Lowe v Commissioner of State Revenue
[2014] QCAT 492
•3 October 2014
CITATION: | Lowe v Commissioner of State Revenue [2014] QCAT 492 |
PARTIES: | Scott Thomas Lowe (Applicant) |
| v | |
| Commissioner of State Revenue (Respondent) |
APPLICATION NUMBER: | GAR380-13 |
MATTER TYPE: | General Administrative Review matters |
HEARING DATE: | On The Papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 3 October 2014 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Application for miscellaneous matters filed on 27 May 2014 is refused; and 2. The decision to disallow an objection to the decision to not approve the First Home Owner’s Grant is confirmed. |
CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW - FIRST HOME OWNER GRANT – whether Tribunal jurisdiction extends to wife of applicant – whether unnecessary disadvantage warranting summary relief – where relief for disadvantage is inadmissibility of evidence rather than summary dismissal - where Commissioner filed applicant’s application to exempt transfer duty – where exemption application was relevant to nature of transaction – where no prejudice from late disclosure –– whether eligible transaction - where assumption of liability of mortgage alleged as consideration under oral contract - whether acts of part performance sufficient to establish oral contract –- where acts equally or more consistent with relationship of marriage – where transfer of interest to joint tenants - where bank statements do not refer to mortgage - where no evidence of mortgage payments clearly referable to applicant - whether transaction made during period of eligibility - where oral contract not eligible until completion - whether section 19 of the First Home Owner Grant Act 2000 confers discretion upon Commissioner to pay grant outside period of eligibility –- whether disqualifying arrangement – where test for sole or main purpose of transaction is objective - where transaction between husband and wife – where registration of transfer and refinancing alone would have addressed claimed concerns – where prior application for exemption from transfer duty because transaction was gift instead of contract – where no change in circumstances between application for exemption from duty and application for first home owner grant - where oral contract had no purpose other than for first home owner grant Duties Act 2001 (Qld), s 12, s 151, s 152 Archibald Howie Pty Ltd & Ors v. The Commissioner of Stamp Duties (NSW) (1948) 77 CLR 143 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
What is this Application about?
Husbands and wives arrange their finances to suit their marriage. After marrying, Scott Lowe and Jan Maree Lowe converted Ms Lowe’s sole interest in her home into a joint tenancy. Mr Lowe also became a mortgagor of the home with Ms Lowe.
Mr Lowe claims this arrangement is an enforceable oral contract that entitles him to the First Home Owner’s Grant. Mr Lowe therefore wants the Tribunal to review the Commissioner’s decision to disallow his objection to not being approved for the grant.
Mr Lowe pursued several approaches to attempt to persuade the Tribunal that he or Ms Lowe should be approved for the grant.
Does the Tribunal have jurisdiction to allow Mrs Lowe to claim the grant?
Mr Lowe claims the Commissioner should “exercise discretion to extend the application for Janmaree to claim the Grant, as prescribed by s. 16(4) of the First Home Owner Grant Act 2000.”[1]
[1]Application to review a decision filed 28 October 2013 at Part C.
This provision allows the Commissioner to vary the time to apply for the grant.[2]
[2]First Home Owner Grant Act 2000, section 16(4).
Mr Lowe claims that Ms Lowe “inadvertently did not claim a First Home Owner Grant” and the “information that has been confirmed by Janmaree as a non applicant spouse for Scott’s application should be sufficient for the Grant to be approved without any further information being required”.[3]
[3]Application to review a decision filed 28 October 2013 at Part C.
The Tribunal may exercise its review jurisdiction if a person has applied to the Tribunal to exercise its review jurisdiction for a reviewable decision.[4]
[4]Queensland Civil and Administrative Tribunal Act 2009, section 18(1).
Mr Lowe filed the Application. Ms Lowe has not filed an application - for the grant or to review a decision. Ms Lowe is therefore not a party to the proceeding.
The reviewable decision is the Commissioner’s decision to not allow Mr Lowe’s objection to not approve him for the First Home Owner’s Grant. The Commissioner has not made a decision about Ms Lowe for the Tribunal to review.
