Rampton v Chief Commissioner of State Revenue

[2017] NSWCATAD 72

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Rampton v Chief Commissioner of State Revenue [2017] NSWCATAD 72
Hearing dates:	8 September 2016. Last submissions due 6 December 2016
Date of orders:	08 March 2017
Decision date:	08 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	NS Isenberg, Senior Member
Decision:	The Assessment under review is confirmed.
Catchwords:	REVENUE LAW - Duties Act 1997 - New Home Grant Scheme - a new home – multiple homes - vacant land purchase - exclusive occupancy – capacity of person purchasing as trustee.
Legislation Cited:	Administrative Decisions Review Act 1997 Building and Construction Industry Security of Payment Act 1999 Civil and Administrative Tribunal Act 2013 Duties Act 1997 Income Taxation Assessment Act 1997 Land Tax Management Act 1956 Taxation Administration Act 1996
Cases Cited:	B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 David Hurst Constructions Pty Ltd v Shorten [2008] NSWSC 164 Federal Commissioner of Taxation v Galland 4 FLR 566 Provident Capital Limited v Zone Developments Pty Ltd [2001] NSWSC 843 Seovic Engineering Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCA 242
Texts Cited:	Jacob’s Law of Trusts in Australia, sixth edition Address entitled “a Trustee’s lot is not a happy one” delivered by Brererton J to the National Family Law Conference on 19 October 2010
Category:	Principal judgment
Parties:	Robert Leigh Rampton (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel: I Sethi (Respondent)   Solicitors: Galland Elder Lulham (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510681
Publication restriction:	Nil

REASON FOR DECISION

Background

1. On 18 September 2014, the Applicant, on his own behalf, entered into an agreement (the Property Agreement) to purchase vacant land in Goulburn (the Property). On the same date the Applicant, as trustee for the Rampton Family Trust (the Trust), entered into another agreement (the Trust Property Agreement) to purchase another block of vacant land in Goulburn (the Trust Property). That agreement was also completed on 17 October 2014.

2. On 18 September 2014, the Applicant, by separate applications, successfully applied for $5,000 grants under the NSW New Home Grant Scheme (the Scheme) in respect of each of the above agreements.

3. After an investigation, the Respondent informed Mr Rampton on 28 April 2015 (the April 2015 email) that he was entitled to the grant in respect of the purchase of the Trust Property but was not entitled to the grant in respect of the purchase of the Property because “if a purchaser receives a grant for a transaction which occurred in a financial year, that purchaser will not be eligible for a further grant on another transaction in that financial year”. On the same date the Applicant issued to Mr Rampton a Duties Notice of Assessment reference 7794979 (the Assessment) in the sum of $5,102.87, including $102.87 interest, to recover the grant made in respect of the Property.

4. The Applicant objected to the Assessment and by letter dated 11 September 2015 the objection was disallowed (the Disallowance Decision).

5. On 28 October 2015, the Applicant filed an application dated 25 October 2015 with the Tribunal requesting a review of the Disallowance Decision. For reasons not made clear to the Tribunal a second application, substantially identical to the 25 October 2015 application, was filed with the Tribunal on 15 December 2015. These documents are collectively referred to as “the Application”.

Material before the Tribunal

6. The Respondent relied on:

1. A bundle of documents filed 8 December 2015 pursuant to s 58 of the Administrative Decisions Review Act 1997 (ADR Act) (the s 58 documents).

2. A bundle of documents filed 4 July 2016 described as the Respondent’s Tender Bundle.

3. The Respondent’s written submissions made 1 July 2016 (RS) and supplementary submissions made 22 November 2016 (RSS); and

4. Oral submissions by Ms I Sethi.

7. All references to paragraph numbers of submissions on behalf of the Respondent are to paragraphs of RS unless stated to the contrary.

8. The Applicant relied on:

1. the Application;

2. some of the s 58 documents;

3. a document produced by the Office of State Revenue (OSR), last updated 7 January 2016, entitled New Home Grant Scheme (the Respondent’s Memorandum);

4. A Final Occupation Certificate dated 7 May 2015 in respect of the Property;

5. Written submissions on behalf of the Applicant made 6 May 2016 (AS), submissions in reply made 21 July 2016 (ASR), supplementary submissions made 4 October 2016 submissions (ASS); and

6. oral submissions by Mr M Galland who represented the Applicant during the hearing.

