Elskaf and Secretary, Department of Social Services (Social services second review)
[2020] AATA 3806
•29 September 2020
Elskaf and Secretary, Department of Social Services (Social services second review) [2020] AATA 3806 (29 September 2020)
Division:GENERAL DIVISION
File Number(s): 2018/5312; 2018/5315
Re:Jamal Elskaf; Ferdous Elskaf
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:29 September 2020
Place:Sydney
2018/5312 – Mr Jamal Elskaf
The decision under review is varied such that the debt which is due to, and recoverable by, the Commonwealth is increased from $94,872.83 to $95,186.14 for the same debt period being 16 September 2009 to 4 October 2016.
2018/5315 – Mrs Ferdous Elskaf
The decision under review is varied such that the debt which is due to, and recoverable by, the Commonwealth is increased from $94,872.83 to $95,186.14 for the same debt period being 16 September 2009 to 4 October 2016. As Mrs Elskaf has already repaid $94,026.32, the residual of her debt which remains recoverable by the Commonwealth is $1,159.82.
..............................[sgd]..............................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – debt – whether property of the Applicant should be treated as her asset for asset test – trust over property in NSW – constructive trust – assets and income as a member of a couple – whether deposits in bank account should be treated as Applicants’ income for income test – overpayment – whether the Applicants owed debts to the Commonwealth – whether there are any grounds to waive or write off the debts – decisions under review varied
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Conveyancing Act 1919 (NSW) s 23C
Social Security Act 1991 (Cth) ss 4, 8, 11, 117, 1064, 1118, 1121, 1223, 1236, 1237AAD
Social Security (Administration) Act 1999 (Cth) ss 68, 194, 196
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Dranichnikov v Centrelink [2003] FCAFC 133
Hajjar and Secretary, Department of Social Services (Social services second review) [2020] AATA 2476
Jess v Scott (1986) 70 ALR 185
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Carpenter and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 344
Re Follone and Secretary, Department of Social Security (1987) 11 ALD 477
Re Holden and Secretary, Department of Social Security (1995) 37 ALD 783
Repatriation Commission v Tsourounakis [2004] FCAFC 332
Re Secretary, Department of Social Security and Bergmann (1998) 53 ALD 737
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Shi v Migration Agents Registration Authority [2008] HCA 31
Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569
SECONDARY MATERIALS
Department of Social Services, 4.12.3.51 Constructive Trusts (21 September 2015) Social Security Guide < FOR DECISION
Chris Puplick AM, Senior Member
29 September 2020
A DECISION ON THE PAPERS
Mr Jamal Elskaf and his wife Mrs Ferdous Elskaf are the Applicants in these matters which involve a question of whether or not overpayments of the Disability Support Pension (DSP) were made to them by the Secretary of the Department of Social Services (Respondent) and, if so, whether they should be recovered.
These proceedings have been on foot for an extensive period of time. They were first listed for hearing by the General Division of the Tribunal (AAT2) on 19 September 2019 to decide the applications of Mr and Mrs Elskaf which seek review of the decisions of the Social Services and Child Support Division of this Tribunal (AAT1) made on 3 August 2018.
Upon the parties’ request that these matters be heard immediately prior to a hearing for another review application before the Tribunal made by the Applicants’ son, Mr Kalid Elskaf, the September 2019 hearing was adjourned until 30 October 2019. At that time the Applicants were legally represented.
However, immediately prior to the October 2019 hearing, the Applicants’ legal representative filed medical certificates for the Applicants indicating they were unfit to participate in the hearing and sought an adjournment. At the same time, the legal representative also withdrew as the Applicants’ representative before the Tribunal in these matters. The Applicants continued on a self-represented basis, although Mr Kalid Elskaf acted throughout on their behalf.
In response to the Applicants’ request, the October 2019 hearing was adjourned and a telephone directions hearing (TDH) listed instead on 17 December 2019. At the December 2019 TDH it was determined that the matters would be listed for hearing on 16 March 2020 and the Applicants were directed to file any further material by 31 January 2020. The Applicants did not comply with this direction and also filed further medical evidence seeking an adjournment of the March 2020 hearing. The Tribunal determined that it was appropriate to vacate the 16 March 2020 hearing and hold another TDH on that date to determine how the matters were to proceed.
It became apparent at the March 2020 TDH that, due to the Applicants’ reported states of ill health, there were considerable difficulties in them giving evidence and actively participating in the hearing. Consequently, with the consent of the parties, the Tribunal considered it appropriate to determine the matters on the papers without a hearing pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
The parties were directed to file any further submissions or evidence before the matters were to be determined based on the written material before the Tribunal. Mr Kalid Elskaf advised the Tribunal at the TDH that he was actively seeking legal representation for his parents but that his various attempts had so far been unsuccessful. The Applicants were therefore given a sufficiently long opportunity to file further material by 1 May 2020 and the Respondent given an opportunity to file further material by 20 May 2020.
Both parties agreed to this course of action and it is on this basis that the Tribunal has proceeded with the review of these applications.
In the interim, upon their request, the Applicants were granted extensions of time (EOTs) on two separate occasions to file their further material; the first extension being granted until 5 June 2020 and the second until 19 June 2020. The Applicants then requested a third EOT which was refused. The Tribunal considered, based on the reasons given for the request, that it had the effect of indefinitely extending the time for the Applicants to file further material and indefinitely delaying a decision being made in these matters.
The Respondent indicated that it had no further submissions or evidence to file.
In the present matters, the material before the Tribunal consists of:
(a)section 37 documents (T documents) and supplementary section 37 documents (supplementary T documents) running to 1462 pages;
(b)second supplementary section 37 documents (second supplementary T documents) running to 56 pages;
(c)a statement of facts, issues and contentions prepared by the Applicant’s then-legal representative dated 14 June 2019 (Applicant’s SFIC);
(d)the Respondent’s statement of facts, issues and contentions dated 11 July 2019 (Respondent’s SFIC);
(e)the Respondent’s supplementary statement of facts, issues and contentions dated 28 October 2019 (Respondent’s supplementary SFIC);
(f)an email from the Respondent’s representative dated 16 March 2020 supplying the Tribunal, at its request, with updated information about the Applicants’ alleged outstanding debts.
