Mitra v Chief Commissioner of State Revenue

[2025] NSWCATAD 120

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Mitra v Chief Commissioner of State Revenue [2025] NSWCATAD 120

Hearing dates:

30 January 2025, interlocutory application determined on the papers

Date of orders:

28 April 2025

Decision date:

28 April 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Sullivan, Senior Member

Decision:

(1) The Tribunal dispenses with a hearing on the interlocutory application under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

(2) The application by the Applicant for a non-publication order under s 64 of the NCAT Act is refused.

(3) The application by the Applicant for an order prohibiting disclosure of the name of the Applicant under s 64 of the NCAT Act is refused.

(4)   The Assessment (the substantive decision under review) is reversed in full.

(5)   This decision is not to be published to Caselaw until the period 28 days after the date of decision has expired.

Catchwords:

TAXATION AND REVENUE – First Home Owner Grant – residence requirement

INTERLOCUTORY PROCEDURE – application for non-publication and to prohibit disclosure of name – whether desirable to make a suppression order

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

First Home Owner Grant and Shared Equity Act 2000 (NSW)

Cases Cited:

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 83 ATC 4015

Black v Chief Commissioner of State Revenue [2011] NSWADT 66

Bulgak v Chief Commissioner of State Revenue [2015] NSWCATAD 237

Carroll v Tokdogan [2015] NSWCATAD 200

Chief Commissioner of State Revenue (RD) v McIlroy [2009] NSWADTAP 21

Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41

Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP 57

DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92

Fava v Chief Commissioner of State Revenue [2024] NSWCATAD 363

John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131

Levitch Design Associates Pty Ltd ATF Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 215

McCormack v FCT (1979) 143 CLR 284

McKellar v Chief Commissioner of State Revenue [2004] NSWADT 22

Mohamed v Chief Commissioner of State Revenue [2012] NSWADT 169

Pascuzzo v Chief Commissioner of State Revenue [2025] NSWCATAD 49

Peng v Chief Commissioner of State Revenue [2022] NSWCATAP 378

R v The War Pensions Entitlement Appeal Tribunal and another; ex parte Bott (1933) 50 CLR 228

Raissis v Chief Commissioner of State Revenue [2021] NSWCATAD 99

Re Optimise Group Pty Ltd and Commissioner of Taxation [2010] AATA 782

Single v Chief Commissioner of State Revenue [2006] NSWADT 334

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69

Tobin v Chief Commissioner of State Revenue [2009] NSWADT 188

Yen-Cheng Chuang & Anor v Chief Commissioner of State Revenue [2009] NSWADT160

Z v University of A, Dr D & B (No 4) [2002] NSWADT 14

Zakariya v Chief Commissioner Office of State Revenue [2003] NSWADT 26

Zgrivets v Chief Commissioner of State Revenue [2023] NSWCATAD 314

Texts Cited:

None

Category:

Principal judgment

Parties:

Ritam Mitra (Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Self-represented (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00330148

Publication restriction:

None (subject to Order (5))

REASONS FOR DECISION

1. The Applicant is Ritam Mitra. He bought a new apartment “off the plan” in the suburb of Hornsby, in Sydney (the Property). It was his first home. After the purchase was settled on 16 August 2019 he claimed, and received, a First Home Owner Grant (FHOG) of $10,000 under the First Home Owner Grant and Shared Equity Act 2000 (NSW) (FHOG Act).

2. It was a condition of the grant (s 12 of the FHOG Act, in force at that time) that he occupied the Property as his principal place of residence for a continuous period of 6 months, with that period starting within 12 months of the settlement date (the residence requirement).

3. On 21 February 2024, the Chief Commissioner (the Respondent) notified the Applicant that he was commencing an investigation into whether he satisfied the residence requirement. 3 days later, the Applicant sent a response, including a signed declaration that he resided in the Property for a 6 month period from 18 August 2019 to 21 February 2020 (the Residence Declaration).

4. The Applicant heard nothing further until 2 April 2024, when the Respondent:

1. advised him that he had not demonstrated he had met the residence requirement; and

2. issued him a FHOG Notice of Assessment requiring him to pay $13,000; $10,000 to repay the grant, plus a 30% penalty (the Assessment).

5. The Applicant objected on 12 May 2024. The Respondent disallowed the objection (upholding the Assessment) on 2 August 2024.

6. The Applicant applied to the Tribunal on 5 September 2024.

The issues

7. The Tribunal must decide whether the Applicant can retain the FHOG, or whether he is liable to repay it (and if so, whether the penalty is appropriate).

8. Before turning to these issues, however, there is an interlocutory matter to determine.

Request for Suppression Order

9. Shortly before this hearing, the Applicant filed an Application for Miscellaneous Matters seeking the following orders:

1. That the decision in these proceedings not be published; or

2. That the decision be published using an anonymised name to suppress his identity.

10. However, the Respondent hadn’t been given a copy of the application when it was filed. I allowed submissions to be filed after the hearing for my consideration “on the papers”. Neither party expressed any objection to the Tribunal dealing with these matters on the papers under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), and I am satisfied that an oral hearing can be dispensed with on that issue. I have made orders to that effect below.

11. The Applicant no longer presses an order that the decision not be published. However, he still asks for an order under s 64(1)(a) of the NCAT Act that prohibits disclosure of his name.

12. The Respondent neither consents to, nor opposes, such an order and says it is a matter for the Tribunal.

13. An order under s 64(1)(a) prohibiting or restricting the disclosure of the name of the Applicant (and assigning a pseudonym) can be made “if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any matter or for any other reason”. A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

14. Section 64 of the NCAT Act reflects the principle of “open justice” also contained in s 49 (proceedings will be held in public) and one of the objects in s 3(f) is to ensure that the Tribunal is accountable and has processes that are open and transparent. In Carroll v Tokdogan [2015] NSWCATAD 200 at [7]-[8], the Tribunal said (my emphasis):

“[Section 64 of the NCAT Act] establishes the norm that unless orders are made under s 64 of the NCAT Act, the names of persons involved in proceedings will be contained in the Tribunal’s written reasons for decision. As a consequence, the Tribunal commonly publishes reasons for decisions that contain facts that the parties may not wish to be published and that may disadvantage them or cause them to suffer embarrassment. The practice of the Administrative and Equal Opportunity Division of NCAT, unless otherwise ordered, is to permit its decisions to be published on Australasian Legal Information Institute and NSW Caselaw, which are freely and readily accessible through the Internet.

Given the principle of open justice enshrined in the NCAT Act and the importance of justice being administered openly and in public, in our opinion, the power contained in s 64 should be exercised sparingly.”

15. See also NCAT Policy 2, Publishing Reasons for Decisions, March 2018 at [12].

16. The discretion in s 64 is expressed in wide terms – it must be “desirable” to make the order. In DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92, the Tribunal cited principles arising from State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 (Dezfouli), which considered the following factors relevant to the exercise of the discretion to make a non-disclosure order:

“... (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.”

