Lawrance v Chief Commissioner of State Revenue

[2002] NSWADT 104

CITATION:	Lawrance & anor -v- Chief Commissioner of State Revenue [2002] NSWADT 104
DIVISION:	General Division
PARTIES:	APPLICANTS Chris Lawrance Jongsook Lawrance RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	023025
HEARING DATES:	21/02/2002
SUBMISSIONS CLOSED:	05/02/2002
DATE OF DECISION:	06/20/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	first home owners grant - approval of application - First Home Owners Grant Act - first home owners grant - approval of application
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 First Home Owners Grant Act 2000
CASES CITED:
REPRESENTATION:	APPLICANTS In person RESPONDENT G Van Emmerik, agent
ORDERS:	The Chief Commissioner’s decision to reverse a previous decision that the applicants are entitled to the First Home Owners Grant and to request repayment of the amount of the $7,000 is affirmed.

Introduction
1 On 4 February 2002 Chris and Jongsook Lawrance (the applicants) lodged an application with the Tribunal requesting a review of a decision of the Chief Commissioner of State Revenue (Chief Commissioner). The decision was to reverse a previous decision that the applicants were entitled to a grant of $7,000 under the First Home Owners Grant Scheme (FHOGS) and to request repayment of the grant. The Chief Commissioner reversed his decision because the applicants had not moved into their home within 12 months after completion of the contract or a longer period approved by the Chief Commissioner.

2 On 27 November 2001, Mr Lawrance objected to the Chief Commissioner’s decision. On review, the Chief Commissioner affirmed that the applicants were not entitled to the grant and should repay the amount of $7,000.

3 With the consent of the parties, this matter was decided “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Relevant Legislation
4 The First Home Owners Grant Act 2000 (FHOG Act) requires an applicant to comply with certain eligibility criteria. One criterion is the “residence requirement.” Section 12 states that:

(1) An applicant for a first home owner grant must occupy 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 a longer period approved by the Chief Commissioner.

(2) If an application is made by joint applicants and at least one (but not all) of the applicants complies with the residence requirement, the non-complying applicant or applicants are exempted from compliance with the residence requirement.

5 The FHOG Act authorises the Chief Commissioner to make payments in anticipation of compliance with the residence requirement. Section 20 relevantly states that:
(1) The Chief Commissioner may authorise payment of a first home owner grant:
(a) before completion of the relevant eligible transaction, if the Chief Commissioner is satisfied that it is appropriate to do so in particular circumstances, or

(b) in anticipation of compliance with the residence requirement, if the Chief Commissioner is satisfied that each applicant who is required to comply, but has not yet complied, with the residence requirement, intends to occupy the home as his or her principal place of residence within 12 months after completion of the eligible transaction or a longer period allowed by the Chief Commissioner,

or both.

(2) . . . .

(3) If a first home owner grant is paid in anticipation of compliance with the residence requirement, the payment is made on condition that, if the residence requirement is not complied with, the applicant must within 14 days after the end of the period allowed for compliance:

(a) give written notice of that fact to the Chief Commissioner, and

(b) repay the amount of the grant.

(4) A person who fails to comply with the condition prescribed by this section is guilty of an offence.

Maximum penalty (subsection (4): 50 penalty units.

6 The FHOG Act authorises the Chief Commissioner to require the applicant to repay the amount of the grant if the decision to pay the grant is reversed. Section 45 states that:
(1) The Chief Commissioner may, by written notice, require an applicant (or former applicant) for a first home owner grant to repay an amount paid on the application if:
(a) the amount was paid in error, or

(b) the Chief Commissioner reverses the decision under which the amount was paid for any other reason.

7 The FHOG Act authorises the applicant to object to a decision to reverse an earlier decision. Section 25(1) states that:
(1) An applicant who is dissatisfied with the Chief Commissioner's decision on the application (including a decision to reverse or vary an earlier decision) may lodge a written objection with the Chief Commissioner.
8 The FHOG Act authorises the applicants to apply to this Tribunal for a review of the Chief Commissioner’s decision. Section 28 states that:
(1) An objector may apply to the Administrative Decisions Tribunal for a review of the decision (the original decision ) to which the objection was made if:
(a) the objector is dissatisfied with the Chief Commissioner's determination of the objection.
Issue and onus
9 The issue in this case is whether the Chief Commissioner made the correct and preferable decision in reversing the decision to approve the First Home Owner Grant and requesting repayment of the grant. (See s 63 Administrative Decisions Tribunal Act 1997). Under s 28(3) of the FHOG Act, the applicants have the onus of proving their case in an application for review.

Evidence
10 On 23 August 2000 the applicants lodged an application for a grant of $7,000 under the FHOG Act. The contract for the purchase of the home was dated 18 August 2000 and the eligibility date for the payment of the grant was 23 October 2000, being the date of settlement. The date of expected occupancy was 1 August 2001. By letter of 1 November 2001 the Chief Commissioner sought information from the applicants as to the date of actual occupation of the home. The applicants had not moved into the home at that time.

11 On 5 November 2001 the Chief Commissioner issued a notice under section 45 of the FHOG Act requiring repayment of the $7,000 grant paid. On 22 November 2001 Mr Laurence advised the Chief Commissioner that due to an extension of his contract of employment outside Australia, the home had not yet been occupied by either of the applicants.

Applicants’ submission
12 The applicants submitted that they had intended to move into the property within the twelve month period but due to an extension of Mr Lawrance’s contract to work overseas this was not possible.

Respondent’s submission
13 The Chief Commissioner relied on section 12(1) of the FHOG Act which states, in part, that “an applicant for a first home owner grant must occupy 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 a longer period approved by the Chief Commissioner”.

14 In giving reasons for the decision to reverse the decision to pay the first home owner grant, the Chief Commissioner stated that “the circumstances in which a property the subject of the grant remains a rental property in excess of twelve months by which the applicants must commence residing in the property are not circumstances in which the Chief Commissioner would approve a longer period for the applicants to commence residing in the property.”

Reasons and decision
15 In authorising the payment of the grant in anticipation of compliance with the residence requirement the Chief Commissioner must be satisfied that at least one of the applicants intends to occupy the home within 12 months after completion of the transaction or within “a longer period allowed by the Chief Commissioner.” In my view the phrase “a longer period allowed by the Chief Commissioner” in s 20(1)(b) refers to a longer period allowed prior to the Chief Commissioner authorising payment of the grant. The Chief Commissioner cannot be satisfied of the applicants’ intention if the period is not specified at the time. Section 20(3) supports this interpretation because it provides that it is a condition of any payment made in anticipation of compliance with the residence requirement that the applicant must repay the grant if the residence requirement (12 months or a longer period approved by the Commissioner) is not complied with.

16 The Chief Commissioner appears to be under the impression that a “longer period” can be approved after payment has been authorised and the grant has been paid. Even if this is the correct view, the applicants did not apply to the Chief Commissioner for a longer period than 12 months in which to occupy the home as their principle place of residence.

17 Section 20(3)(b) stipulates that the applicants must give written notice to the Chief Commissioner that the residence requirement has not been met. When Mr Lawrance contacted the Chief Commissioner the 12-month residence requirement period and the 14-day notice period for the applicants to advise the Chief Commissioner of the fact that the residence requirement had not been met, had both expired.

18 The applicants did not comply with the residence requirement under the FHOG Act and did not provide written notice in compliance with their obligations under s 20(3)(a). In those the Tribunal makes the following order:

The Chief Commissioner’s decision to reverse a previous decision that the applicants are entitled to the First Home Owners Grant and to request repayment of the amount of the $7,000 is affirmed.