The Respondent had filed some documents with the Tribunal which contained material related to third parties who were not parties to these proceedings. It obtained a confidentiality order in relation to disclosure of these documents. The Respondent has not made reference to these documents in its submissions. In order to ensure procedural fairness to the Applicants, the Tribunal has taken care not to refer to these documents or to rely on any part of them in coming to its determinations. In any event, the reviews do not turn on the content of the confidential documents.
It is apparent from the decision of the AAT1 that that Tribunal had the benefit of hearing direct evidence from the Applicants and from other witnesses including the Applicants’ sons Ahmed and Kalid Elskaf. As that evidence was given under oath or affirmation, and as there is nothing in any of the subsequent submissions from the Applicants to refute the record of their testimony, the Tribunal accepts that the AAT1’s report of the evidence given to it is correct, and accepts and adopts it in these proceedings.
THE RESPONDENT’S POSITION
In essence the Respondent claims that the Applicants failed to disclose details of their financial position, both in terms of their ownership of certain assets and income, and that due to the value of these assets and income they were entitled to a lower, and eventually a nil, amount of DSP under the Social Security Act 1991 (Cth) (Act). The Respondent contends that given the Applicants were in receipt of DSP at a level greater than their entitlement due to their failure to disclose the relevant information, they thus had recoverable debts owing to the Commonwealth.
The Applicants had failed to provide information to the Department as they were required to do in the normal course of events. This was compounded by the fact that between 25 May 2009 and 20 October 2015 both Applicants were sent letters by the Department pursuant to section 68(2) of the Social Security (Administration) Act 1999 (Cth) (Administration Act) which obliged them to notify the Department of relevant changes in circumstances.[1] They did not supply updated information concerning their assets and income as required.
[1] Section 37 documents (T documents) at T19 and T20.
The facts relied on by the Respondent in asserting that the Applicants owed debts for DSP overpayments are set out in its SFIC as follows (citations omitted and personal information redacted):
The applicants are a married couple, and have both been in receipt of DSP since 1997.
The applicants separated for a period, and in 1989, Mrs Elskaf purchased the property at [number 48 in Heckenberg] (48 Heckenberg property). Mrs Elskaf retained ownership of this property after she reconciled with Mr Elskaf.
Mr Elskaf purchased the applicant’s current principal residence [in] Hinchinbrook (Hinchinbrook property) in 1999.
On 6 June 2000, the applicant’s (sic) advised the Department that they had moved to [the Hinchinbrook property]. However, the applicants did not advise the Department that Mrs Elskaf retained ownership of [the 48 Heckenberg property].
In September 2009, the Department found out that Mrs Elskaf continued to own [the 48 Heckenberg property], and that the applicants had undeclared bank accounts with substantial deposits.
The Department subsequently raised debts of DSP for the period 31 July 2002 to 15 September 2009. These decisions were affirmed by an Authorised Review Officer (ARO). The Applicants sought review of these decisions, by the Social Security Appeals Tribunal but ultimately withdrew their requests.
In October 2016, the Department identified that regular deposits had continued to be paid into an account held by the applicants, and that ten residential units had been constructed over [adjoining land at] 46-48 [in Heckenberg] (46-48 Heckenberg property). The Department suspended DSP payments for both applicants.[2]
[2] Respondent’s statement of facts, issues and contentions dated 11 July 2019 (Respondent’s SFIC) at [3]-[9].
A number of valuations of the 46-48 Heckenberg property were conducted. It was determined, based on a historical valuation, that as at 1 September 2010 the value of the property at numbers 46-48 was $2,600,000. Over time the value of the property rose and as at October 2016 the valuation was determined to be $4,200,000.
ALLEGED DEBT FROM FIRST DETERMINATION TO THE DECISION OF THE AAT1
On 15 March 2017 the Respondent made a decision to raise a debt of $94,872.83 (original debt) against each of the Applicants for the period from 16 September 2009 to 4 October 2016 (when the Department suspended DSP payments for both Applicants) (original debt period).
These calculations were subject to review by a departmental ARO who, on 25 May 2017, re-determined the amounts in question to be $94,026.32 (new debt) for a different period beginning 30 September 2009 to 4 October 2016 (new debt period).[3]
[3] T documents at 232-243.
The Applicants applied to the AAT1 for a review of the decision which, on 3 August 2018, effectively affirmed the original debt amount being $94,872.83 for the original debt period.[4]
[4] Ibid at 20 [117].
In its decision the AAT1 stated that “[t[he authorised review officer affirmed the decision [that the debts were $94,872.83] on 25 May 2017 and Mr and Mrs Elskaf applied to the Administrative Appeals Tribunal (the Tribunal)”.[5]
[5] Ibid at 7 [10].
With great respect, the AAT1 appears to either have been misinformed or in error on this point, as the ARO had in fact varied the original Departmental decision by adjusting the debt period and reducing the debt levels as indicated above and as confirmed in the T documents.
ALLEGED DEBT FROM THE DETERMINATION OF THE AAT1 TO THE PRESENT
The Respondent then made a further recalculation of the debts on the basis that the relevant deposits into the joint bank account of the Applicants had been annualised when they should have been treated as income in the fortnight of receipt over the debt period.[6]
[6] Respondent’s SFIC at [14].
This recalculation, applying to the same original debt period (16 September 2009 to 4 October 2016), determined that the debts for Mr and Mrs Elskaf individually were $95,186.14 (recalculated debt).[7]
[7] Supplementary section 37 documents (Supplementary T documents) at 9-51.
It appears that this recalculation was made in May 2019[8] and notice of this recalculation sent on 3 June 2019.[9] There is no evidence before the Tribunal that this matter has been subject to further internal review and it was obviously not before the AAT1 for review. However, as the AAT2 is conducting its review de novo, the Tribunal considers that the new evidence which the Tribunal had received in the Supplementary T documents regarding the recalculation is relevant to the decisions at hand and that it is appropriate to take into account the recalculated debt figure of $95,186.14.[10]
[8] Respondent’s supplementary statement of facts, issues and contentions dated 28 October 2019 (Respondent’s supplementary SFIC).