The Tribunal therefore does not have jurisdiction to make orders relating to Ms Lowe’s eligibility for the grant.
Is Mr Lowe entitled to summary relief?
On 25 March 2014, the Tribunal directed both Mr Lowe and the Commissioner to provide statements of evidence and submissions.[5]The Commissioner provided Mr Lowe’s application for exemption from transfer duty[6] and Ms Lowe’s supporting statutory declaration[7] claiming the arrangement was a gift because of their marriage.
[5]Directions dated 25 March 2014 at paragraphs 1 and 2.
[6]Dutiable transaction statement signed by Scott Thomas Lowe on 8 October 2012.
[7]Statutory Declaration of Jan Maree Lowe sworn 6 October 2012.
Mr Lowe then filed an Application for miscellaneous matters on 27 May 2014 to strike out the Commissioner’s Response and “immediately rule in favour of the Applicant”.[8]The ground of the application would appear to be that Mr Lowe was unnecessarily disadvantaged.
[8]Application for miscellaneous matters filed 27 May 2014.
This is because Mr Lowe claims that the Commissioner used these proceedings to introduce new information and evidence that was not part of the original decision - under the guise of helping Mr Lowe.
What is the redress if Mr Lowe was unnecessarily disadvantaged by the Commissioner providing material not part of the original decision?
Even if disclosure of the evidence unnecessarily disadvantaged Mr Lowe, the disadvantage is redressed by simply not considering that evidence.[9] It does not extend to immediately determining the review application in his favour without considering the remaining evidence. That would be contrary to the Tribunal’s mandate to produce the correct and preferable decision[10] by way of a fresh hearing on the merits[11]and to observe the rules of natural justice.[12]
[9]Irvine & Porter v. Mermaids Café and Bar Pty Ltd v. Ingall [2010] QCAT 393 at paragraph [17].
[10]Queensland Civil and Administrative Tribunal Act 2009, section 20(1).
[11]Queensland Civil and Administrative Tribunal Act 2009, section 20(2).
[12]Queensland Civil and Administrative Tribunal Act 2009, section 28(3)(a).
Providing statements of evidence and submissions not part of the original decision is therefore not a basis to decide the application for review in Mr Lowe’s favour.
This alone suffices to refuse Mr Lowe’s Application for miscellaneous matters filed 27 May 2014.
In any event, Mr Lowe has not been “unnecessarily disadvantaged” for the below reasons.
Did the Commissioner unnecessarily disadvantage Mr Lowe by providing material not part of the original decision?
The Tribunal may decide in an applicant’s favour if a respondent acts in a way that “unnecessarily disadvantages” the applicant.[13]This includes attempting to deceive the applicant or the Tribunal.[14]
[13]Queensland Civil and Administrative Tribunal Act 2009, section 48.
[14]Queensland Civil and Administrative Tribunal Act 2009, section 48(1)(e).
Disadvantage experienced in the usual course of litigation is not “unnecessary”.[15]
[15]Queensland Building Services Authority v. Johnston [2011] QCATA 265 at [31]; Campbell v. Kerry M. Ryan Pty Ltd [2014] QCATA 58 at [8].
This litigation is an application to review a decision of the Commissioner. The Tribunal must decide the review by reconsidering the evidence before the Commissioner when the decision was made.[16] The Tribunal may consider new evidence if it is in the interests of justice.[17]Therefore, the usual course of this litigation expressly contemplates new evidence if it is in the interests of justice.
[16]First Home Owner Grant Act 2000, section 60(1) and (2)(a).
[17]First Home Owner Grant Act 2000, section 60(2(a).
The interests of justice are to be determined within the context of the review. The purpose of this review[18] is to produce the correct and preferable decision[19] by way of a fresh hearing on the merits.[20]Further, the decision-maker must use its best endeavours to help the Tribunal decide the review,[21] including providing a written statement of reasons[22] and additional documents the Tribunal considers relevant.[23]
[18]York v. Commissioner of State Revenue Office [2010] QCAT 664 at paragraph [4] where the review was also of an objection about a first home owner grant.
[19]Queensland Civil and Administrative Tribunal Act 2009, section 20(1).