9. All references to paragraph numbers of submissions on behalf of the Applicant are to paragraphs of AS unless stated to the contrary.

Consideration

Powers of Tribunal on review

10. Section 96 of the Taxation Administration Act 1996 (TA Act) provides that a taxpayer may apply to the Tribunal for an administrative review of a decision that has been the subject of an objection under certain circumstances, including if the taxpayer is dissatisfied with the Respondent’s determination of the objection.

11. The Tribunal may confirm or revoke a reviewable decision of an administrator, including an assessment, or make a decision in place of the reviewable decision and make orders as to costs or otherwise as it thinks fit, s 101(1) of the TA Act.

12. Section 38 (2) of the Civil and Administrative Tribunal Act 2013 provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. Further, at ss 38 (4) and (5) the Tribunal is to act according to equity and good conscience and the substantial merits of the case without regard to technicalities and shall take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

13. In accordance with s 63 of the ADR Act the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material, and any applicable written or unwritten law.

Issues

14. The Applicant requested that the Tribunal review the Disallowance Decisions.

15. In Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184, Basten JA, Giles JA and Campbell JA agreeing, said:

28.… the right of review…. is given by reference to the operative decision of the Chief Commissioner and not to a ruling made on an objection. Although the existence of an objection is a necessary precondition to the power of review by the Court, and it is the taxpayer’s dissatisfaction with the determination of the objection which provides standing to seek review, it is the initial decision which is the subject matter of the review... Further, it is the original assessment or other decision which is confirmed, revoked or replaced: s 101(1)(a) and (b).

16. There is no dispute that the substantive issue before the Tribunal relates to the Assessment rather than the Disallowance Decision.

Onus

17. The Applicant has the onus of proving its case in a review by the Tribunal, s 100(3) of the TA Act. The requisite standard of proof in such a review is the “balance of probabilities” Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [31] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187.

Substantive law

18. The Duties Act 1997 (the Act) creates and charges a number of duties, s 3. The Act is to be read together with the TA Act, s 5.

19. There is no dispute that:

1. the Act provides for the imposition of duty on certain transactions concerning dutiable property, including transfers of dutiable property and agreements for the sale or transfer of dutiable property, s 8;

2. dutiable property includes land in New South Wales, s 11; and

3. the transferee is the person liable to pay the duty, s 13.

20. Chapter 2 of the Act relates to transactions concerning dutiable property and includes at ss 81 to 87G, Division 1A headed “New Home Grant Scheme”. Section 81 provides that the Scheme is intended to provide conditional assistance in the purchase or construction of a new home and s 82 provides for a conditional $5,000 grant under the Scheme.

21. Excerpts from other relevant provisions of the Act are extracted below. All references to legislative provisions in these reasons are to provisions of the Act unless stated to the contrary.

The Respondent’s case

22. Before the hearing started the Respondent raised several points including the following:

1. 28 April 2015 - the Respondent informed the Applicant that the Scheme limited each purchaser to one grant per financial year. As the Applicant, had received a grant in respect of the purchase of the Trust Property he was not eligible for a grant in respect of the purchase of the Property in the same financial year.

2. 9 December 2015 - the Respondent informed the Applicant’s solicitors that the Respondent would rely on an additional basis for determination by the Tribunal. That basis was the eligibility requirement at s 83 (4) which provided that an agreement or transfer for a purchase of vacant land was not eligible for the grant unless foundations for the home commenced to be laid within 26 weeks after completion of the agreement or transfer or within any longer period allowed by the Respondent. I observe that the relevant provision is in s 85 (4) not s 83 (4).

3. 1 July 2016 - at [3], [5] and [6] the Respondent submitted that what he called the “principal issue …. whether the applicant is entitled to the benefit of a grant under the Scheme in relation to the second block of land which he purchased in the 2015 financial year” raised two questions for determination:

1. whether the purchase of the Property is eligible for payment of a grant where the Applicant had in the same financial year purchased the Trust Property in his capacity as trustee for the Trust; and

2. whether the multiple homes built on the Property were a “new home” for the purposes of s 83 (4) and s 87G.

