Kameleddine v Chief Commissioner of State Revenue

[2017] NSWCATAD 42

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Kameleddine v Chief Commissioner of State Revenue [2017] NSWCATAD 42
Hearing dates:	5 September 2016, On the papers
Date of orders:	30 January 2017
Decision date:	30 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N S Isenberg, Senior Member
Decision:	1. The Tribunal has no jurisdiction in respect of the application under the Duties Act 1997 and that application is refused. 2. The decision under review in respect of the application under the First Home Owner Grant (New Homes) Act 2000 is confirmed.
Catchwords:	FIRST HOME OWNER GRANT – merits review - new home - residence requirement - not previously sold as a place of residence - jurisdiction if no prior objection – eligible transaction
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Duties Act 1997 First Home Owner Grant (New Homes) Act 2000 Taxation Administration Act 1996
Cases Cited:	B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25
Category:	Principal judgment
Parties:	Safa Kameleddine (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel: E A Walker (Respondent)   Solicitors: Allied Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510772

REASONS FOR DECISION

Introduction

1. The First Home Owner Grant (New Homes) Act 2000 (the Act) provides a scheme for the payment of grants to first home owners who purchase or build new homes and comply with certain requirements.

2. The Duties Act 1997, which creates and charges a number of duties, provides a conditional scheme (the First Home New Home scheme) to help people who are acquiring a new home that is their first home to obtain a concession or exemption from duty otherwise imposed by this Act

3. This matter involves an application for review by the Tribunal of a decision by the Respondent, Chief Commissioner of State Revenue, to not approve payment to the Applicant, Safa Kameleddine of the First Home Owners Grant (“FHOG” or “Grant”) of $15,000 in respect of her purchase of a property at Rutherford in the State of New South Wales (the Property).

4. In a covering letter to an amended application received by the Tribunal on 4 December 2015, the solicitors for the Applicant stated that the application had been amended to include a review of the rejection by the Chief Commissioner of the First Home New Home stamp duty exemption previously allowed pursuant to the Duties Act 1997 in the sum of $12,597.84.

Material before the Tribunal

5. The Respondent relied on:

1. Documents filed under s 58 of the Administrative Decisions Review Act 1997 (ADR Act) on 13 January 2016;

2. an affidavit made by Tom Webster on 7 July 2016;

3. documents produced by Land and Property Information NSW (LPI) pursuant to the Summons filed 4 July 2016

4. a written outline of submissions dated and filed 15 July 2016 (RS); and

5. written supplementary submissions dated 24 October 2016, filed 25 October 2016 (RSS).

6. All references to paragraph numbers of submissions on behalf of the Respondent are to paragraphs of RS unless stated to the contrary.

7. The Applicant relied on:

1. certain of the s 58 documents;

2. the application filed 26 November 2015 and an amended application and covering letter dated 2 December 2015 filed 4 December 2015 (jointly called the Application) and attachments; and

3. written submissions filed 10 October 2016 (AS).

8. All references to paragraph numbers of submissions on behalf of the Applicant are to paragraphs of AS unless stated to the contrary.

Consideration

9. The Application relates to two separate and distinct issues both arising from Ms Kameleddine’s purchase of the Property. Firstly, a First Home New Home stamp duty exemption and secondly a claim for the Grant.

10. I deal firstly with the application in relation to the stamp duty exemption claim. The remainder of these Reasons deal with the claim for the Grant.

First Home New Home stamp duty exemption application

11. The Taxation Administration Act 1996 (TA Act) provides at s 86 that a taxpayer who is dissatisfied with certain decisions of the Chief Commissioner under a taxation law may lodge a written objection with the Chief Commissioner.

12. The exemption from duty in respect of the First Home New Home scheme is dealt with in Division 1 of Part 8 of Chapter 2 of the Duties Act 1997. That Act is a taxation law for the purpose of objections and reviews, s 4 of the TA Act.

13. The TA Act empowers a taxpayer to apply to the Tribunal for an administrative review under the ADR Act of decisions of the Chief Commissioner that have been the subject of an objection if the taxpayer is dissatisfied with the Chief Commissioner’s determination of the objection, s 96.