[20]Queensland Civil and Administrative Tribunal Act 2009, section 20(2).
[21]Queensland Civil and Administrative Tribunal Act 2009, section 21(1).
[22]Queensland Civil and Administrative Tribunal Act 2009, section 20(2).
[23]Queensland Civil and Administrative Tribunal Act 2009, section 20(3).
Evidence of Mr Lowe’s application for assessment of transfer helps to illuminate the true nature of the transaction. This is axiomatic to determining eligibility for the grant.
Illuminating the true nature of the transaction can only disadvantage Mr Lowe by a finding that the Commissioner’s decision to refuse his objection is correct. That disadvantage is not “unnecessary” but arises from the very purpose of this litigation: to produce the correct and preferable decision. It is in the interests of justice for the Tribunal to consider cogent and probative evidence to produce the correct and preferable decision.
Mr Lowe’s application to be exempt from transfer duty and Ms Lowe’s statutory declaration are cogent and probative because they were made in close proximity in time to Mr Lowe’s application for the grant. They are therefore evidence of intent at the time of the transaction.
Because the information was created concomitantly with the application for the grant, its probative value has not been diminished by time. If this evidence was not before the Commissioner when Mr Lowe applied for the grant, it should have been. Considering the evidence as part of this review redresses this omission: the purpose of the review is not to maintain a previous omission, but to produce the correct and preferable decision.
The late disclosure does not prejudice Mr Lowe because he is the author of the application for assessment of transfer duty. He was aware of its existence well before its filing. In any event, affording Mr Lowe a reasonable opportunity to reply addresses any disadvantage from late disclosure. The Tribunal gave Mr Lowe 14 days to reply[24]and he did. Mr Lowe was therefore given a reasonable opportunity to reply.
[24]Tribunal Directions dated 25 March 2014 at paragraph 3.
Mr Lowe is not “unnecessarily disadvantaged” by the Commissioner providing to the Tribunal his application to exempt transfer duty and its accompanying statutory declaration. Providing cogent and probative evidence of which Mr Lowe has always been aware arises from the usual course of this litigation to produce the correct and preferable decision.
Did Mr Lowe enter into an eligible transaction for the First Home Owner Grant?
A first home owner grant is payable for an eligible transaction that is completed.[25]
[25]First Home Owner Grant Act 2000, section 10(1)(b).
An eligible transaction relevantly includes a contract made on or after 1 July 2000 up to 11 October 2012 for the purchase of a home other than a new home.[26]
[26]First Home Owner Grant Act 2000, section 5(2)(a).
Is there a contract?
Mr and Mrs Lowe claim that they orally agreed for Mr Lowe to purchase an interest in Mrs Lowe’s property at 2 Beaver Street, Clontarf. Mr Lowe contends that his assuming of liabilities of $200,000 constituted consideration for the alleged contract.
A contract for the sale or disposition of land is unenforceable unless written.[27]However, an oral contract for sale or disposition of land is enforceable if a sufficient act of part performance can be shown.[28]
[27]Property Law Act, section 59.
[28]McBride v. Sandiland (1918) 25 CLR 69; Cooney v. Burns (1922) 30 CLR 216; Steadman v. Steadman [1976] AC 536; Regent v. Millett (1976) 133 CLR 679.
Mr Lowe contends that the Commissioner failed to consider all evidence to establish an oral contract, including the Transfer, registration of Mr Lowe’s name on the title, bank statements between the buyer and seller, an email exchange between Members Equity and Mr Lowe evidencing an oral offer and acceptance and statutory declarations confirming the liabilities assumed.
The alleged acts of part performance must point to the existence of at least “some such contract as alleged”.[29]These acts of part performance alleged by Mr Lowe are equally or more consistent with him contributing to his wife and children as a responsible husband and father. The terms of the alleged contract are therefore not to be ascertained before the alleged acts of part performance:
… if the terms of the oral bargain are first ascertained and then the alleged acts of part performance are judged of merely by their consistency with and applicability to that bargain, grievous error may result.[30]
[29]Steadman v. Steadman [1976] AC 536.