23. In RSS the Respondent submitted:

35.   …. the discretionary Trust could be objectively viewed as an unreal or ineffective means by which the Applicant obtained the benefit of a grant under the Scheme more than once in the same year — contrary to the restriction contained in s.85A of the Act.

36.   …. although the Respondent does not go as far as refusing the Applicant a grant under the Scheme in respect of the [purchase of the Trust Property]; the Respondent submits that the nature of the Trust ought to be taken into account by the Tribunal when considering the overall facts of this Review

Analysis of the Applicant’s case

24. The Application requested a review by the Tribunal on the following grounds:

1. The decision is contrary to the provisions of the Duties Act 1997.

2.    The decision fails to give proper weight to the definition of “Transferee”.

3.   The decision fails to distinguish between the two Capacities of the Appellant (sic).

4.    The intention of Parliament is not served by the decision as so claimed.

25. The Applicant submitted that the Crown Solicitors Office letter of 9 December 2015 correctly stated that, in accordance with s 100 (2) of the TA Act, on a review, the Applicant’s case was not limited to the grounds of the objection.

26. Mr Galland informed the Tribunal at the commencement of the hearing that the Applicant agreed to the facts as stated in RS.

Maximum of one eligible transaction per financial year

27. There is no dispute that the agreements for sale and the transfers of both the Property and the Trust Property occurred during the 2015 financial year.

28. Section 85A relevantly provides:

85A Maximum of one eligible transaction per financial year

(1) A transaction (a new transaction) is not eligible if:

(a) a payment of a grant under this Division has been made to the transferee, or any one of them, in respect of another transaction, and

(b) that other transaction occurred in the same financial year as the new transaction.

….

29. The Applicant submitted that the Respondent had conceded that a transferee can be either a natural person, a company or the trustee of a trust and referred to a publication issued by the Respondent to this effect on 28 September 2015. The Respondent did not dispute this statement and stated at [51] “the term transferee is not defined in the Act and is taken to include a natural person, a company or a trustee of a trust.”

30. Accepting, for the purpose of this matter, that a transferee can be a natural person, a company or the trustee of a trust I observe that no authority was provided by the Applicant to the effect that a trustee cannot also be either a natural person or a company.

31. The Applicant submitted that he entered into the purchase of the Trust Property “as trustee for the Rampton Family Trust”. This is not a matter of dispute. However, the Applicant also submitted:

The capacities [of a natural person, a company and a trustee] are clearly defined.

This distinction [in the capacities of a person, a company and the trustee of a trust] is recognised by the Chief Commissioner by his making a grant in favour of the Rampton Family Trust on the [Trust Property] Contract. The fact that the Applicant happens to be the Trustee is of no moment. The Trustee could be any person or even a corporate Trustee. The Grant is to the Trust and accordingly the transferee is the Trust. (bolding by the Tribunal)

At law there is a well recognised distinction between natural persons, corporations and Trusts. Trusts must perforce act through Trustees who simply represent the Trust. …..

The Trustee is not personally liable under the Contract (leaving aside circumstances where a Trustee acts outside the terms of the Trust) and should not be personally penalised as the Chief Commissioner proposes to do under the Act when he acts as a "natural person" as transferee in another "transaction".

The position is that if the Trustee was XYZ Pty Limited there would be none of the problems regarding the Grant in [the Property Agreement]to the Applicant as a natural person transferee.

Accordingly it is the Applicant's submission that Section 85A does not disqualify the Applicant from the benefit of the Grant.

32. In ASR the Applicant submitted:

The land involved in [the Trust Property Agreement] was transferred to the Rampton Family Trust. It can never be an asset of the Trustee…. The Trust will be assessed for Land Tax, the rate of assessment depending on the terms of the Trust.

33. The Act makes no distinction as to the capacity in which a legal entity purchases property for the purpose of the Scheme. The Respondent submitted:

68 Significantly, the Act does not contain a provision similar to s 960 100(3) of the Income Taxation Assessment Act 1997 which specifically provides that

"A legal person can have a number of different capacities in which the person does things. In each of those capacities, the person is taken to be a different entity".

