Kheireddine v Chief Commissioner of State Revenue

[2025] NSWCATAD 31

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Kheireddine v Chief Commissioner of State Revenue [2025] NSWCATAD 31

Hearing dates:

26 September 2024 and 10 December 2024

Date of orders:

31 January 2025

Decision date:

31 January 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member

Decision:

The decision made by the Respondent on 23 November 2023 is set aside.

Catchwords:

REVENUE LAW – Dutiable transaction - First Home Buyers’ Assistance Scheme - whether applicant met the residential requirement in s76(1) of the Duties Act 1997 (NSW) – occupied – principal place of residence – interest – penalty tax.

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Duties Act 1997

Taxation Administration Act 1996

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41

Chief Commissioner of State Revenue v Ferrington (GD) (2004) NSWADTAP 41

Jones v Dunkel (1958-59) 101 CLR 298

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 [2014] FCAFC 93

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

Zeinab Kheireddine (Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Slim J (Agent)(Applicant)
S T Hanscomb Counsel (Respondent)
Crown Solicitor (Respondent)

File Number(s):

2024/00158053

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant purchased a property at Liverpool (“the Property”) by a contract dated 13 August 2019 and transferred it into her name on 3 June 2019. The applicant received a concession from duty under the First Home Buyers Assistance Scheme (“FHBA Scheme”) in respect of the transfer duty payable.

2. On 23 November 2023, the respondent issued a notice of assessment (“assessment”) indicating that the applicant was liable for outstanding transfer due in the sum of $21,327.16. Comprising $13 200 of additional duty, interest of $4723.16 and 30% penalty tax of $3 954. On 14 December 2023 the applicant raised an objection to the assessment. On 19 March 2024, the respondent issued a notice to the applicant informing her that her objection had been resolved by way of disallowance. On 29 April 2024 the applicant made an application to this Tribunal seeking review of the respondent’s assessment.

3. Under the FHBA Scheme, an exemption from duty is made available to assist people who are purchasing their first home. A condition of the exemption is set out in section 76(1) of the Duties Act 1997 (NSW) (“Duties Act”) as the “residence requirement”. 

4. The requirement is:

… occupied by the first home owner as their principal place of residence for a continuous period of at least 6 months, with that occupation commencing within 12 months (or such longer period as the Chief Commissioner may approve) after completion of the agreement or transfer.

5. The issues for determination are whether Ms Kheireddine occupied the Property for a continuous period of at least 6 months within 12 months after settlement. If the answer to that question is yes, the second question is whether the Property was occupied by Ms Kheireddine as her principal place of residence.

6. For the reasons below the applicant’s application is upheld and the respondent’s decision made on 23 November 2023 is set aside.

Evidence before the Tribunal

7. The applicant relied on the following evidence:

1. Statutory declarations made by Ms Kheireddine;

2. Statutory declaration made by applicant’s son, Hussein Slim;

3. Statutory declaration made by applicant’s son, Joe Slim;

4. Statutory declaration made by applicant’s daughter, Mariam Slim; and

5. Statutory declaration made by Maria Razzar, a person who lived next door to the Property.

6. Numerous documents including bills, insurance, bank statements and invoices.

8. The respondent relied on numerous documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW), a floor plan of a property where the applicant previously resided, and documents produced on a summons.

9. The applicant gave the following account of the facts. She arrived in Australia from a non-English speaking country in 2017. At this time her children and husband were already residing in Australia. Ms Kheireddine has a poor grasp of the English language and knowledge of business dealings in Australia. Her children help her manage her business and general living issues. For example her children helped her manage her taxation, purchasing the Property, leasing, purchasing products and services and setting up applications on her mobile phone.

10. Ms Kheireddine lived with her son, Hussein and her husband at Tennyson Road Greenacre when she arrived in Australia. She was estranged from her husband. She used her daughter’s address at Boronia Road Greenacre as she helped her to look after her mail.

11. During cross examination Ms Kheireddine stated that her children helped her prepare the statutory declarations, that they translate information for her and that she does forget many things. Ms Kheireddine stated that she attended on the taxation agent with one of her children but was not involved in the preparation of her 2019 and 2020 tax returns.

12. Ms Kheireddine came to Australia with assets which she used to partly purchase the Property. She also took out a loan with a bank. The mortgage broker required her to purchase an insurance for the Property to secure the loan with the bank. Her son, Joe organised the transactions associated with the purchase of the Property including finding the Property, purchasing the insurance on the date of the auction and connecting utilities to the Property.

