Nairn v Chief Commissioner of State Revenue

[2011] NSWADT 41

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Nairn v Chief Commissioner of State Revenue [2011] NSWADT 41
Hearing dates:	11 October 2010 - Submissions closed: 11 October 2010
Decision date:	02 March 2011
Jurisdiction:	Revenue Division
Before:	M Hirschhorn, Judicial Member
Decision:	The decisions of the Respondent are affirmed.
Catchwords:	First Home Owner Boost for New Home and NSW New Home Buyer's Supplement
Legislation Cited:	First Home Owner's Grant Act 2000 Administrative Decisions Tribunal Act 1997
Cases Cited:	McTackett v Chief Commissioner of State Revenue [2003] NSWADT 154
Category:	Principal judgment
Parties:	Deborah Kate Nairn (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel: E Bishop (Respondent) G Nairn, as agent (Applicant)
File Number(s):	106038

reasons for decision

Introduction

1. The Applicant seeks review of a decision of the Respondent that the Applicant was not eligible for the First Home Owner Boost for a new home ("the Boost") and the NSW Home Buyer's Supplement ("the Supplement") in respect of a home unit she purchased in Queanbeyan ("the Queanbeyan unit").

1. In short, the Respondent decided that the Queanbeyan unit was not a "new home" pursuant to the relevant legislative provisions in the First Home Owners Grant Act 2000 (NSW) ("FHOG Act") because it had previously been sold as a place of residence.

Facts

1. In May 2009, the Applicant responded to an advertisement by a real estate agency in respect of a unit in a development in its early stages of construction in Queanbeyan.

1. At that time, the Applicant gave evidence that she understood that the developer had commissioned the real estate agency to sell the units prior to construction of the building. The Applicant also understood that any purchase by her of a unit in the development would be finalised on construction of the building and the creation of a strata title for the unit.

1. On about 9 May 2009, the Applicant inspected the overall development site and looked at the floor plans. On 15 May 2009, she paid the real estate agent a holding deposit of $2,000 in respect of the Queanbeyan unit (to be constructed).

1. In July 2009, the Applicant sought approval from a bank for finance which was subsequently approved.

1. On 8 August 2009, the Applicant inspected the Queanbeyan unit. She saw that it was structurally complete but fit-out was yet to commence.

1. On 20 August 2009, the Applicant signed a contract to purchase the Queanbeyan unit. She saw when she signed the contract that the vendor was not the developer but rather a person called Mr Moufarrige. The Applicant said in evidence that it wasn't until later, however, that she realised that Mr Moufarrige had actually contracted to purchase the Queanbeyan unit himself from the developer on 20 May 2008.

1. The Applicant also said in evidence that she recalled signing the contract much earlier at her solicitor's office on 4 June 2009 although noted that the "official record" shows the date as 20 August 2009.

1. On 30 September 2009, the Applicant inspected the Queanbeyan unit again as settlement of her contract was to occur the next day. She said construction was complete although some access-ways had still to be cleared, landscaping to be completed and some builder's rubble to be removed.

1. The parties agreed at the hearing that construction of the building was completed in September 2009 and the Strata Plan SP82725 was registered on 17 September 2009.

1. Settlement of the Applicant's purchase of the Queanbeyan unit occurred on 6 October 2009. The Applicant explained that it was originally to occur on 1 October 2009 but was delayed due to a slip up by her bank.

1. The Applicant was informed by the solicitor that acted for her that the abovementioned settlement occurred "simultaneously" with the settlement of the purchase of the Queanbeyan unit from the developer by Mr Moufarrige. In other words, on 6 October 2009, the developer transferred the Queanbeyan unit to Mr Moufarrige and Mr Moufarrige transferred the Queanbeyan unit to the Applicant.

1. The Applicant's bank applied on her behalf for the First Home Owner Grant (FHOG), the Boost and the Supplement.

1. The Respondent approved the provision of the FHOG to the Applicant but did not allow the Boost or the Supplement.

1. It was not in dispute between the parties at the hearing, that Mr Moufarrige did not at any time physically occupy the Queanbeyan unit.

1. The Applicant gave evidence and the Tribunal accepts that she was the first person to receive keys to the Queanbeyan unit from the real estate agency and that she connected the utilities (e.g: electricity and gas). The Applicant was also the first person to pay rates for the Queanbeyan unit after the developer.