69.   It is apparent that legislature has specifically omitted reference to transferees in separate legal capacities in s.84A (sic). In the absence of legislation expressly providing otherwise, trustees as such are not distinct legal persons, in representative capacity, separate from themselves, in a personal capacity. In the circumstances, guidance from the High Court stating that a trustee has no additional or qualified legal capacity should not be overlooked.

The Applicant did not respond to this submission.

34. There is no dispute that there is no provision in the Act for a transferee of property to be a “trust”.

35. While the Applicant acknowledged that the Respondent was “strictly correct to point out that a trust is not “an entity””, the Applicant in the same paragraph asserted that a trust is a “legal institution” and is often classified as “an entity”.

36. The introduction to Jacob’s Law of Trusts in Australia, sixth edition by RP Meagher and WMC Gummow, who were at the time respectively a Justice in the Court of Appeal of the New South Wales Supreme Court and a Justice of the High Court, referred to:

… the trust concept - the concept of a beneficial ownership of property existing side-by-side with and possessing most of the characteristics of the ownership of the legal title to that property …

Chapter 1 of the text commences with:

The trust is an institution developed by equity with its own particular characteristics. A trust is not a juristic person with a legal personality distinct from that of the trustee and the beneficiaries, whether they be individuals or corporations. A trust exists when the holder of a legal or equitable interest in certain property is bound by an obligation cognisable and enforceable in equity, to hold that interest not for his own exclusive benefit but for the benefit, as to the whole or part of such interest, of another person or persons, or of himself and such other persons, or for some object or purpose permitted by law. That is not the definition of a trust, but a description …

37. The Honourable Justice Paul Brereton delivered an address, entitled “a Trustee’s lot is not a happy one”, to the National Family Law Conference on 19 October 2010. His Honour said, in relation to the nature of trusts:

a trust is a personal obligation binding on the legal owner of property, and the next to that property, to deal with for the benefit of the beneficiaries. Unlike a company, a trust - including a discretionary trust - is not a separate legal entity. In law, a trustee is not recognised as having an additional or qualified legal personality.

38. His Honour’s authorities for the last sentence in the above extract include Glennon v Federal Commissioner of Taxation (1972) 127 CLR 503, 511-2 and Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360, 367-8.

39. His Honour continued:

This means that the trustee of a trading trust is personally liable to creditors, and can be sued and bankrupted (or, if a company, wound up). Although trusts are often spoken of as if they were separate legal entities, this is misconceived. Accounting practice has contributed to this misguided view.

40. His Honour then provided an extract from a decision of Young CJ in Eq in Provident Capital Limited v Zone Developments Pty Ltd [2001] NSWSC 843:

49 …. there does not appear to have been any proper analysis on the plaintiffs’ side as to what one is really doing when one takes property in the name of X as trustee for Y. I note commercially it is done very often, and accounting firms evidently recommend it. But when one is dealing with a significant amount of property one has to deal with these questions as matters of law and not as matters of accounting practice.

41. In support of his argument that the transferee is the “Trust” not the trustee of the Trust, the Applicant submitted “The Trust will be assessed for Land Tax”, without providing any supporting authority.

42. I observe that the Land Tax Management Act 1956 (LTM Act) relevantly provides:

24 Trustees

Any person in whom land is vested as a trustee shall be assessed and liable in respect of land tax as if he or she were beneficially entitled to the land …

43. It may well be that in appropriate circumstances, assets of a relevant trust fund will be used to pay land tax imposed on a trustee or the trustee will be reimbursed for making such a payment. However, that is materially different from the statement “the Trust will be assessed for Land Tax” having regard to the provisions of the LTM Act.

44. The Applicant’s submission in ASR:

The dealings by a Trustee of a Trust are not dealings on the Trustee's own individual or corporate behalf but as Trustee for the Trust. The assets acquired in the name of the Trustee do not become part of the Trustee's own estate. Such assets are assets of the Trust and constitute a separate Fund and are not part of the Trustee's own estate.

may well be correct. However, this does not lessen the personal liability of the Applicant for debts incurred when entering into obligations on behalf of the Trust nor the Applicant’s right to an indemnity from assets comprising the trust fund in relation to the liability so incurred.

