Secretary, Department of Employment and Workplace Relations v Vanderpluym
[2007] FCA 876
•7 June 2007
FEDERAL COURT OF AUSTRALIA
Secretary, Department of Employment and Workplace Relations v Vanderpluym [2007] FCA 876
ADMINISTRATIVE LAW – SOCIAL WELFARE AND SERVICES – consideration of the construction to be adopted in relation to the term ‘homeowner’ for the purposes of the Social Security Act 1991 (Cth) and related provisions – consideration of the extent to which particular ‘rights’ or ‘interests’ satisfies s 11(4)(b) and s 1118(1)(b) of the Act.
Social Security Act 1991 (Cth), s 4, s 11(4)(b), s 500Q(1), s 500Q(3), s 500Q(4), s 1118(1)(b), s 1122, s 1223(1), s 1237AAD
Administrative Appeals Tribunal Act 1975, s 44(1)
Property Law Act 1974 (Qld)
Residential Tenancies Act 1994 (Qld)Re Dolores Vanderpluym and Secretary, Department of Family and Community Services, Q2004/939
Re Delos Reyes and Secretary, Department of Social Security (1993) 32 ALD 287
Stow v Mineral Holdings (Aust) Pty Ltd (1977) 14 ALR 397
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Radaich v Smith (1959) 101 CLR 209
Re Schultz and Secretary, Department of Family and Community Services 2003 76 ALD 247
Re Johnston and Repatriation Commission (31 May 1994, AAT, Full Tribunal, unreported No. 9508)
Koch and Secretary, Department of Family and Community Services (2002) 68 ALD 651
Re Secretary of Social Security and Williams (1998) 52 ALD 418)
Street v Mountford [1985] AC 809
Harris v Northern Sandblasting Pty Ltd [1995] Aust Torts Rep 81‑365
Chan & Anor v Cresdon Proprietary Limited (1989) 168 CLR 242
Hewett & Ors v Court & Anor (1983) 149 CLR 639SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS v DOLORES VANDERPLUYM
QUD492 OF 2005GREENWOOD J
7 JUNE 2007
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD492 OF 2005
BETWEEN:
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
ApplicantAND:
DOLORES VANDERPLUYM
Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
7 JUNE 2007
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The decision of the Social Security Appeals Tribunal (‘S S A T’) made on 1 November 2004 the subject of reasons published on 10 November 2004 remitting the decision under review before the S S A T to Centrelink with a direction that the overpayment to Mrs Dolores Vanderpluym for the period 14 November 1999 to 10 July 2001 be calculated on the basis that the value of Mrs Dolores Vanderpluym’s assets exceeded the assets value limit applicable to her pursuant to the Social Security Act 1991 (Cth) is affirmed, subject to the following further directions:
(i)that in calculating the overpayment Centrelink is to disregard in calculating the value of Mrs Dolores Vanderpluym’s assets value limit, the sum of $50,000.00 in respect of which Mr Peter Vanderpluym had the benefit of an equitable charge in respect of the residence at 43 Compass Crescent, Nelly Bay, Magnetic Island;
(ii)that in the period 14 November 1999 to 10 July 2001 Mrs Dolores Vanderpluym and Mr Peter Vanderpluym were homeowners within the meaning of that term in the Social Security Act 1991 (Cth); and
(iii)that during the said period, Mr Peter Vanderpluym had an asset by way of an unpaid loan to Magnetic Magic Pty Ltd as part of his property for the purposes of the Social Security Act 1991 (Cth).
3.There shall be no order as to costs.
4.Leave be granted to the respondent to file a Notice of Cross Appeal in terms of the document filed by the respondent dated 19 July 2006.
5.The Cross Appeal is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD492 OF 2005
BETWEEN:
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
ApplicantAND:
DOLORES VANDERPLUYM
Respondent
JUDGE:
GREENWOOD J
DATE:
7 JUNE 2007
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Background
Mrs Dolores Vanderpluym on 28 August 1995 was granted a parenting allowance (later categorised under the legislation as a ‘parenting payment (partnered)’ allowance) pursuant to Part 2.10 of Chapter 2 of the Social Security Act 1991 (Cth) (‘Social Security Act’). During the period 11 February 1999 to 10 July 2001, Mrs Vanderpluym received payments from the Secretary of the relevant department, now the Department of Employment and Workplace Relations (‘the Secretary’) through Centrelink in respect of that allowance.
