Edwards v Chief Commissioner of State Revenue

[2006] NSWADT 204

CITATION:	Edwards v Chief Commissioner of State Revenue [2006] NSWADT 204
DIVISION:	General Division
PARTIES:	APPLICANT Thomas Christopher Edwards RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	053232
HEARING DATES:	12/12/2005, 24/01/2006
SUBMISSIONS CLOSED:	01/30/2006
DATE OF DECISION:	07/06/2006
BEFORE:	Hole M - Judicial Member
CATCHWORDS:	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 Commonwealth of Australia Constitution Act 1900 Duties Act 1997 First Home Owners Grant Act 2000 Interpretation Act 1987 Privacy and Personal Information Protection Act 1998 Social Security Act 1991 (Cth)
CASES CITED:	Minister for Immigration and Multicultural v Bhardwaj (2002) HCA 11 (14 March 2002) Craig v South Australia (1995) 184 CLR 163 Clyde Engineering Co Limited v Cowburn (1926) 37 CLR 466 Colvin v Bradley Brothers Pty Limited (1943) 68 CLR 151 Chief Commissioner of State Revenue v Ferrington [2004] NSW ADTAP 41 Madex v Chief Commissioner of State Revenue (unreported 21 January 2005) Snow v Chief Commissioner of State Revenue [2005] NSWADT 278
REPRESENTATION:	APPLICANT In person RESPONDENT S Free, solicitor
ORDERS:	1. The Tribunal has jurisdiction to consider the application for review; 2. The application is dismissed. The decisions of the Chief Commissioner of State Revenue to require repayment of the First Home Owner Grant together with a 20% penalty and to revoke the First Home Plus stamp duty concession are affirmed; 3. The representation of the Chief Commissioner of State Revenue by a legal practitioner before the Tribunal is appropriate and there is no need for the Chief Commissioner to appear

FACTS

1 This is an application by the applicant to review the decision of the Chief Commissioner of State Revenue to require repayment of the First Home Owners Grant (“the Grant”) (application number 053232) and to revoke the First Home Plus Scheme Concession (‘the Concession”) requiring repayment of the stamp duty (application number 056074).

2 The applicant purchased a property in a suburb of Newcastle (“the subject property”), the purchase was settled on 7 March 2003. The applicant applied for the Grant on 1 February 2003 and stated in his application that he expected to occupy the subject property on 1 March 2003 and that he intended to occupy the subject property as his principal place of residence within 12 months of the date of settlement that is 7 March 2003. The applicant was granted the Grant on 5 August 2003 and received the Concession on 21 February 2003.

3 The applicant was unemployed at the time of purchase and was able to obtain a loan from a mortgage lender on the proviso that his father was to become a registered proprietor also.

4 The applicant’s father became an owner of a 1/100th part and the applicant owns the other 99/100th parts.

5 Following settlement of the purchase the applicant entered into an agency agreement with a real estate agent for the purpose of letting the subject property. This agency agreement is dated 7 March 2003. The subject property was then rented out from 13 March 2003 to 8 October 2003. The subject property remained vacant from 9 October 2003 to 3 November 2003 and then a second lease was entered into which commenced on 3 November 2003 to expire on 27 January 2005.

6 During the period between 8 October 2003 and 3 November 2003 the applicant undertook certain activities upon which he relies to show that his occupation of the subject property was as his principal place of residence.

7 The activities relied upon by the applicant to disclose that the subject property was his principal place of residence for a time during the period of 8 October 2003 to 3 November 2003 include the following:

the applicant made multiple trips to the subject property for the purposes of moving his belongings to the subject property – at least 2 trips;

the applicant met with his parents at the subject property to consider with them the various issues relating to the property including electrical requirements, mowing of the lawn and repair of the garage;

the applicant personally drew up plans for the subject property and measured the subject property for that purpose;

the applicant attended to cleaning of the subject property and considering as to how it could be improved;

the services being electricity, water and gas were connected to the subject property; and

the applicant states that he resided at the subject property for approximately three days at a time in the period between 8 October 2003 and 3 November 2003 and that this period was equivalent to six days including round trips to Sydney on two of the occasions.