45. The Applicant’s next sentence in ASR “The Trust is therefore the Transferee and the property an asset of the Trust.” is correct in so far as the Trust Property becomes part of the trust fund. However, there is no logical nexus to require that “the Trust is therefore the Transferee” and the submission evidences a misunderstanding of the concept of “a trust”. The submission is rejected as are the submissions on page 4 of ASR “the legal reality [is] that the Trust is the “transferee”” and on page 2 of ASS that in respect of an acquisition of property by “a Trustee of a deceased Estate …. The Estate itself is the purchaser, a (transferee) under the …. Act”. In respect of deceased estates, I refer to the references to legal personal representatives of deceased persons in s 63.

46. I observe that during the course of the hearing Mr Galland orally conceded that, notwithstanding the Applicant’s written submissions, the Applicant was personally liable for debts incurred as trustee.

47. The Applicant submitted in page 2 of ASS:

…. the individual has a separate status to the Trust recognised at law.

An authority supporting this distinction between the individual and the Trust is Federal Commissioner of Taxation v Galland 4 FLR 566 (Applicant's Authority List File herewith).

The case involved the assignment of income by a Taxpayer in a partnership to a Family Discretionary Trust. …

48. To the extent that the Applicant submitted that Galland is authority for the proposition that the Applicant is separate and distinct from the Trust, there is no dispute concerning the correctness of the proposition. The Applicant is a natural person who is a legal entity. The Trust, for the reasons detailed above is not a legal entity.

49. To the extent that the Applicant submitted that Galland is authority for the proposition that an effective assignment of income in that matter was to a discretionary trust and not to the trustee of that trust, and therefore the acquisition of the Trust Property in this matter was an acquisition by the Trust not the Applicant, that submission is rejected. My reasons for rejecting the submission are:

1. Galland involved an assignment by deed of 49% of the assignor’s interest in a legal professional partnership “to Galland Services [Pty Ltd] as trustee” of a trust. This is found in the joint judgment of Bowen CJ and Fisher J at point 6 in page 570. The assignor’s interest in the partnership included a share of capital, profits and losses. The relevant trust had been established prior to the execution of the deed of assignment.

Accordingly, the assignment was to a trustee, not “to a Family    Discretionary Trust” as asserted by the Applicant.

2. In relation to the Applicant’s implied submission that it is not appropriate for the Tribunal to interpret the law on the “strictly correct” basis that a trust is not an entity as submitted by the Respondent, I observe that in Galland, Beaumont J at 580 – 581, with whom Bowen CJ and Fisher J agreed at 574, rejected a submission by the Federal Commissioner of Taxation:

… that the assignment should be ignored as ineffective because statutes imposing taxation should not be construed according to the “technicalities” of real or personal property; rather they should be applied “in the light of the commercial and economic realities” …

50. Accordingly, for the reasons set out above, I am not satisfied on the material before me that for the purpose of the Scheme the Applicant in his personal capacity as a purchaser of the Property is a different person to the Applicant in his capacity as purchaser of the Trust Property as trustee.

Vacant land purchase, relevant intention, a new home, multiple homes

51. Sections 83 and 87G relevantly provide:

83 Types of agreements or transfers that are eligible

(1) The following types of agreement or transfer are eligible under the scheme:

….

(c) a vacant land purchase.

….

(4) A vacant land purchase is an agreement for the sale or transfer, or a transfer, of vacant land in New South Wales that is intended to be used as the site of a new home and which is not an off the plan purchase.

(5) The agreement or transfer must be for the whole of the land or, if the land is a parcel of land on which 2 or more homes are built, or are being built, for that part of the land that is an exclusive occupancy.

(6) Land is an exclusive occupancy only if the Chief Commissioner is satisfied that the person acquiring the land will be entitled to occupy a home that is built, or being built, on the land as a place of residence to the exclusion of other persons who occupy or are to occupy the other home or homes built or being built on the parcel of land.

87G Definitions

In this Division:

home means 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.

new home means a home that has not been previously occupied or sold as a place of residence.

new home grant means the grant payable under this Division.

new home purchase—see section 83.

….

vacant land purchase—see section 83.

