Glozier v Secretary, Department of Family and Community Services

[2000] FCA 376

FEDERAL COURT OF AUSTRALIA

Glozier v Secretary, Department of Family & Community Services [2000] FCA 376

SOCIAL SECURITY – rental assistance – right or interest in principal home – purported sale of half interest by joint proprietor to wife – whether reasonable security of tenure – whether finding on material question of fact

WORDS AND PHRASES – “reasonable security of tenure”

Social Security Act 1991 (Cth) ss 11(4)(e), 1068-F1
Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B)

Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286-7 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259 at 291 applied

A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 at par 54 applied

JOHN TREVOR GLOZIER v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

NO. T 20 OF 1999

HEEREY J
30 MARCH 2000
MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T20 OF 1999

BETWEEN:	JOHN TREVOR GLOZIER Applicant
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Respondent
JUDGE:	HEEREY J
DATE OF ORDER:	30 MARCH 2000
WHERE MADE:	MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T20 OF 1999

BETWEEN:	JOHN TREVOR GLOZIER Applicant
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Respondent

JUDGE:	HEEREY J
DATE:	30 MARCH 2000
PLACE:	MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

1. The applicant appeals from a decision of the Administrative Appeals Tribunal (“AAT”) given on 20 August 1999.  The AAT affirmed a decision of the Social Security Appeals Tribunal (“SSAT”) affirming Departmental decisions that the applicant was not eligible for rent assistance under the Social Security Act 1991 (Cth) (“the Act”) because he had a right or interest in his principal home which gave him reasonable security of tenure in the home. The applicant lived in a unit on a property of which he and his estranged wife were the registered joint proprietors. He claimed that his wife had paid him $28,000 for his half interest in the property.

   Evidence before the AAT

2. In about 1984 the applicant and his wife became registered as joint proprietors of a property at 24 Cardigan Street, Somerset.

3. In about 1991 the applicant and his wife separated and the applicant moved to Queensland.  The applicant produced a copy of a document in the following terms (emphasis in original):

4. “  Nov 91

   I John Trevor Glozier of 44 Albert Road Moonah agree to accept $28,000 from my wife Jane Helen Glozier.  Being full payment for my share of house at 24 Cardigan Street Somerset on condition that it is not sold while my mother is still alive.

   (Signed) J T Glozier

   J Glozier”

5. In his evidence the applicant said that “our marriage was sort of on the rocks”.  He was managing a hotel and his mother was living in a unit at the back of the property.  He said to his wife he was going to Queensland.  She said she “would not go back up there”.  He said that she could have the house and she said “I’ll give you whatever you want for the house, I’ll take the house”.  He said, “Well you know you can’t sell it while my mum’s still alive”.   His mother was “pretty crook” at the time.

6. The applicant asked a friend of his who was a solicitor who drank at the hotel where he worked about changing the title over into his wife’s name.  The solicitor told him that this would cost him probably $4,000 to $5,000.  The solicitor said:  “Why don’t you just sign an agreement?” So he signed the agreement and his wife gave him $28,000.  He then went to Queensland for twelve months.  While in Queensland he was granted New Start Allowance from 13 July 1992. 

7. On 29 April 1993 the applicant returned to Tasmania.  He resided in a unit at the back of the Somerset property.  He paid his wife $80 a week which was “just for a meal and just somewhere to stay”.  The meal was not a regular arrangement, but “a meal every day or two whatever”.  As far as he was concerned he was paying for board and lodgings.

8. On 7 May 1993 the applicant completed a change of address form advising of a change from an address in Queensland to Flat 1, 24 Cardigan Street, Somerset.  Under question 11 the form asks “Do you pay” and contains various boxes.  The applicant ticked a box “For board and lodging (board means you are provided with some meals regularly)”.  He did not tick the box marked “rent”.  He was granted rental assistance commencing from 29 April 1993. 

9. The applicant did not advise the Department that he was registered as a joint proprietor of the Somerset property.  This was subsequently discovered on a review of the applicant’s entitlement to rental assistance.  Rental assistance was stopped as from 8 July 1998.

10. There was before the AAT a written statement by the applicant’s wife dated 6 July 1998 signed and taken down by an officer of the Department and signed by her.  It is as follows (emphasis in original):

    “I wish to confirm to the department that I am residing as a single person.  My husband is at present paying $60-00 [sic] per week towards rent on the property.  This property is in fact owned by myself and my husband.  I expect that in the near future I may place this property up for sale.  If sold my husband and myself would receive 50% each of the sale *INPUT

    I am using the $60-00 that John gives me a week to help out with living expenses.

    I understand that if my circumstances change that I am to advise the department within 14 days.

    *  After the equity loan is paid off, The balance being around $50,000.”

11. The applicant’s wife did not give evidence.  The applicant said she had been the victim of an assault three years ago and was suffering a nervous condition which required psychiatric treatment once a week.  There was no documentary evidence of the payment and receipt of the $28,000.

    Legislation

12. Section 1068-F1 of the Act provides for rental assistance if a number of cumulative criteria are satisfied. Relevantly for present purposes those criteria include:

    (a)       the person is not an ineligible homeowner

    (b)the person pays, or is liable to pay, rent (other than Government rent) in respect of the period.

13. “Ineligible homeowner” is defined to mean a “homeowner” other than a person falling within certain exceptions, none of which are presently relevant: s 13(1). Section 11(4)(a) provides that for the purposes of the Act:

    “(a)a person …is a homeowner if:

    (i)the person has a right or interest in the person’s principal home; and

    (ii)the person’s right or interest in the home gives the person reasonable security of tenure in the home.”