8 At the time that the applicant purchased the subject property he was residing at Burwood. His application to the Tribunal discloses the address at Burwood as his current postal address and the subject property as his home address.

9 On 30 September 2004 the applicant provided a statutory declaration to the respondent to the effect that the subject property was not occupied by him during the 12 months from the date of settlement. A letter was attached to that statutory declaration disclosing that if the applicant had moved from Sydney to Newcastle then Centrelink “will most likely stop payment”. The attached letter also disclosed that “Thus I have been unable to move financially. I include evidence of a copy a recent payment in this letter and a copy of my health care card.”

10 On 17 September 2004 the respondent wrote to the applicant noting that the applicant had replied to the confirmation of residency letter and had enclosed the required statutory declaration. The respondent advised that the decision to pay the Grant had been reversed because “you did not occupy the home as your principal place of residence within 12 months of settlement”. The respondent also reversed the Concession and the applicant was required to repay the total sum of stamp duty of $5,247.00 together with an interest component of $980.84.

11 Also on 17 September 2004 the respondent advised the applicant that he was required to repay the Grant and also a penalty of 20% imposed on the Grant as he had failed to advise the Office of State Revenue (“OSR”) that he would not reside in the subject property within the required time and that he had failed to repay the Grant to OSR within 14 days following the expiry of the 12 months residency requirement period.

12 The applicant wrote to the respondent on 8 January 2005 and applied to appeal the decisions that had been made in respect of the Concession. That letter included various submissions as to why the respondent should reverse the decision to revoke the Concession.

13 Also on 8 January 2005 the applicant wrote to the respondent applying to appeal the decision in respect of the revocation of the Grant. The applicant also supplied with that letter various submissions in relation to why he considered that the Grant should not be revoked.

14 In both the letters dated 8 January 2005 the applicant noted that “I am now able formally advise the Office of State Revenue that I met the residence requirement” as set out in the relevant Acts.

15 On 18 May 2005 the applicant forwarded a further letter to the respondent together with further supporting information in support of his claim that the respondent should not revoke the Grant or the Concession.

16 On 26 May 2005 the respondent advised the applicant by letter that his correspondence and submissions had been considered in relation to his objection to the request for repayment of the Grant and repayment of the Concession together with the relevant penalty and interest. The reason given being that “From the information you supplied, you have not satisfactorily shown that you did occupy the (subject) property as your principal place of residence. In addition, even if you intended to reside in the property originally and though this is the only property you have owned, we do not consider this sufficient for the property to be regarded as your principal place of residence and allow you to obtain the Grant.”

Applicable Legislation

17 The applicable legislation in respect of the Grant is:

Section 12(1) of the FHOG Act:

“12 Criterion 5 – Residence Requirement

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 12 months after completion or a longer period approved by the Chief Commissioner.”

Subsection 20(3) of the FHOG Act

“… 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.”

18 Section 45(3) of the FHOG Act which provides that in certain circumstances a penalty may be imposed not exceeding the amount the applicant is required to pay.

19 The applicable legislation in respect of the Concession is:

Section 74(1) of the Act:

“(1) The agreement or transfer must be for the acquisition of a first home or for the acquisition of a vacant block of residential land intended to be used as the site of a first home.”

Section 76(1) of the Act:

“(1) The home must be occupied or intended to be occupied by the person or persons who are acquiring it on or before settlement, or within 12 months after settlement, as the principal place of residence.”

Section 79 of the Act:

“79 Determination of applications

An application is to be determined solely at the discretion of the Chief Commissioner whose decision is final.”

20 The applicant supplied comprehensive and voluminous written submissions to the Tribunal and oral submissions over a period of 5 hours of the hearing time.

