Mohamed v Chief Commissioner of State Revenue

[2010] NSWADT 146

CITATION:	Mohamed v Chief Commissioner of State Revenue [2010] NSWADT 146
DIVISION:	Revenue Division
PARTIES:	APPLICANT Sharihan Mohamed RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	086135
HEARING DATES:	7 May 2009,26 October 2009,27 October 2009,6 November 2009
SUBMISSIONS CLOSED:	6 November 2009
DATE OF DECISION:	10 June 2010
BEFORE:	Perrignon R - Judicial Member
CATCHWORDS:	First Home Owner Grant – purchase of home unit - whether residency requirement fulfilled,First Home Plus Scheme – exemption from stamp duty – purchase of home unit – whether residency requirement fulfilled
LEGISLATION CITED:	First Home Owner Grant Act 2000 Duties Act 1997 Taxation Administration Act 1996
CASES CITED:	Chief Commissioner of State Revenue v McIlroy [2009] NSWADTAP 21 McNally v Commissioner of State Revenue [2003] NSWSC 1118 Chief Commissioner of State Revenue v. Ferrington [2004] NSWADTAP 41 Cameron v Chief Commissioner of State Revenue [2009] NSWADT 64 Downie v Chief Commissioner of State Revenue [2003] NSWADT 233 Elskaf v Chief Commissioner of State Revenue [2006] NSWADTAP 10 Yen-Chen Yuan v Chief Commissioner of State Revenue [2009] NSWADT 160 Sobhani v Chief Commissioner of State Revenue [2009] NSWADT 18 Ziino and Commissioner of State Revenue [2004] VCAT 1707
REPRESENTATION:	APPLICANT In person RESPONDENT C Burnett, barrister
ORDERS:	1) The decision made by the Chief Commissioner on 24 July 2008 to reverse his decision to make the First Home Owner Grant and demand its repayment with penalty is reversed. 2) The decision made by the Chief Commissioner on 24 July 2008 to re-assess the Applicant to mortgage and transfer duty with interest is revoked.

REASONS FOR DECISION

1 The applicant, Ms Mohamed, seeks review of certain decisions made by the Respondent Chief Commissioner, which have the effect of denying her the First Home Owner Grant and relief from stamp duty under the ‘First Home Plus’ scheme.

2 On 17 October 2005, Ms Mohamed entered into a contract to purchase a home unit at Rockdale, Sydney. Completion occurred on 19 December in that year.

3 She had applied for, and was granted, the First Home Owner Grant under the First Home Owner Grant Act 2000. The Chief Commissioner of State Revenue also exempted her transfer and mortgage from stamp duty.

4 It was a condition of the First Home Owner Grant that Ms Mohamed occupy the unit as her principal place of residence for a continuous period of six months, and that she commence occupation within 12 months of completion of the contract: section 12, First Home Owner Grant Act 2000. Section 76 of the Duties Act 1997 imposed the same residence requirement in respect of the exemption from stamp duty. Thus, she was required to occupy the unit as her principal place of residence for a continuous period of six months, commencing on or before 19 December 2006.

5 On 24 July 2008, the Chief Commissioner formed the view that Ms Mohamed had not fulfilled the residency requirement, and reversed his decisions to afford her the First Home Owner Grant and to provide an exemption from stamp duty. In exercise of his powers under section 45 of the First Home Owner Grant Act 2000 and section 9(1) of the Taxation Administration Act 1996, he demanded the repayment of the grant with a substantial penalty, and reassessed her transfer and mortgage to stamp duty with interest.

6 Ms Mohamed seeks review of the decisions of 24 July 2008.

Jurisdiction

7 Objection to each decision was made by Ms Mohamed, and disallowed by the Chief Commissioner. For that reason, the Tribunal enjoys power to review them under section 28(1) of the First Home Owner Grant Act 2002, and section 96 of the Taxation Administration Act 1996. The Applicant bears the onus of proving her case: section 28(3), First Home Owner Grant Act 2000; section 100, Taxation Administration Act 1996.

Submissions

8 Ms Mohamed submitted that she had in fact satisfied the residence requirement, because she moved in to the unit in January 2006, and occupied it as her home until moving back to live with her family at Blakehurst in September 2008. She has since let the unit.

9 Consistently with her submission, Ms Mohamed made no application to be excused from compliance with the residence requirement, or for an extension of time to comply with it.