17. The “presumption in favour of open justice” is a common law principle. In John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143 Kirby P explained (citations removed, my emphasis):

“It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ...”

18. The Appeal Panel in Dezfouli stated at [61]:

“[It] is unthinkable that the word ‘desirable’ in section 75(2) [the ADT predecessor to s 64(1) of the NCAT Act] should be interpreted without regard to the basic common law precept of open justice. What is ‘desirable’ under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting.”

19. The Applicant points to the uniqueness of his name, and alleges a risk of “significant and undue damage” to his professional reputation, a material adverse impact on future employment prospects, and unnecessary/avoidable public disclosure of his personal and family circumstances. He notes that the Respondent has not opposed the suppression order requested, and that the lack of opposition was taken into account as a factor in the granting of suppression orders in Z v University of A, Dr D & B (No 4) [2002] NSWADT 14 at [30]-[31] (Z v University of A, Dr D & B). He submits that disclosure of his identity is “of little relevance to the administration of justice”.

Consideration

20. The Tribunal can only make an order under s 64(1)(a) of the NCAT if satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

21. There is no evidence or matter which I consider to be “confidential” in these proceedings.

22. The question is therefore whether there is “any other reason”. And, following the cases above, that requires the Applicant to show “good grounds” or “unusual circumstances”. It is well established that embarrassment, detriment or damage to a party’s professional reputation – in this case, whether in respect of his single or “dual” occupations (solicitor and/or journalist) - is insufficient without more to ground the making of either an anonymisation or non-publication order under s 64 of the NCAT Act. That is not altered by the Applicant’s submission that he has a “unique” name which readily identifies him as the person the subject of the proceedings, or that he has a profile, or that he has won journalism awards.

23. There are no issues raised that relate to the safety or well-being of the Applicant, or mental health concerns.

24. Accordingly, I find that there are no other matters or circumstances that are “unusual” or which would constitute “good grounds” that would make it desirable to make the order requested.

25. Nothing in the other cases referenced by the Applicant alters my conclusion. For example:

1. Re VC and Australian Federal Police (1985) 8 ALD 587 at [18] does not displace the need to satisfy the Tribunal as to the desirability of making the order by reference to the cases above; and

2. Z v University of A, Dr D & B was an anti-discrimination case involving claims and counter-claims regarding sexual misconduct (at the time of that decision, not yet substantiated). A full reading of the case reveals particular factors and context leading to the conclusion at [30]-[31] that are neither present nor relevant here.

26. I have therefore made orders below refusing the application by the Applicant to suppress his name and, for completeness, his application for a non-publication order.

27. I have also ordered that publication of these reasons be deferred for a period of 28 days after the date of this decision.

The Substantive Matter

28. I now turn to consider the substantive matter regarding the residence requirement in s 12 of the FHOG Act.

Materials before the Tribunal

29. The Applicant relied on his application for administrative review filed 5 September 2024, a Statement by the Applicant filed on 21 November 2024 (referred to below as A2), and written submissions titled “Applicant’s Submissions in Reply” dated and filed on 17 January 2025 (A3).

30. The Respondent relied on documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) on 11 October 2024 (referred to below as R1); documents (including written submissions and an index to tender bundle) filed on 20 December 2024, and an affidavit of Mason Apostolovski affirmed on 20 January 2025 with Exhibit MA-1 containing Uber trip records – notably received after the Applicant’s evidence in reply was filed.

Relevant Facts

31. There were many documents before the Tribunal. The Respondent obtained documents from third parties pursuant to powers under s 36 of the FHOG Act. Further documents were obtained by the Respondent under summonses issued in December 2024, after the Applicant filed his statement.

32. The following facts are therefore drawn from the Applicant’s statement (A2) which was 14 pages long and accompanied by 133 pages of annexures, s 58 documents (R1), documents exhibited to Mr Apolostovki’s affidavit, and to the oral testimony (and cross-examination) of the Applicant before the Tribunal, provided under oath.

Family circumstances prior to acquisition of the Property

33. Before moving to the Property, the Applicant lived with his parents at the family home (Family Home). His father was retired and at home during the day. The Applicant had close personal and cultural ties with his parents.

34. The Applicant had a sister who lived in Europe. She was married, and had a young daughter.

35. The Applicant is not married. He had a partner prior to and during the relevant period. She lived in her own apartment (with housemates).

The Applicant moves in to the Grant Property

36. The Applicant was in his twenties. He had never lived out of home before.

37. He did not need to buy too many things because the Property came pre-furnished with appliances including an oven, dishwasher, washing machine and dryer.

38. The Property was very close to the Family Home; in the same suburb and “down the road”. It was around a 10 minute walk and a quick drive away.

39. Following settlement on 16 August 2019, the Applicant moved essential items from the Family Home to the Property, including a foam mattress, small fridge and a microwave, as well as his clothing and other personal items including toiletries. Given the close proximity of the Property to the Family Home, he moved in, in a “staged manner” over several days and first slept there (on the mattress) on Sunday 18 August 2019 (A2 at [8] ff).

40. In his statement, he said:

“11   Shortly after commencing my occupation of the Grant Property on 18 August 2019, I purchased several items for use at the Grant Property, including:

(a)    a sofa, purchased from Johnny’s Furniture, Granville, on 24 August 2019;

(b)   a bed, purchased from Kogan.com, on 26 August 2019;

(c)   a mattress, purchased from Koala.com, on 26 August 2019;

(d)   a TV, purchased from Facebook marketplace, on 28 August 2019;

(e)   a coffee table, purchased from ebay.com.au, on 4 October 2019;

(f)   a pair of bedside tables and Manchester items, purchased from Kogan.com, on 4 October 2019; and

(g)   a robotic vacuum cleaner, purchased from ebay.com, on 29 October 2019.”

41. Some of these items (particularly the sofa, bed and bedframe) were quite expensive. Supporting invoices, and some delivery confirmations (to the Property address) were provided. Based on the Applicant’s evidence, I find that the large items (sofa and bedframe) were delivered straight to the Property. Some other items were delivered to the Family Home and from there they were taken to the Property by the Applicant in his own car. There was no secure area for parcels or deliveries to be left at the apartment block where the Property was located.

42. By 18 August 2019, the utilities (gas, water and electricity) had been connected. I find that the Property was furnished and equipped with all things necessary for it to be occupied as a place of residence on and from 18 August 2019, including a bed in the form of a foam mattress. That finding is not altered by some further acquisitions made after that date.

The Applicant’s lifestyle

43. The Applicant was (and is) a solicitor. He worked for a large commercial law firm with offices in Sydney CBD. He worked full time. He usually travelled to and from work by train.