The Secretary subsequently contended that because the relevant assets of Mrs Vanderpluym and her husband, Mr Peter Vanderpluym, exceeded the applicable statutory threshold informing the quantum of Mrs Vanderpluym’s entitlement to receipt of particular payments, Mrs Vanderpluym had received $16,708.41 more than she was entitled to receive.
Accordingly, Centrelink made a decision on 2 September 2003 to recover from Mrs Vanderpluym the amount of that excess as a debt due to the Commonwealth under s 1223(1) of the Social Security Act. Mrs Vanderpluym sought review of that decision before the Social Security Appeals Tribunal (‘the S S A T’) and on 1 November 2004 (in accordance with reasons published on 10 November 2004), the S S A T set aside the decision and remitted the matter to Centrelink with directions that an overpayment in the period 14 November 1999 to 10 July 2001 be calculated on the footing that Mrs Vanderpluym’s assets in that period exceeded the assets value limit set by the Social Security Act; that any overpayment in that period is a debt due to the Commonwealth; and that as to the period 11 February 1999 to 13 November 1999, any overpayment be calculated on the basis of Mrs Vanderpluym’s income in that period. As a result of those calculations, an overpayment of $12,258.55 was said to arise in the period 14 November 1999 to 10 July 2001 and no overpayment in the earlier period.
Mrs Vanderpluym sought review of the decision of the S S A T before the Administrative Appeals Tribunal (the ‘AAT’) and on 20 October 2005, the AAT set aside that part of the decision of the S S A T which dealt with the receipt of payments by Mrs Vanderpluym in the period 14 November 1999 to 10 July 2001 and remitted the matter to the Secretary for reconsideration with directions that:
‘1(i)During the period 14 November 1999 to 15 April 2001, Peter Vanderpluym and Dolores Vanderpluym were not “homeowners” within the meaning of that term in the Social Security Act 1991,
(ii)During the period 14 November 1999 to 15 April 2001 Peter Vanderpluym had an asset by way of an unpaid loan to Magnetic Magic Pty Ltd, as part of his assets for the purpose of calculating the quantum of parenting payment payable to Dolores Vanderpluym from time to time during the said period.’
Otherwise, the AAT affirmed the decision of the S S A T (Re Dolores Vanderpluym and Secretary, Department of Family and Community Services, Q2004/939).
The references in paragraph 1(i) and (ii) of the AAT decision are directed to first, a ‘right or interest’ in particular property that has an affect upon assets thresholds under the Social Security Act for the purpose of the calculation of an entitlement to a parenting allowance and secondly, whether a particular right (that is, an entitlement to be paid a debt due to Mr Vanderpluym by the nominated company) is an asset of Mr Vanderpluym and thus an asset forming part of the ‘assets value limit’ of Mrs Vanderpluym on the footing that she is ‘a member of a couple’ made up of Mr and Mrs Vanderpluym: s 4, Social Security Act; s 500Q(3), Social Security Act.
The Social Security Act
The structure of the Social Security Act of importance for present purposes is this.
Section 500Q(1) provides that a parenting payment is not payable to a person if the value of the person’s assets exceeds the person’s ‘assets value limit’. The assets value limit of a person who is a member of a couple is determined pursuant to s 500Q(3) of the Social Security Act having regard to a conjunction of two factors relevant here. First, whether Mr Peter Vanderpluym (as Mrs Vanderpluym’s partner) is a person who neither receives a ‘pension’ nor a ‘benefit’ under the Social Security Act and secondly, whether either Mrs Vanderpluym or Mr Vanderpluym is a ‘homeowner’. Since Mr Peter Vanderpluym neither received a benefit nor a pension under the Social Security Act at any relevant time, the ‘assets value limit’ at 1 July 1998 applicable to Mrs Vanderpluym was prescribed by s 500Q(3) of the Social Security Act as $178,500.00 if, ‘either person or partner, a homeowner’; and $268,500.00 if ‘neither person nor partner, a homeowner’. The homeowner limits set at 1 July 1999, 1 July 2000 and 1 July 2001 were $181,500.00, $189,500.00 and $200,500.00 respectively; and the limits if neither Mrs Vanderpluym nor Mr Vanderpluym constituted a homeowner, were $273,000.00, $285,000.00 and $301,500.00 respectively in each of the above years.