52. There is no dispute that the relevant transaction was not an “off the plan purchase”.

53. The Respondent submitted that a question for determination was whether there was an intention to use the Property as the site of a new home rather than as a site for the construction of multiple homes. The Respondent also submitted that the relevant agreement was not for that part of the land which was an exclusive occupancy.

Intention to use the Property as the site of a new home

54. The Applicant referred in AS to ss 83(4) and 87G and then submitted:

On page 3 of [the Respondent’s Memorandum] … under the Heading "What is a Home" the Chief Commissioner states inter alia

"A house (sic) is a building (affixed to land) that:

• may lawfully used as a place of residence.

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

A suitable building for a place of residence includes a house, a unit or flat, a townhouse, a villa, or any other type of self-contained dwelling affixed to land …. where evidence can be provided that the local council is satisfied that the dwelling can be occupied as a place of residence.

Annexed hereto …. is a Final Occupation Certificate [the Final Occupation Certificate] … certifying that the requirements of the Council have been fully satisfied for the whole building to be lawfully occupied as a residence within the residentially zoned area.

The "duplex" separate lots were not created until the registration of the subdivision plan on 24th April, 2015 at the Land Titles Office.

Accordingly it is submitted that the building on the previously vacant land of [the Property Agreement] may lawfully be used as a residence and the contention of the Chief Commissioner is not established.

55. I make the following observations in relation to the above submissions:

1. the extract from the Respondent’s Memorandum makes no reference to “a home” being a building which is constructed and approved for use for multiple residences.

2. Contrary to the submission, the Final Occupation Certificate, which is in evidence, does not certify that the “whole building” may “be lawfully occupied as a residence”. The wording of the Certificate is that the approved use of the whole building is for “Two Semi Detached Dwellings”.

3. The statement that ““duplex” separate lots were not created until the registration of the subdivision plan on 24th April, 2015” does not detract from the evidence before the Tribunal of the Applicant’s intention more than one year prior to the date of the Property Agreement, to construct on the Property a building comprising new semi-detached dwellings and to subdivide the Property. That evidence is contained in multiple locations in the Respondent’s Tender Bundle including:

1. Tab 1 at page 2, item 6 (Development Application signed by the Applicant on 22 July 2013);

2. Statement of Environmental Effects at item 3.1 at Tab 2, page 11 containing a reference which includes JULY/2013 (created by architects on behalf of “Robert Rampton Constructions”);

3. Notice of Determination of a Development Application dated 27 September 2013 from the local council addressed to the Applicant identifying the Property and the proposed development being “Construction of Two Semi Detached Dwellings and Torrens Title Subdivision” at Tab 3;

4. BASI (Building Sustainability Index) Certificates at Tab 4 which show at pages 29, 30 and 37, 38 two separate certificates each for a single dwelling on the Property, apparently prepared by the architects engaged by the applicant and each certificate relating to an “attached dwelling house”; and

5. a Proposed Site Plan dated July 2013 which appears at pages 46 and following in the Respondent’s Tender Bundle showing two semi-detached dwellings in a proposed subdivision of the Property.

56. I am satisfied on the evidence before me that the intention of the Applicant for more than one year prior to the date of exchange of both the Property Agreement and the Trust Property Agreement was to construct multiple dwellings on, and to subdivide the Property, not to construct a single home on the Property.

Multiple homes

57. The Applicant submitted in ASR:

A duplex squarely and clearly satisfies the definition of a "new home" for the purpose of the Act. The definition in Section 87G is a combination of a "home" and a "new home". The essentials are:-

(i) that it is a building that (a) may be lawfully used as a place of residence,

(b)   and

(ii) has not been previously occupied or sold as a place of residence.

The building constructed by the Applicant is a building under one roof. It can be occupied as a home by two families related or otherwise each of which as an independent entrance.

Nowhere in the definitions is the word "single" used. The Respondent in seeking …. to define a duplex as comprising "more than a single home" fails to appreciate the terms of the definition in Section 87G. Similarly the use by the Respondent of the words "new duplex of homes" …. is a misleading exaggeration and also does not reflect the definition.

The building constructed by the Applicant satisfies the definition of "new home".