44. He said in his Statement that he worked more than 75 hours a week, but that was stated to be “to his best recollection”; at the hearing he revised that to an estimate of 65-70 hours including 2 hours travel time (based on a review of summonsed documents obtained by the Respondent after his statement was filed). I do not consider this change to be material, particularly given the passage of time and the absence of documents before him at the time of his original statement. Long hours are standard for a young solicitor in a major Sydney legal firm. In any event, he no longer works at that firm, and the events were 4+ years ago.

45. He would usually drive to the train station before catching the train to the CBD. The train trip was around 1 hour each way. He would sometimes drive to his parents’ house to see his dog, and go from there.

Amount of time and pattern of occupancy

46. The evidence was that during the period of claimed occupation, excepting during the repair of a water leak discussed below, the Applicant usually slept at the Property and would continue to keep his car there, watch television, read books, eat some meals (but admittedly rarely cook) and occasionally host friends and relatives there (A2 at [29]). He produced communications with the strata manager regarding the connection of utilities, and a complaint about someone parking in his parking spot in the communal garage (A2, Annexures F and M).

47. However, he also accepts that he spent a considerable amount of time elsewhere during the relevant period, due not only to his work commitments but also his lifestyle, i.e:

1. Social Life: He had a very active social life. He would socialise with work colleagues and/or his friends, often in town.

1. Relationship: He was in a relationship at the time, and would go out with his girlfriend and spent time at her apartment (A2 at [27]; amended from a percentage of a “best recollection” of 25% to up to 15% weekends and weeknights). At the hearing, he said after he moved in, she also came to stay at his place (she had 2 housemates). He confirmed that this relationship had ended around 2019 or thereabouts.

2. Cricket: He played cricket on weekends (all day Saturdays) and captained a team (A2 at [48(a)], Annexure K). He would often go out for pizzas or something else to eat afterwards.

3. Gym membership: He had a gym membership (A2 at [48(b)], Annexure L). He would regularly go to the gym at Circular Quay or Wynyard whether before, after or during work hours. On days he attended the gym, he would shower there or at work afterwards.

48. Otherwise, he would use the apartment to prepare some meals such as breakfast and bring food back for dinner.

49. He explained how he would regularly (but not always) eat breakfast, lunch and dinner in (or proximate to) the office, especially on weekdays: Statement at [20]-[23]. He told the Tribunal he would eat meals sometimes with clients, or when out with his friends or (as noted above, his cricket colleagues). He pointed to evidence in his bank statements of purchases at various restaurants and outlets, and to meals with clients in North Sydney. If working late, he would usually have dinner at work – often with others (which would be reimbursed).

50. I note and accept the explanation in his Statement at [19] regarding his eating arrangements and grocery purchases – where he pointed to his pattern of spending while at the Property, and to at least 55 transactions recorded at supermarkets in the vicinity of the Property during the alleged residence period. He explaining he “rarely cooked”, preferring something he could just purchase ready made and eat; he also ate meals with his parents at the Family Home, and his mother sometimes gave him leftovers to eat the following day at work or at home.

51. He also pointed to his Amex statements which were not explored in cross-examination in any detail. They reveal a lifestyle of one-off food purchases, visits to Melbourne, dining out, Menulog, cab rides and takeaways from the CBD and the Hornsby area.

Visiting his parents (and somewhere to stay while water leak repaired)

52. A central matter in this case revolved around time spent at the Family Home during the residence period.

53. It is not unusual for young people, living out of home for the first time, to spend time at their parents’ house – particularly if they live close by. In this case, I am satisfied that the Applicant had a close relationship with his family and strong cultural ties as well.

54. As noted above, it was not unusual for the Applicant to eat some meals there. He said he possibly did some laundry there as well. He was now paying a mortgage, and saving money may also be an explicable factor.

The family dog

55. The Applicant’s dog was unable to live at the Property. It was old and became unwell, eventually undergoing surgery in November 2019. This was another reason to visit the Family Home on a regular basis to check up on the dog. There were extensive vet records before the Tribunal, as well as photographs after the operation, and bank records evidencing payment of bills by the Applicant personally, in support of his Statement that he bore primary responsibility for the dog (A2 at [25]-[26] and Annexure E).

Water leak

56. The Applicant said he had to move out for 3-4 weeks around October-November 2019. The Applicant discovered in October 2019 that water was leaking in the apartment, the leak apparently coming from the kitchen. The circumstances are explained in his Statement (A2 at [37]-[39]). The Applicant was clearly on site at the Property in order to identify that there was a leak.

57. He notified the property manager that water was pooling under the floorboards. He was told he should stay elsewhere while the repairs were done. He went to stay at his parents’ house, taking with him some clothes and personal items for the duration of the repairs being undertaken, and moved back in as soon as it was done. Before leaving, he had to move furniture out of the kitchen/lounge room area into the bedroom.

58. He provided photographs relating to the subject works underway on 6 October 2019 and a notice from the builder confirming the completion of the works on 4 November 2019 (A2, Annexure I).

59. I find that those circumstances were out of his control and unforeseen when he moved into the Property.

Sister visiting from overseas

60. His sister (and her young daughter) came to visit from overseas in November for a couple of months, staying with his parents. They had Christmas together, and her husband also came over at some stage.

Water use

61. The Respondent produced water bills from Sydney Water which they said revealed the following water usage:

1. 17 July 2019 to 8 October 2019: average daily usage 11 L;

2. 9 October 2019 to 8 January 2020: nil average daily usage; and

3. 9 January 2020 to 7 April 2020: average daily usage 244L.

Applicant’s evidence as to use

62. The Applicant provided an explanation of his water use, and also noted time spent at his partners’ house “to the best of his recollection” (A2 at [27]), a percentage he revised to 15% at the hearing based on his review of further documents produced under later summonses issued by the Respondent.

63. He referred to his absence from the Property during October and early November 2019, and his practice to either take short showers, or to shower at the gym or at work (A2 at [36]).

First bill – average daily usage

64. On the basis that the Applicant could not have moved into the Property until 16 August 2019 at the earliest (settlement), it appears that the average daily usage in respect of the first bill should be for 51 days rather than 84 days, and adjusted to a higher amount of 18L (vs 11L) average daily use. It is also unclear whether the meter reading was 2 kilolitres as at 8 October 2019, and 1 kilolitre for the “last reading” (for which no charge appears to have been made).

Second bill - Water leak at the Property

65. The Applicant did not directly address the second bill which showed “nil” usage during the period from 9 October 2019 to 8 January 2020. The works were undertaken to repair the water leak during the period of this bill. Without further explanation, I am unable to conclude whether or not there was an adjustment made for this issue which led to “nil” being recorded. The water bills were presented by the Respondent, and there was no additional explanation as to whether or not that would occur. In those circumstances, and noting that it would have been necessary – at least – for the plumbers to use water to test the plumbing had been fixed, I treat this evidence of “nil” water usage with a high degree of caution. It is also not explained whether a reading of less than 1 kilolitre during the period would lead to any recording of “average daily usage” or not.