13. She moved into the Property with her son Joe, his wife and their young child. Some of the furniture and belongings were moved into the Property prior to settlement. Ms Kheireddine stated that she purchased the Property with her son Joe.

14. The repayments for the home loan and bills were paid partly by Ms Kheireddine and partly by Joe. Joe was a business owner. He employed Ms Kheireddine to perform work for the company and she was paid a salary.

15. While living at the Property she regularly visited the properties where her husband and son, Hussain lived and cooked for them. Ms Kheireddine maintained during cross examination that once she moved into the Property in 2019 she did not live with her husband. She slept at the Liverpool property occasionally as a guest of her son, Hussain and kept her personal belongings at the Property. Ms Kheireddine moved out of the Property in 2022. Joe continues to live at the Property with his family.

16. Mr Hussein Slim gave evidence that his mother was separated from his father and when his mother slept at his home, she slept in a spare bed and not with his father. Mr Hussein Slim stated that he put his address in Punchbowl on his mother’s 2020 tax return form. Mr Slim could not recall how the figure of $20 800 appeared for the rental of the property.

17. Ms Mariam Slim gave evidence that Ms Kheireddine lives with her. Ms Slim stated that her mother lived at the Property until she moved in with her in 2022. Ms Slim stated that her mother came to Australia with money and jewellery and that she worked and earned an income. She stated that she used to visit her mother at the Property on Sundays and that the communications between the siblings about their mother’s affairs were “chaotic”.

18. Mr Joe Slim gave evidence that he prepared the applicant’s statements and read them to her in Arabic. Mr Slim gave evidence that he had responsibility within the family to assist with arrangements. For example, a lease for the properties in which his father lived were in his name. He also occasionally helped the family financially by contributing to the payment of bills.

19. Mr Slim stated that he did not own property in New South Wales in May 2019. Mr Slim stated that he helped his mother to purchase the Property. He denied that he paid rent. He stated that “we helped each other” and that he was responsible for paying the mortgage.

20. Mr Slim stated that he assisted his mother with the 2018-2019 tax return. Mr Slim stated that the accountant incorrectly recorded that the Property was rented. He denied that the Property had been rented in 2019 or 2020.

21. Ms Razzaq gave evidence that she saw Ms Kheireddine and Mr Joe Slim at the auction for the property, which is why she stated in the statutory declaration that they purchased the property together. Ms Razzaq stated that Ms Kheireddine lived at the Property. She saw her during day and night outside the Property with her grandchild. They spoke very little as Ms Razzaq does not speak Arabic and Ms Kheireddine spoke English very poorly. Ms Razzaq recalled that Ms Kheireddine moved out of the Property in early 2022.

22. The respondent relied on documents which showed Ms Kheireddine’s address as a place where her children and or husband resided. The respondent noted that Ms Kheireddine only amended the Medicare record to show the Property address from 13 February 2020.

23. Following the hearing, the Tribunal made an order permitting the parties to file any further evidence and or submissions arising out of material produced in answer to summonses that were on the day of the hearing outstanding.

24. The respondent filed evidence and submissions on 20 December 2024 and the applicant filed evidence and submissions in reply on 21 January 2025.

25. The respondent filed documents produced from ANZ Bank, the mortgagee of the Property. The document was an application record dated 2 August 2018. The respondent submitted that “the Applicant deliberately sought funding for the purchase of an investment property, declared herself not to be a first home buyer, and did not indicate any intention to occupy the purchased property herself.

26. The respondent also filed an exchange of some emails between Ms Kheireddine’s husband and a real estate agent in October 2022. In one email, Kheireddine’s husband, stated “We are the tenants at … Punchbowl… please call (the applicant) on … to arrange inspections.” The respondent submitted that the applicant lived with her husband first at Tennyson Street Greenacre and later in Victoria Road Punchbowl and never treated the Property as her principal place of residence.

27. The applicant submitted that the ANZ document from 2 August 2018 was prepared by a mortgage broker a year before the purchase of the Property and contained a number of assertions that were not accurate. In response to the email from Ms Kheireddine’s husband, the applicant noted that there were four persons living at the property at Victoria street Punchbowl which was a two bedroom apartment and that she did not live there.

Jurisdiction of the Tribunal

28. The Tribunal’s task is to decide the correct and preferable decision having regard to the material before it; Administrative Decision Review Act 1997 (NSW) (ADR Act). Section 96 of the TA Act and s 9 of the ADR Act give the Tribunal jurisdiction to review the Assessment.

29. In conducting that review, the Tribunal is required to determine the correct and preferable decision having regard to the materials before it and the applicable law: ADR Act s 63.