14. The Tribunal is not empowered to review a relevant decision unless it has been the subject of an objection.

15. Although the Applicant applied to the Tribunal to review the rejection by the Chief Commissioner of the Applicant’s First Home New Home duty exemption which was previously allowed, no evidence has been brought to the attention of the Tribunal that there has been an objection by the Applicant to the Chief Commissioner’s decision.

16. Accordingly, the Tribunal has no jurisdiction to deal with the Application in respect of the rejection of the duty exemption.

First Home Owners Grant Application

Jurisdiction of the Tribunal

17. There is no dispute that the Tribunal has jurisdiction to review the rejection of the application for a FHOG, s 28 of the Act.

18. Section 29 of the Act provides that on an administrative review the Tribunal may confirm, vary or reverse the original decision of the Chief Commissioner and make orders as to costs or otherwise as it thinks fit.

19. Section 38 (2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. Further, at s 38 (4) and (5) the Tribunal is to act according to equity and good conscience and the substantial merits of the case without regard to technicalities and shall take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

20. In accordance with s 63 of the ADR Act the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material, and any applicable written or unwritten law. The Tribunal may also exercise all of the functions conferred or imposed by any relevant legislation on the Chief Commissioner.

Conduct of these proceedings

21. This matter was set down for hearing on 5 September 2016. At the hearing, Mr Abbas, solicitor, who appeared for the Applicant, informed the Tribunal that he had no instructions to proceed with the substantive part of the hearing unless his client was present. He also informed the Tribunal that his client was in hospital at the time.

22. Mr Abbas stated that the facts were substantially agreed between the parties. Issues were discussed in respect of certain definitions in the Act and by consent I directed that the parties file and serve submissions by certain dates. The parties were granted liberty to apply to the Tribunal for further directions.

23. After the closing date for final submissions the parties were informed that I considered making an order pursuant to s 50 (2) of the CAT Act dispensing with further hearing and determining the matter in their absence by considering written submissions and other documents lodged with the Tribunal. The parties were given the opportunity to make submissions concerning the proposed order. No submissions were received.

24. The matter was dealt with on the papers without further hearing.

Onus

25. Section 28 (3) of the Act provides “The applicant has the onus of proving the applicant’s case in an application for an administrative review”.

26. The requisite standard of proof is the “balance of probabilities” Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [31] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 at [104].

Issues before the Tribunal

27. The Applicant submitted:

4.   The essential question for determination is whether the applicant's purchase of the property, in all the circumstances, amounted to the purchase of a 'new home' as defined in the Act.

28. The Respondent submitted at [12] and [39]:

12. The issue in these proceedings is whether or not the Property was purchased by the applicant as a 'new home' within the meaning of the First Home Owner Grant (New Homes) Act 2000 …

39.   … The only issue is whether the Property was a 'new home' within the meaning of the FHOG ...

29. The Respondent also submitted in RSS:

8.   At the time the FHOG was sought and considered, the applicant was not entitled to the FHOG because the transaction for which the FHOG was sought was not an eligible transaction (section 7(1)(b) of the [Act]. That is so because eligibility for the FHOG requires that at the time of the application for the FHOG being made the applicant must comply with the eligibility criteria set out in section 13 of the FHOGA.

11.   … the fact that the applicant might now be occupying the Properly lawfully will not mean that there was a 'home' on the Property for the purpose of assessing whether or not the applicant qualified for the FHOG at the time of her application.

12.   It follows that the applicant did not qualify for the FHOG as there could not have been a 'new home' on the Property at the relevant time.

30. I have had regard to the parties’ submissions. I observe that s 7(1) of the Act provides that a grant is payable on an application if the applicant complies with the eligibility criteria and the relevant transaction is an eligible transaction and has been completed. Section 7(2) provides that an applicant need not comply with the eligibility criteria to the extent that the applicant is exempted from compliance by the Act and s 7(3) provides that the Grant may be payable before completion of the eligible transaction if payment is authorised under s 20.

31. Having regard to the submissions of the parties and the provisions of s 7 I find that the issue before the Tribunal is whether the Applicant was entitled to the Grant in accordance with the Act.