Third bill

66. There was no similar issue with the third bill (at R1, p597).

Electricity Usage

67. Electricity usage was shown as follows on Origin Energy bills produced by the Respondent:

1. 2 to 30 October 2019: average daily usage 1.96 kilowatt hours (kwH), against an average use (for a one-person household) of 10 kwH;

2. 31 October to 29 November 2019: average daily usage 0.86 kwH, against an average use of 10 kwH;

3. 31 November to 30 December 2019: average daily usage 4.03 kwH, against an average use of 10 kwH;

4. 31 December 2019 to 30 January 20210: average daily usage 4.03 kwH, against an average use of 10 kwH; and

5. 31 January to 28 February 2020: average daily usage 2.40 kwH, against an average of 10 kwH.

68. The Applicant’s Statement noted that the original decision of the Respondent said that there were “no records” for electricity at the Property prior to October 2019. It is clear from the documents above, however, that these have now been located and that the electricity had been connected.

69. The Applicant said that the electricity usage reflected his lifestyle. He said that the relevant period was in spring and summer he didn’t use airconditioning, and sometimes used a standing fan. The Applicant provided (at AS [31]-[35]) a comparison by way of a comprehensive breakdown of his current level of electricity usage – noting his changed employment circumstances (employer, work hours and working from home arrangements), no current gym membership (versus showering at the gym during the residence period, which he regularly attended), no visiting relatives, no current relationship and changes to his cooking arrangements.

Addresses and deliveries

70. The Applicant’s drivers licence address was changed from his parent’s house to the Property from 2 September 2019, and from the Property back to his parent’s house from 28 February 2020 (R1 pp 584, 858).

71. Some documents such as bank statements continued to be addressed to the Family Home (R1 p 529, 629). The Applicant produced evidence, however, of Amex bills being sent to the Property address (R1, p 538).

72. There were car insurance documents listing the Family Home address dated in May 2019 (prior to commencement of the occupation of the Property). He explained that the car was in the same suburb so he did not believe any change in premiums would result. He also pointed to a Compulsory Third Party Green Slip Certificate addressed to the Property, which was issued in and dated January 2020.

73. Water and electricity bills were sent to the Property.

74. I find no issue with some deliveries of value being directed to the Family Home; I accept the reasons given relating to risks of such deliveries to an apartment when the occupant may be at work, in the absence of a secure area to leave them. The Applicant also provided details in his Statement, including contemporaneous emails, regarding issues having things delivered to the Property.

Overseas Trips and declaration cards

75. The Respondent raised concerns regarding an incorrect address on an inbound passenger card. Around 13 September 2019 (less than 30 days after moving in), the Applicant flew to Fiji for a work conference. When he flew back on 16 September 2019, he completed the incoming passenger card with the Family Home as his residential address. He said this was an oversight, as he had been used to completing this address for the last 9 years. (See also his objection at R1 p 961).

76. I accept this was an oversight. Because shortly afterward he went on a quick holiday to New Zealand, returning later in September 2019 and recording the Property as the residential address on his incoming passenger card.

Moving out

77. The Applicant said that he moved out of the Property, and back to the Family Home, on 20 February 2020. The circumstances are explained in his Statement at [50]. The documents show on 20 February 2020, a bed and sofa were removed from the Property and transported there (AS, Annexure N). This was one day different to the departure date stated in the Residence Declaration (which said 21 February 2020).

Lease of the Property after departure

78. The Property was rented to tenants from 22 February 2020. This was after the expiry of the 6 month relevant period.

79. There is no evidence that he had an intention to do so at the time of purchasing the Property. There was an agency agreement signed on 14 January 2020 (R1 p 864). It stated that no pets were to be kept on the premises. The Applicant completed the agreement stating the Property as his then current address. The Applicant explained in his written submissions:

“My decision to lease the [Property] from February 2020 onwards was driven by financial considerations and changing family circumstances, primarily the health of my ageing dog [now deceased], as is clearly documented in the Written Statement and supported by objective documentation including veterinary consultation notes. It is relevant to note that I incurred considerable expense in connection with my dog’s ailing health during the Residence Period, such that my financial circumstances had changed.”

22 February 2020 – the Property is leased

80. There is no dispute that the Property was tenanted from 22 February 2020. This was after the expiry of the alleged 6 month residency period. A decision to do so prior to expiration of the 6 month period is not relevant in my view.

The Residence Declaration

81. In completing the Residence Declaration sent to the Respondent on 24 February 2024, the Applicant said he did not “occupy another property as a residence during the above period”.

82. In cross-examination, he was taken to this declaration, and asked whether that was correct. The Applicant said that the questions on the form were inconsistent (“weird”), referring variously to “lived in”, “resided” and “occupied” at different times without explanation as to any difference. He maintained that the word “occupied” had a legal meaning, and he had consistently “occupied” the Property for the stated period in the legal sense. Accordingly, in response to the question, he had stated “no”.

83. It was also put to him that if he was not sure, he should have “overdeclared” if he was in doubt (i.e. ticked” yes” and disclosed that he lived at his parents’ home while the water leak was repaired).

84. The Applicant disagreed and said that it was simply his interpretation of “occupy”, and should not answer what he did not believe to be the correct response. He drew a distinction between “staying” at someone else’s house with their permission, versus “occupying” it (whether his parents’ house, or his girlfriend’s apartment).

85. The Applicant also explained the form did not even permit a proportion of time, only “how many days per week” (consistent with his statements in the objection at R1 p 960).

86. I find that there is nothing of material concern in respect of the Residence Declaration. I agree that the form is quite confusing regarding the use of different terminology, and that the Applicant has explained his reasons for completing it in the manner he did.

Uber and Opal card records

87. The Respondent issued summonses after the Applicant filed his Statement. The summonses resulted in resulted in further documents which had not been previously seen by him, including information from Uber.

88. The Respondent went to some lengths with this information, as presented in the affidavit of Mr Apostolovski. I admire their diligence in doing so, but the end result was, in my view, a small part of the overall circumstances.

89. In respect of the Uber trips, dates, times and co-ordinates (but not drop off addresses) were on the information received from Uber. So for each trip, the Respondent undertook a task which involved locating the co-ordinates on Google maps, and determining the exact place of pick up and drop off.

1. Some trips revealed some drop-offs to the Family Home, but none to the Property. The Applicant confirmed he would have taken the trips, and may have been dropped off at the Family Home on some occasions; he also sometimes parked there before catching the train. As explained in his submissions:

“… while I recall occasionally taking an Uber to the [Family Home], this would likely (but not exclusively) have been to feed or walk my dog prior to me returning to the [Property], which was within walking distance of the [Family Home].”

2. Further, one of these trips was from the Family Home to Sydney International Airport; the Applicant said this was explained by the fact that he took his car to the Family Home to park it in their garage while away, rather than in the communal garage at the Property;

3. Of the 60 recorded trips, only 8 referenced an address of the Family Home. Many of the other trips were from his work to the train station. Others revealed travel to places such as Rod Laver Arena, the SCG, overseas locations, and possibly to homes of his partner/friends.

