occupation - in this case, it was as her home - but also to the type of occupation. She says, and it was not contested, that she occupied the property in order to live there and, in leaving her parents' premises, she did so with the intention that the Miranda premises were her principal place of residence.

The question of whether an occupation was by way of principal place of residence is not necessarily answered by the length of time of occupation or, in this case, the lack of a lengthy period of time. No minimum time is specified in the Act and if I am satisfied that the applicant occupied the premises as her main or primary home for a period of time, then she must succeed.

16 What is required of the recipient of a grant to satisfy the resident requirements set out in section 12(1), has been the subject of consideration by a number of Judicial Members of the Tribunal.

17 McKellar v Chief Commissioner of State Revenue [2004] NSWADT 22 was a case in which the applicant had purchased a property with settlement on 25 August 2000. The applicant stayed in the property overnight, and moved his furniture into the house the next day. He connected the electricity and telephone in his own name. He insured the building, but not the contents. He resided at the property from that time until about 27 September 2000, although he sometimes stayed elsewhere, and for a period of eight days he was away altogether. On 20 September 2000 he instructed agents to find tenants for the property, and the property was leased from October 2000 until it was sold.

18 In accepting the applicant’s argument that he had satisfied the requirements of section 12 of the Act, Judicial Member Needham stated:

23 It does not matter if the resident is for a short period of time as long as the occupation is as a principal place of residence; that is, a person's main residence (see Zakariya v. Chief Commissioner, Office of State Revenue [2003] NSWADT 26).

24 There are no grounds, in my opinion, to say that the applicant did not "occupy" the premises. As I have said, the applicant's evidence, oral, written and photographic, show that he moved items such as outdoor furniture, lawn mowers, a kettle, food, clothes and a bed into the property. He slept there. He connected utilities there. He told the Bank he intended to live there, and obtained an "owner/occupier" loan, thus providing documentary corroboration of his intention to live there and treat the property as his home.

25 The real question is whether, given the short duration of the occupation, it can be said to have been his principal place of residence. As I have said, the Act does not require a minimum period of residence, merely a period of one year in which that occupation must take place. Given the intention of the applicant to reside there permanently, and his acting on that intention by moving into the property and living there, albeit for a short period, he does comply with the "residence requirement" in s 12(1) of the Act notwithstanding the fact that he moved merely a month later owing to unforeseen circumstances.

19 In Bates v Chief Commissioner of State Revenue [2004] NSWADT 13, Judicial Member Higgins found in favour of the Commissioner on the basis that an applicant who had resided at the property for a period of about two months had “occupied” the property for the purposes of section 12 of the Act but she had not occupied it as her “principal place of residence”. Judicial Member Higgins was referred to many of the authorities relied on by the Commissioner on this appeal. She undertook an analysis of them and concluded:

39 [T]he following principles of general application also apply in this application:

(a) The terms “occupy” and “principal place of residence” should be given their ordinary meaning having regard to the objects and purposes of the Act. That purpose being similar to the abovementioned tax rating cases in that the legislative scheme of the Act is to provide first home owners some relief towards the cost of purchasing their first home. Accordingly, in the context of this Act, in my opinion, “occupy” means to reside in the property. However, that residence must also be such that it is the person’s “principal” place of residence or to use the terms of the title of the legislation, the persons “home”. This in my opinion, requires the occupation to be ongoing and involves an element of permanence;

(b) Whether an applicant has “occupied” the property as his/her “principal place of residence”, as prescribed under the Act, is a question of fact that is to be assessed objectively having regard to all the circumstances. The intention of the applicant is relevant but it is not determinative of the issue. Nor is the fact that the applicant resided in the property for a short period of time during the relevant period. These matters, if established, must be considered in light of all the evidence including, where the applicant resided otherwise during the relevant period, the reasons given by the applicant for not residing or continuing to reside at the property, whether the reasons for not residing at the property were as a result of matters entirely out of the control of the applicant and the nature of the applicant’s residence at the property. This list is by no means exhaustive as each case must be considered in the context of its own particular facts.