In relation to Section 83(5) & (6)

The Respondent [alleges] …. s 83(5) is applicable in the Applicant's circumstances. It is our submission that this subsection does not apply.

The purchase by the Applicant is for the "whole of the land". The rest of the sub clause (5) "or   occupancy" does need to be considered.

If that submission is not accepted then said sub clause provides if the land is a parcel on which 2 or more homes are built or are being built the transfer must be for that part of the land that is an exclusive occupancy.

The word "home" is defined in Section 87G as...."a building".... The Applicant has only constructed a ie. one building and not by the clear definition "two homes" ie. two buildings.

However the Applicant has in any event "exclusive occupancy" of the whole of the land. He purchased all the land in the Redman Contract. He is thus entitled to occupy the home as defined as a place of residence to the exclusion of all other persons.

It appears to us that the Respondent is attempting to involve this sub section in a manner which was not intended by the legislation. The section appears to more appropriately relate to situation where there is a Strata Development for example.

58. The Respondent submitted:

47   It is clearly the intention of the legislation that a grant under the Scheme be available only to a parcel of land having exclusive occupancy, that is, a single new home

48   Since [the Property Agreement] was not with respect to the part of the vacant land which was an exclusive occupancy, [the Property Agreement] falls foul of subsection (5) and therefore does not meet the s 83 requirement to qualify as an eligible agreement or transfer approved under the Scheme

49 In David Hurst Constructions Pty Ltd v Shorten [2008] NSWSC 164, the Court considered whether the words "on such part of the premises as the party for whom the work is carried out resides or proposes to reside" in s 7(2)(b) of the Building and Construction Industry Security of Payment Act 1999 Nicholas J stated that:

"the natural and ordinary meaning of the words of the provision is fairly plain, and must be understood to confine the contract to one which, in substance, is for the residential building work it specifies, namely work on such part of any premises as the party for whom it is carried out resides in, or proposed to reside in That is to say, but the use of the phrase "on such part of any premises" the scope of the work to be done is confined to work at the particular place where the party resides, or proposes to reside"

59. In RSS the Respondent submitted, in respect of the above extract from David Hurst Constructions:

8.   Consistent with this approach, s.83(4) and S.87G of the Act must be taken to refer to a single and distinct new home.

60. It seems to me having regard to s 83 (5) that a relevant eligible agreement must be for the whole of a parcel of land if it is intended to be the site of “a new home”. However, if it is the intention that the land is “a parcel of land on which 2 or more homes are … being built” then the purchase is to be for “that part of the land that is an exclusive occupancy” and is not to be of the whole of the parcel of land.

61. It is not disputed that in this matter the Applicant purchased the whole of the land, not part of the land.

62. Exclusive occupancy is defined in subsection (6) to have regard to the satisfaction of the Respondent. In these proceedings that requires the satisfaction of the Tribunal. The Applicant must satisfy the Tribunal, not only that the Applicant purchased part of but not the whole of the land but also “that the person acquiring the land will be entitled to occupy a home … being built, on the land as a place of residence”.

63. I am not satisfied on the evidence before me that there was at any relevant time any intention to build “a home” on the land the subject of the Property Agreement. It seems to me that the clear intention of the Applicant at all relevant times was to build “2 or more homes” on the Property. Nor am I satisfied that the Applicant purchased part only of the Property / land.

64. The Applicant submitted that multiple homes were effectively a single home. No authority was provided in support of this submission.

65. The Respondent referred to the decision in David Hurst Constructions. While that decision relates to the interpretation of the Building and Construction Industry Security of Payment Act 1999 rather than the Act, I accept that its provisions and, with respect, the decision of Nicholas J, provide some guidance in relation to the interpretation of the Act in the present matter.

66. Having regard to the material before me I am not satisfied that the Applicant in acquiring the Property would be “entitled to occupy a home” as required by subsection (6).

Commencement of laying the foundations within the required period

67. Section 85 relevantly provides:

85 Restrictions on eligibility

(1) An agreement or transfer is not eligible if:

….

(4) For a vacant land purchase, the agreement or transfer is not eligible unless the laying of the foundations for the home commences:

(a) within 26 weeks after the agreement for sale or transfer is completed or, in the case of a transfer executed otherwise than in conformity with an agreement for sale or transfer, the transfer occurs, or

(b) within any longer period allowed by the Chief Commissioner.