4. The Applicant also said that he would travel home from work by “Uber or cab”. Accordingly, there may have been other trips not in evidence before me; understandably, they were not obtained by the Applicant.

90. The Respondent undertook a similar exercise in respect of the Uber meal deliveries. 3 of the 12 deliveries were to the Family Home; others appeared to have been delivered to other locations, including to his work address.

91. The Applicant confirmed that there would have been some deliveries to the Family Home; he would sometimes order in meals so his mother didn’t have to cook (in some cases when he wasn’t eating there himself). As explained in his submissions:

“While I cannot now recall the specific reasons that I ordered Uber Eats deliveries to [the Family Home] during the Residence Period, it is relevant to note that I would often (and still occasionally do) order meals on Uber Eats for my parents, whether or not I am in fact present at the [Family Home] or otherwise present for the meal.”

92. There may have been Menulog deliveries, but no summonsed documents were before the Tribunal.

93. The Opal card records related to the Applicant’s train trips. The Respondent spent some time pointing to trips on particular dates and times in cross-examination, in support of their submission that 65-70 hours including the commute “did not marry” with the records. There was not, in my view, an “average” work time disclosed. The Applicant noted that he returned home much later than 9-10 pm on around 20-30 days, so it was not possible to settle on an “average”. I have not done a full analysis or reconciliation. It is clear from his evidence that whatever he had originally said was without the benefit of Opal records, that it was an estimate only, and that it remained an estimate as he had not undertaken a full analysis. I do not find it necessary to determine the specific hours of work (estimates or otherwise) in determining the relevant facts.

consideration

Jurisdiction

94. The Applicant filed an objection to the Assessment, and the Tribunal has jurisdiction to determine this application, which was filed within time.

Onus of proof and the task of the Tribunal

95. The Applicant has the onus of proving his case on the balance of probabilities: s 28 of the FHOG Act.

96. In Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614, the High Court approved the following statement of principle by Mason J in Gauci v Federal Commissioner of Taxation [1975] 135 CLR 81 at 89:

“The [Income Tax Assessment] Act does not place any onus on the Chief Commissioner that the assessments were correctly made. Nor is there any statutory requirement that the assessments should be sustained or supported by evidence. The implication of such a requirement would be inconsistent with s 190(b) for it is a consequence of that provision that unless the appellant shows by evidence that the assessment is incorrect, it will prevail.”

97. This approach has been adopted by the Tribunal in other provisions of NSW revenue legislation, and in respect of s 28 of the FHOG Act.

98. In Levitch Design Associates Pty Ltd ATF Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 215 at [27], the Tribunal acknowledged that the taxpayer’s evidence must not be regarded as prima facie (at first appearance) unacceptable and must be considered on its merits, in the circumstances of the case, without any prepossession, favourable or unfavourable (citing McCormack v FCT (1979) 143 CLR 284 at 302 per Gibbs J).

99. The task of the Tribunal is to review the original decision (the Assessment which was objected against): s 28(1), FHOG Act. The Tribunal may confirm, vary or reverse the Assessment, or make any other orders it thinks fit: s 29(1), FHOG Act.

The residence requirement

100. Section 12 read, at the relevant time:

12 Criterion 5—Residence requirement

(1) An applicant for a first home owner grant must:

(a) commence occupation of 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 the period approved by the Chief Commissioner under this section, and

(b)  occupy the home as a principal place of residence for a continuous period of at least 6 months or the period approved by the Chief Commissioner under this section.

(2)  This requirement is referred to in this Act as the residence requirement.

(3)  The Chief Commissioner may, if satisfied there are good reasons to do so, do either or both of the following:

(a)  approve the commencement of occupation by the applicant of the home to which the application relates as a principal place of residence more than 12 months after completion of the eligible transaction,

(b)  approve the occupation of the home as a principal place of residence for a period of less than 6 months.

(4)  The Chief Commissioner may, if satisfied there are good reasons to do so, exempt an applicant from the residence requirement.

(5)  An approval or exemption under this section may be given by the Chief Commissioner at any time, even if the period of 12 months after completion of the eligible transaction has already expired or the applicant’s occupation of the home as a principal place of residence has already ceased.

…

101. There are various discretions available under s 12, including a discretion under s 12(4) to exempt an applicant from the residence requirement “if there are good reasons to do so”. This was an alternative ground in the Applicant’s objection (R1 p962).

The Respondent’s submissions

102. The Respondent’s submissions (which were filed prior to the Applicant’s “submissions in reply”), revolved around the onus of proof, and the following issues:

1. the limited time spent by the Applicant at the Property (and, as a result, limited activities undertaken there);

2. changes or inconsistencies arising from the Applicant’s statement regarding time spent at work and at his partner’s home;

3. the Applicant’s failure to call corroborative evidence from other witnesses;

4. the objective evidence – in particular, the low utilities usage (including the “nil” water usage for a period); and the Uber records showing trips and meal deliveries to his parents’ house and not to the Property; and

5. the Applicant’s own evidence that he lived, for a time, at his parents’ house during the alleged residency period while a water leak was being repaired; noting that in his Residence Declaration he declared that he did not occupy another property as a residence during the alleged residency period.

The Applicant’s submissions

103. The Applicant says that his occupation of the Property between 18 August 2019 and 20 February 2020 “plainly satisfies the statutory test for a principal place of residence when assessed objectively and taking into account relevant case law”.

104. His submissions drew particular reference to the cases of Bulgak v Chief Commissioner of State Revenue [2015] NSWCATAD 237 (Bulgak) and Mohamed v Chief Commissioner of State Revenue [2012] NSWADT 169 (Mohamed), particularly in regard to utility consumption, lifestyle, connections to the Family Home, and evidence in support of his case not present in those decisions.

105. He said that Bulgak applied directly to the present circumstances, where his absences from the Property were plainly due to personal, professional and family commitments and which had been improperly disregarded by the Respondent in its submissions. In that case, the Tribunal noted at [163]:

“In circumstances where the applicant admitted that he spent very little time at the property (as he was working and attending university), the low levels of electricity use do little to rebut his account of residing in the property and indeed I don’t understand there to be a genuine challenge to his account of his occupation of the property and his lifestyle habits”.

106. He also pointed to the length of time that had transpired since the relevant events occurred, a matter referred to in Mohamed where the Tribunal said (at [28]-[29]):

“One of the problems with this case is that the Commissioner’s revie of Ms Mohamed’s FHGOG and duty reduction status was undertaken so long after the event. It was a full four and a half years after the date on which she claims to have moved into the property, when the Commissioner commenced his revie of her entitlements.

…It is not at all surprising that there will be some shortcomings in [the applicant’s] recollection, or that [the applicant’s] attempts to reconcile the electricity and water consumption figures will contain some imperfections.”

