Nikjoo v Chief Commissioner of State Revenue

[2022] NSWCATAD 213

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Nikjoo v Chief Commissioner of State Revenue [2022] NSWCATAD 213

Hearing dates:

2 May 2022

Date of orders:

28 June 2022

Decision date:

28 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The application is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

Catchwords:

ADMINISTRATIVE REVIEW – HomeBuilder grant – reviewable decision – general jurisdiction – frivolous, vexatious or otherwise misconceived and lacking in substance

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

First Home Owner Grant (New Homes) Act 2000 (NSW)

Tax Administration Act 1996 (NSW)

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Procedural rulings

Parties:

Navid Nikjoo (Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Solicitors:
Nikjoo Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2022/00023283

Publication restriction:

None

REASONS FOR DECISION

1. This is an interim application filed by the Chief Commissioner of State Revenue (“the Respondent”) seeking that an application filed by Mr Navid Nikjoo (“the Applicant”) be dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act (2013) (NSW) (“the NCAT Act”).

2. On 25 January 2022, the Applicant filed in the Tribunal a request to review a decision of the Respondent dated 17 January 2021. In essence that decision was made by the Respondent refusing the payment of a HomeBuilder Grant to the Applicant in relation to the renovation of a residence in Kellyville, owned by the Applicant and his wife.

3. Relevantly, the HomeBuilder Grant Scheme is described by the Respondent in its decision as follows:

‘On the 4 June 2020, the Commonwealth announced HomeBuilder to provide eligible owner occupiers a $25,000 grant to build a new home or substantially renovate an existing home.

New South Wales entered into a national partnership agreement (“the agreement”) with the Federal Government with roles of the State defined in the agreement. In accordance with clause 17(a) of the agreement the States agree to be responsible for:

(a) administering HomeBuilder. Each State will make the necessary arrangements to administer HomeBuilder consistent with the terms, conditions, eligibility criteria and principles set out in section A.

Revenue New South Wales was thereby assigned the powers to administer the scheme in accordance with this agreement. The eligibility criteria are outlined in Schedule A of the agreement and as set out in the application form and lodgement guide.

The eligibility criteria as per Schedule A of the agreement requires owner-occupier applicants must be Australian citizens. Specifically, the requirements state that each person whose name is on the Certificate of Title to the property must be an applicant and that all applicants must be Australian citizens at the date of the application.’

4. For reasons which are set out in the Respondent’s decision, the Applicant (and his wife) did not meet the eligibility guidelines requiring ‘for substantial renovations, you must be registered on the Title as owner of the property at the time that you enter into the contract for renovation work.’ and the application for the HomeBuilder grant was refused.

5. The Respondents contends that the decision to refuse the HomeBuilder grant is not an administrative reviewable decision. Therefore, the Tribunal does not have jurisdiction to review that decision or determine the proceedings. The Respondent also submits that the Tribunal’s general jurisdiction is not enlivened to determine these proceedings.

6. The Applicant presses the application on the grounds that the Tribunal has such jurisdiction.

The Tribunal’s Jurisdiction

7. Section 28 of the NCAT Act provides that the Tribunal has jurisdiction as follows:

1. Jurisdiction of the Tribunal generally

2. The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

3. In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction -

   (a)   the general jurisdiction of the Tribunal,

   (b)   the administrative review jurisdiction of the Tribunal,

   (c)   the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction),

   (d)   the enforcement jurisdiction of the Tribunal.

4. Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after establishment of the Tribunal.”

   8. Section 29 of the NCAT Act sets out the general jurisdiction of the Tribunal as follows:

5. General jurisdiction

6. The Tribunal has general jurisdiction over a matter if -

   (a)   legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

   (b)   the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

7. The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction -

   (a)   the jurisdiction to make auxiliary and interlocutory decisions of the Tribunal in the proceedings,

   (b)   the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

8. A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction.

9. A general application is an application made to the Tribunal for a general decision.

10. Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.”

    9. Section 30 of the NCAT Act sets out the administrative review jurisdiction of the Tribunal as follows:

11. Administrative review jurisdiction

12. The Administrative Decisions Review Act 1997 provides for the circumstances in which the tribunal has administrative review jurisdiction over a decision of an administrator.

13. The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction -

    (a)   the jurisdiction to make auxiliary and interlocutory decisions of the Tribunal in the proceedings,

    (b)   the jurisdiction to exercise such other functions as are conferred or implied on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of the proceedings.

14. An administrative reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.

15. An administrator, in relation to an administrative reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.

16. An administrative review decision of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction.

17. An administrative review application is an application to the Tribunal for an administrative review decision.”

    10. Section 6 of the Administrative Decisions Review Act 1997 (NSW) (‘ADR Act’) provides:

18. A decision includes any of the following:

    (a)   making, suspending, revoking or refusing to make an order or determination,

    (b)   giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

    (c)   issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

    (d)   imposing a condition or restriction,

    (e)   making a declaration, demand or requirement,

    (f)   retaining or refusing to deliver up, an article,

    (g)   doing or refusing to do any other act or thing.