10 The Chief Commissioner submitted that the Tribunal would not be satisfied that Ms Mohamed had lived in the unit during the 18 month period commencing with completion on 19 December 2005. In his submission, the evidence showed that Ms Mohamed probably lived in her mother’s home at Taren Point during the relevant period, and that her father lived in the Rockdale unit.

11 The Chief Commissioner initially relied on mobile phone records, which showed that a great deal of calls from Ms Mohamed’s handset were received and dealt with by mobile phone towers designated ‘Taren Point’ and ‘Taren Point East’, which were situated in the Taren Point area, on the opposite side of the Georges River from Ms Mohamed’s father’s home at Blakehurst, and an even greater distance from her unit at Rockdale. He invited the Tribunal to infer that the calls had been made by Ms Mohamed from or near her mother’s home in Taren Point.

12 A mobile phone expert called by the Chief Commissioner later conceded that, though mobile phone towers generally received and relayed calls made from handsets to which those towers were the closest, the receptors on each tower could deal with only a limited number of calls. When that limit was exceeded, or the line of sight between a handset and its nearest tower was significantly occluded, the mobile phone signal could be picked up and relayed by a tower in another area.

13 Following this evidence, the Chief Commissioner properly conceded that, even where Ms Mohamed’s mobile phone calls were relayed from the ‘Taren Point’ and ‘Taren Point East’ towers, they probably originated from her father’s home at Blakehurst. As will be seen, this was consistent with her evidence.

14 The decision of the Appeal Panel in Chief Commissioner of State Revenue v McIlroy [2009] NSWADTAP 21 demonstrates the forensic value of mobile phone records in determining whether a person’s principal place of residence lies in one city or another. The evidence of the Chief Commissioner’s experts in this case demonstrates the dangers of construing such records uncritically, or unaided by expert assistance, in determining whether a person has made phone calls from one suburb or another.

15 The Chief Commissioner ultimately submitted that in all likelihood Ms Mohamed had resided at Blakehurst during the relevant period, and that her evidence to the contrary should be rejected. For her part, the Applicant conceded that many of her evening calls were made from Blakehurst, and few from Rockdale, though she pointed out that many calls were also made from the city where she worked, and elsewhere.

16 On the final day of hearing, the Chief Commissioner submitted in the alternative that, should the Tribunal be satisfied that Ms Mohamed did occupy the Rockdale unit, her occupation did not satisfy the tests for ‘principal place of residence’. In support of this submission, he said:

‘Sleeping was the only significant residential function that the applicant says she performed at the Rockdale Property, and sleeping is of itself insufficient to establish PPR [principal place of residence].’

17 He also conceded, properly, that if the Tribunal should accept that Ms Mohamed did occupy the unit at the relevant time, the penalty should be remitted, even if the nature of that occupation failed to satisfy the test for principal place of residence.

18 The issues for determination may be summarised as follows.

1) Whether Ms Mohamed occupied the unit at Rockdale for a continuous period of 6 months, commencing on or prior to 19 December 2006, as she claimed.

2) If she did, whether the nature of that occupation satisfied the test for ‘principal place of residence’.

3) If she did not, whether the penalty imposed was appropriate.

Applicant’s evidence

19 Ms Mohamed gave oral evidence to the following effect.

20 Ms Mohamed was one of a number of siblings. Ms Mohamed was single, in her early twenties. Her mother and father had long been divorced, and lived in separate premises. Ms Mohamed lived with her father, one brother and sister at the family home at Blakehurst. Her mother lived at Taren Point, which is on the other side of the Georges River.

21 The family was of Egyptian culture and of the Muslim faith, the parents having migrated to Australia from Egypt. Ms Mohamed was proud of her culture and faith. It was traditional in that culture that a father should look after his daughter and see to her financial needs, until such time as she married.

22 In 2005, Ms Mohamed was in full-time employment with a bank. She worked long hours. The bank provided breakfast for its employees, and she generally breakfasted there with her colleagues.

23 With her father’s encouragement, she formed an intention to purchase a home unit, and to move out of home, with the assistance of the First Home Owner Grant and First Home Plus Scheme. She conducted an internet search for a unit. She found the Rockdale unit. By reason of the information derived from her searching, she formed the view that it was a ‘good buy’. She inspected the unit only once. She did not inspect any others. She discussed it with her father, who owned a cleaning company. He had done cleaning work in the building, and was familiar with the units there generally, though not with this unit in particular. He encouraged her to purchase it.

24 She was concerned about her ability to meet the repayments on her mortgage. He undertook to make all those repayments, on the basis that she reimburse him from time to time in cash. He also undertook, as a good parent, to continue to meet her living expenses.