[9] Respondent’s SFIC at [14]; Supplementary T documents at 53-56.
[10] Shi v Migration Agents Registration Authority [2008] HCA 31, [37] per Kirby J.
As outlined above, there is a difference between the debt period as determined by the ARO and by the original decision-maker. It appears that the ARO determined the new debt period as beginning on 30 September 2009 on the basis that the evidence relating to alleged income received by the Applicants into their Commonwealth Bank (CBA) account XXXXX XXX912 indicated that the first receipt of such income (following the end of the Applicants’ previous debt period on 15 September 2009) was on 30 September 2009.[11] The original debt period determined by the original decision-maker and affirmed by AAT1 appears to be calculated on the basis of the start date for payment of DSP in the period following the Applicants’ previous debt period. That start date was 16 September 2009.[12] The evidence indicates that the alleged income was deposited prior to 16 September and continued to be deposited into the account after this date. Therefore, the Tribunal considers that the correct debt period commences from 16 September 2009 until 4 October 2016. The Tribunal notes that, in this respect, it has not been assisted by the dates referenced in the Respondent’s SFIC which refer back and forth between the debt period commencing 16 September and 30 September.
[11] T documents at 169, 234-235 and 240-241.
[12] Ibid 496 and 507.
Mrs Ferdous Elskaf
On 19 September 2018 and 5 October 2018 Mrs Elskaf made repayments to the Respondent in the sums of $40,000.00 and $54,026.32 giving a total repayment of $94,026.32. This was the exact amount which the ARO had recalculated, although less than the AAT1 had affirmed.
Advice from the Respondent by email to the Tribunal dated 16 March 2020 advised that Mrs Elskaf had a remaining debt to the Commonwealth in the sum of $1,223.73.[13] This arises from the further recalculation of the debt on 3 June 2019.
[13] This figure is the difference between the $94,026.32 already paid and the recalculated debt of $95,186.14, plus interest.
The Respondent also put to the Tribunal that Mrs Elskaf had a previous debt for the period 2002 to 2009 but that this is not a matter before the Tribunal for consideration.
As far as the Tribunal can ascertain, in relation to Mrs Elskaf:
(a)An original debt was raised against her for $94,872.83 for the original debt period 16 September 2009 to 4 October 2016
(b)An ARO had recalculated the new debt amount to be $94,026.32 for the new debt period of 30 September 2009 to 4 October 2016 and notified her of this[14]
(c)This original debt and original debt period were affirmed (based on incorrect advice or in error) by the AAT1
(d)In two payments (19 September 2018 and 5 October 2018) she repaid $94,026.32
(e)As at 16 March 2020 she was assessed as owing a remaining debt of $1,223.73 (including interest currently accruing).
[14] T documents at 236.
Mr Jamal Elskaf
In its supplementary SFIC, the Respondent states that Mr Elskaf has a relevant debt to the Commonwealth of $95,186.14 (for the period 16 September 2009 to 4 October 2016). To this is added interest so that, as of 16 March 2020, the debt is $107,117.97.[15]
[15] Respondent’s email to the Tribunal dated 16 March 2020.
There is also information provided to the Tribunal of a debt owing for the period between 2002 and 2009 and, as with Mrs Elskaf, this is not a matter of concern to this Tribunal at present.
THE MATTERS BEFORE THE TRIBUNAL
The reviews to be undertaken by this Tribunal concern the applications by the Applicants dated 14 September 2018 for a review of the AAT1 decision of 3 August 2018 (received by them on 17 August 2018).[16]
[16] T documents at 2 and 4.
Hence, those matters are:
(a)whether the 48 Heckenberg property should be considered an asset for the purpose of assessing the Applicants’ entitlement to DSP for the period 7 December 2010 to 4 October 2016,
(b)whether deposits in the Applicants’ joint CBA account XXXXX XXX912 should be considered income for the period 16 September 2009 to 6 December 2010,
(c)whether the Applicants were overpaid $95,186.14 and have debts due to the Commonwealth, and
(d)whether the debts should be recovered.
THE EVIDENCE BEFORE THE TRIBUNAL
There is an appalling lack of documentary evidence before the Tribunal setting out the case which the Applicants wish to have considered. In this respect the Tribunal must rely upon the decision of the AAT1 in terms of what that Tribunal was told by the Applicants and witnesses appearing before it.
At that hearing, Mr and Mrs Elskaf were represented by counsel, had instructing solicitors and they gave evidence (with the assistance of an interpreter). Their sons, Ahmed and Kalid Elskaf, also gave evidence. There has been nothing put before this Tribunal which challenges the AAT1’s report of the evidence presented to it although, of course, its conclusions are challenged by the Applicants.
In the absence of direct oral evidence presented to this Tribunal, it will be best to include in whole, the submission made by the Applicants’ through their former legal representative dated 14 June 2019. It is a statement of facts, issues and contentions in the following terms (personal information redacted):
Facts
1Jamal Elskaf ("First Applicant") and Ferdous Elskaf ("Second Applicant"), here on referred to as "the Applicants", have been married for over 46 years and have 8 children.
2The Applicants purchased [the 48 Heckenberg property] ("the Property") in or about 1989 from the NSW Housing Commission. The property was registered in the Second Applicants name. The Applicants lived in and raised their children in the Property until about late 1999.
3In about May 1997, the Applicants were granted disability support pensions.
4In about December 1999, the Applicants purchased and moved to [the Hinchinbrook property].
5Ahmed Elskaf, son of the Applicants, purchased [the number 46 Heckenberg property] ("Ahmed's property") (Ahmed's property and the Property, hereon referred to as "the Properties").
6Following Ahmed Elskaf acquiring Ahmed's Property, he reached an agreement with the Applicants and his brothers that he would develop the Properties into a single unit complex.
7From about 2002 to 2010, a single unit complex ("the project") was built across the Property and Ahmed's property.
8The Applicants son, Moustafa, Ahmed and Mohammed, together with the Applicants son-in-law Yasser El Gammel, funded the project.
9The Applicants did not contribute any funds to the project.
Issues
1The value of [the 48 Heckenberg property] that is attributable to the Applicants.
2Legal and beneficial ownership of [the 48 Heckenberg property].
3Deposits into bank account #1912.
