Cuschieri v Chief Commissioner of State Revenue

[2004] NSWADT 288

CITATION:	Cuschieri v Chief Commissioner of State Revenue [2004] NSWADT 288
DIVISION:	General Division
PARTIES:	APPLICANT Sarah Belinda Cuschieri RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	033140
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	12/02/2004
DATE OF DECISION:	12/16/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	first home owners grant - reversal of original decision - First Home Owners Grant Act - first home owners grant - reversal of original decision
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 First Home Owners Grant Act 2000
CASES CITED:	Chief Commissioner of State Revenue -v- Ferrington (GD) [2004] NSWADTAP 41
REPRESENTATION:	APPLICANT In person RESPONDENT M Twohill, solicitor
ORDERS:	1. The decision under review is set aside; 2. In substitution the decision is made that Ms Cuschieri is entitled to the First Home Owner's Grant.

1 On 4 June 2004, Ms. Sarah Cuschieri applied to the Tribunal pursuant to section 28 of the First Home Owners Grant Act 2000 (“the FHOGA”) and section 38 of the Administrative Decisions Tribunal Act, 1997. Ms. Cuschieri sought a review of the decision by the Chief Commissioner of State Revenue (“the Chief Commissioner”) to reverse an earlier decision, under which Ms. Cuschieri was paid an amount of $7,000 under the FHOGA, and to demand repayment of that amount. The Chief Commissioner also sought payment of an amount of $1400 in penalty tax.

2 Ms. Cuschieri applied to the Chief Commissioner for a First Home Owner's Grant under the FHOGA in relation to a property at Holsworthy, ("the property"). The Grant was approved and paid in April 2002.

3 By Notice dated 30 April 2003 the Chief Commissioner advised Ms. Cuschieri that she was liable to pay an amount of $8,400 by 21 May 2003. In part, the reasons provided by the Chief Commissioner stated:

“Based on the information now available, and in accordance with section 23(1) of the Act, I have reversed the decision under which the grant was paid to you as you did not occupy the premises as your principal place of residence within 12 months of settlement of the property.

Accordingly, I require you to pay to the Chief Commissioner the amount of $7,000 for repayment of the grant. A penalty of 20% of the amount of the grant has also been imposed for the following reasons:

- You failed to occupy the property as your principal place of residence within 12 months from the settlement date

- You failed to advise the Office of State Revenue that you would not reside in the grant property within the required time period

- You failed to repay the grant within 14 days of the 12 months elapsing.”

4 Ms. Cuschieri lodged an objection to that decision on the basis that she treated the home as her principal place of residence for at least 5-6 weeks until she started facing difficulties in some financial areas. At that stage she suffered anxiety to such a serious level that her doctor advised her to move back to her family’s residence were she could be looked after and supported by her parents.

5 On 30 May 2003 a delegate of the Commissioner advised Ms. Cuschieri that the decision had been taken to disallow her objection. The reason given was that Ms. Cuschieri had not clearly demonstrated that she had met the eligibility criterion provided for under section 12 of the FHOGA ie occupation of the property as her principal place of residence within 12 months after completion of the eligible transaction.

6 Ms. Cuschieri has sought a review of the Chief Commissioner's decision on the basis that the property was used as her principal place of residence. The solicitor for the Chief Commissioner, Mr Twohill, has advised that the Chief Commissioner does not wish to defend the proceedings. Each party has consented to the matter being determined on the basis of the written material filed with the Tribunal without the need for either party to attend a hearing.

7 The facts of the matter are not in dispute. Ms Cuschieri purchased the property On 5 June 2001, and settled on 13 July 2001. She moved into the property on 14 July 2001. Ms Cuschieri lived in the property for 6-7 weeks. During that time she experienced great difficulty with her financial repayments and other payments such as university fess, electricity, phone, and council rates. She contends that she suffered from severe anxiety and accepted her doctor’s advice to move back home with her parents. A medical certificate in evidence supports that contention.

Decision and reasons

8 The issue in this matter is whether or not Ms Cuschieri has satisfied the eligibility criterion provided for under section 12 of the FHOGA. The provisions of that section were the subject of the recent Appeal Panel decision in the matter of Chief Commissioner of State Revenue -v- Ferrington (GD) [2004] NSWADTAP 41. In that matter the Appeal Panel considered a number of decisions that had dealt with the meaning of the expression “principal place of residence” and set out a number of principles apparent from those authorities. The Appeal Panel stated at paragraph 42 of its decision:

“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, 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 … “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 [but] should not be read as stipulating a requirement that the reasons for departure must be entirely out of that person’s control.”

9 In the present matter the evidence supports Ms Cuschieri’s argument that it was her intention to occupy the property as her principal place of residence. There is no suggestion that the occupation was for any other purpose. While there is no doubt that the length of her occupation was short, I am satisfied that there was the requisite degree of permanence to it. The occupation was not “of a transient, temporary, contingent or passing nature”. I also consider that Ms Cuschieri’s reasons for departure from the property are both reasonable and adequately explained.

10 Accordingly it is my view that Ms Cuschieri has satisfied that criteria set out in section 12 of the FHOGA. It follows that the Chief Commissioner’s decision that is the subject of this application ought to be set aside. In its place the decision should be made that Ms Cuschieri is entitled to the First Home Owner's Grant.

Order

1. The decision under review is set aside.

2. In substitution the decision is made that Ms Cuschieri is entitled to the First Home Owner's Grant.