Principal place of residence

107. The FHOG Act does not define “principal place of residence”. However, the case law contains guidance on what is a principal place of residence. That term takes its ordinary meaning in the context in which it appears: Black v Chief Commissioner of State Revenue [2011] NSWADT 66, at [82] (Black).

108. The cases generally consider the meaning of ”principal place of residence” as a whole phrase. There, however, are two relevant elements contained within the phrase. The first is that of ”residence”. The second is that the relevant property must be the ”principal” place of residence. The notion of principal place of residence, in other words, ”acknowledges that a person may reside at more than one place …... It provides that only one of those places however can constitute the “principal” place of residence” (Black at [81]). In the present case, where the Applicant spent a considerable amount of time at both the Family Home and the Property, it is appropriate to ask which was the ”principal” place of residence during the relevant period.

109. Consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of circumstances relating to the occupation of the dwelling. The intention of the person concerned is relevant. However, it needs to be gauged objectively, and is not determinative of the issue (Tobin v Chief Commissioner of State Revenue [2009] NSWADT 188, at [45]). In Black, the Administrative Decisions Tribunal (ADT) described what a principal place of residence is at [82] (having regard to factors arising from Chief Commissioner of State Revenue (RD) v McIlroy [2009] NSWADTAP 21 (McIlroy) and Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41 (Ferrington)):

“….. consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling ...

…. the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue ...

…. to occupy a home as his or her principal place of residence a person’s occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose ...

…. the short length of a person’s residence, while relevant, is not determinative of the issue. ... This is so since a recipient’s occupation of a home, while short, may have the requisite degree of permanence to it. But that will not happen if, when considered objectively, the occupation was transient, temporary, contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time on a transient, temporary, or contingent basis, but one can also occupy for a short time as one’s principal place of residence. It is the nature of that occupation which provides the element of permanence. The fact that a period of actual occupation is short, as in the present case, will in practice make it harder for a recipient to show that the occupation was as his or her principal place of residence, but it will not make it impossible ....

…. the reasons for a person’s departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances ... In Bates the Tribunal said that “whether the reasons for not residing at the property were as a result of matters entirely out of the control of the applicant” was a factor to be considered. While that is undoubtedly correct, it should not be read as stipulating a requirement that the reasons for departure must be entirely out of that person’s control. The facts in Gaines illustrate that there are circumstances, peculiar to the individual concerned, which may, objectively viewed, adequately and reasonably explain a person’s decision to move out of a property, but which are not entirely out of the person’s control”.

110. The ADT then summarised the following factors going to the determination of whether premises were someone’s principal place of residence, at [84]:

“a. the amount of time that the residence is occupied and the pattern of occupation (McIlroy (supra) at [46]-[47]);

b. the listing of the address of the person, for official purposes such as on a licence or on an electoral roll (although it is noted by the Tribunal that these are not necessarily conclusive evidence that the address is the principal place of residence) (Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP at [50], McIlroy (supra) at [47].)

c. respective rights in respect of the two properties (Mesiti (supra) at [61]).

d. relative location of clothing, furniture and possessions (Mesiti (supra) at [61]; Yen-Cheng Chuang v Chief Commissioner of State Revenue [2009] NSWADT 160 at [21]).

e. where family members reside (Mesiti (supra) at [61], McIlroy (supra) at [46]).

f. the strength of ties and connection with the residence (Mesiti (supra) at [61], McIlroy (supra) at [46]).

g. utilities usage (Tobin v Chief Commissioner of State Revenue [2009] NSWADT 188 at [49], Yen Cheng (supra) at [21]).

h. the address to which bills are sent (Tobin (supra) at [48]).

i. the nature of insurance held for each property (Tobin (supra) at [18]).

j. where the person eats, drinks and sleeps (Yen-Cheng (supra) at [19]-[21]).

k. where a person entertains friends (Yen Cheng (supra) at [21]).”

The evidence presented by the Applicant

111. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.  It must not, however, ignore the commonly accepted rules of evidence: as noted by Evatt J of the High Court in R v The War Pensions Entitlement Appeal Tribunal and another; ex parte Bott (1933) 50 CLR 228 at 256:

“Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, ”bound by any rules of evidence”. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and illicit truth. No Tribunal can, without grave danger of injustice, sit then on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such do not bind, every attempt must be made to administer ’substantial justice’”.

112. And as Deputy President Forgie of the Administrative Appeals Tribunal explained in Re Optimise Group Pty Ltd and Commissioner of Taxation [2010] AATA 782 at [32]:

“[32] For all practical purposes, there is often little difference between the task of a court bound by the rules of evidence and that of the Tribunal in assessing the relevance and probity of material. Each must assess the weight that it gives to the pieces of evidence or other material that it has. Each must also consider the weight, if any, to be given to the failure of a person to produce evidence or material in its control or to call a witness who might be expected to have relevant evidence. When considering omission, the principles in Jones v Dunkel are, on their face, just as relevant in Tribunal proceedings as in court proceedings even though they are regarded as among the rules of evidence.”

113. Accordingly, although there is no statutory requirement for an applicant to produce as a witness any particular person or produce any documentary evidence (see Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 83 ATC 4015), it remains necessary for the Applicant to produce sufficient evidence to discharge the onus. Part of that evidence may, as here, comprise documents or correspondence in the s58 materials.

114. In this case, I had the benefit of seeing and hearing from the Applicant, and have considered the evidence and submissions that he presented. I have had regard to his character references, from his employer and family friend. The Applicant is a solicitor (but not a litigator), and understands his obligations under oath. He presented to the Tribunal a cogent account with candour and without embellishment.

115. I found the Applicant to be credible and open in providing his evidence. Nothing relevantly “threw doubt” on his truthfulness nor were his responses illogical or irrational:

1. He took his obligations in providing his evidence seriously, and caveated his written statement on “best recollection” or estimates where appropriate in the absence of supporting documentation.

2. When presented with further documents obtained by the Respondent under summons late in these proceedings, the Applicant provided open and cogent explanations to the extent he could recall the relevant events.

3. In that context, I do not find that the amendments made to his Statement were significant, in circumstances where a long period of time had elapsed since the events in question and – in any event – they necessarily remained an estimate. Specifically, I do not find that the Opal or Uber records cast doubt on his statement such as to show it to be implausible, taking into account the amendments he made to estimates at the commencement of the hearing in light of the records later produced.

4. Unlike Peng v Chief Commissioner of State Revenue [2022] NSWCATAP 378 at [65], there was no evidence of dishonesty which (in that case) cast doubt of the veracity of the evidence presented.

116. The current case can be contrasted with Fava v Chief Commissioner of State Revenue [2024] NSWCATAD 363; there, a finding was made regarding “compelling evidence” that contradicted the applicant’s assertions, leading to a finding that he did not during the six months period have a connection to the property as a home (see [42]-[43]).