25 She purchased the unit on 19 December 2005. She used the services of a conveyancer. On 20 October 2005, the conveyancer had made a note of a telephone call in which Ms Mohamed had ‘discussed her purchase in her name’, including her eligibility for the First Home Owner Grant and First Home Plus scheme.

26 Ms Mohamed’s father provided part of the deposit by way of gift to her. She moved in during January 2006 with her clothes and other belongings, though she left some unspecified things at Blakehurst. She occupied it as her home until September 2008. Her sister had moved out of the family home at Blakehurst to her own unit just before Ms Mohamed. It was Ms Mohamed’s intention to live in the unit until she was married, and then to continue living there, if it met with her husband’s approval.

27 Being from a ‘broken home’, as she put it, Ms Mohamed had lived at many addresses. She was not diligent in informing public authorities – including the Roads & Traffic Authority and Electoral Commission – of her various changes of address. For convenience, she preferred to arrange for redirection of her mail through Australia Post. There was in evidence, for instance, an application to redirect mail from her mother’s home at Taren Point to her mother’s post office box at Sylvania for a period of 12 months from 10 February 2005. She renewed that when it expired.

28 Somewhat disturbingly, Ms Mohamed did not know what an ‘electorate’ was, and accordingly did not realise that a failure to register as a voter in the Rockdale electorate caused her to vote in the wrong electorate in the 2007 State elections. Instead, she voted with her family in the electorate which comprised Blakehurst.

29 She slept about six out of seven nights per week at her unit. She rarely cooked meals there on weekdays. She preferred to eat with her father, brother and sister at the family home in Blakehurst, or otherwise to purchase takeaway on her way home from work in the city, and take it home to the Rockdale unit to eat. She did not cook breakfast there on weekdays, because it was supplied by the bank. She did, however, enjoy cooking at the unit on weekends, and ate there.

30 She used a mobile phone provided by her father. Phone bills were provided to and paid for by his company. She did not install a land line at the unit, as she considered the mobile phone sufficient. After office hours, she would often make mobile phone calls from her father’s house, where she would typically watch television with other family members.

31 Similarly, her father paid her electricity account, which was in his name.

32 As a young woman of the Muslim faith and of Egyptian culture, it was not considered proper for her to sleep alone at the unit, so her father or brother would go with her to her unit every night, in separate vehicles, and sleep there in the second bedroom. In 2006, it was usually her father who did this. Occasionally, when neither her father or brother was available, Ms Mohamed’s sister would sleep there. Ms Mohamed did not sleep in the unit alone.

33 As an incentive for her brother to come, Ms Mohamed let him use her storage facility downstairs, and a spare car parking space in the building for his Chevrolet car, and he worked on it there.

34 On week days, Ms Mohamed would rise, shower and otherwise see to her personal hygiene, dress, do some cleaning, do some washing or drying or both, watch the news on television – principally for the weather, she said - and leave for work. She would return each evening, usually after first going to the Blakehurst home to commune with her family members. Sometimes, she would visit friends before coming home to Rockdale. Before retiring, she would again shower at the unit, watch television or a DVD, and work on the computer to relieve her work burden the next day.

35 Because of the ‘ungodly hours’ she worked, she did not get to know her neighbours in the building, though she did strike up an acquaintance with a fellow resident who parked near her in the building. She produced a statutory declaration from that resident, who was prepared to confirm that Ms Mohamed lived in the building, even though they did not live on the same floor, and only saw each other in the car park and lift.

36 Ms Mohamed did not entertain her friends at the unit. She did not purchase a dining table until April 2007, after the relevant period had expired, as there was a sufficiently large kitchen bench available with stools for the purposes of dining. However, friends did come to the premises when she would go out with them of an evening. Typically, they would arrive, and let her know they were parked downstairs. She would come down to join them, and go out with them.

37 Ms Mohamed did, however, recreate with her father and brother at the unit. They would regularly play backgammon on a table on the verandah. In accordance with family custom, the loser would make the tea at the unit. The family members were inveterate tea drinkers. The Tribunal infers that they drank it at Rockdale, where it was made.

38 Ms Mohamed also conducted her pastimes at the unit. She had a long-standing interest in dress design, and attended a short course in dress design in Kogarah in 2006. She would do her sketching, pattern making and sewing at the unit.