Applicant’s Case

30. The applicant’s case was that she moved into the Property gradually before the settlement in May 2019 and lived there until 1 March 2022.

31. The applicant stated that she and her son Joe paid for the mortgage and the bills together. She relied on her son Joe to organise utilities, insurance, general household and banking transaction.

32. Her daughter’s evidence was that she came to visit her mother on Sundays at the Property. Her son, Hussain’s evidence was that he lived with his father and that his mother did not live with them but lived at the Property.

33. In closing submissions Mr Slim stated that he was a two thirds owner of a property in New South Wales and submitted that it was purchased in 2016 and that he was not eligible for the FHBA Scheme.

Respondent’s Case

34. The respondent submitted that the Tribunal ought to reject the evidence of the applicant, Hussein Slim, Joe Slim and Mariam Slim as it is contrary to the contemporaneous documentary evidence before the Tribunal. The respondent relied on tax documents which stated that the applicant’s address was not the Property address. The respondent also relied on some bills which were in the name of Joe, her son who lived in the Property.

35. The respondent submitted that those documents that did show the Property address do not support the applicant’s case as no inferences can be made.

36. The respondent submitted that the applicant did not reside at the Property but “spend lots of time at the property as a grandmother” and treated properties where her husband lived at Tennyson Road, Greenacre and Victoria street as her principal place of residence.

37. The respondent also submitted that Joe Slim engaged in a “sham” by requiring his mother, the applicant to purchase the Property in her name as he was not entitled to the FHBA Scheme but that he was the “true beneficiary”.

38. The respondent submitted that Ms Razzaq was an objective witness but only saw Ms Kheireddine at the Property while she was looking after her grandchild.

Consideration

39. Under section 100(3) of the TA Act, the applicant has the onus of proving their case on the balance of probabilities. That is, the applicant must satisfy the Tribunal that she is entitled to the exemption.

40. The respondent submitted that the Tribunal ought to find that Ms Kheireddine did not reside at the Property, contrary to her direct evidence and that of her three children. The respondent also submitted that Mr Joe Slim and by implication Ms Kheireddine were involved in a “sham” which I understood to mean a legal sham on the respondent. These are very serious allegations to make and can not be made lightly.

41. The respondent’s case is that Ms Kheireddine deliberately provided false information to the respondent that she resided at the Property and that she lied to the Tribunal in her oral evidence having taken an oath to tell the truth. These kind of findings of fact require considerable caution and significant care must be exercised in considering the evidence to reach such findings. Findings of actual dishonesty and conduct in the nature of fraud are very serious matters that should only be made where the evidence points to that conclusion.

42. The Tribunal while not bound by the rules of evidence, can rely on the principles in s140 of the Evidence Act 1995 (NSW) and principles in Briginshaw and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171 (“Neat Holdings”); Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 [2014] FCAFC 93 at [127]; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127].

43. In Neat Holdings at [171] it was said that:

[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. [citations omitted]

44. The relevant principles as to making inferences can be drawn from Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 362 (“Briginshaw”); Jones v Dunkel (1958-59) 101 CLR 298 at 305. It is not enough that the inference is a mere possibility: it must be one of "probable connection" Seltsam [83]; the inference must be a logical one, and not supposition; and an inference cannot be made where more probable and innocent explanations are available on the evidence.

45. Ms Kheireddine’s evidence was that she moved into the Property in May 2019 and moved out in March 2022. These dates satisfy the minimum 6 months continuous occupation of the home “within the 12 months … after completion of the agreement or transfer”.

46. The consistent evidence from all of the witnesses was that Ms Kheireddine resided at the Property. Ms Razzar’s evidence was that she saw Ms Kheireddine at the Property during the day and during the evening.

47. There was no direct evidence of Ms Kheireddine living elsewhere. The respondent submitted that an inference was available to the Tribunal based on the taxation returns and some of the documents before the Tribunal that as she represented to others that she did not live at the Property that in fact she did not live at the Property.

48. The ANZ bank statement, utility bills, invoices and taxation records identify as Ms Kheireddine’s address as variously residing at the Property, at Victoria Road, Punchbowl, Tennyson Road, Greenacre and George Street North Stratified.

49. Ms Kheireddine and the other family witnesses explained why there were discrepancies for the different addresses. The explanations are consistent with the contemporaneous evidence that each sibling when assisting their mother inserted their own address and there was little communication between the siblings when they were assisting their mother.

50. I accept Ms Kheireddine’s evidence that she did not put her mind to immediately changing addresses with the bank, Medicare and other organisations once she moved into the Property in 2019. The utility bills listed the Property as her address.