117. The absence of any other witness is not, in my view, of such significance as to cause me to significantly lower the weight of his evidence. I find that the circumstances in which his parents did not provide a statement (the Applicant stated they were overseas when his evidence was due to be filed, and he was concerned to spare them the stress of presenting evidence, due to their age and limited English) has not diminished the efficacy of his testimony in this particular case. I find that the absence of a statement from an ex-partner is understandable. Nonetheless, it is important in these circumstances to assess the Applicant’s statements against the objective evidence presented.

118. In respect of the key matters, I find as follows.

Not tenanted / full occupancy

119. The Applicant was the legal occupant of the Property, and it was the only property he owned.

120. It was not rented out until after the alleged residency period. I do not find anything untoward in the rental of the Property following the end of the residence period. The legislation required only a 6 month period to be established in order for the conditions to be satisfied. He was entitled to rent it out when the conditions of his grant had been satisfied, as they were here.  In some circumstances, later rental of a property may indicate an intention that the property was never intended to be the principal place of residence of the buyer, but I do not find that to be the case here in light of the evidence presented above.

Applicant moved in

121. I find that the Applicant moved into the Property and commenced to occupy it as his residence on 18 August 2019.

122. The essential items for occupation as a residence were in place from that date (contrast Re Ziino v Commissioner of State Revenue [2004] VCAT 1707). Electricity and water were connected. It was a new build, and everything was functional. Items were moved into the Property on 18 August 2019. He commenced to sleep there from that night. 18 August 2019 was a Sunday. He was a young man living on his own for the first time, and in those circumstances sleeping on a foam mattress until a bed arrives is neither implausible or out of the norm.

123. See also Yen-Cheng Chuang & Anor v Chief Commissioner of State Revenue [2009] NSWADT160 (Yen-Cheng Chuang) at [24] where only “a few items of furniture” were present at the property and “he only brought a few personal essentials to the property and … all his other belongings remained at the residence occupied by his wife and children”.

The nature of the occupation

124. The Respondent submitted that there was nothing to show “the nature of the occupation”. I disagree. I do not find, as was the case in Zgrivets v Chief Commissioner of State Revenue [2023] NSWCATAD 314, that the occupation was with “such a light touch that it is difficult to describe [him] as having lived there, or resided there.”

125. I am satisfied as to the nature of the occupation by reference to his age, work and family commitments and lifestyle:

1. He worked long hours at his job in the CBD, and socialised outside the Property, including cricket and other activities;

2. He was in a relationship and spent some time at his partner’s home;

3. He went to the gym regularly, and would shower at the office or at the gym afterward;

4. He admittedly rarely cooked at the Property.

126. There are some photographs of the Property and the Applicant at the Property, email correspondence regarding his inability to park the car on the Property, and his sworn statement referring to his activities in respect of eating, drinking and his extensive work and social activities. In circumstances where the relevant events occurred four years ago, the absence of a daily account of what occurred is understandable. It is also unsurprising that a young man living on his own with a full work, sporting and social life does not tend to entertain much at home or hold dinner parties. His social life occurred outside the apartment.

127. The Applicant confirmed in cross-examination that no parties were held at the Property. I find that unsurprising, given it was a brand new apartment.

128. I also note that he referred to the Property as “his home” or being “at home” in correspondence, and in his cross-examination he said he preferred to go “home” to change out of a suit, before visiting his dog – because his dog would get dog hair over his good clothes.

129. This position can be contrasted with the overall facts considered in Zakariya v Chief Commissioner Office of State Revenue [2003] NSWADT 26 where Needham J concluded at [18]:

“The phrase “principal place of residence” does not assume that an applicant need only live at one place, but that she or he may have two or more places of residence. However, the grant may only be paid in relation to the “principal” one of those places; that which the applicant regards as his main residence or home. From the corroborating evidence such as the address of the applicant shown on the contracts for purchase and sale of the Eaglevale property, and from the lack of any corroborating evidence as to his use of the Eaglevale property as his mailing or other address, it appears that the Eaglevale property was a subsidiary and not a principal place of residence for the applicant.”

130. Having regard to his lifestyle, the nature of his occupation had the required degree of permanence.

131. I have had regard to the decisions in Mohamed and Bulgak and, despite the differences in their own specific facts, they clearly reference the need to have regard to the actual circumstances relating to the Applicant: here, a young person with work commitments, social, sporting and family activities; all of which I am satisfied resulted in a reduced amount of time spent at the property; furthermore, it is to be expected that a person living out of home for the first time would spent time visiting and eating with their parents – particularly, where here, the Family Home was close by. I note the following comments in Pascuzzo v Chief Commissioner of State Revenue [2025] NSWCATAD 49 (a decision handed down by this Tribunal, albeit in the context of similar provisions in the Duties Act 1997 (NSW), shortly after this hearing):

“What is a person’s principal place of residence will not turn on a set of fixed criteria that apply with uniformity and without distinction to each and every person. Making a determination of the question on the basis of a hypothetical minimum amount of time that must be spent at a residence or by relying on data as to the average usage of utilities, will not allow the individual circumstances of each person to be taken into account. Determination of what is a person’s principal place of residence needs to take account of the particular lifestyle and circumstances of the first home buyer (Mohamed, at [30]-[33]; Bulgak, at [152]).

For a young person in the circumstances of the Applicant, close continuing engagement with their family immediately after moving from home may not be unusual (eg see Mohamed, [18]-[19]). Equally, the Applicant’s evidence was that he spent time outside the apartment socialising with his friends on weekends and on week-nights and with his partner’s family. These are circumstances that may result in more limited use of a person’s residence, compared to those of a person living in a long-established home. A young person who has just moved out of home will not have the same lifestyle as that of a settled family or a single person living in an established home. However, a lifestyle that involves spending less time at home should not be a circumstance that prevents or hinders the person’s principal place of residence from being characterised as such.”

132. I am satisfied that the Applicant has explained the relevant circumstances to my satisfaction.

Residential addresses

133. Key documents (drivers licence and electoral roll) were registered to the address of the apartment for the relevant 6 month period. As a lawyer, he is aware of the legal requirements to do so. I find that these are factors supporting his submission that the Property was occupied as his principal place of residence at this time: Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP 57.

134. Utilities bills were sent to the apartment. To the extent that other documents were sent to the Family Home, they are not considered material given the Applicant’s close proximity. Although car insurance documents were addressed to the Family Home, they predated the period start date; and the CTP Green Slip Certificate dated January 2020 was addressed to the Property. I accept the reason given why some deliveries were made to the Family Home; noting the objective evidence referencing issues with an undelivered item.