39 Ms Mohamed’s father saw a number of different women from time to time. He never brought any of them home to Blakehurst, but did occasionally bring one of them with him to Ms Mohamed’s unit at Rockdale. Ms Mohamed did not get on with this lady. In fact, they did not speak. Ms Mohamed said she could not even remember the lady’s surname. Ms Mohamed considered her a prying person, and observed that she even entered Ms Mohamed’s bedroom. Ms Mohamed was anxious that this lady should not have an opportunity to see any of Ms Mohamed’s mail – particularly, mail which she considered private or sensitive. Accordingly, Ms Mohammed ensured that such mail was sent to her mother’s Post Office Box at Sylvania, between Taren Point and Blakehurst, to which Ms Mohamed had her own key. Other mail was directed to her unit, and placed in a locked letter box to which she and her father both had keys. His lady friend did not have a key.

40 While living at her unit, it was Ms Mohamed’s practice to keep all receipts in a bag. She would collect them whenever she saw them lying around the unit. It was possible, she admitted, that from time to time she might have collected receipts issued not to her, but to other persons staying with her in the unit or visiting - particularly, her brother.

41 In September 2008, Ms Mohamed decided to move back to Blakehurst, to live with her father and siblings. She observed ruefully, ‘living alone is over-rated’.

42 The Chief Commissioner brought evidence to rebut Ms Mohamed’s account. Among other things, he demonstrated:

1) that Ms Mohamed had failed to notify the RTA and Electoral Commission of any change of address to Rockdale,

2) that she had failed to install a land line at the unit,

3) that her mobile phone was not listed in her name, but rather in the name of a business conducted by her father,

4) that the majority of her mobile phone calls were made from Blakehurst in the evenings, with comparatively few being made from Rockdale, and

5) that her mail was often directed, not to her unit, but rather to a Post Office Box at Sylvania.

43 All these facts were consistent with the evidence of Ms Mohamed, which is summarised above. Each was explained by her to the satisfaction of the Tribunal, either in her evidence in chief, or later in response to the Chief Commissioner’s case.

44 Consistently with the mobile phone records, the Tribunal finds that a significant amount of calls made by Ms Mohamed in the evenings were probably made from the Blakehurst home, with few calls being made from Rockdale. It also finds that many calls were made from the city and from elsewhere. The calls from Blakehurst reflected her pattern of visiting Blakehurst and communing with family members of an evening. Calls from the city were consistent with her working there. Calls from elsewhere were consistent with her visiting her sister and others, and generally travelling about. None of this evidence, in the Tribunal’s view, is sufficient to rebut Ms Mohamed’s sworn evidence as to her pattern of living, or to cause it to regard that evidence as unreliable. It does, however, go to the question of whether her pattern of occupation satisfied the tests for principal place of residence, and is considered below.

45 The Chief Commissioner submitted that Ms Mohamed’s admission that she inspected the unit only once, and inspected no others, together with her admission that the mortgage repayments were debited from her father’s account, and the conveyancer’s note to the effect that the purchase was to be ‘in her name’, would satisfy the Tribunal:

1) that the unit was in fact purchased for the father’s use,

2) that it was he that lived there, possibly with his lady friends or friends, not Ms Mohamed, and

3) that Ms Mohamed was to be the registered proprietor only for the purpose of qualifying for government assistance.

46 The fact that she inspected the unit only once, and inspected no others, is not so remarkable as to compel the Tribunal to reject her account. In these days of free public access to the internet, and of significant use of the internet by real estate agents to advertise properties for sale, it is not inconceivable that a young person working long hours, who has diligently compared the prices of competing properties, might rely on a single inspection, coupled with her father’s view of a unit building generally, of which he had some experience. That is particularly so, where the father is essentially bearing the risk of the purchase by offering to advance the repayments. His doing so is consistent with a paternal desire to see his children advance in life.

47 The conveyancer’s note is also capable of a benign construction: namely, that Ms Mohamed was to be the purchaser and registered proprietor and no one else. In circumstances where her father was providing part of the deposit, it is understandable that she would wish to make that clear. No adverse inference need be drawn from it.

48 The Chief Commissioner submitted that an inference adverse to Ms Mohamed’s credit should be drawn from her failure to bring evidence from her neighbours, except for the lady who she spoke to in the car park, to corroborate her assertion of residence. Ms Mohamed explained that, by virtue of her long working hours, she did not get to know her immediate neighbours, even if she saw them coming or going from time to time as she said. This explanation is not so improbable as to require its rejection, and the Tribunal accepts it.