Contentions
1The Tribunal wrongly determined what remedy a Court of Equity would provide the beneficiaries.
2The Tribunal should have been satisfied there are beneficial owners of all or part of the property, other than the Applicants.
3The Tribunal erred in concluding that it would not be unconscionable for the Applicants to assert full title to [the 48 Heckenberg property], and finding that the value of the whole of that property is an asset of the Applicants.
4The Tribunal erred in determining that a debt or part of the debt arose because of income between 16 September 2009 and 6 December 2010.
The Hinchinbrook and 48 Heckenberg properties
On 3 August 1997 Mr Elskaf purchased a home in Hinchinbrook (NSW). The Applicants have lived there together since 2000 and, as such, it is their principal home/place of residence for social security purposes.
There is some doubt about the date of purchase. The AAT1 notes it as having occurred on 3 August 1997; the Respondent’s SFIC states it to be 1999 and the Transfer Form is actually undated[17] despite being signed and witnessed by a solicitor. However, nothing turns on this point.
[17] T documents at 252.
The couple have been married for some 46 years. However, it appears that between 1986 and 1993 the couple were separated (the AAT1 noted during that period Mrs Elskaf was in receipt of the sole parent pension for her children) and during that period, in 1989, she acquired the 48 Heckenberg property. This was, at that time, the principal family home and was acquired by purchase from the NSW Housing Commission.[18]
[18] Applicant’s statement of facts, issues and contentions (Applicant’s SFIC) at [2].
Whatever the purchase arrangements, the property was registered as being in the sole name of Mrs Elskaf as the owner. It was at the time of purchase and it remains so to this day. It is not in dispute that the property was not subject to a registered mortgage during the debt period.[19]
[19] T documents at 8 [19].
In 2001 one of the couple’s sons (Ahmed Elskaf) purchased the land adjoining Mrs Elskaf’s property at number 46 (46 Heckenberg property).
Whatever property was on number 48 it appears to have been demolished such that Centrelink records had recorded it as being vacant land.
At some time between 2007 and 2010 a block of ten units was built across the two properties at numbers 46 and 48. Correspondence from the local Council and from certifiers involved in the approval of the development are addressed to Mr Ahmed Elskaf and Mrs Ferdous Elskaf as the respective owners of the two properties.
There was evidence before the AAT1 that Ahmed Elskaf had contributed directly to the purchase of the 46 Heckenberg property but that because the family operated as “one hand”, the Applicants believe that the property should be regarded as being owned collectively by the family (Mr and Mrs Elskaf and their eight children or, alternatively, certain sons who financially contributed to the development). Kalid Elskaf made a contribution of some $43,000 to his mother towards the purchase of the 48 Heckenberg property but did so, as he told the AAT1, on the basis that he did not expect to be repaid at any stage.[20]
[20] T documents at 12 [53]-[55] – 13 [65].
The evidence given by members of the Elskaf family to the AAT1 which was at times contradictory, and the limited amount of actual documentation before this Tribunal, make it almost impossible to determine what, if any, were the intra-family arrangements which might have been in place either at the time of the property purchases or the subsequent development of the block of units.
There is no paperwork establishing that any formal arrangement existed. It is clear that Mrs Elskaf, herself, had little or no knowledge of what was happening, what she might be signing or what might be being done in her name. It appears that “family finances” were managed under the direction of Mr Jamal Elskaf as patriarch of the family. The Applicants and the witnesses before the AAT1 make claims to the effect that “the family” owned and managed everything as “one hand”.
The AAT1 had the benefit of hearing from members of the family and putting questions to them about financial arrangements. It reached a number of conclusions, including:
Ultimately, the Tribunal was unable to form a view that there was a common intention of the parties that the property be conveyed to one or more of the children absolutely. Simply put, none of the witnesses gave such evidence. No one specifically said or averred that Mrs Ferdous Elskaf had expressed an intention that the property be assigned to one or more children absolutely. She merely stated that she left all the decisions to her children and husband.[21]
Significantly, the applicants adduced no evidence from Mohammad, Moustafa or Yasser about their expectations or contributions to the project. All evidence about how and what they contributed was vague and impressionistic. Certainly, none of the contributions were quantified or corroborated by financial statements, tax returns, statements or any other objective evidence.[22]
DISCUSSION OF ASSETS
[21] T documents at 16 [84].
[22] Ibid 17 [95].
Mrs Elskaf’s assets
The Respondent contends that, given her ownership of the 48 Heckenberg property, this was an asset in the possession of Mrs Elskaf for the purpose of the asset test for DSP. It further contends that when Mr and Mrs Elskaf informed the Respondent that they had moved into the Hinchinbrook property as their principal place of residence in 6 June 2000,[23] they failed to inform the Respondent that Mrs Elskaf was still the owner of the 48 Heckenberg property.
[23] Respondent’s SFIC at [6].
The Respondent thus relies, inter alia, upon this to assert that Mrs Elskaf should be assigned a 50% interest in the 46-48 Heckenberg property and the development thereon. That development is a block of ten units and is not a strata plan development.[24]
[24] Ibid [36].
The Applicant’s contrary submission is set out in the decision of the AAT1 as follows:
The applicant’s submissions are that it would be unconscionable for Ferdous Elskaf to assert an unfettered interest in the whole of [the 48 Heckenberg property] because ‘the children’, being Ahmed, Moustafa and Mohammed, contributed financially to the construction cost of the development of [the 46-48 Heckenberg property], while Kalid Elskaf contributed his labour.
It was asserted that there exists a constructive trust over [the 48 Heckenberg property], which arose by way of a ‘clear common intention’ or ‘remedial equity’, binding Mrs Elskaf to hold the title for the benefit of her children.[25]
[25] T documents at 14 [78] and 15 [79].
It is hard for this Tribunal to come to a clear view as to what Mrs Elskaf’s intentions might have been at any stage.
The AAT1 summarised her evidence to it as follows:
Mrs Elskaf said that she had nothing to do with buying or selling the property, she stated the children did everything. She said when decisions needed to be made they sat together and discussed it, mostly her husband and the children spoke. She may have been present but was not conscious of what was being decided. Sometimes she sat with them, sometimes she did not.