Agreed facts

32. The Applicant conceded at [3]:

1. The facts relevant to the matter are already comprehensively outlined in the Respondent's outline of submissions dated 15 July 2016. The applicant takes no issue with the facts as outlined in these submissions.

33. RS includes (excluding footnote references):

Background

3.   In October 2009, (First Owner) was the registered proprietor of the Property, and was marketing the Property for sale through Century 21 Ransom Real Estate Agents (Agent).

4.   On 3 August 2010, the First Owner entered into a contract for sale of the Property to (Second Owner).

5.   On 2 June 2014, the Second Owner entered into a contract for the sale of the Property to the applicant. The date of settlement was 12 August 2014.

6.    On 11 August 2014, the applicant made an application for the FHOG.

7.   On 6 January 2015, the respondent wrote to the applicant informing her that her application for the FHOG was rejected on the basis the Property was not a 'new home' as the sale from the Second Owner to the applicant was not the first sale of the Property.

8.   On 28 February 2015, the applicant objected to the decision

9.    On 18 April 2015, the applicant commenced occupation of the Property.

10.   On 9 October 2015, the respondent wrote to the applicant advising her that the objection was disallowed on the basis the Property had previously been sold by the First Owner to the Second Owner as a place of residence. [Objection Decision]

The Application

34. The application form filed with the Consumer & Commercial Division of the Tribunal on 25 November 2015 stated:

Safa Karneleddine is the purchaser of a newly constructed property which settled on 12/08/2014. She applied for the First Home Owners Grant with the Office of State Revenue. She has been denied this grant due to the property being partially constructed and sold (prior to occupation by the previous owner) even though a final occupation certificate had not been issued and work was still to be completed. A Determination by the Office of State Revenue rejecting the grant was handed down on 9 October 2015, Sam Abbas, solicitor, wishes to appeal this Determination on behalf of the purchaser on the basis that the previous owner did not occupy the premises, the premises was not inhabitable at the time of sale, a final occupation certificate was not granted until our client completed the outstanding works and then occupied the property.

Orders Sought

An order that I do not have to pay the amount of $12597.84

Total Amount Claimed: $12597.84

35. On 4 Dec 15 the Tribunal received another application with a covering letter. This application stated that the grounds were:

I am seeking a review of the decision on the following grounds:

1.   The Chief Commissioner of the Office of State Revenue has given insufficient weight to all the facts and circumstances of the appellant's claim for the First Home Owners Grant.

2.   The [Applicant] argues that she purchased a 'new' and previously unoccupied property and is therefore entitled to the First Home Owners Grant and the First Home New Home -stamp duty exemption.

36. The covering letter stated:

… there is an amendment to the application which is to include the rejection of the First Home Owners Grant for the sum of $15,000 in addition to the First Home New Home stamp duty exemption for the sum of $12,597.84, which brings the total claim to $27,597.84.

Documents in evidence including submissions by the Applicant to the Office of State Revenue (OSR)

37. Documents in evidence include the following

5 November 2014 letter from Farid Fanaian Solicitor to Allied Lawyers

38. This letter refers to the sale of the Property from the previous owner Osman's Home Developments Pty Ltd, formerly known as Osman's Home Improvements Pty Ltd (Osman) to the Applicant and states:

I confirm on behalf of my client Osman's Home Developments Pty Limited that in relation to the Property …:

1. This is the second sale of the home, where the first sale was from the original proprietor that commenced constructing the home but had not completed this construction, before selling to my client who then continued the construction of the home.

2. The home has never been previously occupied since completion of construction:

a.   During the period of ownership by my client; and

b.   During the period of ownership of the original proprietor that commenced constructing the home.