Section 500Q(4) provides that for the purpose of determining the assets value limit of Mrs Vanderpluym, the value of her assets includes the value of Mr Vanderpluym’s assets.
Part 2.10 of the Social Security Act establishes a regime for a person’s qualification for an entitlement to ‘parenting payments’ in respect of the parenting of a child or children. Part 2.10 contemplates a wide range of circumstances in which either a parent alone or as a member of a couple is recognised as having responsibility for the care and support of one or more children; establishes regulatory and compliance arrangements in relation to the receipt of parenting payments and, among other things, establishes an assets test pursuant to s 500Q with the result that a parenting payment is not payable to a person if the value of the person’s assets exceed the person’s assets value limit.
The Social Security Act recognises that a person who is either a lone parent or alternatively a person who is a member of a couple, will either be a homeowner or not. If such a person is a homeowner, the value of any right or interest of that person in a residence that is the ‘principal home of the person’ is excluded by s 1118(1) of the Social Security Act from the calculation of the value of that person’s assets for the purposes of the Act. In a case such as that of Mrs Vanderpluym, s 1118(1)(b) provides that not only is the value of any right or interest of Mrs Vanderpluym in such a residence to be disregarded but also that of ‘the person’s partner (Mr Vanderpluym) or of both of them’. The characterisation of that which is to be disregarded in such a calculation is the value of any ‘right or interest’ of the relevant person in a residence constituting the principal home, that is ‘a right or interest that gives the person or the person’s partner reasonable security of tenure in the home’.
The policy of the legislation in the setting of an assets value limit for determining the threshold at which a parenting payment, partnered or otherwise, might cease to be payable is to recognise that a person who is (or their partner is) a homeowner will have a lower assets value limit (recognising that the value of that right or interest is excluded) than a person (including that person’s partner) who is not a homeowner. A non‑homeowner, in part recognition that a homeowner has the benefit of the excluded value of their home, will be entitled to a higher limit on the value of his or her assets before being disqualified from access to a parenting payment whether a member of a couple or not, although, of course, the assets value limit differs for a person who is not a member of a couple as compared with one who is.
The question of whether Mrs Vanderpluym is a person who is a homeowner falls to be determined by s 11(4)(b) which is in these terms:
‘11(4)(b) A person who is a member of a couple is a homeowner if:
(i)the person, or the person’s partner, has a right or interest in one residence that is;
(A) the person’s principal home; or
(B) the partner’s principal home; or
(C) the principal home of both of them; and
(ii)the person’s right or interest, or the partner’s right or interest, in the home gives the person, or the person’s partner, reasonable security of tenure in the home.’
The question that arises in determining whether Mrs Vanderpluym is a homeowner involves two considerations. First, does either Mrs Vanderpluym or Mr Vanderpluym have a ‘right’ or an ‘interest’ in a residence that is Mrs Vanderpluym’s principal home or Mr Vanderpluym’s principal home or the principal home of both of them? Secondly, is that right or interest of such a character that it gives Mrs Vanderpluym or Mr Vanderpluym ‘reasonable security of tenure in the home’? There may be some artificiality in looking at each of these components entirely separately as the nature of the right or interest is informed by whether it is one that is capable of affording ‘reasonable security of tenure in the home’ in determining whether a relevant person is ‘a homeowner’. Section 11(8) of the Social Security Act provides that if a person has a right or interest in the person’s principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Secretary is satisfied that the right or interest does not give the person reasonable security of tenure in the home.
The findings of fact by the AAT
In determining a number of these matters, the AAT found the facts to be these.
In early 1995, Dolores and Peter Vanderpluym sold their home in Sydney and moved to Magnetic Island in Queensland. In doing so, they received cleared funds of approximately $200,000.00 from the sale of their home in Sydney. Mr and Mrs Vanderpluym and their family initially moved into a rented house on Magnetic Island at an address described as 30 Compass Crescent [13(ii)]. Mr Peter Vanderpluym commenced an internet computing business on Magnetic Island and registered the business name ‘Magnetic Magic’ in July 1995. In late 1995 or early 1996, Dolores and Peter Vanderpluym bought a vacant block of land at 43 Compass Crescent, Nelly Bay, Magnetic Island for approximately $50,000.00. After the purchase of that land, Mr Peter Vanderpluym had a residual amount of approximately $150,000.00 remaining in his bank account.