20 Applying those principles she found:

40 In this case, when assessed objectively, in my opinion, the evidence does not establish that Ms Bates met the residential requirement of the Act. I accept that it was Ms Bates’ intention, when she applied for the grant to make the property her home or principle [ sic ] place of residence. Such an intention is of course not sufficient to meet the requirements of the Act. What is required is proof that she in fact “occupied” the property as her “principle place” of residence during the prescribed period.

41 On her own evidence Ms Bates’ intention was based on her friend sharing the expenses related to her purchase of the property. Subsequently, but before the grant was paid to her, her friend had decided to go overseas. This left Ms Bates with the alternative of sharing expenses with her then boyfriend, whom she subsequently married. It was Ms Bates’ evidence that she was not prepared to remain in the property without someone sharing her expenses and that she was not prepared to live with someone she did not know. Accordingly, when she and Mr Cook decided that they would not continue living in the property because of concerns expressed by their respective families, Ms Bates of her own volition decided not to continue to reside at the property. She could have chosen to remain there and obtain another border but did not wish to reside with a stranger. When these facts are considered together with the fact that her principle place of residence prior to and immediately after the period she resided at the property was that of her parents, in my opinion it cannot be said that Ms Bates period of residence at the property from August to October 2001 was for the purpose of making it her home. During the relevant period, in my opinion, her home or principle place of residence remained that of her parents.

21 In Tomasian v Chief Commissioner of State Revenue [2004] NSWADT 37, Judicial Member Montgomery referred to the apparent contradiction between the decisions in McKellar and Bates with respect whether a degree of permanence is required for a recipient to occupy a home as his or her principal place of residence, and the relevance of intention. He expressed his agreement with the reasoning in Bates, but concluded that Mr Tomasian had been in occupation of the property for the purpose of renovating it for sale.

22 In its submissions the Commissioner pointed to the differing views with respect to degree of permanence required and the relevance of intention, but submitted that the correct interpretation of s 12(1) was different to that advanced in both McKellar and Bates.

The meaning of “occupy”

23 In a written submission, the Commissioner contended that the Tribunal in this case was in error in finding that the Respondent had “occupied” the premises by living there for 23 days.

… "Occupation" means something of a continuity of possession and residency for reasonably lengthy periods of time. "Occupation" need not be permanent but mere transitory user is not sufficient: Allison v Lowe [1998] Tas R 21. There must be an element of regularity, continuity and permanence: Baulkham Hills Shire Council v Mekol Pty Limited (1970) 92 WN (NSW) 553. "Occupation" focuses upon what a person does or may do in relation to those premises: Harris v McKenzie (1986) 9 NSWLR 139. In such circumstances, the Appellant submits that "occupation" requires residency for a period of approximately a few months so that section 12(1) can be relevantly satisfied.

24 Counsel for the Commissioner submitted that to satisfy the requirements of s 12(1) the period of occupation must occur within the 12 months from completion of the eligible transaction. It could not, he submitted, be satisfied by an occupancy commencing shortly before the expiration of the twelve months, and continuing from then on. In order for a recipient of a grant to occupy a home within the meaning of s 12(1), he submitted, there must be a degree of permanence, continuity and regularity to their occupation, within the twelve month period (or longer if extended by the Commissioner). In response, the Respondent submitted that her occupation of the property had “something of a settled character” to it.

25 In McKellar, Bates and Tomasian the variously constituted Tribunal was satisfied that each of the recipients of the grant has occupied their homes for the purpose of s 12(1). The period in which they so occupied their homes ranged from 23 days to a number of months, with interruptions. The Commissioner’s submission was that occupancy in s 12(1) implies an element of regularity, continuity and permanence and “requires residence for approximately a few months” . In making that submission the Commissioner relied on Allison v Lowe [1998] Tas R 21; Baulkham Hills Shire Council v Mekol Pty Limited (1970) 92 WN (NSW) 553; and Harris v McKenzie (1986) 9 NSWLR 139.