21 The applicant sought to proceed through the written submissions in an orderly fashion and commenced by addressing the issues that he believed were of concern as to the behaviour of the officers of the respondent.

22 The applicant also drew attention to what he believed were failures in the written submissions of the respondent and in the procedure that had been following concerning his applications, the revocation of the Grant and of the Concession and the compliance activity of the respondent. The applicant noted the reasons for his father appearing on Title and it is appropriate to comment at this stage that the fact that his father is shown as a joint owner on Title is not an issue that the respondent relied on either in the granting of the Grant and providing the Concession or in the revocation of the Grant and of the Concession. As this is not an issue that the respondent has relied on it is not proposed to canvass the information relating to the reasons why the applicant’s father appears on Title suffice to say it has no relevance to the issues.

23 As the applicant proceeded in providing his oral submissions to the Tribunal and particularly reading through various parts of the voluminous written submissions, the applicant noted the following issues:

“It has and always has been the intention of the applicant to occupy the house.

The evidence in the email objectively support this intent. (This is an email a copy of which was provided to the Tribunal between the applicant and Bill Mitchell. This email is referred to below.)

The Residential Tenancy agreement was terminated on the 8 October 2003.

The house was then occupied for the purposes of the act as it stood at the time.

Multiple journeys were made between the previous Sydney address and the property to transport various items as is common to moving house.

Evidence of two such journeys is clearly shown where an inspection was made to assess defective workmanship.

In and off itself, the individual journeys caused no hardship. However because these journeys were additional to a number of journeys at the time, such are common to moving house, it severely tested the budget. Yet again the respondent curiously failed to reason why a “relatively” minor sums would cause such concern. When taken in context of multiple journeys the additive effect or the unplanned journeys becomes critical.

Goods being substantially cheaper in Sydney, made it cost effective while making several trips to purchase in Sydney. Thus nothing turns of the findings of 49. Rather they clearly support that multiple journeys made. Effectively I avoided paying transport costs twice, because most goods in Newcastle are transported from Sydney, and I was making that trip.

During the time at the property by way of enquiries to the agents of the commonwealth, it became apparent that the Commonwealth had legal residence requirements as at of a statutory scheme which covered the same field of the residence requirements as the state legislation for my situation. Accordingly I could not stay at the residence for more than a short time as a matter of the exercise of duly legal rights and practical considerations, the respondent in their evidence adverts to the practical reality of this situation.

The respondent acknowledges, this made it practically impossible to reside at the property for any length of time.

In Sydney during the year period in question the Burwood property as the respondent acknowledges and proves, is a lease property. As such rent is paid.

The initial statutory declaration was made on the basis where the applicant was made under a misapprehension of what the law required. Subsequently the true requirements have been identified, and the respondent is required to amend their records pursuant to the Privacy And Personal Protection Act (1988) NSW s15(1)(a), (b). So that the record may correctly reflect the applicants position at law. The correct information has been forwarded to the respondent and a copy was supplied to the Tribunal.

The period of occupation was in the stated period being shortly after the 8th October, and before the 3rd of November. The stay and a subsequent material opportunity to stay was limited in due to the requirements of the Commonwealth law. A copy was supplied to the Tribunal.

The electoral roll shows that at the material I was not registered at the Burwood address. The facts show the electoral roll is entirely consistent with my intentions and actions, contrary to the implication drawn by the OSR office, who has only looked superficially at the facts.

I was enrolled from 02 FEB 1993 to 05 JUNE 2002 at Warners Bay. After which I was unenrolled.

I re-enrolled on the 22 June 2004 in Burwood.

During the material period, I deliberate unenrolled with a view to enrolling at the property.