51. The fact that there are different addresses on the documents does not lead to an inference being made that Ms Kheireddine did not reside at the Property. Likewise documents that show that Ms Kheireddine resided at the Property do not lead to an inference that she resided at the Property. This is because I accept Ms Kheireddine’s evidence and each of her children who gave evidence that they and not her were the ones who organised her financial and day to day affairs and were involved in giving information about her address.

52. An example is the applicant’s tax returns. The 2019-2020 tax return listed the applicant’s address as Tennyson Road Greenacre and the 2020-2021 tax return listed the applicant’s address as Victoria Road Punchbowl. Mr Hussain stated during cross examination that he attended on the tax agent with his mother in 2020 and his address in Punchbowl appears on the tax return.

53. In regard to the landlord insurance organised and purchased by Mr Joe Slim on the date of the auction, Mr Slim’s evidence was that the insurance was purchased on the advice of the mortgage broker and was renewed without it being checked. The ANZ document completed by the mortgage broker is consistent with Mr Slim’s evidence that he was advised by the mortgage broker to purchase landlord insurance to secure the loan.

54. I reject that an email from Ms Kheireddine’s husband, from whom she was estranged demonstrates that she resided with him from 2019 to 2022. Ms Kheireddine was not a recipient of the email, she was not one of the persons who was on the lease for the property in Punchbowl and the email was from a period after Ms Kheireddine moved out of the Property.

55. Reasonable satisfaction in a legal context is not achieved by speculation, and it requires more than conjecture. It cannot be arrived at by simply choosing between equally real possibilities or plausible theories on the ground that one seems more likely than another; Briginshaw.

56. There was no evidence before the Tribunal that the Property was ever rented out to a tenant or that rent was paid to the applicant or Mr Slim. Mr Slim denied that he paid rent to the applicant. The 2019-2020 tax return states that the Property was rented out for 50 weeks, yet if had only been owned by the applicant for five weeks during the tax year. Clearly, the 2019-2020 tax return contains incorrect information,

44. The Tribunal also rejects the respondent’s submission that Ms Kheireddine purchased the property not as her place of residency but for some other purpose, being a sham, her real intent was to purchase the property for her son.

45. The respondent relied on the fact that Mr Slim had previously purchased a property in New South Wales and when asked during cross examination stated that he had not been a property owner in New South Wales but had helped a friend to purchase a property. Regardless of the fact that Mr Slim was only a partial owner of a property in New South Wales, he was not eligible for the first home owner scheme.

46. Even if the Tribunal accepted the respondent’s submission that the applicant’s son was involved in his mother’s decision to purchase the property in her name because he could not get the benefit under the FBA Scheme because he was already a home owner in New South Wales, it does not answer the real question, which is whether Ms Kheireddine had a “degree of permanence” to the property; Chief Commissioner of State Revenue v Ferrington (GD) (2004) NSWADTAP 41 at [53]. I accept the applicant’s evidence that she purchased the Property to live in as her primary residence. The fact that her son assisted her to pay the mortgage on the Property and utility bills does not detract from the applicant’s intention. On an objective assessment of the evidence, the applicant resided at the Property at all times from May 2019 to February 2022. There was no evidence that during this period, the applicant resided at the Property on a transient or temporary basis.

47. The Tribunal rejects the respondent’s submission that the applicant’s evidence identified an “impossible chronology with respect to the move to the property”. I accept the applicant’s and Mr Joe Slim’s evidence that the move to the Property occurred gradually with some of the furniture and belongings being moved prior to the settlement date.

48. I accept that Ms Kheireddine resided at the Property as her place of residence. She did not reside at any other place. This finding is consistent with the evidence by all of the witnesses. The respondent’s case that an inference should be made that Ms Kheireddine did not reside at the residence because numerous documents did not show the Property address is rejected. Credible explanations were provided for the multitude of different addresses on different documents. I accept that Ms Kheireddine’s children caused the discrepancies to some extent and that she also used her daughter’s address in Greenacre as she assisted her with her day to day living.

Penalty tax and Interest

62. As the decision under review is set aside, the penalty tax and imposition of interest falls away.

Conclusion

63. The question as to whether Ms Kheireddine resided in the property as her principal place of residence is a question of fact, to be determined on an objective basis. In all the circumstances, I find that Ms Kheireddine has established that she did reside in the property during the relevant period as her principal place of residence.

64. Having regard to the above findings on the material before me, the correct and preferable decision is to make the order below.

Order

65. I make the following order:

1. The decision made by the Respondent on 23 November 2023 is set aside.

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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

Decision last updated: 31 January 2025