135. He adequately explained the reason for the error on his first incoming passenger card, rectified on the second.

Home and home contents insurance

136. The absence of home contents insurance is not inconsistent with his occupation of the Property as his principal place of residence: see Ferrington at [4], referring to McKellar v Chief Commissioner of State Revenue [2004] NSWADT 22 (McKellar) where the Tribunal found in favour of the taxpayer despite having “insured the building, but not the contents, as [McKellar] did not have a large amount of furniture”. In this case, although not apparent in the evidence before me (or of any great weight), it is likely that building insurance was covered by strata fees paid to the body corporate.

Usage of utilities (water and electricity)

137. Low energy and water consumption is a factor that can go against the conclusion that premises are being occupied as a principal place of residence.

138. Both parties referred to the decision in Mohamed, which described the taxpayer’s lifestyle in the following terms, at [31]-[34]:

“Ms Mohamed herself explained how little time she actually spent in the property. But she also emphasised that she slept there most nights. It was her home. I believe her, and I believe her sister.

However, despite believing them, I would reject Ms Mohamed’s claim if the objective evidence cast sufficient doubt on their version of events as to make it implausible. It does not.

The electricity consumption is consistent with the lifestyle she has described, in a property with no air conditioning, no heating and no hot water. And as far as the water consumption is concerned, once it is accepted that accounts disclosing 2 kilolitres of water consumption (initial meter reading of 659; final reading of 661) may actually reflect use of virtually 3 kilolitres (if the final reading represents 661.99 and the initial reading represents 659.01), the objective evidence does not undermine Ms Mohamed’s claims. The water usage is extremely low, but so it should be, in the circumstances she has described.

The spreadsheets Ms Mohamed produced to analyse the electricity and water consumption need to be seen for what they are - attempts to demonstrate how her claimed use of the property could fit within the consumption levels, rather than precise, minute-by-minute tracking of flushing the toilet, and filling and boiling the kettle”.

139. Mohamed, of course, turned on its own facts. It is clear, however, that an overall assessment of the Applicant’s particular circumstances is required to establish the context in respect of questionable usage.

140. Nonetheless, I find that a deep excursus into utilities usage compared to an “average person” is problematic where the Applicant’s lifestyle and other circumstances would support a lower-than-usual usage. I am satisfied that the Applicant has adequately explained his lifestyle - the circumstances of his work, social, sporting and family/dog commitments – and the period of absence for the water leak (discussed further below); it provides an explanation for electricity and water usage below that of any “average” person.

141. I do not find that the analysis undertaken by the Respondent is necessarily correct (i.e. the days have not been adjusted), complete, or fully explained, such as to cast sufficient doubt on the matter.

142. To the extent of the water bill showing “nil” usage, it is unexplained whether or not this is attributable to the water leak that needed to be repaired. And low electricity usage pointed to by the Respondent is also not determinative of the matter, albeit a factor that must be considered.

143. Further, the Applicant has sought to establish, in some detail and by reference to current bills, how the relevant utilities usage over the period in question was broadly comparable having regard to relative differences in circumstances at the relevant times (AS at [31]-[36]).

Travel and Uber records

144. A lot of time at the hearing was spent reviewing the travel and Uber records. I have reviewed them further after the hearing. They are important to consider because they are objective evidence. But it is also important to consider them as one aspect of the wider context set out above, including the close proximity of the Property to the Family Home.

145. This is not a case where the Applicant’s version of events cannot on any rational view be accepted.

146. A wide objective assessment is required. A mathematical or formulaic exercise to recreate “average facts” is not possible. Nor do days spent in a particular location necessarily assist. As stated in Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP 57 at [57], discussing the “principal place of residence” exemption for land tax purposes (my emphasis):

“Another strong indication is the fact that she spent practically all of her time living there, and little time living at the Willoughby property…. It is a fair inference… that she was not spending as much time at Willoughby as she had during 1997 and 1998. That fact also does not conclusively demonstrate the conclusion, and it would be wrong to decide that a place was the principal place of residence merely, or even mainly, on the basis of a comparison of times spent in each…”

Absence from the Property

147. The Applicant’s absence from the Property for the period of repair of the water leak was a matter outside his control, and in those circumstances I find that the nature of his stay at the Family Home was temporary and transient. I find it did not relevantly end his occupation of the Property as his principal place of residence during this period.

1. The reasons for his absence are adequately explained;

2. He was told he should not remain at the Property while the repairs were being done;

3. There are photographs relating to the relevant issue; and

4. His furniture remained at the Property at all relevant times in the alleged residence period, notwithstanding everything had to be moved out of the main living area and put into a bedroom.

148. The fact that a taxpayer has for a period slept at another residence does not make that property his or her principal place of residence. The whole of the circumstances need to be taken into account: Raissis v Chief Commissioner of State Revenue [2021] NSWCATAD 99 at [65].

149. Although the Family Home was another “place of residence” available to him during the 6 month period, I find that he did not occupy his Family Home during this period as his principal place of residence; rather, it was a subsidiary residence only (per Single v Chief Commissioner of State Revenue [2006] NSWADT 334 at [16]). And I find that there was no relevant break in the “continuity” of his occupation of the Property as his principal place of residence when he stayed there while the water leak was repaired.

Conclusion

150. I have had regard to the evidence before me, including the statement and evidence of the Applicant, including under cross-examination, and the documentation before me.

151. Ultimately, the question before me as to whether he satisfied the residence requirement is to be objectively determined, but having regard to the lifestyle of the Applicant and his subjective intention in residing in the Property, and is a question of degree: see Bulgak at [166].

152. I am satisfied that the Applicant has met the burden of proof. He has established, on the balance of probabilities, the relevant facts to support my conclusion that he occupied the Property as his principal place of residence for a continuous period of 6 months commencing on 18 August 2019 (within 12 months of the settlement date) and ending on 20 February 2020.

153. As a result, the residence requirement in s 12 of the FHOG Act was satisfied.

154. The purpose of the FHOG is to help people who are acquiring their first home. It does this by allowing the relevant concession and exemption for first home buyers.  It is only available one time, and there is no question that every other requirement was satisfied by the Applicant. I am not of the view that the Applicant was attempting to do the “bare minimum” to give the appearance of occupying the Property as his principal place of residence (compare Fava at [44]).

155. As no other matters were relevantly in dispute, the Applicant was entitled to the FHOG. The correct and preferable decision is that the FHOG is not repayable by the Applicant. Accordingly, the Assessment should be reversed in full.

156. Given my decision, I am not required to consider the discretions available under s 12 of the FHOG Act, nor the question of penalty under s 45 of the FHOG Act.

Orders

157. I make the following orders:

1. The Tribunal dispenses with a hearing on the interlocutory application under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

2. The application by the Applicant for a non-publication order under s 64 of the NCAT Act is refused.

3. The application by the Applicant for an order prohibiting disclosure of the name of the Applicant under s 64 of the NCAT Act is refused.

4. The Assessment (the substantive decision under review) is reversed in full.

5. This decision is not to be published to Caselaw until the period 28 days after the date of decision has expired.

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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: 29 May 2025