[30]McBride v. Sandiland (1918) 25 CLR 69, per Isaacs and Rich JJ at 70; see also Steadman v. Steadman [1976] AC 536, per Lord Reid at 541.
The preparation and execution of transfer documents and assessment of duty are acts preparatory to the performance of a term of the alleged contract - conveyance of title – and alone are not sufficient acts of part performance.[31]They are therefore not merely referable to some such contract as alleged. Ms Lowe transferred an interest to Mr Lowe and registered his name on the title as joint tenant rather than as a tenant in common. Spouses do this because of their relationship.
[31]Steadman v. Steadman [1976] AC 536, per Lord Simon of Glaisdale at 561; Cooney v. Burns (1922) 30 CLR 216, per Knox CJ at 223, Higgins J at 240-241 and Starke J at 244.
The Transfer purports to be in consideration of an assumption of liabilities of $200,000. An assumption of liability to pay an amount can constitute valid consideration.[32]However, payment of money is an equivocal act and not of itself indicative of a contract concerning land.[33] The bank statements do not show Mr Lowe taking over specific mortgage repayments. None of the statements relates to any mortgage account nor do they show any amounts being paid into a mortgage account.
[32]Archibald Howie Pty Ltd & Ors v. The Commissioner of Stamp Duties (NSW) (1948) 77 CLR 143 at 152 and 159.
[33]Cooney v. Burns (1922) 30 CLR 216, per Knox CJ at 223.
The bank statements merely show Mr Lowe transferring amounts from his account into a separate loan account held by him for an unspecified purpose and into a loan account held by Ms Lowe for an unspecified purpose.[34]At most, the payments show financial contributions from Mr Lowe to Ms Lowe. Spouses do this because of their relationship:
… acts of part performance… must be acts from which the nature of the contract can be deduced… a payment by a parent to his child or a husband to his wife is in general no evidence of a contract; indeed the presumption is the contrary.[35]
[34]Statement of Loan Account No. 466228613 in the name of Scott Lowe for the period from 1 October 2012 to 31 October 2012, Statement of Account No. 050790725 in the name of Scott Lowe for the period from 1 October 2012 to 30 November 2012 and 31 January 2013 to 30 March 2013, Statement of Account No. 06 4122 00656700 in the name of J M Lowe for the period from 1 May 2012 to 31 October 2012.
[35]Steadman v. Steadman [1976] AC 536, per Lord Salmon at 570.
The “email exchange” is an email dated 4 October 2012[36] and an email dated 5 October 2012 for a bank valuation of the property.[37] They show no evidence of an “oral offer and acceptance between Mr and Ms Lowe” as alleged by Mr Lowe. Spouses often obtain a bank valuation when arranging their assets and liabilities appropriate to their circumstances. The email exchange is no more than evidence of Mr and Ms Lowe discussing an arrangement appropriate to their circumstances upon or after their marriage.[38]Spouses do this because of their relationship.
[36]Email Scott Lowe to Alex Altzori dated 4 October 2012.
[37]Email Alex Altzori to Scott dated 5 October 2012.
[38]Cohen v. Cohen (1929) 42 CLR 91 at 96.
The statutory declarations relied upon by Mr Lowe claim that Mr and Ms Lowe entered into a verbal contract in consideration of Mr Lowe assuming liabilities of $200,000. However, they also confirm that Mr and Ms Lowe are residing in the property as husband and wife.[39]Spouses choose to share assets and liabilities because of their relationship. Indeed, Mr Lowe himself avers to doing precisely this (however he names the transaction):
As previously submitted, Ms Lowe’s capacity to earn a wage, accumulate superannuation and other investments has been severely diminished. In this particular matter, it is Ms Lowe who has the sizeable asset and is agreeing to transfer the property to the applicant, the primary wage earner. It would be folly of Ms Lowe to not ensure that the asset wasn’t purchased by the applicant and that the special conditions to the oral contract were not legally enforceable, such as the upkeep of the property, the payment of mortgage repayments, utilities and rates, and how the property is to be dealt with amongst Ms Lowe’s children (one from a previous relationship) in the event of her death prior to the applicant.[40]
[39]Statutory Declaration of Jan Maree Lowe sworn 6 October 2012 and Statutory Declaration of Scott Thomas Lowe sworn 6 October 2012.