49 The Chief Commissioner also submitted that the Tribunal should regard Ms Mohamed’s evidence that she could not remember the surname of her father’s lady friend as a lie, designed to avoid the possibility of a summons being issued to her to give evidence establishing that the father, and not the daughter, lived at the unit. The manner in which Ms Mohamed spoke of this person, both in terms of what she said and how she said it, demonstrated a certain animus, which suggested that, even if Ms Mohamed had been able to recall the surname at some stage, she would actively have tried to forget it. It is possible that her failure to remember the name was borne of a deliberate desire to forget it, or of a deliberate failure to note it in the first place. In either case, the Tribunal is satisfied that she genuinely does not recall the name, if she ever knew it. It is not satisfied that her failure to do so is borne of any tactical consideration arising from these proceedings.

50 The Tribunal was invited to reject Ms Mohamed’s evidence that she used her mother’s post office box at Sylvania for privacy reasons, because her mail at Rockdale was placed in a locked box to which only she and her father had the key, and was therefore secure. The more likely explanation for Sylvania, it was submitted, was that she was living at nearby Blakehurst.

51 If she lived at Blakehurst, there would be no reason at all for directing sensitive mail to Sylvania, because there is no evidence that the father’s lady friend ever attended the Blakehurst home. The evidence was to the contrary. Ms Mohamed’s father had a key to her mail box at Rockdale. There was no evidence of any guarantee that the key would not fall into the wrong hands. There was nothing to prevent Ms Mohamed’s father from opening the mail box and placing its contents in the unit, where it might also be seen by his friend. In the circumstances, the Tribunal is inclined to accept Ms Mohamed’s evidence as to the reasons for using the post office box at Sylvania.

52 In cross-examination, Ms Mohamed conceded that two of the fifteen receipts which she had produced to show that she had shopped in her local area could not have represented purchases made by her. The Chief Commissioner submitted that the Tribunal should infer that she had falsely relied on these receipts to prove residency. Ms Mohamed explained that it was her practice to collect all receipts lying around the unit in a bag, and that she could well have collected not only her own receipts, but receipts left there by her father or brother. That version of events is not so improbable as to persuade the Tribunal to reject it.

53 Ms Mohamed also conceded that she had changed the electricity account into her own name early in 2007, when the Chief Commissioner was requiring evidence of her place of residence, because she realised that, as her father was meeting her living expenses, there was little documentary evidence that she was living in the unit. This admission negates the value of her electricity bills as evidence of her residence. For that reason, the Tribunal has had no regard to it in forming its view as to where she principally resided. However, her admission, either alone or together with other evidence, does not compel the conclusion that she changed the name of the account in order falsely to represent her place of residence.

54 Similarly, the Chief Commissioner submitted that the Tribunal would not be persuaded by the fact that notices of strata levies and water rates were issued in the name of Ms Mohamed, because that would simply reflect the fact that she was the registered proprietor of the unit. The Tribunal accepts that submission, and has had no regard to those notices in making its decision. For the same reason, the Tribunal has had no regard to Council rates notices issued in her name.

55 Ms Mohamed conceded that on 17 July 2007, she notified the RTA of a change of address from Taren Point to the Blakehurst property. That her address was still recorded as being at Taren Point, where she had once lived with her mother, is consistent with her customary failure to update her details with statutory bodies. That she changed it to Blakehurst rather than Rockdale is not so easily explicable. In the Chief Commissioner’s submission, it points to her living at Rockdale in July 2007. Ms Mohamed said she could not remember why she had given this address to the RTA, and surmised that she may have been intending to move back into the Blakehurst home at that time. That response is not inconsistent with her evidence generally, although the nomination of Blakehurst as her residence does nothing to corroborate her assertion that she was living in Rockdale. However, the month of July 2010 falls outside the eighteen month period in which the residency requirement falls to be satisfied. This evidence, in the Tribunal’s view, does not bolster the case for either party.

56 The Chief Commissioner submitted that Ms Mohamed’s evidence as to playing backgammon, making tea and conducting her pastimes at the unit was a fabrication, because she did not give that evidence until after being cross-examined, and if it were true, should have proffered it during her evidence in chief or cross-examination. Ms Mohamed complained that she had not been given an opportunity in cross-examination to give full responses to questions, and had noted the evidence for later explanation when re-examining herself. The Tribunal is satisfied that she had not turned her mind to these matters when giving her evidence in chief, and is not persuaded to find that it was a fabrication.