1. It appears from the evidence, that Mr Moufarrige entered into his contract to buy the Queanbeyan unit on or about 20 May 2008. This was at a time before the construction of the building had been commenced. He then contracted to sell the Queanbeyan unit on 20 August 2009 to the Applicant (i.e. about 1 year, 3 months later), at a point in time when construction of the home unit was not yet complete and prior to registration of any strata plan.

1. In other words, both of the abovementioned contracts were entered into "off the plan" as it is sometimes referred to. They were sales of a proposed "lot" in an unregistered strata plan. This fact was also confirmed by the real estate agent that acted for both the developer and Mr Moufarrige in relation to their "off the plan" sales to Mr Moufarrige and the Applicant respectively.

1. The contract between the developer and Mr Moufarrige was tendered in evidence by the Respondent. The contract was based on the 2005 edition of the Standard Contract for the Sale of Land but contained a number of special conditions. Special condition 32 provided that the sale was subject to the registration of the strata plan and under special condition 32.2, completion was to be the later of 42 days after the date of the contract or 14 days after the vendor (developer) had given notice to the purchaser that the strata plan had been registered. The consideration on the contract was an amount of $255,000.00.

1. The contract between Mr Moufarrige and the Applicant was also tendered in evidence by the Respondent. The contract was also based on the 2005 edition of the Standard Contract for the Sale of Land and contained a number of special conditions including, inter alia, the following:

(i) The completion date on the front of the contract was marked with a reference to Special Condition 30. Special Condition 30.2 provided that the date for completion would be the 14 th day after the vendor gave notice to the purchaser of the registration of the strata plan.

(ii) Special Condition 31 contained an acknowledgement by the purchaser (i.e. the Applicant) that the unit was sold as an " on-sale of the purchase of the unit under the Prior Contract " (italics added). The "Prior Contract" was defined in Special Condition 30(m) as the contract for the sale of the unit dated 20 May 2008 between the vendor (as purchaser) and the developer (as vendor).

(iii) Various other special conditions in the contract made reference to the "Prior Contract" as well including special conditions 31, 32, 34, 35, 36 37, 38, 40, 41.

(iv) The consideration stated on the contract was an amount of $285,000.00.

1. In support of the Applicant's application for the Boost and Supplement, the solicitors that acted for Mr Moufarrige in respect of his sale of the Queanbeyan unit to the Applicant provided a letter to the Applicant dated 2 October 2009 (being 4 days before settlement of the contract) in the following terms:

"We act for the seller in relation to this sale and confirm that the above property is newly constructed and it has never been occupied."

1. The same solicitors also provided a further letter to the Applicant (dated 1 February 2010) in the following terms:

"We act for the seller in relation to this sale.

We confirm that the above property is newly constructed and has never been occupied. The seller purchased the unit off the plan in order to on-sell the property upon completion, and at no time intended to retain the property as an ongoing investment once completed, or to use the property as a principal place of residence."

1. There was no evidence given by or on behalf of the developer for the purposes of the hearing.

1. On or about 6 January 2010, the Applicant's solicitors wrote to the Respondent to request a review of any decision not to grant the Boost and the Supplement.

1. On or about 15 January 2010, the Respondent refused to grant the Boost and the Supplement.

1. On or about 21 January 2010, the Applicant objected to the Respondent's refusal to provide the Applicant with the Boost and the Supplement.

1. On or about 29 March 2010 the Respondent disallowed the Applicant's objection.

1. The Applicant then made an application to the Tribunal for review of the Respondent's decision.

Legislation

1. The FHOG Act was enacted in 2000 and the explanatory note in "Overview of the Bill" explained that the scheme was designed to encourage and assist home ownership and to offset the effect of the Goods and Services Tax ("GST") on first home buyers.

1. Section 28 FHOG Act provides the jurisdiction for the Tribunal to review the decisions of the Respondent in relation to the Boost and the Supplement. Section 28(3) provides that the Applicant has the onus of proving her case in the application for review.

1. Section 18 FHOG Act provides that the amount of the First Home Owner Grant is $7,000.00 and if the "eligible transaction" concerned qualifies for:

(a) the Boost, the grant is increased by the "new homes boost amount" being an amount of $14,000.00 where the commencement date of the eligible transaction is before 30 September 2009;

(b) the Supplement, the grant is increased by $3,000.00.

1. The requirements that must be met in respect of the Boost are as set out in section 18A of the FHOG Act (bolding added):

18A First home owner boost for new homes

(1) For the purposes of this Act, an eligible transaction qualifies for the first home owner boost for new homes if it qualifies for the first home owner boost for new homes under this section.