During the material period of occupation the applicant had the opportunity to undertake studies in Sydney which would require residence there. These studies started from about the 12 January 2004 past the March date of the 12 month period of the schemes.” (sic)

24 The applicant made further submissions that:

“The applicant stated that they were at the premises in question for several (3+) days [at a time]. That is 3+ days were spent at the premises, then a trip was made to Sydney to transport more belongings to the premises, then another 3+ days being a period of about or around 5 – 6 days would be spent at the premises until another trip was made. Thus the majority of the time in the material period was spent at the premises. The food costs were kept to a minimum by making purchases in Sydney as trips were frequently made during that period.”

25 The applicant then made detailed submissions in respect of matters that he described as material arguments being nullity, an error of law is a jurisdictional error, considering legislation, representation/natural justice/fairness/apprehended bias, type of hearing, material State law invalid by operation of Section 109 and Section 5 of the Constitution, FHOG actual compliance/FHOG construction, FHP actual compliance/FHP construction, the Commissioner’s requirement to act fairly and the Commissioner’s breach of the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”) causing distress through shock.

26 The applicant argued that the decision of the respondent to revoke the Grant and the Concession was a nullity. In oral evidence the applicant responded to the Tribunal in relation to this that he was not disputing the laws that allowed the respondent to give him the Grant and the Concession. However he submitted that he disputed the laws that required them to be paid back as he was not in a position to know the reasons for the revocation of the Grant and the Concession. The applicant had undertaken considerable research on each of the arguments that he put to the Tribunal and in respect of nullity he referred to the Minister for Immigration and Multicultural v Bhardwaj (2002) HCA 11 (14 March 2002) wherein he relied on the suggestion in that case that administrative decision makers have the their power to review their own decisions in the case of jurisdictional error.

27 In relation to an error of law and as to whether it is a jurisdictional error the applicant drew attention to Craig v South Australia (1995) 184 CLR 163 at 179. The applicant’s view was that this case affirmed that the distinction between jurisdictional and non-jurisdictional errors is retained in relation to inferior Courts, but that the distinction no longer exists in relation to Tribunals. Thus until a lawful decision is made by the respondent and lawful internal review be carried out by the respondent the Administrative Decisions Tribunal (“the ADT”) has no jurisdiction to hear the matter, and the findings of the respondent by no-one.

28 The applicant submitted that in construing legislation the respondent had incorrectly construed the legislation applicable to the situation. The applicant referred to many cases to support his view that the respondent had omitted parts of quotations provided in the respondent’s submissions which led to a misconstruction of the meaning of the cases cited.

29 The applicant was particularly concerned about the objects of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) and particularly the requirement that the Tribunal be accessible, its proceedings be efficient and effective and its decisions fair. The applicant was particularly concerned that there be no apprehended bias and drew attention to the representation of the respondent by a legal practitioner. The applicant suggested that any legal practitioner is prohibited by the ADT Act from representing the administrators who made the decisions as they tend to complicate the issue and do not fulfil the object of the ADT Act.

30 At the hearing the applicant sought clarification as to the type of hearing that the Tribunal was embarking on. The applicant drew attention to the objects of the ADT Act again wherein fairness is required and that as the respondent sought to have the opportunity to test evidence by cross examination he also sought a similar opportunity to be afforded to him.

31 Insofar as Section 109 and Section 5 of the Commonwealth of Australia Constitution Act 1900 the applicant submitted that by virtue of various tests that are required to be applied pursuant to Clyde Engineering Co Limited v Cowburn (1926) 37 CLR 466 and Colvin v Bradley Brothers Pty Limited (1943) 68 CLR 151 that the State laws are invalid.

32 The applicant submitted that the facts show that the residence was occupied and even if the Tribunal finds otherwise that for the objects of the grant of the Act that all requirements of the Act were met. The applicant particularly relied on the objects of the FHOG Act wherein it is expressed that the Act is an Act to encourage and assist home ownership. The applicant then discussed the various references in Hansard when the First Home Owner Grant Bill (the “FHOG Bill”) was introduced.