68. The Respondent put the Applicant to proof in relation to when the laying of the foundations commenced in relation to the date of completion of the Property Agreement.

69. The Applicant submitted that the purchase of the Property was a purchase of vacant land intended to be used as the site of a new home and that the Respondent had conceded that the laying of the foundations had commenced within 26 weeks after completion of the agreement for sale or transfer.

70. I dealt with the issue of the intention to use the Property “as the site of a new home” above.

71. No evidence was brought to my attention as to the date on which laying the foundations of any building on the Property commenced. However, the Applicant submitted at page 3 that the Respondent had conceded “that the foundations for the building were laid within 26 weeks of the completion of the sale of land”. The Respondent did not dispute that submission.

72. Having regard to other findings I make in these proceedings it is not necessary for me to make a finding as to when the laying of relevant foundations commenced.

The intention of Parliament

73. The fourth ground in the Application was that “the intention of Parliament is not served by the decision as so claimed”.

74. The onus lies on the Applicant to prove his case on the basis of probative evidence before the Tribunal.

75. In Seovic Engineering Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCA 242 Meagher JA, with whom Beazley P and Macfarlan JA agreed, said:

19 The High Court has repeatedly stated that the task of statutory construction begins and ends with a consideration of the text, which is to be considered in its context (including its legislative history and any extrinsic materials): FCT v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]; Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [22].

76. The Applicant provided no evidence as to “the intention of Parliament” by way of the legislative history of the Act nor any extrinsic materials, merely by way of submissions. I am not satisfied that it is appropriate in these circumstances to make assumptions regarding Parliament’s intention beyond considering the wording of the Act and having regard to the evidence before the Tribunal.

Eligibility of the purchase of the Trust Property for a Grant under the Scheme

77. I observe that:

1. at [34] the Respondent submitted “This review does not concern the availability of a grant under the Scheme to the Applicant in relation to [the Trust Property]”; and

2. the representatives of both parties informed me orally at the commencement of the hearing that the decision under review was the Assessment, not the eligibility of the Applicant for a grant in respect of the purchase of the Trust Property.

78. It may be that evidence in relation to the eligibility of the purchase of the Trust Property exists and was provided to the Respondent, but did not form part of the evidence before me.

79. However, I observe:

1. the application form for the grant in respect of the Trust Property Agreement includes an excerpt from s 85B which relevantly states

(4) …. a transferee is acquiring the land in a trustee capacity, [and eligibility criteria applies] only if at least 50% of the beneficial interest in the land is held by Australian citizens, Australian residents or Australian-owned bodies.

2. The terms Australian citizens, Australian residents or Australian-owned bodies are defined in s 85B. There is no dispute as to these terms.

3. The Trust, the deed establishing which is in evidence (the Deed), appears to be a relatively standard discretionary trust and there is no evidence that any member of the class of persons described as “beneficiaries” have any proprietary legal or beneficial interest in any asset in the trust fund, including the Trust Property.

80. The Applicant submitted at page 2 in ASS that he was named as a potential discretionary income beneficiary and also a potential discretionary corpus beneficiary in the Deed and that he is the trustee of the Trust and that it is possible, providing certain steps are taken to control the distribution of income and corpus of the Trust, that he could thereby benefit himself. This may well be the case. However, there is no evidence before the Tribunal:

1. that any such steps had ever been taken;

2. that the Applicant had at any relevant date a relevant beneficial interest in the Trust Property; nor

3. that at any relevant date, at least 50% of the beneficial interest in the Property was held by one or more Australian citizens, Australian residents or Australian-owned bodies.

81. Accordingly, and without making any findings, I observe that the basis on which a grant was initially made in respect of the Trust Property Agreement is not clear to me, nor is the basis on which the Respondent stated in the April 2015 email that Mr Rampton was eligible to retain the grant in respect of the Trust Property Agreement.

Decision

82. Having regard to the above findings, I am not satisfied on the material before the Tribunal that the purchase of the Property was effected by an eligible agreement or transfer. Accordingly, the correct and preferable decision of the Tribunal is that the Assessment is confirmed.

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: 08 March 2017