(2) An eligible transaction that is a contract for the purchase of a new home (other than a contract for an "off-the-plan" purchase of a new home) qualifies for the first home owner boost for new homes if the contract is made on or after 14 October 2008 and on or before 31 December 2009.

(3) An eligible transaction that is a contract for an "off-the-plan" purchase of a new home qualifies for the first home owner boost for new homes if:

(a) the contract is made on or after 14 October 2008 and on or before 31 December 2009, and

(b) the contract states that the eligible transaction must be completed before the required completion date or, in any other case, the eligible transaction is completed before the required completion date or by such later date as the Chief Commissioner may allow for delay caused by circumstances beyond the control of the parties.

(4) ...

(5) ...

(6) However, an eligible transaction that is a contract does not qualify for the first home owner boost for new homes if the Chief Commissioner is satisfied that:

(a) the contract replaces a contract made before 14 October 2008, and

(b) the replaced contract was a contract for the purchase of the same home or a comprehensive home building contract to build the same or a substantially similar home.

(7) In this section:

contract for an "off-the-plan" purchase , of a new home, means a contract for the purchase of the home on a proposed lot in an unregistered plan of subdivision of land.

new home means a home that has not been previously occupied or sold as a place of residence, and includes a substantially renovated home and a home built to replace demolished premises.

required completion date means:

(a) for a contract made on or after 14 October 2008 and on or before 30 June 2009, 1 January 2011, or

(b) for a contract made after 30 June 2009 and on or before 30 September 2009, 31 March 2011, or

(c) for a contract made after 30 September 2009 and on or before 31 December 2009, 30 June 2011.

(8) ...

(9) ...

1. The requirements for eligibility for the Supplement are set out in Section 18C FHOG Act as follows (bolding added):

18C NSW new home buyers supplement

(1) For the purposes of this Act, an eligible transaction qualifies for the NSW new home buyers supplement if it qualifies for the NSW new home buyers supplement under this section.

(2) An eligible transaction that is a contract for the purchase of a new home (other than a contract for an "off-the-plan" purchase of a new home) qualifies for the NSW new home buyers supplement if the contract is made on or after 11 November 2008 and on or before 30 June 2010.

(3) An eligible transaction that is a contract for an "off-the-plan" purchase of a new home qualifies for the NSW new home buyers supplement if:

(a) the contract is made on or after 11 November 2008 and on or before 30 June 2010, and

(b) the contract states that the eligible transaction must be completed on or before the required completion date or, in any other case, the eligible transaction is completed on or before the required completion date or by such later date as the Chief Commissioner may allow for delay caused by circumstances beyond the control of the parties.

(4) ...

(5) ...

(6) However, an eligible transaction that is a contract does not qualify for the NSW new home buyers supplement if the Chief Commissioner is satisfied that:

(a) the contract replaces a contract made before 11 November 2008, and

(b) the replaced contract was a contract for the purchase of the same home or a comprehensive home building contract to build the same or a substantially similar home.

(7) In this section:

contract for an "off-the-plan" purchase , of a new home, means a contract for the purchase of the home on a proposed lot in an unregistered plan of subdivision of land.

new home has the same meaning as it has in section 18A.

required completion date means:

(a) for a contract made on or after 11 November 2008 and on or before 10 November 2009, 10 May 2011, or

(b) for a contract made after 10 November 2009 and on or before 30 June 2010, 31 December 2011.

Applicant's case

1. The Applicant relied on witness statements from the real estate agent (that acted for both the developer and then Mr Moufarrige), the Applicant, a person from Support Services Administration at Country Energy and a revenue accountant from Queanbeyan City Council together with various other documents that were tendered as exhibits. The Applicant prepared written grounds for her application and Mr Nairn, as agent for the Applicant, made oral submissions at the hearing.

1. The essential thrust of the Applicant's case was that the Boost and the Supplement were intended as a boost to the housing market in NSW and first home buyers purchasing newly constructed properties would see the value of the FHOG triple from $7,000 to $21,000 for newly constructed homes. This was intended to be a stimulus for new housing and to encourage first home owners.

1. The Applicant only saw Mr Moufarrige's name on the contract when she signed it and she was not aware, at that time, that he was not the developer. The contracts between the developer and Mr Moufarrige and Mr Moufarrige and the Applicant were settled simultaneously and the transfers lodged and registered at the same time.