3. In relation to your specific queries on 28 October 2014:

a. The precise stage of construction of this property when my client purchased the property: The slab stage, frame & trusses stage and the lock up stage had been completed. The finishing stage and completion stage had not been finalised. There were many items not yet done (including as some examples of incomplete items, but not limited to): The bathrooms, the gardens & backyard, the concrete driveway, the water tank, the hot water system, the concrete patio, parts of the kitchen, the carpets/flooring for 3 bedrooms etc.

b.   The precise stage of construction of this property when my client sold the property: The slab stage, frame & trusses stage and the lock up stage had been completed. The finishing stage and completion stage had not been finalised. There were many items not yet done (including as some examples of incomplete items, but not limited to): The gardens & backyard, the concrete driveway, the water tank, the hot water system, the concrete patio, parts of the kitchen etc.

c.   Whether the property was at any stage inhabitable: No.

d.   Whether my client occupied the property at any time: No.

19 December 2014 letter from the Applicant’s solicitors to the OSR

39. The letter included the following submissions:

1   Purchaser purchased the property in good faith and in anticipation of occupying the property as a first home;

2   the vendor at all times represented the property as a new construction for the FHOG Scheme;

3   Our client purchased this property prior to completion of the premises and in fact it was necessary for our client to complete the final stages of construction including installation of the kitchen, bathroom, hot water installation, flooring, driveway, landscaping and patio.

4   At the time of acquisition of the property how client was not provided with an occupation certificate has none had been obtained.

5    … [Enclosed are copies of correspondence from the vendors solicitor]

6   It is our understanding that the two previous vendors did not apply or receive the First Home Owner’s Grant.

12 May 2015 letter from the Applicant’s solicitors to the OSR

40. This letter enclosed various documents including a copy of the Contract for Sale, utilities bills, a Residency Confirmation Statutory Declaration and other evidence of occupancy by the Applicant and that there had been no previous occupation by the previous owner. The letter attached photographs of the property. The letter stated:

We submit that this application for our client should be considered positively in light of this case being the exact scenario for which the First Home Owners Grant was instigated, being to assist young couples or families trying to own their own home in an increasingly expensive property market. The granting of the FHOG to our client would be of great assistance financially and remove some of the burden of facing this young couple.

1 June 2016 letter from the Applicant’s solicitors to the OSR

41. This letter included the following submission:

This Property fits the definition of a new home because:

1   The property had never been occupied prior to our client’s acquisition;

2   the property was not sold to a client with an occupation certificate - special condition 19 of the contract between the previous vendor and Osman required an occupation certificate to be supplied prior to completion;

3 Section 87k of the Duties Act defines a “new home” [as] a home that has not been previously occupied or sold as a place of residence; and

4   Section 4A defines new home in a different way but still states that a new home is a home that has not been previously occupied or sold as a place of residence. A new home can include a home that has not been previously occupied.

Analysis

42. The Objection Decision effectively relied on two points. They were firstly the terms of the Previous Contract and secondly that a duty concession had been granted in relation to the Previous Contract.

43. To deal with the second point first I observe that in RSS the Chief Commissioner, correctly in my view, conceded at [18]:

The fact [Osman] obtained a reduction in duty payable under the [Home Builders Bonus] Scheme will not, of itself, disentitle the applicant to the FHOG. The applicant's entitlement to the FHOG turns on whether the qualifying criteria in the [Act] is met. That qualifying criteria differs from the Scheme [pursuant to which Osman obtained a reduction in duty].

44. The first point, somewhat differently framed, is a substantive issue in dispute between the parties and is the subject of much of the submissions. The dispute relates to the sale of the Property to Osman and the correct interpretation of sections 4 and 4A.

45. There is no dispute that the Property was not previously occupied as a place of residence.

46. There is also no dispute that if a home has previously been sold “as a place of residence” it will not be a “new home” within the meaning of the Act.

44. The Respondent submits that the Previous Contract was a sale of the Property “as a place of residence”. The Applicant submits, in relation to the Previous Contract that:

9.   On completion, the applicant did not receive a home capable of being lawfully used as place of residence because no Occupation Certificate had been applied for …

10.   The investigation by an officer of the Office of State Revenue also revealed that a lot of things needed to be rectified before they granted an Occupation Certificate (3 pages worth) …

48. The Respondent’s submissions in relation to the Previous Contract included:

32.   It is the nature of the dwelling on the land, the basis upon which it is marketed and sold, along with the use to which it is intended to be put, which should determine whether the previous sale is one of 'a place of residence'. Not whether the land can in fact be occupied as 'a place of residence' at the time of the sale.