On 28 August 1995, Mrs Vanderpluym was granted a parenting payment by the Secretary. On 3 February 1999, Mr Vanderpluym incorporated a company called Magnetic Magic Pty Ltd (‘MMPL’). Mr Vanderpluym was the sole director and shareholder of that company and controlled the activities of that company. Shortly after the incorporation of MMPL, Mr and Mrs Vanderpluym transferred ownership of the land at 43 Compass Crescent to MMPL. Mr Vanderpluym then obtained registration as an owner/builder and supervised the building of a home on the land at 43 Compass Crescent.
During the course of construction of the home, Mr Vanderpluym transferred money from his bank account into the account of MMPL and payments were made to suppliers and contractors from that account. At 30 June 1999, the books of account of MMPL showed a loan from Mr Vanderpluym to the company of $204,056.00. The Vanderpluym family moved from a rented home in 39 Compass Crescent, Nelly Bay [13(xii)] to the new home taking up occupancy on 14 November 1999. Mr Vanderpluym paid rent in respect of that occupancy of the home to a real estate agent who then paid the money into the account of MMPL.
The home at 43 Compass Crescent became upon occupancy the principal residence of the Vanderpluym family. By 30 June 2000, there had been a transfer of furniture and a motor car to MMPL. The loan account of MMPL showed a debt due to Mr Vanderpluym by 30 June 2000 of $239,526.00. On 15 April 2001, the house and land at 43 Compass Crescent was transferred from MMPL to Peter and Dolores Vanderpluym [13(iv)] apparently in satisfaction of the debt owed to Mr Peter Vanderpluym. At 30 June 2001, the loan account as between MMPL and Mr Vanderpluym showed a debt due to Mr Vanderpluym of $6,000.00. Mr Vanderpluym initially transferred title to the land to MMPL without receiving payment and made further advances so as to provide MMPL with cash flow to obtain an overdraft facility for the benefit of the internet and computer business. The T documents (T2, p 6) reveal that rent from November 1999 was paid to MMPL for the occupation of the home but there was no written agreement for lease or tenancy of the home. Mr Vanderpluym appointed a real estate agent to collect the rent on behalf of MMPL and rent of $165.00 per week was paid by Mr Vanderpluym to MMPL’s agent by personal cheque. Although the AAT found as a fact that the house and land at 43 Compass Crescent was transferred from MMPL to Dolores and Peter Vanderpluym on 15 April 2001, the decision of the S S A T suggests that the transfer was registered to Mr and Mrs Vanderpluym in July 2001 [22 – S S A T decision].
Having regard to these factual findings of the AAT, it can be seen that Mr Vanderpluym had no need of a written lease instrument (registered or unregistered) or tenancy agreement or any formal or written arrangement for occupation of the home at 43 Compass Crescent. The arrangement was simply an oral week to week tenancy at will. No greater formality or registered interest was necessary because the registered proprietor of the land was a company of which Mr Vanderpluym was the sole director and shareholder. Nor did Mr Vanderpluym require a registered mortgage or charge by MMPL or an equitable mortgage to secure advances made by him to MMPL to enable progress payments to be made to suppliers and contractors. There was no need for instruments of that kind nor a consent caveat or any other prudent mechanism designed to prevent an adverse interest arising in relation to the title to the property at 43 Compass Crescent because no inconsistent interest or dealing could be created by MMPL as Mr Vanderpluym controlled MMPL by force of his capacity as sole director and shareholder. The advances made by Mr Vanderpluym to MMPL were just that. They were unsecured loans to MMPL recorded in the balance sheet of the company as a liability to Mr Vanderpluym.
In reaching its decision arising out of a review of the S S A T’s decision of 1 November 2004, the AAT made these conclusions. The term ‘homeowner’ would be regarded by most members of the Australian community as referring to a person who owns a home, that is, the registered owner [20]. A homeowner is to be contrasted with an occupier of a residence whose right or interest in the residence arises under a lease or rental agreement [21]. A renter would not be regarded as a homeowner, irrespective of their security of tenure in the home [21]. A person who has reasonable security of tenure in a home does not thereby automatically make that person the owner of a home [23]. The terms ‘right or interest’ in the definition of ‘homeowner’ must refer to a legal or equitable right or interest in the ownership or the title to the property [24]. Since the residence erected on the property at 43 Compass Crescent was owned by MMPL from the date of construction until 15 April 2001, neither Mrs Vanderpluym nor Mr Vanderpluym had a legal or equitable interest in the ownership of the property and thus neither of them was a homeowner at the relevant time [25]. Although Mr and Mrs Vanderpluym had a ‘leasing arrangement’ with MMPL which gave them ‘security of tenure in the home’, neither Mrs Vanderpluym nor Mr Vanderpluym were homeowners by reason of that circumstance [30].
