Robertson v Chief Commissioner of State Revenue

[2002] NSWADT 217

CITATION:	Robertson -v- Chief Commissioner of State Revenue [2002] NSWADT 217
DIVISION:	General Division
PARTIES:	APPLICANT Jarrad Robertson RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	023146
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10/14/2002
DATE OF DECISION:	10/30/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	first home owners grant - approval of application - First Home Owners Grant Act - first home owners grant - approval of application
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 First Home Owners Grant Act 2000
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT G Van Emmerik, agent
ORDERS:	1. The Chief Commissioner's decision is affirmed.

Introduction

1 The applicant, Mr Robertson, applied for a grant of $14,000 under the First Home Owner Grant Act 2000 (FHOG Act) in respect of a property at 32A Adams Street , Frenchs Forest (the property). The application included a statutory declaration from Mr Robertson dated 6 April 2001 that: "32A Adams Street is a new home and previously unoccupied and never been sold". On 9 April 2001 the Office of State Revenue paid a grant of $14,000 to Mr Robertson.

2 Following a compliance review, the Chief Commissioner reversed his decision to pay $7,000 of the $14,000 because the property was not a "new home" and consequently does not come within the definition of a "special eligible transaction" in s 13A of the FHOG Act.

3 The Chief Commissioner notified Mr Robertson of his decision and required him to repay $7,000 within 21 days. On 2 September 2001 Mr Robertson objected to the decision. An internal review was conducted on 20 May 2002 which affirmed the original decision. Mr Robertson then applied to the Tribunal for a review of the Chief Commissioner’s decision.

Jurisdiction

4 Pursuant to s 28 of the FHOG Act, the ADT has jurisdiction to review a decision to which an objection has been made. Under s.29(1) of the Act, the ADT may:

(a) confirm, vary or reverse the original decision, and
(b) make any further orders as to costs or otherwise as it thinks fit.
Undisputed facts

5 Mr and Mrs Robertson executed a contract for sale on 4 April 2000 to purchase 32B Adams Street, Frenchs Forest (the property). At the time of the contract, the property was a "new home." However, that contract was rescinded on 18 September 2000.

6 A new agreement in respect of the property was executed on 20 March 2001. It is this contract which is the relevant contract for the purpose of determining whether it is a "special eligible transaction" attracting the additional $7,000 grant.

7 The Chief Commissioner submitted that Mr Robertson has occupied the dwelling since about March 2000. Mr Robertson did not dispute that this was the case. It is not clear from the facts as presented, whether the occupation from March or April 2000 until rescission of the contract in September 2000 was under the terms of the contract or under licence as tenants of the builder. However, from the date of rescission of the contract on 18 September 2000, until execution of the new contract on 20 March 2001, Mr Robertson occupied the home as a tenant of the builder.

Statutory provisions

8 Under the FHOG Act a first home owner is entitled to a grant of $7,000 if their transaction is an “eligible transaction” pursuant to the FHOG Act. It was not in dispute that Mr Robertson’s transaction fell within the definition of an “eligible transaction’ and that he was entitled to a grant of $7,000.

9 Following the commencement of s 13A on 19 June 2001, a first home owner was entitled to an additional $7,000 if the contract was made between 9 March 2001 and 31 December 2001, inclusive.

10 Section s 13A was amended on 22 April 2002. That amendment extended the eligibility for the extra grant to contracts made between 9 March 2001 and 1 July 2002. The original s 13A defined "new home" to mean "a home that has not been previously occupied or sold as a place of residence." The current s 13A expands on that definition, but the change is not relevant for the purposes of this matter. The current definition of "new home" is "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."

11 Mr Robertson submitted that his application "was between the time the second home owners grant was available and when the definition of ‘new’ home was legally written." When s 13A commenced on 19 June 2001, it applied retrospectively to contracts made from 9 March 2001. Since Mr Robertson’s contract commenced on 20 March 2001, he was eligible for the extra grant, as long as his home came within the definition of a "new home".