1. The Applicant submitted that Mr Moufarrige never "fiscally" held the Queanbeyan unit. Mr Moufarrige paid full stamp duty with no concessions and because the transfers were lodged together, at no time was the property solely in the name of Mr Moufarrige.

1. The Applicant said there was no dispute that she was the first occupant of the Queanbeyan property. She was the first to connect electricity and gas and make the property "liveable". She was also the first person, after the developer, to pay rates - this was confirmed by the letter from Queanbeyan City Council.

1. The Applicant pointed to the ordinary meaning of the word "residence" in dictionaries as "the fact of living somewhere, someone's home" and submitted that the Queanbeyan unit had not previously been sold as a residence because Mr Moufarrige purchased it off the plan and the unit was not at that time liveable.

1. The Applicant submitted that the decision of the Tribunal in McTackett v. Chief Commission of State Revenue [200] NSWADT 154 ought to be distinguished. The original contract between the developer and first transferee in that case was executed on 21 April 2001 (at a time when the property was under construction). The subsequent contract between the first transferee and Mr McTackett was executed on 20/12/01 when construction of the property was complete. In other words there was a residence and it had been so for about a month before the date of the second contract. In the Applicant's case, she signed the contract before the unit was completed and before the relevant strata plan was registered.

Respondent's Case

1. The Respondent relied on the documents filed under section 58 ADT Act together with "further evidence" that included copies of the contracts between the developer and Mr Moufarrige, between Mr Moufarrige and the Applicant and documents relating to the strata plan and its registration.

1. The Respondent said there was no dispute in this case that when the Queanbeyan unit was sold to the Applicant it had not previously been occupied. The real issue for determination in the case was whether or not the Queanbeyan property had previously been sold as a place of residence (per Section 18(7) of FHOG).

1. In this regard, the Respondent cited the case of McTackett v. Chief Commissioner of State Revenue (supra) as analogous to the Applicant's position. The property was a strata unit in a newly constructed strata plan development. In the present case, the "first sale" of the property was from the developer to Mr Moufarrige. The Applicant purchased the property from Mr Moufarrige while the property was still being constructed. The Applicant was aware at the time of execution of the contract that the vendor was Mr Moufarrige and not the developer (i.e. special condition 31). When the Applicant purchased the property it was the "second sale" of the property.

1. The fact that the transfers were lodged together did not negate the fact that the property had already been sold as a place of residence by the developer to Mr Moufarrige prior to the Applicant entering into her contract to purchase.

1. The Respondent submitted that the previous owner's intentions (i.e: Mr Moufarrige) were not relevant to the questions of whether or not the property met the definition of "new home".

Issue

1. The issue for determination by the Tribunal is whether the Applicant qualified, in respect of her purchase of the Queanbeyan unit, for the Boost and/or the Supplement.

1. In this regard, the relevant issue is whether the Queanbeyan unit was "a home that has not been previously...sold as a place of residence" for the purposes of the definition of "new home" in section 18(7) FHOG Act?

Discussion and Reasons for Decision

1. In order to qualify for the first home owner boost under section 18A(2) it is necessary, firstly, that there is "an eligible transaction that is "a contract for the purchase of a new home ( other than a contract for an "off the plan" purchase of a new home)..."..

1. An "eligible transaction" is defined in section 13(1)(a) of the FHOG Act to include "a contract made on or after 1 July 2000 for the purchase of a home in New South Wales.

1. Further section 13(2) provides that:

(2) A contract is a contract for the purchase of a home if the contract is a contract for the acquisition of a relevant interest in land on which a home is or is to be built under the contract by or on behalf of the vendor.

1. In the present case, both the contract between the developer and Mr Moufarrige and Mr Moufarrige and the Applicant described the land that was the subject of the contract as "Lot 28 in an unregistered Strata Plan being part of Lots 1 and 2 in Deposited Plan 1091874 being Part Folio Identifiers 1/1091874 and 2/1091874".

1. The definition of " contract for an "off-the-plan" purchase", of a new home, provides that it means " a contract for the purchase of the home on a proposed lot in an unregistered plan of subdivision of the land".

1. It would appear, therefore, that as the Applicant's contract indeed involved the purchase of a lot in an unregistered strata plan, that section 18A(2) is not relevant to the present case and instead section 18A(3) applies.