[40]Applicant’s responses to the respondents reply dated 27 May 2014 at paragraph 14.
The alleged acts of part performance are not “unequivocally, and in their own nature, referable to some such agreement as that alleged”[41]or even “some contract”[42] to which Mr Lowe was a party. No surrounding circumstance suggests otherwise - even Mr Lowe taking possession of the property is referable to the marriage, because he took possession before the alleged contract.[43] All the alleged acts of part performance are referable to the marriage.
[41]Regent v. Millett (1976) 133 CLR 679, per Gibbs J (as His Honour then was) at paragraph 8.
[42]Steadman v. Steadman [1976] AC 536, per Lord Simon of Glaisdale at 564.
[43]Unlike Regent v. Millett (1976) 133 CLR 679 where possession alone was sufficient part performance. The High Court specifically caveated that “it may be proved that the taking of possession is referable to some other authority than the contract alleged” – per Gibbs J (as His Honour then was) at paragraph 11.
I am therefore not satisfied of part performance sufficient to constitute a legally enforceable contract.
Mr Lowe therefore did not enter into an eligible transaction for the first home owner grant.
If there was a contract, when was it made?
Mr Lowe contends that the contract was “brought into existence in September 2012” because “the responsibility for making mortgage repayments, the preparation and execution of transfer documents, and the assessment of transfer duty all occurred prior to 10 October 2013 (sic)”[44] and that “the registration of the transfer documentation on 25 October 2012 merely confirms the completion of the contract”.[45]
[44]Application to review a decision filed 28 October 2013 at Attachment 1.
[45]Application to review a decision filed 28 October 2013 at Attachment 1.
The bank statements do not show details of any mortgage account or amounts paid into any mortgage account relating to the property. They do not show mortgage payments from funds clearly identifiable to Mr Lowe’s personal funds or income. The dates of alleged mortgage payments are therefore not readily ascertainable and cannot be the date of contract.
Moreover, unlike a written contract, an oral contract for the sale or disposition of land cannot exist until completion. Acts of part performance are precisely that – part performance. Part performance does not complete an alleged agreement or make it whole. Upon being established, part performance merely allows the terms of the actual agreement to be adduced - a completed agreement must then be shown.[46]
[46]McBride v. Sandiland (1918) 25 CLR 69, per Isaacs and Rich JJ at 71.
A partly performed oral contract for the sale or disposition of land is therefore not wholly performed until completion upon lodging the transfer. This means that as a matter of law, an oral contract for the sale or disposition of land does not exist until the date the Transfer is lodged with the Registrar of Titles:
There is nothing occult about the term “part performance”. It means on its face partial, but not complete, performance of the contract between the vendor to sell and the purchaser to purchase the land. What is the “sale” and the “purchase” of the land? It is not the contract for the sale and purchase – though that is colloquially referred to as if it were. From the standpoint of law the sale and purchase of land does not occur until the property is transferred. “Sale” connotes transfer of ownership. The contract of sale does not transfer the ownership.[47]
[47]Cooney v. Burns (1922) 30 CLR 216, per Isaacs J at 232.
Therefore, even if the preparation and execution of transfer documents and assessment of duty were acts of part performance, the contract was not made until the Transfer was lodged with the Registrar of Tiles on 25 October 2012.[48]
[48]Consistent with Public Ruling FHOGA005.2.5 at paragraph 15.
This means even if Mr Lowe had entered into a legally enforceable oral contract, the contract was made after 11 October 2012. This is outside the period for an eligible transaction.
This also means that Mr Lowe did not enter into an eligible transaction for the first home owner grant.
Can section 19 of the First Home Owner Grant Act 2000 authorise payment of the grant before completion of an oral contract?
Mr Lowe claims that it “would be more appropriate to apply paragraph 15 of the public ruling in regards to oral contracts and any requests for payment of the grant prior to completion, as prescribed by s.19(2) of the First Home Owner Grant Act 2000”.[49]
[49]Application to review a decision filed 28 October 2013 at Attachment 1.