19. Decisions made under enabling legislation. For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation.

20. Decisions made without power. For the purposes of this Act, and without limiting subsection (2), a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it.

21. Failure to make a decision on the basis that beyond power. For the purposes of this Act (and without limiting subsection (2)), a refusal of the decision-maker to make a decision under enabling legislation because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation is taken to be a decision made under the enabling legislation to refuse to make the decision requested.

22. Failure to make a timely decision taken to be a failure to make a decision. For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enabling legislation concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.”

    11. Section 7(1) of the ADR Act defines an “administratively reviewable decision” as “a decision of an administrator over which the Tribunal has administrative review jurisdiction.”

    12. Section 7(2) provides:

23. For the avoidance of doubt (and without limiting subsection (1) or section 6):

    (a)   the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administrative reviewable decision if enabling legislation identifies the conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and

    (b)   in its application to any such conduct or refusal by an administrator, or reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.’

    13. Section 8 of the ADR Act defines an administrator:

24. An administrator, in relation to an administrative reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.

25. The person or body specified by the enabling legislation as a person or body whose decisions are administrative reviewable decisions is taken to be the only administrator in relation to the making of an administratively reviewable decision even if some other person or body also had a role in the making of the decision.”

    14. Section 9 of the ADR Act, provides that the Tribunal has administrative review jurisdiction of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review under the ADR Act of any such decisions (or class of decisions) made by the administrator.

Tax Administration Act 1996 (NSW) (TA Act)

15. Section 96 of the TA Act provides that a taxpayer may apply to the Tribunal for an administrative review under the ADR Act of a decision that has been the subject of an objection under Division 1 of Part 10 of the TA Act.

16. Pursuant to s 86 of the TA Act:

1. A taxpayer who is dissatisfied with:

   (a)   an assessment that is shown in a notice of assessment served on the taxpayer, or

   (b) any other decision (within the meaning of the Administrative Decisions Review Act 1997) of the chief commissioner under a taxation law,

may lodge a written objection with the chief commissioner.”

17. “Taxpayer” is defined in s 3 of the TA Act as “a person who has been assessed as liable to pay an amount of tax, who has paid an amount as tax or who is liable or may be liable to pay tax.”

18. Section 3 of the TA Act defines “tax” as a tax, duty, contribution or levy under a taxation law, and includes:

“(a)   interest and penalty tax under Part 5, and

(b)   any other amount paid or payable by a taxpayer to the chief commissioner under a taxation law.”

19. An assessment is defined in s 3 of the TA Act as an assessment made by the chief commission “under Part 3 of the tax liability of a person under a taxation law.”

20. Section 4 of the TA Act defines “taxation law” to include the following Acts (and regulations under any of those Acts):

• Betting Tax Act 2001

• Duties Tax Act 1997

• Emergency Services Levy Act 2017

• Gaming Machine Tax Act 2001

• Health Insurance Levies Act 1982

• Insurance Protection Tax Act 2001

• Land Tax Act 1956

• Land Tax Management Act 1956

• Parking Space Levy Act 2009

• Payroll Tax Act 2007

• Payroll Tax Deferral (BlueScope Steel) Act 2015

Submissions for the Applicant

21. The Applicant contends that the decision to refuse the HomeBuilder Grant is an administrative reviewable decision of which the Tribunal has jurisdiction to review. He says the administration of the HomeBuilder Grant Scheme has been conferred to the Respondent in conformity with the First Home Owner Grant Act 2000 (NSW). Alternatively, the Applicant’s contention is that the Tribunal has general jurisdiction to consider and determine the application pursuant to sections 29 and 30 of the NCAT Act.

22. It is not in contest that the HomeBuilder Grant Scheme is a grant to build a new home or substantially renovate an existing home. The grant scheme was an initiative of the Federal Government implemented through a national partnership agreement with the States and Federal Government to distribute the HomeBuilder payment.

23. In written submissions the Applicant sets out the criterion applied in processing both the HomeBuilder grant application and also an application for the First Home Owner Grant (New Homes) Act 2000. The criterion in which applicants are assessed is almost identical. The Applicant contends:

‘7.   It is submitted the administration of homebuilder grants by the Respondent, in accordance with the First Home Owners Grant 2000 Act, manifested in (a) the above almost identical eligibility criteria under both the Act and the homebuilder grant and (b) the emphasis by the Federal Government for the State of NSW to ‘have regard to their existing requirements for policies such as first home owner grants’, and (c) the Chief Commissioner, by way of publishing on the Revenue NSW website, clearly expressed that the ‘HomeBuilder grant complements Revenue NSW’s existing First Home Owners Grant (New Home) scheme and First Home Buyers Assistance Scheme.’

24. It is this contention the Applicant says enlivens the Tribunal’s jurisdiction to undertake administrative review of the decision of the Chief Commissioner to refuse the Applicant a HomeBuilder grant. For the reasons set out below we reject this contention.