49. The Respondent also submitted that the evidence showed that the Property was of a residential nature, it would not have a character of being other than residential such as being a commercial or industrial property and the physical condition of the Property at the time of its sale by the First Owner to the Second Owner shows that the construction of a dwelling on the property was substantially complete. Accordingly, it must be accepted that the Property had previously been “sold as a place of residence”

50. I observe that the Objection Decision included a “finding of fact” that the Property sold under the Previous Contract was a residence and not an incomplete construction. This finding was partly based on the terms of the Previous Contract which included a special condition indicating that it was the parties’ intention that the home on the property “would be fully completed within three weeks of exchange, and have an occupation certificate prior to the completion date” as well as the granting of a duty concession “on the basis that the Subject Property was “the site of a new home that [was] complete and ready for occupation”.

51. The bases referred to in the previous paragraph are somewhat surprising in that the Chief Commissioner’s delegate expressly preferred advertising material in respect of the condition of the Property rather than undisputed evidence that no occupation certificate had been granted at the time the objection was considered (more than five years after the date of exchange of the Previous Contract). The Objection Decision also included excerpts from a letter from the solicitor for Osman detailing substantive construction work which had not been completed even at the time Osman sold the Property to the Applicant. That work included the installation of a 3000 L water tank, connection of the tank to relevant pipes, a hot water system, construction of a concrete patio, parts of a kitchen and construction of a driveway. The solicitor’s letter also stated that the property was not at any stage inhabitable.

52. The Objection Decision stated in its “reasons for decision”:

On the one hand, if the Home had substantial outstanding works (such as the construction of the kitchen and bathroom) at the time of the Previous Contract. it might be arguable that the Previous Contract related to the sale of an incomplete construction, and not a residence. However, the Final Inspection Report (annexed to the Previous Contract and discussed above) suggests that the Home was substantially complete and lacking only minor works as at 23 July 2009 (being more than a year prior to the Previous Contract).

53. I find that the comment concerning the Final Inspection Report suggesting “that the Home “was substantially complete and lacking only minor works as at 23 July 2009” does not accord with the contents of that Report.

54. The Report by Acrocert Pty Ltd dated 23 July 2009, which is in evidence, lists 21 specific items found to be unsatisfactory and deemed not to comply with the relevant conditions of development consent and/or the Building Code of Australia. The items range from relatively minor, such as provide left-off hinges to the door of the ensuite bathroom and provide shower screens, to more substantial matters such as:

1. install a rainwater tank of at least 3,000 litres;

2. connect the rainwater tank to all toilets in the development, the cold water tap that suppliers each clothes washer, and at least [1] outdoor tap;

3. install an instantaneous 5 star gas hot water system;

4. the area behind the dwelling shall be provided with appropriate fill and are properly retained with the installation of a minimum of a 1.0 m high retaining wall, noting that any retaining wall greater than 1.0 m high shall require additional approval and the design certified by a structural engineer;

5. a driveway crossing application is to be obtained from Maitland city council and the driveway crossing shall be completed to council satisfaction prior to the issue of any occupation certificate;

6. complete the installation of the patio and stairs off the family room;

7. provide/ensure insulation of not less than 2.5 R value and foil/sarking to the ceiling/roof; and

8. complete the installation of the patio off the laundry door.

55. However, having regard to my findings below it is not necessary for me to make a finding as to whether the Previous Contract was a sale of the Property “as a place of residence” pursuant to the Act.

56. The transaction on which Ms Kameleddine bases her application for a Grant is the contract for sale of land made 2 June 2014 pursuant to which Ms Kameleddine purchased the Property from Osman. The Application was signed by the Applicant on 11 August 2014, the day before settlement of the contract.

57. In RSS, the Chief Commissioner submitted that in order for the Applicant to successfully obtain a Grant it was necessary for her to comply with the eligibility criteria in respect of an eligible transaction. I note that this is in accordance with s 7 referred to at [30] above.