26 Baulkham Hills Shire Council v Meko Pty Ltd (1970) 20 WN (NSW) 553 was a planning case which involved a consideration of who were the “occupants” of retail premises, for the purpose of determining what provision was required to be made for parking. The key issue was whether provision should be made for parking by customers. Hardie J said (at 557-558):

As far as the researches of counsel have extended, the matter is not covered by authority. The conclusion that I have reached is that the section refers to vehicles likely to be used by the legal occupiers, whether owners or tenants, and also those used by persons who work in the subject premises, so long as their presence on the premises has some element of regularity and continuity and permanence. On this view of the language used I am of the opinion that persons who visit the premises for short periods only as customers of a retail store or clients of a business conducted in the subject building do not come within the sub-clause.

27 In Allison v Lowe [1998] Tas R 21, Nettlefold J, in the course of considering the meaning of the word “occupied” in s 3 of the Poisons Act 1970 (Tas), wrote:

Parliament has not provided us with a definition of the term 'occupier'. Having regard to the multiplicity of the circumstances which may arise, probably Parliament intended to avoid the rigidity of a fixed definition. It intended that, at the end of the day, whether, on the facts of a given case, the accused was an occupier of the premises in question was to be left to the common-sense of the jury subject always, of course, to the overriding duty of the presiding judge to direct the jury whether on the evidence it was open to them to find that the accused was the occupier and, if it was open to them, to direct them concerning the meaning of the term in the Act and the rules relevant to a correct determination in the given case ... In any event it is probably not possible to formulate a true definition which will be appropriate in every case which might arise. That reflection is a further factor pointing to the importance of leaving the jury role as unrestricted as is consistent with justice to the accused and any relevant rules of law. Certainly a legalistic approach to the question whether the accused was an occupier is to be avoided. At the end of the day it will be a question of fact and degree whether, on the evidence, the accused can fairly be said to have been the occupier ....

28 Harris v McKenzie was a licensing case under the Liquor Act 1982, relevantly concerned with whether an unincorporated body (Austin College at the University of New England) occupied premises within the university for which an on-licence could be granted. In concluding that Austin College did occupy premises at the University Kirby P said:

“Occupier” normally means the person who has the immediate supervision and control of the premises and the power of permitting the entry of other persons: see Hartwell v Grayson Rollo and Clover Docks Ltd [1947] KB 901 at 907, approved in Wheat v E Lacon & Co Ltd [1966] AC 552.
In his judgment Mahoney JA observed in respect of the relevant provision of the Liquor Act that:
First it is, I think, contemplated by the provision that legal ownership of the premises may be in a person other than the association or organisation which occupies the relevant premises. In the context of university affairs to which the provision is directed, a body such as a union, association or club is apt to occupy and treat as its own premises not owned by it. … The legislature did not require the kind of formal or legal possession referred to in other contexts: see, eg, Newcastle City Council v Royal Newcastle Hospital (at 507-508). The occupation contemplated was, I think, intended to be of a nature more practical than conceptual.

In the end, occupation, as a term, describes what a person is doing in relation to particular premises. To assign a meaning to the word is, in this sense, to determine what that person must be seen to do or, possibly, to be able to do in relation to the premises. This will involve, not merely what he may do by way of exclusion of strangers: see Newcastle City Council v Royal Newcastle Hospital (at 4); but also what he does or may do in relation to them generally

29 In construing the word occupy in s 12(1), regard must be had to its context. Thus, unlike the situation in Harris v McKenzie, it is clear that in order to occupy a home for the purposes of s 12(1) it is necessary that a recipient of a grant have legal ownership of the premises, as assisting in the purchase of a home is a central purpose of the Act. The Tribunal here found that Ms Ferrington had lived in the home for 23 days, and during that time had the utilities connected in her name. In that time she was the person with the immediate supervision and control of the premises and the power of permitting the entry of other persons. In the commonly accepted sense of the word Ms Ferrington was occupying the home, and no error has been demonstrated in the Tribunal’s conclusion that the Ms Ferrington occupied the home. While of only 23 days duration, her period of residence at the home cannot be equated to the short visits by customers referred to by Hardie J in Meko. The Panel can see no reason or justification for construing the word “occupy” in s 12(1) so as to require that occupation to extend for “at least a couple of months” . But in order to satisfy the residence requirement the occupation must be as the recipient of the grant’s principal place of residence.