She said she did not know anything. She worked at home and was sick. At present she lives at [the Hinchinbrook property] with her husband and her son Mohammed. Her other children came and went to help her.[26]
[26] Ibid 9 [32]-[33].
This version of events is largely corroborated in the evidence given by Mr Elskaf.[27]
[27] Ibid 10 [43].
The AAT1 had found key parts of Mr Elskaf’s evidence “unconvincing” and there were contradictions in the evidence given by Mr Elskaf and Ahmed Elskaf on some points and between Ahmed Elskaf and Kalid Elskaf on others.[28] It found the Applicants’ evidence about the financial contributions shared among members of the family as “vague and impressionistic”.[29]
[28] Ibid 11 [50], 12 [58] and 14 [72].
[29] Ibid 17 [95].
Existence of a trust over the 48 Heckenberg property
In the light of this, the only safe course for the Tribunal to adopt is to examine whether or not there is any other evidence which would establish the existence of a trust over Mrs Elskaf’s property so as to give rise to a charge or encumbrance which would reduce the value of the asset in her hands pursuant to section 1121 of the Act.[30]
[30] Repatriation Commission v Tsourounakis [2004] FCAFC 332.
Section 1121 of the Act provides that:
Effect of charge or encumbrance on value of assets
(1) If there is a charge or encumbrance over a particular asset of the person, the value of the asset, for the purposes of calculating the value of the person's assets for the purposes of this Act (other than Division 1B of Part 3.10), is to be reduced by the value of that charge or encumbrance.
For there to be a trust over land in NSW it must be manifest in writing as required by section 23C of the Conveyancing Act 1919 (NSW):
Instruments required to be in writing
1Subject to the provisions of this Act with respect to the creation of interests in land by parol –
(a)no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person's agent thereunto lawfully authorised in writing, or by will, or by operation of law,
(b)a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person's will,
(c)a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person's will, or by the person's agent thereunto lawfully authorised in writing.
2This section does not affect the creation or operation of resulting, implied, or constructive trusts.
3For the purposes of this section, a requirement for writing may be satisfied in electronic form and a requirement for writing to be signed may be satisfied by electronic signature.
In the first place it can be said clearly that there is no sustainable claim that the real estate/property in question was held on express trust. There is no such written documentation proving a declaration of trust was made by Mrs Elskaf.
Given that the Tribunal has concluded that at all material times Mrs Elskaf was the owner with legal title over the 48 Heckenberg property and that ownership was unencumbered, the next matter to determine is whether a court of equity would impose a constructive trust in relation to the property.
Section 4.12.3.51 of the Social Security Guide (Guide) provides the following guidance in establishing whether or not such a constructive trust may exist:
Constructive trusts
Constructive trusts are non-express trusts and can be imposed by a court irrespective of the intention of the parties. A constructive trust may be imposed by a court where the party with legal title has a fiduciary obligation to another, usually due to past events or actions by the parties. However, the most frequent constructive trust is a common intention constructive trust.
Common intention constructive trusts
A common intention constructive trust is created to enforce a promise and/or a gift. The following elements need to be demonstrated to establish the existence of a common intention constructive trust:
·there must have been a common intention between the legal owner of the property and the beneficiary, regarding the beneficiary's beneficial ownership of the property,
·this common intention is to be inferred as a fact from the words or conduct of the parties,
·the beneficiary must be able to show that they have acted to their detriment on the basis of the common intention as to the beneficial ownership of the property, and
·it must be a fraud on the beneficiary for the legal owner to assert that the beneficiary did not have the beneficial interest in the property.
In proceedings before the AAT1 when the Applicants were legally represented, a statement was signed and tendered by one of the Applicants’ sons, Ahmed Elskaf, in which he asserted that:
As a developer of the two Heckenberg lots of land into a single (indivisible) unit block, I expected to take an interest of some sort in my parents’ land. I would not have gone to the trouble, time and expense of developing the block if I was not to enjoy the results of that contribution … For this project I expected to receive rent and to be able to offer the property, if needed, as security for another sibling’s project or own of my own.[31]
[31] T documents at 255.
The AAT1 spent some time considering the evidence which it had before it in relation to such claims and concluded (as noted above):
Significantly, no witness gave evidence about an unequivocal agreement by Mrs Elskaf that the property at [48 Heckenberg] conveyed to a particular person or persons. Neither Ahmed nor Kalid expressed the view that they ‘owned’ the property at [48 Heckenberg]. Particularly Ahmed’s evidence suggested that he sought no more than half of the interest in the whole development. No evidence from Moustafa, Mohammad or Yasser was available.[32]
[32] Ibid 16 [87].
It further found that contradictory evidence was presented to it by various family members and hence that:
The Tribunal cannot conclude based on the available evidence that any particular person would have a strong case to assert an equitable interest in [the 48 Heckenberg property] that would be likely to defeat Mrs Elskaf’s interest. Furthermore, and of particular significance in the context of section 1121 of the Act, an alleged equitable interest simply cannot be quantified because the extent to which each party acted to their detriment is unknown.[33]
[33] T documents at 18 [102].
All that can be established from the evidence is what the AAT1 called “vague” and “unconvincing” statements by various members of the family as to their varying understandings of informal family arrangements.
In the Applicant’s SFIC, again prepared while they were legally represented, this Tribunal was invited to find that, inter alia, in relation to the reviewable decisions:
1The Tribunal wrongly determined what remedy a Court of Equity would provide to the beneficiaries.
2The Tribunal should have been satisfied there are beneficial owners of all or part of the property, other than the Applicants.
3The Tribunal erred in concluding that it would not be unconscionable for the Applicants to assert full title to [the 48 Heckenberg property], and finding that the value of the whole property is as asset of the Applicants.
In the absence of any material being presented to elucidate the Applicants’ claim that the AAT1 had erred, it is not satisfied based on the evidence (or lack thereof) before it, that there are beneficial owners of the 48 Heckenberg property other than Mrs Elskaf.