58. An “eligible transaction” is relevantly defined in s 13 as follows:

13 Eligible transactions

(1) An eligible transaction is:

(a) a contract made on or after 1 October 2012 for the purchase of a new home in New South Wales,

59. There is no dispute that the contract pursuant to which Ms Kameleddine purchased the Property was made on or after the October 2012 and that the Property is in New South Wales. However, the contract must be for the purchase of “a new home”.

60. The definition of ‘new home’ is found in s 4A:

4A New homes

(1)   A new home is a home that has not been previously occupied or sold as a place of residence, and includes a substantially renovated home and a home built to replace demolished premises.

61. In order to be a “new home” the relevant asset must be a “home”. The word “home” is defined at s 4:

4 Homes

A home is a building (affixed to land) that:

(a) may lawfully be used as a place of residence, and

(b) is, in the Chief Commissioner’s opinion, a suitable building for use as a place of residence.

62. Accordingly, for a building to be a “home” it must satisfy two requirements. Firstly it may lawfully be used as a place of residence and secondly in the Chief Commissioner’s opinion (for the purpose of these proceedings in the Tribunal’s opinion) the building must be suitable for use as a place of residence.

63. The Applicant’s solicitor submitted at [6] that reading the statutory definitions of “home” and “new home” together:

… a 'new home' may be defined as one which, on completion, is capable of being lawfully used as a place of residence, and never been previously occupied or sold as a new home.

64. AS continues:

7   What is significant about the above definition is the clear and unambiguous requirement that the home is one which is capable of being lawfully used as a place of residence. It is submitted that this element of the definition represents the breaking point in the respondents reasoning for refusing the applicant's claim for payment of the FHOG. The applicant in the present case did not, on completion, receive a home which could be lawfully used as a place of residence. Accordingly, the applicant did not, at the material time receive:

i.   a new home until the acquirement of an occupation certificate; or

ii.   a residence which was previously occupied or sold as a new home

…

9. On completion, the applicant did not receive a home capable of being lawfully used as place of residence because no Occupation Certificate had been applied for. An investigation by the Office of State Revenue revealed that, at the time of completion no interim occupation certificate, or final occupation certificate had been applied for (see section 58 documents, tab 14).

10.   The investigation by an officer of the Office of State Revenue also revealed that a lot of things needed to be rectified before they granted an Occupation Certificate (3 pages worth). ...

65. I observe that the Applicant’s statement that no occupation certificate had been applied for is not supported on the evidence. The relevant evidence at Tab 14 in the s 58 documents is “it appears there is no record of any Interim Occupation Certificate or Occupation Certificate having ever been issued” rather than not having been “applied for”.

66. AS included:

15.   The applicant in these proceedings was therefore required to undertake, at her sole expense, all works which had previously been identified by Council as pre-conditions to the issue of an occupation certificate. These works were not completed until the early stages of 2016. An Occupation Certificate was issued to the applicant on 15 April 2016. Annexed to these submissions and marked "A" is a copy of the occupation certificate.

The Environmental Planning and Assessment Act 1979 (the EPA act)

16.   Section 109C of the EPA act defines "occupation certificate" as follows:

"occupation certificate", being a certificate that authorises:

(i) The occupation and use of a new building, or (ii) A change of building use for an existing building

17.   Section 109M(l) of the EPA act outlaws the occupation of a new building

unless an occupation certificate has been issued:

67. The s 58 documents include at page 109 a First Home Benefits Residency Confirmation-Statutory Declaration made by Ms Kameleddine on 11 May 2015. In that declaration Ms Kameleddine states she started residing in the Property on 18 April 2015 and was living in the Property on the date of the declaration.

68. Accordingly, the Applicant’s evidence and submissions in AS are to the effect that:

1. no occupation certificate in respect of the Property was issued until 15 April 2016.

2. the Property could not have been lawfully occupied as a residence before 15 April 2016.

3. Ms Kameleddine commenced residing in the Property on 18 April 2015 and was residing there as at 11 May 2015.

69. I find that, on the Applicant’s evidence and submissions, the Applicant could not have lawfully used the Property as a place of residence before 15 April 2016.