The meaning of “principal place of residence”

30 The Commissioner submitted that, if Ms Ferrington did occupy the home, the Tribunal was in error in finding that she did so as her principal place of residence. In his written submission, Counsel for the Commissioner wrote:

"Principal place of residence" is not defined in FHOG. However, the expression is defined in, for example, section 3(3) Land Tax Management Act 1956 (NSW) (''LTMA'') which states that land is not used or occupied as the principal place of residence of a person unless the land has been continuously used and occupied by that person for residential purposes and for no other purpose. It is submitted that during the period 5 June 2001 - 5 June 2002 the Applicant must have occupied or used the property continuously for residential purposes and for no other purposes but obviously not for the whole of the 12 month period. On the facts of this matter, there was another purpose - ie a commercial purpose whereby the Applicant let out the property to tenants for 11 months of the 12 month period expiring on 5 June 2002. For this reason alone, the property was not used as the Applicant's "principal place of residence" within the 12 month period expiring 5 June 2002. It was used principally as a commercial property for the purpose of letting out to tenants.

In Deane v Commissioner of Stamp Duties [1996] 2 Qd R 557 Fryberg J. distinguished between the terms "place of residence" and "principal place of residence" as defined in the provisions of the Stamp Act 1894 (Q). With respect to the word "principal" in the definition of "principal place of residence" his Honour held that the definition allows a wide range of factors to be taken into account and implies an objective test of what is the principal place of residence. In particular, the relevant inquiry is - what would a reasonable person believe was the Applicant's principal place of residence during the period 5 June 2001 - 5 June 2002. The Appellant submits that her parent's home was her principal place of residence and not the property the subject of these proceedings.

Two further ACT land tax decisions are relevant. The first is the decision of the ACT Administrative Appeals Tribunal in Newman v Commissioner for ACT State Revenue (1993) 93 ATC 2087 where it was held that the term "principal place of residence" under the Rates and Land Tax Act 1926 (ACT) does not extend to include a place from which one is absent for a period of time but with the intention of returning there to live. Secondly, in Fincher v Commissioner for ACT Revenue (1996) 96 ATC 2030 it was held that the term "principal place of residence" in the Rates and Land Tax Act 1926 (ACT) implies that a person may have more than one place of residence at any one time but each place of residence must have something of a settled character about it - a person cannot be said to reside at a place if his or her connection with the place is transient or temporary or of a passing nature. During the period 5 June 2001 - 5 June 2002, the Applicant had a connection with the property that was merely transient or temporary given her actual length of residence at the property, irrespective of intention. The property was not, during this period, her principal place of residence for the purpose of section 12(1) FHOG.

31 Secondly, the Commissioner submitted that the intention of the Respondent, when she moved into the home, to reside there as her principal place of residence was irrelevant to a determination of whether she had satisfied the requirements of s.12(1). The correct approach, according to the Commissioner, was to look at actual occupation irrespective of intention during the relevant period. The Commissioner added that in Bates v Chief Commissioner of State Revenue [2004] NSWADT 13 the Tribunal held that intention was relevant to, but not determinative of nor sufficient alone to satisfy, the residence requirement.

32 Thirdly, the Commissioner argued that by taking into account the intention of the Respondent to reside in the home as her principal place of residence when she moved there, the Tribunal had failed to have regard to the provisions of s 20(3). This subsection requires a recipient who has not complied with the residence requirement to give notice to the Commissioner and repay the grant within 14 days of the failure to comply. It was submitted that the Tribunal’s approach rendered s 20 “essentially redundant”, and that this constituted an error of law.

33 In her short written submissions, the Respondent highlighted the difficulties that she as a recipient of a grant has had in understanding what is required of her to comply with s 12(1). She submitted that during the twelve month period she had two principal places of residence, the property in question and her parent’s home. With reference to the Commissioner’s submission that continuous residence for a period of a few months was necessary to constitute occupation as the principal place of residence, she observed that no such time frame was specified in the Act.

