Mein and Repatriation Commission

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1560

ADMINISTRATIVE APPEALS TRIBUNAL      No N2005/1029 & 2007/0222

VETERANS' APPEALS DIVISION
Re		James Mein

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date18 July 2007  

PlaceSydney

Decision

The reviewable decision, the subject of N2005/1029 is affirmed.

The reviewable decision, the subject of 2007/0222 is set aside and instead the Tribunal decides that Mr Mein’s assets, in his attributed stakeholding in Barisa and by extension in Sabrol, together with his loan to Barisa should be disregarded for the purpose of calculating the rate of Mr Mein’s pension.

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Ms N Bell  Senior Member  

VETERAN’S – Service Pension – Service Pension is Means Tested – Writing Down of the Value of Assets – Deprived Asset – Assets Unrealisable – Assets of Company are taken as assets of a stakeholder of that Company – Written Down amounts are included as Assets of the Company – Hardship – Severe Financial Hardship – Decision Under Review is Set Aside.

Sernak v Repatriation Commission [2003] AATA 975

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 2 ALD 634

Repatriation Commission v Hall (1988) 78 ALR 687

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

Ms N Bell, Senior Member

1. Mr Mein, who was granted a service pension in 2003, has for many years been involved in the promotion of a product called “N-FIX”.  N-FIX is a soil nutrient that, among other things, breaks soil down to be friable, balances CO₂ energy in gardens, creates PH balance and eliminates fungus and blue green algae.  Mr Mein is an enthusiastic believer in the properties of N-FIX.

2. N-FIX trades through the company Sabroll Pty Ltd, of which Mr Mein is director and secretary.  Sabroll does not break even.  The business is run by Mr Mein’s daughter and her husband and Mr Mein is closely involved in its operations.

3. The company Barisa Pty Ltd holds 32 of the 100 shares in Sabroll.  Mr Mein is a director, secretary and major shareholder of Barisa. 

4. Mr Mein’s service pension is means tested.  In particular, a person’s assets are taken into account to decide the rate of pension to be paid.  After deciding that Mr Mein should be attributed with 40% of the assets of Barisa, the Repatriation Commission examined the total net asset value of Barisa and concluded that his share of the net asset value was so high that it precluded payment of the pension.

5. There is a dispute between Mr Mein and the Commission as to the effect of a writing down or reduction, by Mr Mein, of that asset value by some $1,250,000.  Mr Mein maintains it reflects the true financial position of Barisa whereas the Commission contends there is no provision for such writing down.

6. There is also dispute about a reduction in value, by Mr Mein, of his loan to Barisa by some $328,000.  Mr Mein maintains this reflects again the true worth of Sabroll and hence the…