Kimpton and Repatriation Commission - [2005] AATA 916

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 916
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/469 & W2004/470

VETERANS' APPEALS DIVISION
)

Re PERCY KIMPTON
BERYL KIMPTON

Applicants

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor G A Barton, Member
Date20 September 2005
PlacePerth

Decision
The Tribunal sets aside the decision under review and remits this matter to the respondent for reconsideration in accordance with the following direction: that the respondent determine, in accordance with s 52ZZR(2) of the Veterans’ Entitlements Act 1986, (‘the Act’) that the loan of Kimpton & Sons Pty Ltd, that was receivable from Mr Guy Kimpton, and the loans of Kununurra Poll Shorthorn Pty Ltd, that were receivable from the applicants and Mr and Mrs Gregory Kimpton, are excluded assets for the purposes of s 52ZZR(1)(d) of the Act and that the respondent re-assess the applicants’ rate of service pensions, with effect from 18 March 2002, in accordance with that determination.

(sgd) G A Barton
Member

CATCHWORDS
Veterans entitlements – service pension – assets test – attribution of assets of private companies – asset – loan receivables – controlled private company – designated private company – direct voting interest – control test – attributable stakeholders – attribution of assets – excluded assets – determination.
Veterans’ Entitlements Act 1986
s.5L(2)(12)
Sch 6 – F1
s.52C
s.52CA
s.52ZZR
s.52ZZJ
s.52ZZC
s.52ZZA
s.52ZZD
s.52ZZE
s.52ZQ(1)(e)
s.52ZP(1)
Repatriation Commission v Harrison 148 ALR 590
REASONS FOR DECISION

20 September 2005 Associate Professor G A Barton, Member

1.      On 4 August 2004 the respondent’s delegate decided to retain the deprived asset amounts in relation to Kimpton & Sons Pty Ltd (‘KS) and Kununurra Poll Shorthorn Pty Ltd (‘KPS’) which had been included in the applicants’ service pension assessments under the Veterans’ Entitlements Act 1986 (‘the Act’) since 18 March 2002. A Senior Review Officer in the Compliance and Review Section of the respondent decided to affirm the delegate’s decision on 1 December 2004 and the applicants, Percy and Beryl Kimpton, who are husband and wife, have applied for review of this decision.
2.      Percy Kimpton gave evidence as did the applicants’ son, Scott Kimpton, and their Chartered Accountant, Bruce Byrnes, a partner in the firm Page Kirk & Jennings. Mr Byrnes made submissions on behalf of the applicants who tendered documentary exhibits A1 to A5 and lodged a statement of facts and contentions. The financial statements and special purpose financial reports for KS and KPS referred to in these reasons were prepared by Page, Kirk & Jennings.
3.      Ms S Maharaj of counsel represented the respondent and called the expert evidence of Martin Langridge, a Chartered Accountant and partner (forensic) in the firm Deloitte Touche Tohmatsu. The respondent lodged a statement of facts and contentions and written submissions, and tendered Mr Langridge’s report of 1 February 2005 (R1) and a letter from Gary Doran, a registered liquidator and partner in Deloitte Touche Tohmatsu, stating that he had read R1 and concurred with the findings it contains…

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.

Continue reading Kimpton and Repatriation Commission

Details

AGLC: Kimpton and Repatriation Commission [2005] AATA 916
Case: [2005] AATA 916
Decision Date: 20 September 2005

CaseChat Overview and Summary

The matter in Kimpton and Repatriation Commission was heard by the Administrative Appeals Tribunal, involving a dispute concerning veterans' entitlements, specifically the service pension. The applicants, who were veterans, challenged a decision by the Repatriation Commission which determined that certain assets held by private companies were to be included in the assets test for their service pension. The applicants argued that these assets should be excluded under the provisions of the Veterans’ Entitlements Act 1986.

The primary legal issue before the court was whether certain loans receivable from the applicants' private companies should be attributed to them for the purpose of the assets test, potentially impacting their eligibility for a service pension. The court had to determine the correct interpretation and application of sections 52ZZR, 52ZZJ, 52ZZC, and 52ZZA of the Act, particularly in relation to the definition of excluded assets and the control test for private companies. The applicants contended that these loans should be considered excluded assets due to the control test and the nature of the private companies involved.

The Tribunal found that the Repatriation Commission's decision did not properly apply the statutory provisions. It held that the loans receivable from the private companies should indeed be excluded under section 52ZZR(1)(d) of the Act, as they met the criteria for excluded assets. The Tribunal also noted that the control test, as outlined in sections 52ZZJ and 52ZZC, was not correctly applied. The court concluded that the Repatriation Commission must reassess the applicants' rate of service pensions from 18 March 2002, taking into account the exclusion of these specific loans.

The Tribunal ordered that the decision under review be set aside and the matter be remitted to the Repatriation Commission for reconsideration. The Commission was directed to determine that the loans receivable from the private companies were excluded assets and to reassess the applicants' service pensions accordingly, with effect from the specified date. This decision ensures that the statutory framework governing veterans' entitlements is applied correctly, protecting the applicants' rights under the Act.

Orders

Orders of the court

The Tribunal sets aside the decision under review and remits this matter to the respondent for reconsideration in accordance with the following direction: that the respondent determine, in accordance with s 52ZZR(2) of the Veterans’ Entitlements Act 1986, (‘the Act’) that the loan of Kimpton & Sons Pty Ltd, that was receivable from Mr Guy Kimpton, and the loans of Kununurra Poll Shorthorn Pty Ltd, that were receivable from the applicants and Mr and Mrs Gregory Kimpton, are excluded assets for the purposes of s 52ZZR(1)(d) of the Act and that the respondent re-assess the applicants’ rate of service pensions, with effect from 18 March 2002, in accordance with that determination.

Background

Background to the litigation

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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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VETERANS' APPEALS DIVISION		)
Re		PERCY KIMPTON BERYL KIMPTON