34 The decision of Fryberg J in Deane v Commissioner of Stamp Duties [1996] 2 Qd R 557 concerned an appeal against an assessment of stamp duty, and an assessment of penalty, on the ground that the purchasers of property had not occupied the property as their “principal place of residence for a period of not less than 6 months”. His Honour said (at 557):

It also seems to me that the word "principal" in the definition allows a wide range of factors to be taken into account, and also implies an objective test of what is the principal place of residence. That is not to say that the intention of the person acquiring the residence is not relevant. Indeed, Mr Logan for the Commissioner conceded that intention could be taken into account as a factor in the assessment. It seems to me that intention is relevant, but not dominant. That view of the law also seems to me substantially to be the test which was applied by the respondent in the present case.

35 The two decisions of the ACT Administrative Appeals Tribunal relied on by the Commissioner, Newman v Commissioner for ACT State Revenue (1993) 93 ATC 2087 and Fincher v Commissioner for ACT Revenue (1996) 96 ATC 2030, are concerned with the imposition of land tax under the Rates and Land Tax Act 1926 (ACT), and with attempts to take advantage of a series of exemptions relating to persons who are absent from their principal place of residence.

36 In Newman the exemption was that contained in 22B(1A), which provided:

(1A) For the purposes of paragraph (1)(a), a parcel of land does not cease to be the principal place of residence of its owner by reason only that the owner does not occupy the parcel for a period not exceeding

(a)if the reason for the owner's absence is related to his or her employment or occupation - 3 years if he or she occupies the parcel for a continuous period of 2 years in any period of 5 years commencing on a prescribed date;

…

Mr Newman was an employee of the Department of Foreign Affairs who was posted to Paris in December 1986. He let his Canberra home to tenants. The property was assessed for land tax in the 1992-1993 year on the basis that the premises were not his principal place of residence as at 1 July 1992. The evidence disclosed that since 1986 Mr Newman had lived in Canberra, but not at the premises, for a number of periods before being posted overseas again. He gave evidence that he intended to move back into the home at the end of his present posting. The Tribunal dismissed his appeal against the assessment of land tax, stating that:
10. The fact that before Mr Newman was posted overseas he lived in the Aranda house and that he intends to return there upon the expiration of his overseas posting does not make the place his principal place of residence. He had not in fact lived there for five and a half years before 1 July 1992. In no sense was it his place of residence during those years. Whether a person resides at a particular place is a question of fact and the facts in this case are that during the whole of the five and a half years prior to 1 July 1992 Mr Newman lived elsewhere.

11. That the term "principal place of residence" has its ordinary meaning in the Act and does not extend to include a place from which one is absent for a period of time but with the intention of returning there to live is amply illustrated by the fact that the Act provides special consideration for those persons who, for one reason or another, are away from their Canberra houses.

37 In Fincher the Tribunal considered whether Dr Fincher had lived in a house in Gurran as his principal place of residence since it was let to tenants in 1989. The Tribunal outlined the evidence relating to a period when Dr Fincher had lived in the house from 2 September 1991 to 7 October 1991.

8 … When he went into the house, the electricity had been disconnected because the previous tenant had left. The electricity was not reconnected to the house until 2 October 1991, and the reconnection was made in the name of the estate agent who was responsible for the letting of the property, not in Dr Fincher's name. He may have taken some books and papers and some of his clothes to the house. He again slept on the floor and had all his meals elsewhere. He described going to the house as seeking a refuge from the pressures of the University. He left on another overseas visit, this time for some 5 weeks, on 7 October 1991 and a new tenant went into occupation on 14 October 1991. This is the period of living at the Garran house which Dr Fincher claimed established it as his principal place of residence. He has not lived there since 7 October 1991.

9. In my view, the facts plainly establish that at no relevant time was the Garran house a place of residence for Dr Fincher. That he may have moved in in September 1991 without the power being connected and with little in the way of possessions is not of itself conclusive. That has to be seen in the context of the surrounding circumstances and the subsequent events. A person may establish a place of residence in such a frugal manner if the context and the later events demonstrate an intention that the place be a place of residence.

10. During the time that Dr Fincher was at the Garran house, it remained on the books of the estate agent. Indeed, it appears from what Dr Fincher said that he could not have taken it out of the agent's hands without the agreement of his former wife. It seems that she made the arrangements for the letting of the house. The circumstances in which he moved into the house did not demonstrate any intention that it should continue to be a place of residence. This was confirmed by the subsequent events, the letting of the house to tenants again and the fact that at no time since then has Dr Fincher sought to go back to the house.