Mr Lowe’s claim appears to be that section 19(2) of the Act confers upon the Commissioner a discretion to pay the grant where the transaction is completed outside the eligibility period – if acts of part performance occur before expiry of the eligibility period.
Section 19 provides (my underlining):
19 Commissioner to decide applications
(1) If the commissioner is satisfied a first home owner grant is payable on an application, the commissioner must authorise the payment of the grant.
(2) The Commissioner may authorise the payment of the grant before the completion of the eligible transaction if the commissioner is satisfied it is appropriate in particular circumstances.
Section 19(2) is not to be read in isolation but within the context of section 19 as a whole.[50] The trigger for the operation of section 19 is that a grant is payable. Section 19 therefore does not provide a basis to vary the eligibility period for a transaction but provides a temporal basis for when payment can be made once a transaction is eligible.
[50]The Metropolitan Gas Co. v. The Federated Gas Employees’ Industrial Union (1924) 35 CLR 449 at 451 – 458, per Isaacs and Rich JJ.
Therefore, section 19(2) only confers upon the Commissioner a discretion to authorise payment of the grant before an eligible transaction is complete. It does not authorise the Commissioner to pay the grant before a transaction is eligible. Section 19(2) is powerless to convert a transaction outside the period of eligibility into a transaction within the period of eligibility. Section 19(2) cannot cure a transaction that is not eligible.
The act of completion itself makes an oral contract for the sale or disposition of land whole.[51] Because the contract was not whole until after 11 October 2012, it is not an eligible transaction. Without an eligible transaction, section 19(2) has nothing to do.
[51]See paragraphs [37] to [38].
There is therefore no eligible transaction for section 19(2) to authorise payment before completion.
This means that section 19(2) cannot make the transaction eligible for the first home owner grant.
This also means that Mr Lowe did not enter into an eligible transaction for the first home owner grant.
Is the arrangement disqualified anyway?
Even if the transaction was otherwise eligible, the Commissioner may refuse an application for the grant if made under a disqualifying arrangement.[52]An arrangement is disqualified if its sole or main purpose is to obtain the grant rather than acquire a home.[53]
[52]First Home Owner Grant Act 2000, section 69A(6).
[53]First Home Owner Grant Act 2000, section 69A(3).
The Commissioner must regard the way the transaction was entered into or carried out, the nature of the connection between the parties, the amount of consideration, the value of the home, the living and family arrangements of the applicant and any related person, the financial circumstances of the applicant and the source of funds used to complete the transaction.[54]The Commissioner is not limited to these matters.[55]
[54]First Home Owner Grant Act 2000, section 69A(4).
[55]First Home Owner Grant Act 2000, section 69A(5).
The test of whether the sole or main purpose of an arrangement is to obtain the grant is therefore objective and can be inferred from the circumstances of the transaction - regardless of the parties’ stated intentions.
Ms Lowe is a ‘related person’.[56]The statutory declarations relied upon by Mr Lowe confirm that Mr and Ms Lowe are residing in the property as husband and wife.[57] Precisely because of that relationship, Mr Lowe did not need an oral contract to acquire his interest in the home. The arrangement was to bring together their major assets and liabilities appropriate to their circumstances at the time of their marriage.[58]
[56]First Home Owner Grant Act 2000, section 69A(8)(b).
[57]Statutory Declaration of Jan Maree Lowe sworn 6 October 2012 and Statutory Declaration of Scott Thomas Lowe sworn 6 October 2012.
[58]Cohen v. Cohen (1929) 42 CLR 91 at 96.
Mr Lowe cites the impending birth of his daughter to Ms Lowe as the catalyst for the transaction between him and Ms Lowe (my underlining):
A copy of a birth certificate for [name omitted], born 3 April 2013 is provided at Attachment 3. The oral contract was brought into existence in September 2012 as a result of the impending birth of [name omitted] and the fact that Janmaree was to act as primary care giver for [name omitted]. Janmaree’s estimate of income to the Department of Human Services for the 2013-14 financial year is $Nil. This further illustrates that Janmaree is unable to provide any financial assistance towards the mortgage repayments. Janmaree is also due to give birth to another child on 15 March 2014.[59]
[59]Application to review a decision filed 28 October 2013 at Part C.