70. Section 13 (5) (eligible transactions) relevantly provides:

(5) An eligible transaction is completed when:

(a) in the case of a contract for the purchase of a home:

(i) the purchaser becomes entitled to possession of the home under the contract, and

(ii) …if the purchaser acquires an interest in land under the contract that is registrable under a law of the State—the purchaser’s interest is registered under that law, …

71. The parties agreed that Ms Kameleddine’s purchase of the property was settled on 12 August 2014. The s 58 documents show at page 260 a registered transfer in favour of Ms Kameleddine in respect of the Property and at page 258 is an LPI historical search of the Property showing that the transfer was recorded on 15 August 2014.

72. Having regard to the provisions of s 13 (5) I find that Ms Kameleddine’s purchase contract was completed for the purpose of the Act on 15 August 2014.

73. The eligibility criteria referred to in s 7, with which a successful applicant must comply include at s 12 a “residence requirement”. That requirement is as follows:

12 Criterion 5—Residence requirement

(1) An applicant for a first home owner grant must:

(a) commence occupation of the home to which the application relates as the applicant’s principal place of residence within 12 months after completion of the eligible transaction or the period approved by the Chief Commissioner under this section, and

(b) occupy the home as a principal place of residence for a continuous period of at least 6 months or the period approved by the Chief Commissioner under this section.

(2) This requirement is referred to in this Act as the residence requirement.

(3) The Chief Commissioner may, if satisfied there are good reasons to do so, do either or both of the following:

(a) approve the commencement of occupation by the applicant of the home to which the application relates as a principal place of residence more than 12 months after completion of the eligible transaction,

(b) approve the occupation of the home as a principal place of residence for a period of less than 6 months.

(4) The Chief Commissioner may, if satisfied there are good reasons to do so, exempt an applicant from the residence requirement.

74. An approval or exemption under this section may be given by the Chief Commissioner/Tribunal at any time, even if the period of 12 months after completion of the eligible transaction has already expired or the applicant’s occupation of the home as a principal place of residence has already ceased.

75. Pursuant to s 12 (3) - (5) the Tribunal if satisfied that there are good reasons to do so may extend the commencement of occupation of the Property to 15 April 2016. However there has been no application for such an extension and no evidence has been brought to the attention of the Tribunal that the Applicant has resided at the Property at any time since the date of her Statutory Declaration in May 2015.

76. I find that Ms Kameleddine commenced residing in the property within 12 months of the date of completion of the purchase and on the balance of probability I find that her occupation of the Property was intended to be as her principal place of residence. However, I am not satisfied on the evidence before me that she has occupied the home as a residence for a continuous period of at least six months.

77. Even if I was satisfied that there were good reasons to do so, and I shortened the required occupation of the property to a period of less than six months, say from 18 April 2015 to 11 May 2015 there is no evidence that such occupation would be anything other than unlawful having regard to the provisions of the EPA Act and the submissions by the Applicant’s solicitor.

78. In addition, s 7 requires that the relevant transaction be an eligible transaction and as such it requires, even on the Applicant’s solicitors own submission, the acquisition of a property which incorporates a “new home” which “on completion, is capable of being lawfully used as a place of residence”.

79. I find that on completion of the purchase transaction, for the purpose of the Act, that is on 15 August 2014 the Property was not capable of being lawfully used as a place of residence.

80. It is therefore regrettable, from Ms Kameleddine’s perspective, that I must find that her purchase transaction was not an eligible transaction for the purpose of the Act.

81. The Respondent said at [40] that it may be that Ms Kameleddine relied on someone’s representation that she would qualify for a Grant (and by extension possibly for a duty exemption). If that is the case perhaps she may consider seeking advice regarding her rights in relation to any representations on which she relied. However, whether there was any such reliance is not a matter for this Tribunal in these proceedings.

Decision in respect of the first home owner grant application

82. Having regard to my above findings the correct and preferable decision of the Tribunal is that the decision of the Chief Commissioner under review is confirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

08 February 2019 - Paragraph 33 deidentify

Decision last updated: 08 February 2019