It was in this context that the Tribunal found that a person cannot be said to reside at a place if his or her connection with the place is transient or temporary or of a passing nature.

38 The phrase “principal place of residence” has also been considered by the Commonwealth Administrative Appeals Tribunal and the Federal Court in the context of decisions concerning the First Home Owners Act 1983 (Cth). Those decisions were not referred to in submissions, but consider very similar issues to that under discussion here. That legislation provided for assistance to be provided, inter alia, to people who have commenced construction of a dwelling and have not previously received assistance or owned a dwelling, as “a prescribed person”. Section 5 empowered the Secretary to direct that a person was deemed not to be a prescribed person where:

… the Secretary is satisfied that the person has not resided in the dwelling as his principal place of residence and does not intend so to reside within a reasonable time, ...
In Secretary, Department of Community Services and Health v Paul Theologidis (unreported, Full Court of the Federal Court, 13 December 1991) the Full Court (Gummow, Einfield and Heerey JJ) explained the purpose of s 5 (at pp 8-9):
This legislative scheme makes money available to persons for the purpose of acquiring homes to live in. To assist their purchase or construction, the money is made available before the dwellings are acquired. It will not be until after acquisition has occurred that it can be seen, in the light of the actual occupation of the dwelling, whether the relevant intention of the recipient of the money remains, or ever existed. A mechanism such as section 5 seems to be an essential element of any such scheme. Its purpose enables those administering the scheme to see whether subsequent events correspond with the previously stated intention of beneficiaries of the scheme…
See also Secretary, Department of Community Services and Health v Andrew Theologidis (Unreported, Federal Court of Australia, 31 December 1991) per Spender J.

39 In Re Einav Kedem and the Secretary, Department of Community Services and Health (Unreported, Administrative Appeals Tribunal, Decision No 7249, 19 August 1991) the applicant had been living with his father in Adelaide since he migrated from Israel in 1979. He then purchased a unit in Perth and furnished it. He and his companion came to stay in the unit but, after 3 weeks, both decided to go back to Adelaide, as she preferred the security of her family and the job she had there. Their links were in Adelaide. When they returned to Adelaide the unit was rented, and rental was received until it was eventually sold. The Administrative Appeals Tribunal (‘AAT’) decided that there was no intention to reside in the dwelling as the principal place of residence and that intention has to be ascertained according to all the surrounding circumstances of each case. The Tribunal said:

25. Turning to the first issue, whether the applicant ever 'resided' in the dwelling as his 'principal place of residence', the Tribunal notes that this phrase is not defined in the Act. The Tribunal however has the benefit of the decision in Re Mrs VG and Secretary to the Department of Housing (Decision No. 2611, 4 April 1986) dealing with the same issue. The question before Senior Member Mrs R. Balmford was whether -
'... standing in the shoes of the respondent, I am "satisfied that it would be unreasonable to regard that as the principal place of residence"'
for the purposes of s. 18 (2) of the Home Deposit Assistance Act 1982, an act with similar objects to the First Home Owners Act 1983. Mr Smart in that case, as he did for the respondent in this matter, said -
'... he had been unable to find any authority on the meaning of the phrase "principal place of residence".
He referred to the definition of "principal" in the Shorter Oxford English Dictionary as "first in rank or importance" ... .' Senior Member Balmford pointed out that -
'Latham C.J. in Commissioner of Taxation v Miller (1946) 73 CLR 93 at p 99, adopted the words of Viscount Cave L.C. in Levene v Inland Revenue Commissioners (1928) AC 217 at p 222, as to the meaning of the word "reside". His Honour said:
"I should have thought that there was no doubt that a man resided where he lived, and I do not think that there is any interpretation of the word 'reside' by the courts which makes it impossible to apply the ordinary meaning of the word 'reside' in the present case. In Levene v Inland Revenue Commissioners, Viscount Cave L.C. said:

'... the word "reside" is a familiar English word and is defined in the Oxford English Dictionary as meaning "to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place". No doubt this definition must for present purposes be taken subject to any modification which may result from the terms of the IncomeTax Act and Schedules; but, subject to that observation, it may be accepted as an accurate indication of the meaning of the word "reside". In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure.'"'