57 The Chief Commissioner also submitted that the Tribunal would not accept Ms Mohamed’s evidence that her father and brother regularly travelled to her unit to sleep there, because it was ‘extremely inconvenient and inherently unlikely’. On the evidence, it seems the inconvenience was undertaken out of deference to cultural custom, and – it may readily be inferred - by reason of familial concern for the welfare of Ms Mohamed, who was a single woman in her early twenties living away from her family. It is not unknown for customs to be observed which are inconvenient, or for family members to take inconvenient steps out of concern for each other’s welfare. The fact that chaperoning Ms Mohamed at night was inconvenient does not alone make it unlikely, nor does it persuade the Tribunal to reject Ms Mohamed’s sworn evidence in that regard. In any event, that evidence was corroborated by her father.

58 Ms Mohamed represented herself. She said that she could not afford legal representation. By reason of her lack of legal expertise, and through no fault of her own, there were significant difficulties in the way that she adduced her evidence. She proffered evidence and submissions on a number of occasions that were irrelevant. Again, through no fault of her own, her manner of cross examination, and of engaging with counsel for the respondent, were from time to time the subject of necessary directions by the Tribunal.

59 Despite these difficulties, the Tribunal had an opportunity to observe Ms Mohammed’s demeanour when giving evidence. That demeanour, her ability to explain apparent anomalies in her account in cross examination, and the lack of any inherent improbability in her account having regard to those explanations, caused the Tribunal to form an impression that Ms Mohamed was a witness of truth. That impression was formed at the hearing, after the Chief Commissioner had had an opportunity to make submissions. For that reason, Ms Mohamed was told that she need not address on the issue of credit.

Mr Mohamed’s evidence

60 Ms Mohamed’s father also gave evidence. So far as it went, his evidence tended to corroborate the account given by his daughter, save that he denied that Ms Mohamed’s sister slept at the unit. The Chief Commissioner submitted that this contradiction would persuade the Tribunal that Ms Mohamed was telling an untruth. There is no evidence that the father was ever told of the occasions on which the sister slept at the unit, and it is possible that he did not know. The inconsistency does not compel a finding against Ms Mohamed’s credit.

61 The Chief Commissioner suggested that the father had lied in a statutory declaration dated 13 August 2008, in which he said (reproduced as written):

‘My daughter Sharihan Mohamed and I have been living at u/84/2 ashton street Rockdale, since January 2006. I as her FaTHer support her financially, paying for her living expensives.’

62 On 2 October 2008, he declared that he lived at Blakehurst, would frequently visit his daughter at Rockdale, and would occasionally stay with her. That was, of course, well after the relevant period. On 28 January 2009, he told the Chief Commissioner that his principle place of residence had been Blakehurst, and that he did not mean to suggest the contrary when he made the first declaration.

63 As the spelling of the first declaration suggests, English was not Mr Mohamed’s first language. Though he claimed to be able to give evidence and understand questions in English, it seemed during the course of his evidence that he had some difficulty with it. The Commissioner submitted that the declaration was false, in that Ms Mohamed did not live at Rockdale. Even if Ms Mohamed’s evidence was accepted, it was submitted that Mr Mohamed was falsely representing his own residence there.

64 I do not think the declaration need be so construed. A person can reside in more than one property, even if only one of them can be considered the principal place of residence: McNally v Commissioner of State Revenue [2003] NSWSC 1118. On the evidence, it seems that both Mr Mohamed and his daughter resided at Rockdale. He resided there from time to time, as her chaperone. She resided there permanently. He did not disclose in his declaration that he principally resided elsewhere, as seems to have been the case. Given his lack of legal expertise, and his facility in English language, which can at best be described as moderate, it would not be surprising if he failed to turn his mind to the difference between the concepts of residence and principal place of residence. Thus construed, the declaration is consistent with the truth. It does not compel the conclusion that he was lying, and the Tribunal is not minded to reject his evidence as unreliable.

65 Even if it were so minded, that would not necessarily justify the rejection of Ms Mohamed’s evidence.

Determination of first issue

66 For those reasons, the Tribunal accepts Ms Mohamed’s sworn evidence that she resided at the Rockdale unit from early January 2006 to September 2008, as she said. To that extent, she has discharged the onus upon her.

Principle place of residence

67 It is next necessary to determine whether the pattern of residence described by Ms Mohamed established that the Rockdale unit was her ‘principal place of residence’, in order to satisfy the residency requirement.

In Chief Commissioner of State Revenue v. Ferrington [2004] NSWADTAP 41, the Appeal Panel of this Tribunal formulated the tests for determining whether a person occupied a property as a ‘principal place of residence’ in satisfaction of the conditions of the First Home Owner Grant. The Appeal Panel said [at paras 41-42]:

‘41 Care must be taken in applying the principles discussed in these diverse cases to the meaning of “principal place of residence” under the First Home Owners Grant Act 2000 because each of them occurs in the context of differing legislation where that phrase has been used. There are, however, a number of common principles which are apparent from the approach taken in each case.