25. In the alternative, the Applicant contends:

‘… it is submitted that the Tribunal should assume and exercise jurisdiction under its general jurisdiction to review the Respondent’s decision/determination. It is because the Tribunal should take the objectives of the Civil and Administrative Tribunal Act 2013 as the Parliament’s intention to confer the Tribunal power in circumstances under which a matter does not fall under any other Tribunal’s jurisdiction including administrative jurisdiction. For otherwise the general jurisdiction of the Tribunal would be futile.’

26. The Applicant also contends that the objectives set out in s 3 of the NCAT Act are apposite in the Tribunal exercising its general jurisdiction to review the Respondent’s refusal to grant him a HomeBuilders grant.

27. For the reasons set out below, we do not agree that the Tribunal’s general jurisdiction enables a review of the decision.

The Respondent’s Submissions

28. The Respondent refers to the summary set out above with respect to the Tribunal’s jurisdiction to undertake an administrative review of a decision of the Chief Commissioner as reflected in paragraph [30] . Enabling legislation for review of administratively reviewable decisions made by the Chief Commissioner of State Revenue comes from two sources – s 96 of the TA Act or specific legislation that provides for a right of review to the Tribunal in respect of particular statutory schemes. Those schemes could include, for example, the First Home Owner Grant (New Homes) Act 2000.

29. The Respondent contends that the HomeBuilder Grant is not a statutory grant and is administered through executive power and not under any authorising legislation. Accordingly, there is no specific enabling Act that enlivens the jurisdiction of the Tribunal to review a decision made in relation to that grant scheme. Further, the Respondent contends that the HomeBuilder grant does not fall within Part 10 of the TA Act as Part 10 is confined to a decision that has been the subject of an objection by a taxpayer under Division 1 of Part 10.

30. Further, having regard to the definitions in s 3 of the TA Act, any decision to which an objection is to be lodged under s 86 of the TA Act, and which can be the subject of a review in the Tribunal, must be a decision (including an assessment) under a taxation law. The HomeBuilder Grant is not provided for by any authorising legislation, and specifically, is not provided for by any of the Acts defined as taxation laws found in s 4 of the TA Act.

31. In the result, the Respondent contends that the decision to refuse an application for the HomeBuilder Grant is not a decision under a taxation law and cannot be the subject of an objection under Division 1 of Part 10 of the TA Act. Consequently it is not a decision that can be administratively reviewed by the Tribunal under s 96 of the TA Act, or, otherwise.

32. As it relates to the general jurisdiction of the Tribunal, the Respondent submits that the HomeBuilder Grant is not provided for by statute and there is no legislation that enables the Tribunal to make decisions or exercise functions in respect of the HomeBuilder Grant. The Respondent contends that the Applicant has not identified any legislation that he says enables the Tribunal to make decisions or exercise functions in respect of the HomeBuilder Grant. To that end s 29 of the NCAT Act does not assist the Applicant nor do any of the objectives identified in s 3 of the NCAT Act.

33. The submission of the Respondent is that the application should be dismissed pursuant to s 55 of the NCAT Act.

My Conclusion

34. The administrative review jurisdiction of the Tribunal is clearly set out in sections 29 and 30 of the NCAT Act. In that regard, the Tribunal has general jurisdiction (s 29) over a decision if enabling legislation provides jurisdiction for the Tribunal to make decisions in respect of that matter.

35. Section 30 provides for the administrative review jurisdiction of the Tribunal, which includes the operation of the ADR Act, particularly s 9 of that Act, giving the Tribunal administrative review jurisdiction over a decision if enabling legislation provides for the Tribunal to undertake an administrative review of the administrator’s decision. Therefore, there must be enabling legislation in place that enlivens the Tribunal’s jurisdiction to review a decision of the Respondent.

36. I find the HomeBuilder Grant Scheme is not a statutory scheme. Unlike the First Home Owner Grant (New Homes) Act 2000, there is no legislation authorising the HomeBuilder Grant Scheme but rather it is administered through executive power. In the absence of enabling legislation the Tribunal’s administrative review jurisdiction is not enlivened where a decision under the HomeBuilder Grant Scheme has been made.

37. I also find that s 96 of the TA Act does not provide that a taxpayer may apply to the Tribunal for administrative review under the ADR Act of a decision that has not been the subject of an objection under Division 1 of that Act. I agree with the submissions of the Respondent above as they pertain to the operation of the TA Act. There has been no objection by the Applicant under a “taxation law” which meets the definition of an objection under Division 1 of the TA Act. Therefore, I find there is no administratively reviewable jurisdiction of the Tribunal that is enlivened in this regard.

34. I also find that sections 28 and 29 of the NCAT Act do not assist the Applicant in succeeding in demonstrating the Tribunal has general jurisdiction to review a decision of the Chief Commissioner. For the same reasons there is no enabling legislation enlivening the Tribunal’s general jurisdiction in accordance with the operation of s 29 of the NCAT Act. Therefore, the Applicant’s claim can also not succeed in the alternative.

35. In all respects I am satisfied that the claim is frivolous, vexatious or otherwise misconceived and lacking in substance and should be dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

Order

1. The application is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

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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: 28 June 2022