26. On the facts before the Tribunal the only relevant period which might be considered as a period when the applicant 'resided in the dwelling as his ... principal place of residence' was the short three week period in January 1986. The Tribunal is not convinced that the three week stay in the unit in January 1986 was anything more than a trial period during which the applicant took the opportunity to explore avenues of employment, refurnish the unit for his own purposes, generally have a holiday and for him to develop his relationship with Ms Aisatullin. The Tribunal is of the view that he did not 'dwell permanently or for a considerable time, ... in or at a particular place ...'; nor was this unit his settled or usual abode. Accordingly the Tribunal finds as a fact that the applicant did not reside in the dwelling as his principal place of residence.
See also Re Stanley Parzatka and The Secretary, Department of Health, Housing and Community Services (1992) 28 ALD 386 where the AAT concluded that the applicant’s intention to establish permanent residence in a house at Phillip Island was conditional on his finding employment, which did not occur.

40 In Re Alison Lesley Gaines and Secretary Department of Health, Housing and Community Services (Unreported, AAT, 30 June 1992, No. W91/5) the AAT considered the case of a woman who purchased a cottage in May 1994 and commenced to live there. The only cooking facilities were a fry pan and hot water jug. She limited her cooking to light breakfasts, but otherwise ate out as had been her practice before the move. The house had external facilities, and Ms Gaines, who was recovering from a serious illness, began to feel frightened and insecure. She became concerned and pressured by the fact that she did not have sufficient funds to renovate and furnish the cottage. At the end of her first week she was offered temporary shared accommodation with her cousin. She rented out the cottage for six months and moved to the temporary accommodation, where she acquired furniture and saved money for renovating the cottage. Toward the end of the year she formed a relationship with a man and travelled overseas with him until March 1985. While travelling they decided to marry. On her return she decided not to return to the cottage as it was too small. The Tribunal having referred to Paul Theologidis and Kadem said:

… the Tribunal is required to re-examine the circumstances of the applicant at the time of the grant in the light of subsequent events in order to determine what was really the factual situation at the time of the grant. In the present case evidence of events subsequent to the grant show that the applicant remained in the dwelling for only one week. A stay of such short duration followed by immediate rental or sale of the premises may in some cases indicate that a short term occupation did not really amount to "residence". In this case however the reason for vacating the premises early and the subsequent decision to rent them out for six months and later to sell the property are all matters which are adequately explained by uncontested evidence of the changes in the applicant's attitude and circumstances. Her unchallenged evidence gives an explanation for all that happened which is reasonable and is consistent with the fact that she did reside in the dwelling for approximately one week as her principal place of residence.

41 Care must be taken in applying the principles discussed in these diverse cases to the meaning of “principal place of residence” under the First Home Owners Grant Act 2000 because each of them occurs in the context of differing legislation where that phrase has been used. There are, however, a number of common principles which are apparent from the approach taken in each case.

42 First, the words “principal place of residence” should be given their ordinary meaning in the context in which they appear: Deane v Commissioner of Stamp Duties; Commissioner of Taxation v Miller; Re Einav Kedem and the Secretary, Department of Community Services and Health; Re Mrs VG and Secretary to the Department of Housing; and Newman v Commissioner for ACT State Revenue. Thus the Commissioner’s reference to the provisions of the Land Tax Management Act 1956 is of no assistance. 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: Deane v Commissioner of Stamp Duties; Secretary, Department of Community Services and Health v Paul Theologidi; Secretary, Department of Community Services and Health v Andrew Theologidis; Re Stanley Parzatka and The Secretary, Department of Health, Housing and Community Services; Re Alison Lesley Gaines and Secretary Department of Health, Housing and Community Services and Bates v Chief Commissioner of State Revenue. Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue: Secretary, Department of Community Services and Health v Paul Theologidi; Re Stanley Parzatka and The Secretary, Department of Health, Housing and Community Services; and Re Alison Lesley Gaines and Secretary Department of Health, Housing and Community Services. 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: Re Stanley Parzatka and The Secretary, Department of Health, Housing and Community Services, Fincher v Commissioner for ACT Revenue; Re Alison Lesley Gaines and Secretary Department of Health, Housing and Community Services and Tomasian v Chief Commissioner of State Revenue. Fifthly, the short length of a person’s residence, while relevant, is not determinative of the issue: Re Alison Lesley Gaines and Secretary Department of Health, Housing and Community Services. 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, as Gaines demonstrates. 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 personal circumstances: Re Alison Lesley Gaines and Secretary Department of Health, Housing and Community Services. In Bates the Tribunal said that “whether the reasons for not residing at the property were as a result of matters entirely out of the control of the applicant” was a factor to be considered. While that is undoubtedly correct, it should not be read as stipulating a requirement that the reasons for departure must be entirely out of that person’s control. The facts in Gaines illustrate that there are circumstances, peculiar to the individual concerned, which may, objectively viewed, adequately and reasonably explain a person’s decision to move out of a property, but which are not entirely out of the person’s control.