The Tribunal has no persuasive evidence presented to it to suggest that the analysis undertaken, and the conclusions reached by the AAT1 were, in any material respect, in error. There is certainly no evidence that Mrs Elskaf took any steps to transfer title or disinvest herself of any ownership of the property in question. Moreover, even by 2016, Ahmed Elskaf and Mrs Elskaf continued to be each billed half of the Council rates for the 46-48 Heckenberg property based on their respective ownership of the two plots of land upon which the property was built.[34]
[34] Ibid 207-208.
There are a number of relevant authorities which have discussed such issues as those now before the Tribunal.
In the matter of Bergmann, a couple owned blocks of farming land on which their son worked with the expectation that in due course he would take over the land and the family business. However, when the land was transferred to a trustee and the couple claimed the age pension, their claim was rejected on the basis that they still owned the property unencumbered, regardless of the informal arrangement entered into with their son. The Tribunal held that:
(i) At the time of the disposal of the relevant assets by the respondents in 1995, there was no express or implied trust over the land or the shares in favour of the respondents’ sons.
(a) Although it had been the respondents’ and their son's hope and intention that the land and farming business would be passed from the respondents to their son, there had never been a binding or enforceable agreement with respect to the transfer of the land and the farming business.
(b) Rather, there was an informal and non-binding family arrangement that the land and business would in due course be transferred to the respondents’ son.
(ii) Nor could it be said that there was a constructive trust over the relevant assets.
(a) The respondents’ son had freely taken up his vocation in the farming business, not as a result of any inducement by the respondents but in the expectation that he would share in the profits of the business from time to time and, eventually, acquire some interest in the property.
(b) From 1976, the respondents’ son received a one-third share of the proceeds of the business.
(c) It could not be said that it would be unconscionable for the respondents to assert an unfettered beneficial right over the whole of the land and the shares by them; nor had their son acted to his detriment on the assumption that he had a beneficial interest in those assets.[35]
[35] Re Secretary, Department of Social Security and Bergmann (1998) 53 ALD 737, 737-738.
Similarly, in Holden, the Tribunal found that no constructive trust existed because:
the applicant’s son had not acted to his detriment on the assumption that he had the beneficial ownership of the property.[36]
[it was] unable to identify any conduct or behaviour of or between the applicant and Terry … which would amount to a constructive or implied trust.[37]
[36] Re Holden and Secretary, Department of Social Security (1995) 37 ALD 783, 783.
[37] Ibid 785.
In Carpenter, it was necessary “[t]o determine whether the informal discussions and understandings between Mrs Carpenter and her present or former husband, which were not committed to writing, establish an equitable right or obligation or a constructive trust over a part of her assets in favour of her sons”.[38] In that instance the sons had lived in a property owned by their mother and made improvements to that property while paying no rent. The Tribunal went on the find that (citations omitted):
I am satisfied that Mrs Carpenter’s informal discussions with Mr Carpenter concerning the provision to her sons of an “inheritance” from their father did not establish a constructive trust or other equitable obligation over any part of her assets …
Simply, on the facts, there is nothing in Mr and Mrs Carpenter’s dealings with her sons in these matters that is sufficient to impose a trust over any part of her assets or that would amount to unconscionable conduct warranting the imposition of a constructive trust. There is no legally binding promise involved in the arrangements between Mr and Mrs Carpenter and Mrs Carpenter’s sons in relation to the property at 10 Dethridge St, Higgins prior to the transfer to them of that property in March 2005.[39]
[38] Re Carpenter and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 344, [9].
[39] Ibid [13]-[14].
In Follone the Tribunal made the point that:
It is possible, in the context of family life, to elevate all kinds of understandings and expectations between family members into agreements which might be claimed legitimately to have divested pension recipients of whole or part of their assets. If, through the Tribunal's interpretation of the assets test legislation, it were made possible to allow such expectations and understandings to be so elevated, the respondent would be in an impossible position in its attempts to dispute the legitimacy of dispositions of assets, as part of its duty to ensure fair and equal application of the assets test formula to all who might fall within it.[40]
[40] Re Follone and Secretary, Department of Social Security (1987) 11 ALD 477, 481.
Consideration of these authorities and the lack of any probative evidence before the Tribunal suggests to the contrary that no constructive trust, or equitable interest, can be found to exist as a result of the actions of, or dealings between, any of the relevant parties.
There being no trust to be taken into account, it follows that the full value of Mrs Elskaf’s interest in the asset in question must be ascribed to her for the purpose of determining her entitlements in relation to DSP.
The value of Mrs Elskaf’s assets
The Respondent has obtained a series of valuations of the 46-48 Heckenberg property and has assigned 50% of the asset values to Mrs Elskaf. For the reasons stated above, the Tribunal agrees with this assignment formula.
These values are summarised in a table in the Respondent’s SFIC as follows:[41]
[41] Respondent’s SFIC at [65].
Period
Assessable Value
Explanation
30 September 2009 to 6 December 2010
$240,000
Until 6 December 2010, the value of the 48 Heckenberg property is maintained at $240,000. This is the value the Department had applied for the property as a vacant block. This is consistent with the findings of the ARO (T8/228-229) and the Guide at 4.6.6.10.
7 December 2010 to 31 August 2011
$1,300,000
50% of the value of the development at 46-48 in Heckenberg as at 1 September 2010. The value of the development should be maintained from 7 December 2010 because this is the approximate date the development was completed/units rented (T5/216), and because the applicants did not meet their obligation to notify the Department of these changes to their circumstances (T8/229).
1 September 2011 to 31 August 2013
$1,550,000
50% of the value of the development at 46-48 in Heckenberg as at 1 September 2011.
1 September 2013 to 31 August 2015
$1,750,000
50% of the value of the development at 46-48 in Heckenberg as at 1 September 2013.
1 September 2015 to 4 October 2016
$1,950,000
50% of the value of the development at 46-48 in Heckenberg as at 1 September 2015.
These figures are based upon independent valuations by MVS Valuers Australian Pty Ltd. The valuations are cited by the Respondent in its SFIC at paragraph 10 and set out in full in the Tribunal’s documents.[42] They are accepted by this Tribunal.
[42] Second supplementary section 37 documents (Second supplementary T documents) at 1-8.