Mr Lowe’s could have addressed these concerns without an oral contract. Mr and Ms Lowe could simply register a Transfer with their new interests and rearrange finance with the bank. Husbands and wives do this every day without an oral contract – because of their relationship of husband and wife.
Mr Lowe claimed Ms Lowe changed her position detrimentally by reducing her capacity to earn a wage, acquire superannuation and other investments and transferring part of her interest in the property (my underlining):
As a result of the value of the property, and the fact that Ms Lowe’s income, superannuation and general earning capacity was diminished, it was essential that a legally enforceable oral contract was entered to purchase a share in the property to protect and compensate Ms Lowe, and her daughter Rose. It is submitted that it would be detrimental to Ms Lowe to simply transfer the property to the applicant in these circumstances.[60]
[60]Applicant’s responses to the respondents (sic) reply filed 27 May 2014 at paragraph 7.
That a party acts to their detriment does not establish that the act was in part performance of the contract.[61] Moreover, Mr Lowe does not explain how the alleged oral contract protects and compensates Ms Lowe and her daughter any more than simply transferring the property and rearranging finance would.
[61]Steadman v. Steadman [1976] 2 AC 536, per Viscount Dilhorne at 555.
The Transfer and registration of Mr Lowe’s name on the title is as joint tenant with Ms Lowe rather than as a tenant in common.[62]Mr Lowe’s interest is therefore held jointly with Ms Lowe and cannot be separately divested. Each joint tenant’s interest passes to the other by operation of law upon death. Mr Lowe becomes liable under the mortgage upon the transfer.[63] The nature of the transferred interest itself protects Ms Lowe. The alleged oral contract between Mr and Ms Lowe makes no difference to third parties such as financiers.
[62]Transfer 714744969 dated 6 October 2012, Registration Confirmation Statement dated 25 October 2012 and Land Title Search dated 30 July 2013.
[63]Land Title Act 1994, section 63.
Mr Lowe also applied for the grant on the basis that the transaction was a contract, yet applied for (and was granted) exemption from transfer duty[64] on the basis that that the transaction was a gift.[65] Mr Lowe’s application for exemption from duty was concomitant with his application for the grant.[66]Mr Lowe therefore changed his description of the transaction from a gift to a contract despite no change in his legal, personal or financial circumstances. The only change was applying for the first home owner grant instead of exemption from duty.
[64]Pursuant to the Duties Act, sections 12, 151(1) and 152(2).
[65]Dutiable transaction statement signed by Scott Thomas Lowe on 8 October 2012 and Statutory Declaration of Jan Maree Lowe sworn 6 October 2012.
[66]Application for First Home Owner Grant signed by Scott Lowe and Jan Maree Lowe on 6 October 2012 and Statutory Declaration of Jan Maree Lowe sworn 6 October 2012 and Statutory Declaration of Scott Thomas Lowe sworn 6 October 2012.
This does not necessarily entail duplicity. Mr Lowe and Ms Lowe may have honestly believed the transaction could be characterised differently according to the purpose for which it is relied upon. However, Mr Lowe’s alternative description of the transaction as a gift does evince that the merging of Mr and Ms Lowe’s mutual pecuniary interests as husband and wife did not require an oral contract. The purpose of changing the description of the transaction therefore could only be to obtain the grant than acquire an interest in the home.
I am therefore satisfied that that the sole or main purpose of Mr and Ms Lowe endeavouring to characterise their arrangement as on oral contract was to obtain the grant rather than acquire a home.
This means that even if Mr Lowe did enter into an eligible transaction for the first home owner grant, it is a disqualifying arrangement and his application for the grant is refused.
What are the appropriate Orders?
The appropriate Orders are:
1. The Application for miscellaneous matters filed on 27 May 2014 is refused; and
2. The decision to disallow an objection to the decision to not approve the First Home Owner’s Grant is confirmed.
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