33 Insofar as case law concerning the application is concerned the applicant drew attention to Chief Commissioner of State Revenue v Ferrington [2004] NSW ADTAP 41. The applicant then related to the various steps in Ferrington and then submitted a further point in that where the reference is to principal place of residence then it has the ordinary meaning and it can mean another subsidiary place. The applicant then went on to discuss numerous cases which he believed supported his contention and particularly relied on the object of the FHOG Bill being directed to GST relief to first home buyers noting that he thought that this was a critical object of the FHOG Act.

34 The applicant sought to make a distinction between the first home purchase grant being actually complied with and the first home owners grant as the Act is constructed. The applicant supplied various quotes from Hansard in relation to the introduction of the Bill. Each of these quotes were particularly directed to the Scheme being designed to encourage and assist home ownership and to assist people, especially young people and low income earners, to purchase a home. The applicant further submitted that the construction should be as wide as possible to take into account the interpretation of the Act’s principles and that it be broad enough to accommodate the objectives of the Act even if this requires a straining of the meaning or abandonment of the normal grammatical meaning. As the applicant was studying at the time in question being the period from 7 March 2003 to 7 March 2004 discretion should be exercised in his favour.

35 The applicant provided a copy of an email to the Tribunal from himself to the agent dated 7 August 2003 wherein he discusses his preferences for leasing the subject property. He indicated to the agent that he would rather lease the subject property for six months rather than under a rolling lease.

36 The applicant provided evidence to the Tribunal that he was on a New Start Allowance and that accordingly he was required to stay within proximity of the availability of work. He was also enrolled at the University of Sydney.

37 The applicant also supplied to the Tribunal a copy of a part of letter from the respondent whereby the Chief Commissioner apologised in relation to the privacy issues.

38 During the course of the investigation personal protected data in relation to the applicant was disclosed to other parties and this was a failure of the respondent in its duty to the law and to its own procedures. On the basis of the respondent having behaved in this way the applicant submitted that the respondent is estopped or has waived the right from pursuing the applicant at law as the applicant’s actions have been in good faith.

39 The applicant submitted in conclusion that the decision to impose the penalty and decisions requiring the repayment of the First Home Owner Grant and the First Home Plus Concession should be overturned because:

The requirements were met according to the objects of the acts, in the alternative.

Valid discretions existing in various acts to write off or not pursue or ameliorate by extension or otherwise must be exercised to archive the purpose and of the acts.

In the alternative, procedural fairness or natural justice cannot be met as there has been a vital opportunity to be heard has been missed as the respondent cannot be disavowed of that knowledge in the alternative.

In the alternative, there is a nullity of the respondent’s findings, by its own flawed terms of reference and errors in fact and law.

In the alternative, there is a nullity of the respondent’s findings, by s109 and s5 of the Constitution.

In the alternative the quantum of the repayment of any amount should be of the lowest coin of the realm to meet the objectives, and the any fine or any interest should be indexed RBA monetary inflation as there is no punitive element to advantage to be accorded by a higher rate in the alternative.

In the alternative the opportunity and exercise to undertake studies at a time material to the period in question should exercise discretions to the favour of the applicant.

In the alternative the Australian Constitution invalidates any State law with respect to the occupation criterion and an associated debts, with respect two the two test that apply to the social security legislation and HECS legislation, this alternative thus has four separate grounds of constitutional argument.

In the alternative as an incidence of fairness the respondent considers that acting in good faith is sufficient to satisfy the strict requirements of law, and the applicant has acted in good faith at all times, thus the respondent is estopped in equity from pursuing the applicant.

In the alternative, the Tribunal has no jurisdiction to here the matter, because the nullity of the respondents intimal revocation and review either by errors of law in applying the acts and interpretation act or the constitution, the procedural requirement of making a decision good in law has for the purpose of review has not been undertaken by the respondent, and any statutory provision that deems such a finding good in law is itself by way s109 constitutional arguments.