The value of Mr Elskaf’s assets
Although it appears that Mr Elskaf did not make any direct contribution to the purchase of either property at 46 or 48 in Heckenberg, as he is a member of a couple (Act sub-ss 4(2) and (3)), the combined assets of the couple are relevant in determining entitlement to DSP for members of a couple. For DSP purposes, the legislation provides that members of a couple are treated as pooling their income and assets, and sharing them on a 50/50 basis.[43] This means that half the value of Mrs Elskaf’s 50% interest in the 46-48 Heckenberg property is also attributed to Mr Elskaf in the calculation of his entitlement to DSP.
[43] Social Security Act 1991 (Cth) (Act) s 1064-A2.
The consequence of asset valuations
Various sections of the Act provide the process whereby the rate of DSP is calculated. Section 117(a) provides that a person’s DSP rate is worked out using the Pension Rate Calculator A in section 1064. This requires establishing both an applicant’s assets and income, and assessing individually the extent to which each reduces an applicant’s rate of DSP payment. An applicant’s rate of DSP payment will then be determined with consideration given to either an applicant’s assets or income, whichever results in a lower rate of payment.
For the purpose of the assets test, assets are defined to include property and money.[44] The value of an applicant’s principal home is excluded from the assets test.[45] Pursuant to section 1121, if any asset has a charge or encumbrance upon it, the value of the asset is reduced by the extent of that charge or encumbrance for the purpose of calculating the value of the asset for the asset test.
[44] Ibid 11(1).
[45] Ibid 1118(1)(b).
The legislation then provides for an assets value limit which is the maximum value of assets that a person can have without it affecting the rate of DSP payment. Where an applicant’s asset value exceeds the assets value limit set by the legislation, then any payment of DSP is reduced accordingly.
As of 1 July 2009 the asset value limit for a couple owning their own home was $252,500[46] and as of 1 July 2010 it increased to $258,000.
[46] Respondent’s SFIC at [24].
It is thus clear from 7 December 2010 the couple had assets in excess of the asset value limit which served to reduce their entitlement to DSP to nil as from that date.[47] As the Applicants were paid DSP from this date until 4 October 2016, they were thus overpaid and owe debts to the Commonwealth.
[47] Ibid [66].
DISCUSSION OF INCOME
Mr and Mrs Elskaf are the joint holders of a CBA account xxxxxxxx912 to which they are joint signatories.
The Respondent, under the provisions of sections 194 and 196 of the Administration Act obtained financial records from the CBA, and other sources, and as a result there are extensive bank records before the Tribunal.[48]
[48] For example, T documents at 114-219; supplementary T documents at 1254-1302.
Between 21 August 2008 and June 2016 this account was active and numerous deposits were made into it, some of which were designated as being “rent payments” from at least two commercial sources. There are also a variety of other payments and withdrawals.
In relation to Ahmed and Mohammad Elskaf it is claimed, on the one hand, by the Applicants that the rent payments were payments for rent arising from a property which Mohammad owned and that the rent money was being managed by Jamal Elskaf on his behalf. Whilst legal title to that property belongs to Mohammad Elskaf,[49] Jamal Elskaf is listed as the only principal for the rental agreement for this property.[50] On the other hand, the Applicants’ position also appears to be that the payments were for the exclusive use of Ahmed.[51] No attempt has been made, by either party, to disaggregate the income so as to establish clearly what payments were intended for the use or benefit of Mr and Mrs Elskaf and what payments, if any, were allegedly being made with the intention that they be passed on to other people, in particular to Ahmed and Mohammad Elskaf.
[49] Supplementary T documents at 1220.
[50] Ibid 1307.
[51] Respondent’s SFIC at [72(f)]; T documents at 251.
In discussions with the Respondent relating to a review of entitlement for DSP, the interview which was conducted is recorded as follows:
Customer and partner were interviewed … At the interview the Elskafs were asked about their commonwealth bank account [XXXXX XXXXX ]416, this account has had substantial deposits between July 2002 and April 2008 when the account was closed. Mr and Ms Elskaf stated that the monet (sic) that goes through this account belongs to their children, they were ask to indentify (sic) which children gave them money for the account, Mr and Ms Elskaf advised they had eight children and they could not recall who has given them the money.[52]
[52] Supplementary T documents at 1385.
Although this refers to a different CBA account and a different time, it is nevertheless illustrative of the answers given by Mr Elskaf to various departmental officers[53] and enquiries, and some of his answers to the AAT1:
The Tribunal pointed out that the bank records showed rental income was paid into his and Mrs Elskaf’s account. It asked how rent monies were transferred to the children. Mr Elskaf admitted the agent deposited the rent collected into his Commonwealth Bank account and he would give it to the children in cash. He was in charge of paying all the bills and would first pay off water, electricity and land rates from the rental payments. He would pay money to the children by cheque if there were large payments but smaller amounts between $1,000 to $3,000 would be given in cash. He said he did not keep any records and did not take note of how much each of the children received. He said the children helped each other and cooperated on decisions.[54]
[53] Ibid at [1315]-[1317].
[54] T documents at 11 [46].
Such intra-familial arrangements are not uncommon and this Tribunal had cause to consider a similar set of issues in Hajjar.[55] However, a key distinguishing factor is that, in Hajjar, there was clear evidence as to from where or from whom, and to where or to whom money was being transferred even if the purpose of those transactions were disputed. In the present case, the transactions present in such a way (contributed to by a lack of detailed evidence) as to make it all but impossible to sort out who are the beneficiaries, if indeed any, of any transactions and/or exactly whose money is involved.
[55] Hajjar and Secretary, Department of Social Services (Social services second review) [2020] AATA 2476.
The Respondent states:
The Secretary contends that the definition of ordinary income under section 8 of the Act encompasses this income, consistent with the Guide at 4.3, and therefore a debt arises in the period 30 September 2009 to 6 December 2010 from the receipt of this income.[56]
[56] Respondent’s SFIC at 77.
The AAT1 came to a similar conclusion.[57]
[57] T documents at 20 [116].