    Section 11(8) provides:

    “If a person has a right or interest in the person’s principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Secretary is satisfied that the right or interest does not give the person reasonable security of tenure in the home.”

    The AAT’s decision

14. The AAT’s summary of the evidence of the applicant included the following:

    “(c)At this time [i e in about 1991], the applicant entered in [sic] a written agreement with his wife to accept the sum of $28,000 from his wife in full payment of his share of the house at Cardigan Street.

    (d)The house was not transferred to Mrs Glozier as the applicant was reluctant to pay the costs and stamp duty on the transfer of his equity in the property and the property has continued to be registered in joint names up until now.”

15. The AAT referred to the statement by Mrs Glozier of 6 July 1998.  The AAT then proceeded:

    “FINDINGS OF FACT

    8.        The applicant was not an impressive witness.  He was a poor historian and did not sound convincing in his explanation as to why his interest in Cardigan Street, Somerset had not been formally transferred to his wife or why he not [sic] completed any property settlement with his wife, nor even consulted a legal adviser.

    9.        The evidence of the applicant is contradicted by the statement of his wife to a departmental officer on 6 July 1998.

    10.      The AAT is reluctant to accept as truth the evidence of the applicant in the absence of corroborative evidence.

    11.      The basic facts are however not in dispute and the AAT finds the following facts, namely:-

    (a)     Mr. Glozier received rent assistance between 1993 and 1998.

    (b) He advised on 7 May 1993 that he paid board and lodgings of $80 per week at 1/24 Cardigan Street, Somerset.

    (c)Mr. Glozier has been a joint registered proprietor of the property at 24 Cardigan Street, Somerset, which included the unit in which he has lived since June 1984.

    (d) The applicant did not advise the Department that he was a registered part-owner of the property in which he lived (see statement of 7 May 1993).  This is consistent with the applicant’s present belief that he has no interest in the property located at Cardigan Street, Somerset.

    APPLICATION OF THE LAW

    12.      The principal issue to be determined is whether the applicant is an ineligible homeowner for the purpose of receiving rent assistance.

    13. Section 11(4) of the Act defines a homeowner as a person who has a right or an interest in the person’s principal home and that right or interest gives that person reasonable security of tenure in the home.

    14.  The applicant is the [sic] registered as joint owner of the property.  He therefore has a right or interest in that property which on the evidence is his principal home.

    15.      By virtue of that registered joint ownership he has a right to live in the house until determined otherwise by the courts.  To that extent he has reasonable security of tenure in the home.”

16. The AAT also found that the payment of $80 per week was not rent because it was not, within the meaning of s 13(2), an amount payable “as a condition of occupancy of premises”.  The AAT held that the payment of $80 per week did not satisfy this requirement as the applicant need not make the payment to continue to reside on the premises.

    Conclusion on the appeal

17. Counsel for the applicant argued that par 14 disclosed an error of law in that the AAT treated any interest in the property as sufficient to give the applicant reasonable security of tenure.  It gave no consideration to the equitable interest Mrs Glozier acquired as a result of her purchase of the applicant’s interest in the property and the consequent destruction of the security of tenure the applicant would otherwise have had.  Alternatively, if the AAT had concluded that Mrs Glozier did not obtain an equitable interest in the property, it failed to make any finding of fact as to that question.

18. There is in my opinion some force in counsel’s argument. Paragraphs 14 and 15 of the AAT’s reasons in themselves are ambiguous. Is the AAT saying that being registered as a joint owner is a sufficient right or interest and that is the end of the matter, whether or not the applicant sold his interest to his wife for $28,000 as he claims? Or is it saying that it rejects the applicant’s evidence as to the sale of his interest and finds that he is the beneficial owner of his joint interest? For the reasons I will mention in a moment, the latter interpretation is probably the preferable one. If it is, there can be little doubt a registered joint owner, unencumbered by any equitable claim, would have a right or interest in a property which gave him or her reasonable security of tenure. But I am puzzled by the reference in par 15 to “a right to live in the house until determined otherwise by the courts”. Is this a reference to a possible sale under an order of the Supreme Court of Tasmania pursuant to an application by a joint owner under s 4 of the Partition Act 1869 (Tas), or perhaps pursuant to some order of the Family Court of Australia? Or is it a reference to an order that might be made in favour of Mrs Glozier seeking to enforce her equitable interest arising from a purchase of the applicant’s half share?

19. However, reading the reasons as a whole I think the conclusion to be drawn is that the AAT has simply not accepted the applicant’s account of the sale of his half interest. I note particularly pars 8, 9 and 10.  It would be preferable if this finding had been stated explicitly, especially as there was a document which, if the applicant’s version is to be rejected, must have been a forgery.  And if the AAT treated the applicant’s claim as a knowingly false one (it being inherently unlikely to be the sort of thing about which a person would be mistaken), why does the AAT speak of the applicant’s “present belief that he has no interest in the property”?  Nevertheless findings of fact can be implicit from a reading of reasons in their totality:  A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 at par 54.

20. It is hardly necessary to cite authority for the proposition that the courts should not scrutinise reasons of administrative decision-makers pedantically or with a view to seeking  out error:  Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286-7, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259 at 291. It follows from this principle that there will be from time to time reasons which are not totally satisfactory but which do not cross the line into legal error or amount to a failure to fulfil the obligation to give reasons which include findings on material questions of fact and the evidence or other material on which those findings are based: Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B). I think this is such a case.

21. The appeal will be dismissed with costs, including reserved costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             30 March 2000

Counsel for the Applicant:	R A Hart
Solicitor for the Applicant:	Rae & Partners
Counsel for the Respondent:	D W Wilson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 March 2000
Date of Judgment:	30 March 2000