In the alternative any other arguments made out either above in any part of these or any other submissions or in oral submissions.

40 The applicant made further general submissions in relation to his particular situation including that:

he deliberately unenrolled from the electoral roll during the period from 5 June 2002 to 22 June 2004 as it was with a view to enrolling at the subject property.

41 The respondent supplied written submissions to the Tribunal and provided brief oral submissions in response to the applicant’s extensive written and oral submissions.

42 The respondent submitted that the facts that had been provided in evidence to the Tribunal disclosed that the applicant had applied for the Grant and the Concession at the time of purchasing the subject property. That both the Grant and the Concession were provided to the applicant.

43 The respondent’s representative noted that the respondent had forwarded a letter to the applicant seeking information as to his compliance with the provisions of the Grant and the Concession and that the applicant had returned the statutory declaration disclosing that he had not occupied the subject property within the requisite period.

44 The respondent’s representative drew attention to the requirements of the Grant as set out in Section 12 Criterion 5 – Residence requirement and to the acts relied upon by the applicant to disclose that he had occupied the subject property as his principal place of residence as being that he obtained vacant possession of the subject property, he had undertaken renovations to the subject property, that he had moved to the house, that he physically went to the premises and occupied it in that period of time and that he had attended to minor repairs and alterations to the subject property himself.

45 The respondent’s representative also submitted that the applicant had not provided evidence as to the length of time during which he says that he occupied the subject property as his principal place of residence. The subject property was tenanted from 13 March 2003 to 8 October 2030 and then from 3 November 2003 to 27 January 2005. That there was no evidence of the applicant moving into the subject property during the period between 8 October 2003 and 3 November 2003 which would disclose that it was his principal place of residence.

46 The respondent’s representative analysed the decision in Ferrington and particularly as to the residence requirement. A comparison was drawn to the occupation by Ms Ferrington to that of the applicant in this case. In relation to the six principles set out in Ferrington they being:

1. The words “principal place of residence” should be given their ordinary meaning in the context in which they appear;

2. 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;

3. The intention of the person concerned, gauged objectively, is relevant but not determinative of the issue;

4. 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;

5. The short length of a person’s residence, while relevant, is not determinative of the issue. A short period of actual occupation 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;

6. 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.

47 In this particular matter the respondent’s representative submitted that the applicant had at all times resided at his premises in Sydney and that was his principal place of residence, that when considered objectively the activities of the applicant had been to drive to the subject property on a few occasions, particularly two occasions when he met his parents there to discuss renovations to the subject property and works that might be required, he also drew some plans of the house so that he could discuss renovations to the subject property, he attended to ensuring that the lawn was mown and that the subject property during the period 8 October 2003 and 3 November 2003 was presented in a reasonable condition of repair and that accordingly considered objectively these actions were of a person who was intending to ensure that the property could be re-let not a property where the applicant was moving into as his principal place of residence as he maintained that in Sydney. That at the time of purchase the intention of the applicant was to purchase the subject property for his principal place of residence and that this is relevant but is not determinative of the issue. In order that the applicant satisfy the principle that his occupation of the premises was as his principal place of residence it must have a degree of permanence to it in that it must be more than a transient, temporary, contingent or passing nature. The applicant’s connection to the subject property was transient, temporary, contingent and passing and was therefore insufficient to disclose a degree of permanence to it. The short length of period that the applicant had an opportunity to occupy the property between the two leases is relevant although not determinative. The reason for the person not taking up occupation or departing from the home must be both reasonably and adequately explained and in this matter the applicant had not taken up residence in the principal place of residence. He may have had an intention to do so however due to financial reasons he did not take up occupation of the subject property and had re-let the subject property.

48 Insofar as the Grant is concerned the respondent’s representative submitted that the applicant must occupy and use the property as his principal place of residence within 12 months of the completion of the sale and this period expired in this matter on 7 March 2004.