The definition of income in section 8 of the Act is:
"income", in relation to a person, means:
(a)an income amount earned, derived or received by the person for the person's own use or benefit; or
(b)a periodical payment by way of gift or allowance; or
(c)a periodical benefit by way of gift or allowance
An examination of the bank records before the Tribunal include some matters such as insurance claim payments which, however, fall outside the relevant period in question (16 September 2009 to 6 December 2010). The deposits into the account are labelled with the description ‘rent payment’, specifically “Rent Payment ELSK48”. However the nature of withdrawals is not entirely clear as these transactions do not appear to be designated with any descriptions and the evidence is unclear as to whom this money went to after it was withdrawn by the Applicants. It is not possible to identify clearly any payments from 16 September 2009 to 6 December 2010 which were, as the Applicants’ claim, for the benefit of other persons.
As such, and in the absence of any reliable evidence as to the sources of income, such as to exclude it from the section 8 definition, the Tribunal agrees with the finding of the AAT1 on this matter.
The deposits into the CBA account xxxxxxxx912 from 16 September 2009 and 7 December 2010 designated as ‘Rent Payment ELSK48’ are therefore income relevant for the purpose of assessing the Applicants’ rate of DSP.
ARE THERE GROUNDS FOR THE DEBT TO BE WRITTEN OFF OR WAIVED?
Accordingly, as the Applicants’ rates of DSP from 16 September 2009 to 4 October 2016 were calculated and paid without taking into account the additional assets and income discussed above, the Applicants were therefore both overpaid DSP. This overpayment of $95,186.14 to each Applicant is a debt due to the Commonwealth.[58]
[58] Act s 1223(1).
However, there are provisions under the Act which allow for a debt to be written off or waived:
1236 Secretary may write off debt
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
The Applicants have not advanced any compelling argument as to why, if a debt has been found to exist, it should be written off. The Tribunal is not satisfied that any of the conditions in section 1236 arise such that the debt should be written off. The Applicants have also not advanced a compelling argument that the debt be waived because there are special circumstances other than financial hardship alone to be taken into consideration.
As with so many key concepts in the Act, the term “special circumstances” is not given any precise definition. Without going into extensive detail, it can be said that the courts have identified a number of factors which go to establishing whether or not “special circumstance” exist. Special circumstances must be:
(a)something more than ordinary or usual[59]
(b)markedly different from the usual run of cases – not necessarily unique but having a particular quality of unusualness[60]
(c)attuned to the individual circumstances of each case[61]
(d)not so rigidly applied as to risk harsh or unfair outcomes[62]
(e)supportive of the overall integrity of the social security system and recognising the public interest in ensuring that public moneys are recovered where they can and should be.[63]
[59] Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25; Jess v Scott (1986) 70 ALR 185, 193; Dranichnikov v Centrelink [2003] FCAFC 133, [66].
[60] Re Beadle and Director-General of Social Security (1984) 6 ALD 1, 3.
[61] Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, [80].
[62] Secretary, Department of Social Security v Hales (1998) 82 FCR 154, 162.
[63] Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569, [48]; Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, [80].
It is accepted by the Tribunal that Mr and Mrs Elskaf suffer from a number of health problems.[64] However there is nothing unusual about DSP recipients being in this situation. On the other hand, the Applicants have access to financial resources given their 50% interest in the 46-48 Heckenberg property which was valued in the vicinity of $4 million in 2016 and which is producing income by way of rent. It has already been possible for Mrs Elskaf to pay off her substantial debt(s) and there is no evidence to suggest that Mr Elskaf cannot do likewise.
[64] Medical certificates filed by the Applicant on 29 October 2019, 12 February 2020 and 24 February 2020.
Even if there were substantial arguments put forward for the existence of special circumstances, paragraph 1237AAD(a)(ii) would prevent the Applicants from qualifying for consideration under this provision. The Applicants were provided with many notices requiring them to inform the Department of any changes to their income and assets and it therefore cannot be said that they did not know of their obligations. Furthermore, given that the Applicants had been in receipt of DSP for an extended period of time since 1997, they should have known about their obligations in relation to DSP or ought to have enquired and complied with such.
The Tribunal is satisfied that there are no grounds for the debts in question to not be recovered.
CONCLUSIONS
Mr Jamal Elskaf
It is clear in the case of Mr Elskaf that his assets and income (as part of a member of a couple) exceeded the asset and income value limits permitted under the Act and that, he having not disclosed those assets and income as he was required to do, was paid at the incorrect (and higher) rate of DSP than what he was entitled during the debt period and that debt should now be recovered.
The debt in question is $95,186.14 for the period 16 September 2009 to 4 October 2016 to which must be added general interest.
The Tribunal therefore accepts that whilst the AAT1 was correct in affirming the debt period, given the new evidence which is now before the AAT2, the AAT1’s decision affirming the debt to be $94,872.83, which was the original departmental calculation before the ARO review, is now no longer correct.
Mrs Ferdous Elskaf
It is clear in the case of Mrs Elskaf that her assets and income (as part of a member of a couple) exceeded the asset and income value limits permitted under the Act and that, having not disclosed those assets and income as she was required to do, was paid at the wrong rate of entitlement for the DSP during the debt period and that debt is recoverable.
The debt in question was $95,186.14 for the period 16 September 2009 to 4 October 2016 to which must be added general interest.
Therefore the Tribunal accepts that the AAT1 was correct is determining the debt period to be from 16 September 2009 to 4 October 2016 but has determined that the relevant debt figure is the recalculated amount of $95,186.14 and not $94,872.83 which was the original departmental calculation before the ARO review.
DECISIONS
Mr Jamal Elskaf (2018/5312)
The decision under review is varied such that the debt which is due to, and recoverable by, the Commonwealth is increased from $94,872.83 to $95,186.14 for the same debt period being 16 September 2009 to 4 October 2016.
Mrs Ferdous Elskaf (2018/5315)
The decision under review is varied such that the debt which is due to, and recoverable by, the Commonwealth is increased from $94,872.83 to $95,186.14 for the same debt period being 16 September 2009 to 4 October 2016. As Mrs Elskaf has already repaid $94,026.32, the residual of her debt which remains recoverable by the Commonwealth is $1,159.82.
I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............................[sgd]...............................
Associate
Dated: 29 September 2020
Date(s) of hearing: 29 July 2020 Date final submissions received: 7 July 2020 Advocate for the Applicant: Mr K Elskaf Solicitors for the Respondent: Dr S Thompson, Sparke Helmore Lawyers
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