12 The original s 13A stated that:

(1) A "special eligible transaction" is an eligible transaction the commencement date for which is between 9 March 2001 and 31 December 2001, both dates inclusive, that is:
(a) a contract for the purchase of a new home, or
(b) a comprehensive home building contract for a new home if:
(i) the building work starts within 16 weeks after the commencement date, or such longer period as the Chief Commissioner may allow for delay caused by circumstances beyond the control of the parties, and
(ii) the contract states the building work must be completed within 12 months after it is started or, if the contract does not state a completion date for the building work, it is completed within 12 months after it is started, or
(c) the building of a new home by an owner builder if the eligible transaction is completed before 1 May 2003.

(2) However, an eligible transaction mentioned in subsection (1) (a) that is a contract for the purchase of a new home on a proposed lot in an unregistered plan of subdivision of land is a special eligible transaction only if the contract states the building work must be completed before 1 May 2003 or, if the contract does not state a completion date for the building work, it is completed before that date.

(3) Also, an eligible transaction that is a contract is not a special eligible transaction if the Chief Commissioner is satisfied that the contract replaces a contract made before 9 March 2001 that was a contract to purchase the same home or a comprehensive home building contract to build the same or a substantially similar home.

(4) For the purposes of this section, building work:
(a) starts when laying the foundations for the home starts, and
(b) is completed when the building is ready for occupation as a home.

(5) In this section:
"new home" means a home that has not been previously occupied or sold as a place of residence.

Issue

13 The issue is whether the Chief Commissioner made the correct and preferable decision in requiring Mr Robertson to repay $7,000 on the basis that the contract of 20 March 2001 is not a “special eligible transaction” under the FHOG Act (See s.63 of the Administrative Decisions Tribunal Act 1997).

14 Under s 28(3) of the FHOG Act, the applicant has the onus of proving his or her case in an application for review.

Applicant’s submissions

15 Mr Robertson submitted that the Chief Commissioner originally paid him the grant on the basis that his home was a "new home" and he should be estopped from reversing that decision. According to the Mr Robertson, the estoppel argument is based on the following considerations:

• the confusion between the Federal and State Government over the announcement of the second portion of the new home owners grant;
• the rapid time between the announcement and it becoming available;
• the lack of information and forms available at the time the applicant applied for the grant;
• no legal ruling of what a ‘new’ home was; and
• the lack of trained staff at the Office of State Revenue on this matter (at the time) who could not adequately answer questions on this matter.

Respondent’s submissions

16 The Chief Commissioner submitted that Mr Robertson has occupied the dwelling since March 2000 and that from that date until March 2001, his occupation of the home was as a tenant of the builder. Consequently, on the date of the transaction, that is, 20 March 2001, the home was not a "new home" as it had been occupied previously by the tenants of the builder.

Decision and reasons

17 I do not accept Mr Robertson’s submission that the Chief Commissioner is estopped from reversing his decision. Section 23 of the FHOG Act gives the Chief Commissioner power to "vary or reverse the decision" if he is "later satisfied (independently of any objection under this Act) that the decision is incorrect. A decision cannot be varied or reversed more than 5 years after it was made.

18 Any confusion about the administrative or legal arrangements surrounding the introduction of s 13A cannot affect Mr Robertson’s legal rights under the FHOG Act. Section 13A must be given its natural and ordinary meaning. There is undisputed evidence that Mr Robertson occupied the property as a tenant of the builder for a period of time prior to the purchase of the property. Consequently, as at 20 March 2001, the property was not a "new home" within the meaning of the FHOG Act. Accordingly, Mr Robertson is not eligible to receive the extra $7,000 grant.

19 I can understand that Mr Robertson is aggrieved by the Chief Commissioner’s decision, but neither the Chief Commissioner, nor the Tribunal, has a discretion to grant the extra $7,000 in circumstances where the criteria in the FHOG Act have not been met. While it seems unfair that Mr Robertson is not entitled to the full $14,000, the Tribunal has no choice but to apply the law as enacted by parliament.