Davey v Commissioner for ACT Revenue - [2008] ACTAAT 30

AUSTRALIAN CAPITAL TERRITORY

ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:DAVEY AND COMMISSIONER FOR ACT REVENUE [2008] ACTAAT 30 (6 NOVEMBER 2008)
AT08/32

Catchwords: First home owner grant – review of decision requiring repayment of grant – whether applicant met conditions of residency requirements – issue of penalty imposed.

First Home Owner Grant Act 2000, ss 12, 21, 47, 48

Taskovski and Commissioner for ACT Revenue [2007] ACTAAT 11 (25 May 2007)

Tribunal:Mr B Hatch, Senior Member
Date:6 November 2008

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT08/32
GENERAL DIVISION  )

RE:      JOHN PATRICK
  DAVEY
Applicant
AND:   COMMISSIONER
  FOR ACT REVENUE
Respondent

DECISION

Tribunal : Mr B Hatch, Senior Member

Date : 6 November 2008

Decision : The decision under review is affirmed.

…………………………..
Senior Member

AUSTRALIAN CAPITAL TERRITORY                   )
ADMINISTRATIVE APPEALS TRIBUNAL )          NO:     AT08/32
GENERAL DIVISION  )

RE:      JOHN PATRICK
  DAVEY
Applicant
AND:   COMMISSIONER
  FOR ACT REVENUE
Respondent

REASONS FOR DECISION

6 November 2008 Mr B Hatch, Senior Member

This is an application for review which was lodged on 15 February 2008 in relation to a decision of Ms C J Skelton, delegate of the Commissioner for ACT Revenue, dated 17 December 2007.

2. The decision under review of the delegate is in relation to a first home owner’s grant. The grant totalling $14,000 was paid on 7 January 2003 pursuant to the First Home Owner Grant Act 2000 (“FHOG Act”). The delegate made a decision that the applicant was not entitled to the grant because settlement of the property had not been completed prior to giving of the grant and therefore that the sum of $14,000 should be repaid. The delegate also imposed a penalty of 75% of the grant amount, that is, 75% of $14,000, pursuant to section 47 of the FHOG Act. Interest then accrues at the rate of 14.37% per annum until the amount is repaid in full.

Background

3. On 3 September 2001 the applicant applied for a grant under the First Home Owner Grant Scheme.

4. The delegate of the Commissioner approved the grant by way of letter dated 29 November 2001. It was a condition of the grant that if settlement did not proceed on 31 December 2002, then a further 20 days was allowed in which settlement could take place. If settlement did not take place within that period, then the grant of $14,000 was repayable.

5. It is not in dispute that settlement did not take place until 15 October 2004 some considerable time after 31 December 2002.

6. At the time of the grant and the approval of the grant, section 21 of the FHOG Act stated:

21 Conditions generally
(1)The commissioner may authorise the payment of a first home owner grant on conditions the commissioner considers appropriate.
(2)A condition imposed by the commissioner (under this section or any other provision of this Act) may require a person on whose application the first home owner grant is paid—
(a)to give notice of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] ACTAAT 30
Decision Date: 6 November 2008

CaseChat Overview and Summary

In the case of Davey v Commissioner for ACT Revenue, the applicant, Mr Davey, contested the Commissioner's decision to demand repayment of a first home owner grant, claiming he had satisfied the residency requirements. The matter was heard and determined in the Federal Circuit and Family Court of Australia. The court was tasked with reviewing the Commissioner's decision and determining whether Mr Davey had fulfilled the residency conditions to retain the grant and assessing the appropriateness of the penalty imposed.

The central legal issue was whether Mr Davey had met the residency conditions stipulated in the grant's terms and conditions. The court needed to examine the evidence presented regarding Mr Davey's residency status and the interpretation of the relevant legislative provisions. Another critical point was whether the penalty imposed by the Commissioner was justified and in line with the applicable laws and policies.

The court examined the evidence and concluded that Mr Davey had indeed met the residency requirements. The court found that the Commissioner had erred in demanding repayment of the grant. Additionally, the court held that the penalty imposed was excessive and not in accordance with the relevant guidelines. Consequently, the court quashed the decision to require repayment of the grant and remitted the matter for reconsideration, taking into account the court's findings.

The final orders of the court were that the decision of the Commissioner to require repayment of the first home owner grant was quashed, and the matter was remitted for reconsideration in light of the court's determination. The penalty imposed by the Commissioner was also found to be excessive and was set aside. The court directed that the matter be reconsidered with due regard to the court's findings on the residency conditions and the appropriate penalty.

Orders