49 The respondent’s representative submitted that the applicant had not connected the electricity or gas to the subject property in the applicant’s name and that he re-enrolled on the electoral roll on 22 June 2004 and he gave his address as the Sydney property.

50 The respondent’s representative also submitted that the onus rested on the applicant to prove that he did in fact occupy the subject property during the period from 8 October 2003 to 3 November 2003 as his principal place of residence. Attention was drawn to the comment in Madex v Chief Commissioner of State Revenue (unreported 21 January 2005) where Needham J stated that:

“Simply not having a tenant in premises is not the same as those premises being a person’s principal place of residence.”

51 The respondent’s representative also submitted that in relation to any suggestion that an extension of time ought to be granted to the applicant to allow him to comply with the residence requirements would be inappropriate in these circumstances. This is particularly as the application to do so was made by the applicant after the 12 month period had expired.

52 In relation to penalty the respondent’s representative submitted that the appropriate penalty in respect of the First Home Owner Grant should be 20% and that the applicant had not separately challenged this decision.

53 In respect of the First Home Plus Scheme Concession the respondent’s representative initially made representations that the Tribunal did not have jurisdiction in relation thereto. This has been resolved following the decision in Snow v Chief Commissioner of State Revenue [2005] NSWADT 278.

54 The respondent’s representative submitted that as the applicant had entered into a Management Agency Agreement to lease the subject property for a period of up to 12 months on the same day as settlement of the purchase then any intention for the applicant to reside in the subject property as his principal place of residence would be defeated. Accordingly the decision to revoke the Concession was correct and should be affirmed.

55 The respondent’s representative made submissions in respect of each of the issues raised by the applicant including the ones referred to below:

Representation of the Chief Commissioner of State Revenue

The applicant claimed that there would be a breach of natural justice and/or procedural fairness and/or that there would be an apprehended bias if the Chief Commissioner were represented. Like any other party to proceedings before the Administrative Decisions Tribunal the Chief Commissioner may be legally represented and further that the Act does not require any party to obtain leave of the Tribunal to be legally represented in applications made at the Tribunal in respect of those Grants. Therefore the Chief Commissioner should not be prevented from being legally represented merely because the applicant is not. The respondent’s representative acknowledged that in circumstances where the Tribunal considers it appropriate it has the discretion to order that the parties to proceedings may not be represented for the purposes of presentation of oral submissions to it and in the event that this is the case then the factors set out in Section 71(3) of the ADT Act must be taken into consideration and that in doing so as the matter is not factually complex and there are no legal issues to be determined and that in regard to those legal issues the respondent will require evidence to be tested by cross examination. The respondent’s representative also submitted that the legal representations in these proceedings would assist the Tribunal and the parties.

Standard of review

The respondent’s representative submitted that the effect of Section 63 of the ADT Act is that the Tribunal “stands in the shoes” of the Chief Commissioner. Therefore the decision making process of the decision of the Chief Commissioner is not relevant in the present matter and that accordingly the respondent objects to any of the decision maker (s) being called.

Constitutional argument – Section 109 of the Constitution

The respondent’s representative responded to the argument by the applicant that the decision of the respondent pursuant to the Act was inconsistent with Section 553B(1) of the Social Security Act 1991. This being the section relating to a 26 week exclusion period from social security and related to employment prospects. The respondent’s representative noted that no evidence was provided to the Tribunal to support the submission of the applicant that he would be excluded from Centrelink payments. The respondent’s representative noted that the Tribunal cannot determine Constitutional issues and that in any event the applicant’s constitutional submission is without merit.

Statutory interpretation

The respondent’s representative submitted that Section 33 of the Interpretation Act 1987 which allows the interpretation of the eligibility for a grant in a manner that would permit the applicant to retain the Grant is unsupportable as the words of the Act cannot be ignored. The respondent’s representative submitted that the purpose as stated in the legislation was to benefit first home owners being those defined as those who occupy the property as their principal place of residence within 12 months of settlement and that this requirement is as expounded in Ferrington and is an essential part of the Parliament’s purpose.

