Ralph and Repatriation Commission

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 258

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/759

VETERANS' APPEALS  DIVISION		)
Re		ROBERT RALPH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date17 March 2006

PlaceBrisbane

Decision The decision under review is set aside and the matter is remitted for reconsideration in accordance with these reasons.

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Deputy President

14.The Tribunal then undertook the exercise of a notional partition with adjustment between the tenants for improvements made by each of them: cf. Brickwood v Young (1905) 2 CLR 387 at 396. But, importantly for present purposes, the Tribunal’s starting point was to divide the value of “Ashmount” equally to determine the value of the respective interests.

15.This case is, I consider, readily distinguishable from Langton. The property in issue there was capable of partition. The same is certainly not true of 18 Ohio Street. Moreover  the property was an income generating property.

16.The next case, Myers, was also concerned with the Social Security Act.  The two applicants in that case each held a one quarter interest (as joint tenants inter se) in a holiday home as tenants in common with two other close relatives. The argument that the applicants advanced was that because, for family reasons, the applicants had no intention of selling the property, it ought be regarded as being as “unrealisable asset” as that term is used in the Social Security Act. Whilst the Tribunal adopted one half of the value of the holiday home as the value to be attributed to the applicants’ interests there seems to have been no argument to the contrary from the applicants who represented themselves.

17.Thus whilst the Tribunal in Myers adopted the proportionate approach it does not appear to me to have been made an issue whether that was the proper approach, rather, in the absence of any argument to the contrary, the Tribunal seems to have adopted that approach without any detailed consideration of its application.

18.In dealing with the question of unrealisable asset the Tribunal said, at paragraph 30,

“The Myers desire to provide a holiday home for their extended family must be balanced with the community expectations that those members of the community with assets use those assets to support themselves.”

The respondent here relied upon this passage in support of a contention that pensioners who enter into non-commercial family arrangements should not expect to receive advantageous pension treatment. As it seem to me that reliance is, with respect, misplaced. The value is not expressed by the legislation to be qualified by reference to pension treatment, advantageous or otherwise. The legislation requires the Commission, and thus the Tribunal, to have regard to “value”. There are other provisions in the legislation that operate to prevent disposal of assets but, for the moment at least, those provisions are not in issue.

19.Of more significance, although not in a legal sense, is the reference in paragraph 23 of the…