42 First, the words “principal place of residence” should be given their ordinary meaning in the context in which they appear: …. Secondly, 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: …. Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue: …. Fourthly, 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: …. Fifthly, 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, …. Sixthly, 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: …. 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.’

68 These factors have since been adopted by the Appeal Panel in determining whether an owner of land is entitled to the ‘principal place of residence’ exemption from land tax: McIlroy.

First factor – ordinary meaning

69 The phrase ‘principal place of residence’ is not defined in the First Home Owner Grant Act 2000 or the Duties Act 1997. Construed in accordance with its ordinary meaning, it denotes the ‘primary’ or ‘main’ residence. Among the meanings ascribed to it in The Macquarie Online Dictionary are: ‘first or highest in rank, importance, value, etc; chief; foremost’.

70 The question as to which of two or more residences is the ‘principal’ one is to be determined objectively, having regard to the extent and quality of its use and occupation: Cameron v Chief Commissioner of State Revenue [2009] NSWADT 64 at [46]. The issue has been described as one of ‘fact and degree’: Downie v Chief Commissioner of State Revenue [2003] NSWADT 233 at [26]. The respective amounts of time which the taxpayer spends in each residence is a relevant factor: Chief Commissioner of State Revenue v McIlroy [2009] NSWADTAP 21 at [41].

71 On the evidence, Ms Mohamed spent most of her time when not at work at the Rockdale unit, even though she regularly visited her father’s home at nearby Blakehurst in the evenings. That is so, even if she made significantly more phone calls from Blakehurst than she did from the Rockdale unit.

Second factor - circumstances

72 Ms Mohamed directed much of her mail to Sylvania, and did not inform the RTA or the Electoral Commission that Rockdale was her home. However, the Tribunal has accepted her evidence as to the reasons for this, which varied from lack of diligence to a desire to preserve her privacy from her father’s friend. Assessed objectively, and having regard to the explanations offered by Ms Mohamed, these factors do not compel the conclusion either that Rockdale was not her principal place of residence, or that Blakehurst – the only other possible contender – was her principal place of residence, or that she had none.

Third factor - intention

73 On the evidence of Ms Mohamed, the Tribunal is satisfied that it was her intention to live at Rockdale, and to occupy it as her principal place of residence.

Fourth factor - permanence

74 Ms Mohamed resided at the unit for a period of some 2 and a half years, well in excess of the residency requirement. It was suggested that she only had an intention to occupy the unit for a limited period, because she conceded that she did not intend to be there ‘forever’.

75 However, her evidence must be considered in context. The concession she made was typical, in the Tribunal’s view, of the candour she exhibited throughout her evidence. She made it clear that she hoped eventually to marry, and would continue to live in the unit if it suited her spouse, but not necessarily otherwise. That circumstance alone does not deprive an occupation of the necessary character of permanence, or render its character transient. Otherwise, any single person with a hope of a lasting marriage at some indefinite point in the future would be in danger of disqualification. There is nothing in either Act to suggest that was Parliament’s intention. Similarly, there is there nothing to indicate an intention to disqualify anyone who has a hope of eventually moving to a better home at some such indefinite point if they can afford it, as any ambitious young person would.

Fifth factor – short residence

76 As stated, the facts do not establish that Ms Mohamed’s residence was of short duration. It exceeded the statutory requirement by a factor of around five – that is, two and half years as opposed to six months.

Sixth factor – reasons for departure

77 The evidence establishes that Ms Mohamed did not marry, and tired of living on her own. She moved back to live with her family after two and half years. Her desire to do so is consistent with her evidence of the closeness of her family unit, and what the Tribunal infers was a natural fondness for her father and siblings. That the property was rented out does nothing to detract from the Tribunal’s view of the fundamental reasons for her departure. Even if she moved out for financial reasons, which is not established, it would not incline the Tribunal to find otherwise than that, for the entire two and half years, she occupied the property genuinely as her principal place of residence.

Other cases

78 In support of his submissions, the Chief Commissioner has relied on a number of authorities, which are dealt with below.

79 In Elskaf v Chief Commissioner of State Revenue [2006] NSWADTAP 10, the Appeal Panel considered a situation where an owner of land had let the dwelling on it to a tenant, and claimed to have occupied a ‘sleep-out’ attached to the dwelling, which he described as a ‘granny flat’. The Tribunal at first instance had rejected his claim to have occupied this structure. That finding was not disturbed on appeal. The facts in that case bear no resemblance to those in this case. The Tribunal has found Ms Mohamed to be a witness of truth, and that she occupied the dwelling for two and a half years.