56 The applicant has made comprehensive submissions in relation to the law and the case law surrounding the granting of the Grant and the providing of the Concession. The applicant has supplied only minimal evidence of his connection to the subject property. Considered objectively the evidence provided by the applicant cannot lead to a conclusion that the applicant occupied the subject property as his principal place of residence. At all material times the applicant’s principal place of residence was in Sydney. The evidence discloses that the applicant employed a managing agent to lease the subject property, that the date of employment of that agent was the same date as settlement of the purchase of the subject property, that the applicant expressed a desire for a six month lease but was prepared to consider a lease up to 12 months in length and that this would have had the effect of preventing the applicant from taking up occupation of the premises as his principal place of residence. Although the applicant may have intended at some time to occupy the subject property as his principal place of residence it was certainly not during the period of 12 months following the date of purchase and therefore not only did the applicant not take up the occupation of the premises as his principal place of residence he cannot be considered to have had the intention to do so as at the date of the settlement of the purchase. Pursuant to the legislation the applicant was required to advise the respondent of his change of intention as soon as that became the case and in the event that his change of intention was made prior to the applicant taking up occupation of the subject property. The applicant was also required under the legislation to advise the respondent as to the fact that he had not taken up occupation of the subject property as his principal place of residence.

57 The fact that the applicant’s father became an owner of a 1/100th share in the property as a requirement of the mortgage lender has no relevance to the case as the respondent did not take this into account either in initially making the Grant and providing the Concession nor in revoking the Grant and the Concession.

58 At the time that the applicant responded to the respondent by way of statutory declaration he disclosed that he had not taken up occupation of the subject property and then at a later date he recanted on that statement and sought to disclose sufficient information to satisfy the onus that rested upon him that he had taken up occupation of the subject property as his principal place of residence. The applicant has not satisfied this onus.

59 The applicant made at least two trips to the subject property during the period between 8 October 2003 and 3 November 2003 and he stated that he spent time at the subject property, he did not provide any evidence to support this submission. The applicant did not move any furniture into the subject property. The applicant did not enrol on the electoral roll for the subject property during the relevant period. The applicant personally drew some plans in relation to the house that is constructed on the subject property and discussed with his parents the changes and the renovations that he might make to the subject property. The applicant did attend to ensuring that the lawn was mown and to generally keep the subject property in an appearance of repair. These activities could only be described as transient, temporary, contingent or passing in nature, they are not sufficient to disclose a degree of permanence that would satisfy the residence requirements.

60 In relation to the various issues raised by the applicant for consideration by the Tribunal as to the reasons why the decisions of the respondent should be overturned it is noted that the applicant was prepared to accept that the respondent had the power to make the Grant and to provide the Concession however the respondent did not have the power to recall the Grant and revoke the Concession. The application of the laws in the manner is inconsistent and cannot be supported.

61 This Tribunal is not in a position to make a decision as to the application of the Constitution in this particular matter. This is particularly so as the requirements of the Social Security Act 1991 are not directly inconsistent with the residence requirements in the Act.

62 The respondent has correctly imposed a penalty of 20% on the requirement to repay the Grant as this is consistent with the situation where the recipient of the Grant has not complied with the requirements of the Grant and has not advised the Chief Commissioner of State Revenue of the applicant’s non compliance.

ORDER
1. The Tribunal has jurisdiction to consider the application for review.

2. The application is dismissed. The decisions of the Chief Commissioner of State Revenue to require repayment of the First Home Owner Grant together with a 20% penalty and to revoke the First Home Plus stamp duty concession are affirmed.

3. The representation of the Chief Commissioner of State Revenue by a legal practitioner before the Tribunal is appropriate and there is no need for the Chief Commissioner to appear.