Hammond v Commissioner for Act Revenue - [2015] ACAT 12

ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HAMMOND v COMMISSIONER FOR ACT REVENUE
(Administrative Review) [2015] ACAT 12

AT 14/31 and AT 14/32
Catchwords: ADMINISTRATIVE REVIEW - eligibility for first home owner grant – statutory interpretation - place of residence – extrinsic materials as guide to construction – when ordinary meaning should be departed from – legislative context and history – judicial construction

Legislation:ACT Civil and Administrative Tribunal Act 2008 s 68
Duties Act 1999

First Home Owner Grant Act 2000, Long Title,
ss 4, 12, 12B, 13
First Home Owner Grant Amendment Act 2013
Legislation Act 2001, s138, 139, 140, 141
Taxation Administration Act 1999, ss 108A, 111
A New Tax System (Goods and Services Tax) Act 1999 (Cth), s195-1

Subordinate
Legislation:Taxation Administration (Amounts Payable – Eligibility – New and Substantially Renovated Homes and Land Only – Home Buyer Concession Scheme) Determination 2013 (No 2) DI2013-227, ss 4, 8
The Territory Plan

Cases:Bacon v Salamane (1965) 112 CLR 85
Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297
Dugan v Mirror Newspapers Ltd [1978] HCA 54
Fincher, John v Commissioner for ACT Revenue [1996] ACTAAT 134
Flaherty v Girgis (1987) 162 CLR 574
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56
Haureliuk v Furler [2012] ACTCA 11
Hedley Commercial Property Services P/L v BRCP Oasis Land P/L [2009] QCA 231
Kozman v Chief Commissioner of State Revenue [2013] NSWADT 143
Leichhardt Council v RTA (2006) 149 LGERA 439
McTackett v Chief Commissioner of State Revenue [2003] NSWADT 154
Marana Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 307
Nairn v Chief Commissioner of State Revenue [2011] NSWADT 41
R v Jackson [2005] SASC 472
Re Alcan Australia Limited: Ex Parte Federation of Industrial Manufacturing & Engineering Employees [1994] HCA 34
Re Islam (2010) 4 ACTLR 235
Sons of Gwalia Ltd v Margaretic [2007] HCA 1
Tuggeranong Town Centre v Commissioner for ACT Revenue [2010] ACAT 29
Wacando v Commonwealth [1981] HCA 60
Zakariya v Chief Commissioner Office of State Revenue [2003] NSWADT 26
Zappala Family Co Pty Ltd v Brisbane City Council & Ors; Brisbane City Council v Zappala Family Co Pty Ltd & Ors [2014] QCA 147

Text/Papers: Explanatory Statement to First Home Owner Grant Amendment Bill 2013
Explanatory Statement to Taxation Administration (Amounts Payable –Eligibility – New and Substantially Renovated Homes and Land Only – Home Buyer Concession Scheme) Determination 2013 (No 2) DI2013-227
Extract from Hansard, presentation speech of the First Home Owner Grant Amendment Act 2013, 6 June 2013, pp 2364-2365
ACT Tax Reform Fact Sheet - Home Buyer Concession Scheme
Statutory Interpretation in Australia Pearce & Geddes (8^thed, 2014)

The Macquarie Concise Dictionary
Shorter Oxford English Dictionary

Tribunal:                  Dr T. Foley – Senior Member
Date of Orders:  5 February 2015
Date of Reasons for Decision:         5 February 2015
AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          AT 14/31 and AT 14/32
BETWEEN:

FELICITY HAMMOND
Applicant
AND:COMMISSIONER FOR ACT…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2015] ACAT 12
Decision Date: 5 February 2015

CaseChat Overview and Summary

Hammond v Commissioner for Act Revenue is a decision of the Administrative Appeals Tribunal concerning the eligibility of a taxpayer for a first home owner grant. The dispute arose when the Commissioner for Act Revenue denied the taxpayer’s application for the grant, and the taxpayer sought a review of that decision. The case was heard by the Tribunal, which was required to determine whether the taxpayer was eligible for the grant and whether the Commissioner’s decision was correct. The Tribunal also considered the meaning of the term "place of residence" within the relevant legislation, as well as the legislative context and history.

The primary legal issue in this case was whether the taxpayer was eligible for the first home owner grant. This required the Tribunal to interpret the relevant statutory provisions, including the term "place of residence." The Tribunal considered whether the ordinary meaning of the term should be applied and whether extrinsic materials could be used to inform the construction of the legislation. The Tribunal also considered the legislative context and history, including the purpose and objectives of the legislation.

The Tribunal concluded that the taxpayer was eligible for the grant and that the Commissioner’s decision was incorrect. The Tribunal found that the ordinary meaning of the term "place of residence" was not determinative and that extrinsic materials could be used to inform the construction of the legislation. The Tribunal also considered the legislative context and history and found that the purpose and objectives of the legislation supported the taxpayer’s eligibility for the grant. The Tribunal set aside the decisions under review and substituted them with decisions allowing the taxpayer’s objections. The Tribunal also granted the taxpayer’s first home owner grant application and home buyer concession application to remove any doubt.

This decision provides useful guidance for taxpayers and the Commissioner regarding the eligibility for first home owner grants and the interpretation of relevant statutory provisions. The Tribunal’s consideration of extrinsic materials and legislative context and history may be useful in future cases involving similar issues.

Orders

Orders of the court

1. The decisions under review are set aside and substituted with decisions allowing the objections.

2. To remove doubt, the applicant’s first home owner grant application and home buyer concession application are granted.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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