80 In Cameron v Chief Commissioner of State Revenue [2009] NSWADT 64, the Tribunal confirmed the Chief Commissioner’s decisions to demand repayment of the First Home Owner Grant and to re-assess transfer and mortgage duty. In that case, the applicants had lived at the relevant property for the bare period of six months required by the legislation. For three days per week, they had lived elsewhere, and had spent blocks of time away from the property on holidays and the like. The Tribunal found that they had in fact spent most of their time living elsewhere, and that, to the extent they had lived in the property at all, they did so for the sole purpose of satisfying the residency requirement, with a view to selling at a profit as soon as the residency requirement was fulfilled. The Tribunal concluded that they had not occupied the property on a continuous basis so as to satisfy the residency requirement, and that the degree of permanence required had not been made out. Those facts bear little, if any, resemblance to the facts established in this case.

81 For similar reasons, little assistance can be gained from the Tribunal’s decision in Yen-Chen Yuan v Chief Commissioner of State Revenue [2009] NSWADT 160. In that case, the Applicants unsuccessfully claimed the ‘principal place of residence’ exemption from land tax. The Tribunal found that the property was nothing more than ‘a large shed with no electricity, water or sewerage facilities’ [at para 24]. It found that the Applicants had ‘not been honest in their dealings with the respondent as to their use and occupation’ of the property [at para 27]. It rejected the First Applicant’s evidence that he had lived at the property during the requisite periods, and drew an adverse inference from the failure of the Second Applicant to give evidence.

82 In Sobhani v Chief Commissioner of State Revenue [2009] NSWADT 18, the Tribunal declined an application to dispense with the residency requirement. The application was made on the basis that the Applicant had lived in the relevant property for a period of six months, commencing more than two and a half years after the time for commencing the residency had expired. In that case, unlike this, it was common ground that the residency requirement had not been satisfied. The owner had let the property for six months immediately after settlement, with a term in the lease that the tenant might hold over until termination under the relevant legislation. Nothing happened until just before the expiry of twelve months from settlement, when the tenant was formally required to vacate. He did not vacate until fifteen months after settlement. The Applicant did not even commence to occupy the property until more than two and a half years after the expiry of the time for commencement of his residency. The Tribunal was not convinced by his explanation for the lengthy delay. His wife and child continued to live in another property at Kemps Creek, where he had lived with them before moving to the subject property. He returned to live there with them immediately after his six months’ occupation had expired. Though he slept in one room of the property, showered there, cooked meals there, and had a CD player, DVD player and television there, he spent four nights per week sleeping elsewhere due to work, and was otherwise away from the property for substantial periods.

83 The Tribunal found, applying Ziino and Commissioner of State Revenue [2004] VCAT 1707, that sleeping alone was not sufficient to satisfy the residency requirement. It found that the Applicant had never relinquished his principal place of residence at Kemps Creek, and that his occupation of the subject property was merely transient, lacking the degree of permanence necessary to show that it was his principal place of residence.

84 Those facts bear little resemblance to the facts in this case. This is not an application to dispense with the residency requirement. On the evidence, there was occupation throughout the residency period. There is no credible evidence that Ms Mohamed lived in the unit merely to satisfy the statutory test. The duration of her residence over two and a half years is compelling evidence to the contrary. Hers was a bona fide occupation, with the necessary character of permanence. She did not merely sleep at the property, but recreated there regularly with family members, did her work there, cooked there (even if she cooked at Blakehurst as well), ate there (even if she also ate at Blakehurst and at work), showered there, dressed there, received her friends there (albeit downstairs), and pursued her interests there. Her occupation was continuous. She did relinquish her family home at Blakehurst, even if she continued to visit her family there. She resided at Rockdale with a view to permanency.

Determination of second issue

85 For the reasons given, the Tribunal finds that Ms Mohamed occupied the unit at Rockdale as her principal place of residence from January 2006 to September 2008.

86 It follows that the decisions under review should be set aside. The Tribunal makes the following orders:

1) The decision made by the Chief Commissioner on 24 July 2008 to reverse his decision to make the First Home Owner Grant and demand its repayment with penalty is reversed.

2) The decision made by the Chief Commissioner on 24 July 2008 to re-assess the Applicant to mortgage and transfer duty with interest is revoked.