1. In relation to the requirements, therefore, of section 18A(3), it is clear that the contract between Mr Moufarrige and the Applicant was a " contract for an "off the plan purchase " of the Queanbeyan unit and furthermore that the requirements of section 18A(3)(a) and (b) were satisfied. In other words, the contract was "made" on 20 August 2009 (which fell within the required date range in section 18A(3)(a)) and the completion of the contract occurred on 6 October 2009 (which satisfied the "required completion date" in section 18(7) and section 18A(3)(b)).

1. The critical question, therefore, is whether the Queanbeyan unit was a "new home" for the purposes of the eligibility requirement in section 18A(3) and within the definition in section 18A(7).

1. The definition of "new home" in section 18(7) refers to " a home that has not been previously occupied or sold as a place of residence".

1. In section 4 FHOG Act, a "home" is a building (affixed to land) that

(a) may lawfully be used as a place of residence, and

(b) is, in the Chief Commissioner's opinion, a suitable building for use as a place of residence.

1. If there was indeed a requirement that there be a building that may lawfully be used as a residence at the time a contract for an "off the plan" purchase was made, then in neither the contract between the developer and Mr Moufarrige and Mr Moufarrige and the Applicant would this condition have been satisfied. In both cases, the contracts were made for the purchase of land that was to be, in future, the subject of a strata subdivision and upon which a building was to be constructed/being constructed respectively.

1. If the definition of "home" in section 4 applied, there was no "home" in the present case until construction of the building was completed and the final occupation certificate granted on or about 1 September 2009. It is noted that that certificate provided, inter alia, that " the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia ".

1. In the present case, both the developer and Mr Moufarrige purported to sell "Lot 28 in an unregistered strata plan" before 1 September 2009 (i.e. before there was any "home" for the purposes of section 4 FHOG Act) and therefore by definition there would not have been a contract for an "off the plan" purchase of a "new home". At best, there was a contract for the purchase of land on which there was a "proposed home" subject to successful construction of the building and registration of the strata plan.

1. It is curious that there does not appear to be an equivalent deeming provision to section 13(2) FHOG Act in the context of the provisions dealing with the Boost (in section 18A) or the Supplement (in section 18C). Such a provision might have confirmed that there would still be a contract for the purchase of a "new home" (or a contract for the "off the plan" purchase of a new home) where the contract was for the acquisition of a relevant interest in land on which the new home is or is to be built under the contract by or on behalf of the vendor. On the other hand, perhaps it was considered by the Legislature to be "implicit" since "off the plan" contracts would often involve the purchase of land on which there was a proposed building but one that was not yet constructed, much less a building that could be lawfully used as a place of residence.

1. Returning to the facts of the present case, it is clear, however, that by the time both contracts were completed (i.e. the developer's contract with Mr Moufarrige and Mr Moufarrige's contract with the Applicant on 6 October 2009), there was a "home" as defined in section 4 as well as a lot in a newly registered strata plan. At that time, the Tribunal is of the view that the developer completed the sale to Mr Moufarrige of a "home" (i.e. the unit could be lawfully used as such) and Mr Moufarrige then did the same, in turn, to the Applicant.

1. The Tribunal is of the view that the unit was "sold" to Mr Moufarrige as "a place of residence" at the time of settlement on 6 October 2009. The building was by that time complete. The certificate of occupation had been given. The Applicant herself confirmed that construction of the unit was complete at 30 September 2009 subject to some cleaning up by the builders and landscaping.

1. It is clear that Mr Moufarrige never actually resided himself at the Queanbeyan unit but this is not a requirement of the legislation. The question is whether the "home" has been previously sold as "a place of residence". In the present case, from the perspective of the seller (i.e. the developer), it sold to Mr Moufarrige at completion "a place of residence". Mr Moufarrige was ultimately free to choose whether or not to settle his contract with the Applicant (i.e. the "on-sale"). As a matter of fact, he did so and both settlements took place on 6 October 2008. It is clear, from the certificate of title and as a matter of law, that Mr Moufarrige's contract with the developer was settled first in order that he had registered title to the property sufficient to transfer the same to the Applicant.

1. In the case of McTackett v. Chief Commissioner of State Revenue [2003] NSWADT 154, the definitions of both " contract for an "off the plan" purchase " and " new home " (then in s13A(8)) were identical to those in s18A FHOG Act.

1. In that case, the property was a strata unit in a new building. Mr and Mrs Lamb entered into a contract to purchase the property from the developer "off the plan" i.e. while still in the construction stage. The Lamb's contract was dated 20 April 2001. The purchase price was $235,000. At that stage, the strata plan was not yet registered. The strata plan was subsequently registered on 28 November 2001.