43 In the Panel’s opinion, these principles create no inconsistency with s 20(3), which will continue to operate in accordance with its own terms, when a person fails to occupy a home as her or his principal place of residence within the applicable period.

44 In Bates Judicial Member Higgins said that that the phrase “principal place of residence” in the statute, “requires the occupation to be ongoing and involves an element of permanence”. She later observed that, “the fact that the applicant resided in the property for a short period of time during the relevant period” is relevant, but “not determinative”. The Commissioner submitted that these comments pointed to a requirement that a home be occupied by a recipient for a minimum time before it could be found to have been occupied as the recipient’s principal place of residence. But the Panel, reading those words in the light of its review of the relevant authorities and of the statute itself, does not accept that contention. This is so since the Act (prior to the recent amendments) did not specify any minimum period, and it is not possible to construe s 12(1) as it stood so as to specify a minimum period. Further, the Panel considers that Judicial Member Higgins’ statement that the occupation may be “short” is at odds with the submission (which she accepted) that the section requires an unspecified minimum period of occupation.

45 It should be understood that s 12(1) requires that a recipient occupy a home as her or his principal place of residence within twelve months of completion (subject to extensions), not during the twelve months after completion. A consequence of this is that evidence of the nature of a recipient’s continuing occupation of a home, following the expiration of that period, may be relevant to a determination of whether the home was occupied as the principal place of residence within that period. This is to be contrasted with the position argued by Mr Mescher for the Commissioner. He submitted that one must examine the nature of the occupation during the applicable period only, and that evidence of the nature of any continuing occupation after that period is not relevant to a determination of whether a home was occupied as a recipient’s principal place of residence within the period. The Panel considers that this submission, along with Mr Mescher’s contention that the occupation must be for “at least a couple of months”, is incorrect.

46 In the decision under appeal, the Tribunal found that the Respondent occupied the home as her principal place of residence. The Tribunal accepted her evidence that it was her intention to live in the home as her principal place of residence and found that she took significant steps which were confirmatory of that intention: occupying the premise, connecting and using services. In reaching that conclusion, the Tribunal considered evidence of the circumstances leading up to, during and subsequent to the period of occupation. It ascertained both the Respondent’s intention and the nature of her occupation objectively, in the light of that evidence. In doing so the Tribunal noted, as did the AAT in Gaines, that the Respondent’s evidence of her intention was not disputed. Implicitly, the Tribunal found that the Respondent’s occupation was not transient or contingent or for some other purpose. The Tribunal accepted the Respondent’s reasons for moving out of the home, but did not determine whether they should be considered “outside her control”. Unlike the Tribunal in Bates, the Tribunal did not find that during her short period of occupation of the premises the Respondent had another “home” or “principal place of residence”, either at her parents' home or anywhere else.

47 In reaching its decision the Tribunal did not misstate the law. The conclusions reached by the Tribunal are not at odds with its findings of fact. While the Tribunal’s reasons may be open to criticism for failing to articulate all the considerations that were relevant to its conclusion, a reading of these reasons as a whole demonstrates that it had regard to all the relevant evidence before it. There is no error apparent in the Tribunal’s application of the law to its findings, or in the Tribunal’s decision.

48 The appeal is therefore dismissed.