1. Mr McTackett contracted to purchase the property from the Lambs on 20 December 2001 (that is, one month following the registration of the strata plan). The purchase price was $257,000. At this stage the Lambs had not yet completed their purchase from the developers. The Lambs did not reside in the property.

1. The property was transferred to Mr McTackett by transfer dated 13 February 2002. The transfer was registered on 16 May 2002. The transfer was, by direction of the Lambs, directly from the developer to Mr McTackett.

1. In that case, the learned Tribunal Member at [19] held that the evidence adduced in the case showed that there were two separate relevant transactions with respect to the property. The "first relevant transaction" involved the Lamb's contract to purchase the property from the developer dated 20 April 2001. The "second relevant transaction" was Mr McTackett's contract to purchase the property from the Lambs on 20 December 2001 (following registration of the strata plan). The sale of the property by the Lambs to Mr McTackett was therefore the "second sale" of the property. This was held to be the case, even though the Lambs had structured the transfer in such a way that their names would not appear on the title.

1. The Applicant sought to distinguish this case on the grounds that the "second sale" from the Lambs to Mr McTackett took place when the strata plan was registered (and presumably the building was actually completed). It is not clear why this is a real point of distinction to the Applicant's situation. The "first sale" to the Lambs (at a time when there was no registration of a strata plan) was what was considered sufficient by the Tribunal to constitute a "sale" of the property as "a place of residence" to the McTacketts. After the sale by the developer to the Lambs, the property no longer satisfied the definition of a "new home".

1. In the present case, the Tribunal has some difficulty (having regard to the way the definitions in the legislation operate) in seeing how, at the date of either the contract between the developer and Mr Moufarrige or the contract between Mr Moufarrige and the Applicant that there was a home or that it was sold as a place of residence. This is because there was no "home" (as defined) at either date and no apparent deeming provision like that in section 13(2) FHOG Act.

1. Nevertheless, by the time of settlement, the Tribunal is satisfied that the Queanbeyan unit was a "home" and was sold as "a place of residence" firstly by the developer to Mr Moufarrige (even though he may have chosen not to live in it and instead completed his contract with the Applicant) and thence from Mr Moufarrige to the Applicant.

1. Unfortunately for the Applicant in this case, essentially the same factual circumstances have arisen as in McTackett's case (with the one exception outlined above). The difference does not, in the view of the Tribunal, prevent the "first sale" from the developer to Mr Moufarrige (like the developer's sale to the Lambs) meaning the unit has been sold as "a place of residence".

1. The Tribunal notes that, having regard to the particular facts of this case, it has some sympathy with the Applicant's submissions that she was the only person that appears to have intended to reside in the property and therefore was in a position to satisfy the "residence requirement" for the First Home Owners Grant but is unable to access the Boost and the Supplement. As indicated clearly in the extrinsic materials these measures were intended to stimulate new building in the economy and to assist first home owners.

1. It does seem likely that at least one of the policy objectives (that is, to stimulate new building in the economy) would be met on the present facts. The contract between the developer and Mr Moufarrige likely did "stimulate" the new building in question.

1. Having regard to the plain words of the legislation, it is clear that where a building (or part thereof) is sold as a residence, it will not qualify again as a "new home". Accordingly where there are multiple sales of one property "off the plan" as it were, then it would appear that only the "first" purchaser may qualify for the Boost and Supplement, and to the extent that such a person does not satisfy the "residence requirement" (i.e. they engage only in buying and selling "off the plan"), it effectively means that no person may access the Boost or Supplement. This does appear to be unfortunate, having regard to one of the twin intents behind the legislation, but the Tribunal must apply the words as enacted by the Parliament.

1. The Tribunal notes that on the basis that the definition of "new home" for the purposes of eligibility for the Supplement in Section 18C is identical to that in Section 18A FHOG Act, then the same analysis applies and the Applicant would not, in the present circumstances, be entitled to the Supplement.

1. Finally, it is noted that there is no discretion available to be exercised by the Respondent or the Tribunal in relation to the meeting of the requirements for the Boost or Supplement under either Section 18A or Section 18C FHOG Act.

Orders

1. For the reasons expressed above, the Tribunal makes the following order:

(1) The decisions of the Respondent are affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

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Decision last updated: 08 March 2011