As a result, the higher assets value limit applied to Mrs Vanderpluym for the purposes of s 500Q(3) in the period 14 November 1999 to 15 April 2001.
Section 1122 of the Social Security Act provides that the value of the assets of a person for the purposes of the Act includes so much of the amount of a loan made by that person that remains unpaid. Accordingly, a debt due to a person arising out of a loan transaction forms part of the value of the assets of that person. Having regard to that section, the AAT found that the debt due by MMPL to Mr Peter Vanderpluym ($204,056.00) during the relevant period was an asset of his for the purpose of assessing the assets value limit of Mrs Vanderpluym (s 500Q(4); s 500Q(3)) and thus ultimately the quantum of the parenting payment (partnered) payable to her from time to time.
The amended notice of motion
In this application brought by way of appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), the Secretary contends by the Amended Notice of Appeal that the AAT made the following errors of law:
‘(a)it found that the terms “right or interest” contained in the definition of a “homeowner” do not refer to a right or interest gained by way of a lease or rental agreement;
(b)it failed to consider the right or interest of the respondent and/or the respondent’s partner in the property such right or interest being that of a tenant of the company which held legal title to the couple’s principal home;
(c)it considered that the outstanding value of the loan made by the respondent’s partner to the registered owner of the couple’s principal home could only be included in the value of the respondent’s assets if it were found that the respondent was not a “homeowner” within the meaning of s 11(4)(b) of the Act [Social Security Act 1991 (Cth)] when s 1122 of the Act requires the value of the assets of the person for the purposes of this Act to include so much of the amount of a loan, disregarding interest, as remains unpaid and s 1118 does not otherwise provide that the value of such an asset is to be disregarded in calculating the value of the person’s assets.’
The questions of law raised on the appeal are said to be these:
‘1.Whether a person who is a member of a couple and who resides, by way of a leasing arrangement, in a residence that is the couple’s principal home, the title to which is held by a private company of which that person’s partner is the sole director and shareholder, has a right or interest in the residence within the meaning of s 11(4)(b) of the Social Security Act 1991 (“the Act”).
2.Whether the outstanding value of a loan made by a homeowner within the meaning of s 11(4)(b) of the Act to the registered owner of the principal home for the construction of that home, is an asset, the value of which is to be included in the value of the assets of the homeowner for the purposes of the Act.’
The respondent’s proposed cross appeal
The respondent to the appeal, Dolores Vanderpluym, seeks leave pursuant to s 44(2B) of the AAT Act to file a cross appeal on a further question of law. The ground of the cross appeal is that:
‘The Tribunal erred by treating the loan to the company as an asset for the purposes of the assets test. Having regard to the beneficial nature of the Act [Social Security Act 1991 (Cth)], the loan should, as a matter of law, have been disregarded either as a matter of statutory construction or by lifting the corporate veil in this case.’
Apart from leave to file a cross appeal, Dolores Vanderpluym seeks orders that the cross appeal be allowed; a declaration that ‘the sum of $195,000.00 loaned to the company for the purchase of the land and construction of the principal home thereon, is a disregarded asset under s 1118 of the Act as it gave rise to an equitable vendor’s lien or to some other equitable interest in the principal home that a court of equity would protect’; in the alternative, if the court finds that a vendor’s lien does not arise under s 1118 of the Act, the respondent seeks a declaration that ‘the facts of this case constitute “special circumstances” within s 1237AAD of the Act such that any debt due to the Commonwealth should be waived’.
The Secretary concedes that the question of whether special circumstances subsisted so as to make it desirable to waive the right to recover all or part of the debt due to the Commonwealth was addressed by the S S A T and was thus a matter formally alive before the AAT. However, the Secretary resists the grant of leave to file a cross appeal on the ground that no error of law is properly raised and, in any event, the respondent has failed to file a notice of contention pursuant to Order 53 of the Federal Court Rules.
In the proceeding before the S S A T, Mrs Vanderpluym sought a waiver pursuant to s 1237AAD on the footing that she did not knowingly make a false statement or knowingly fail to comply with the provision of the Social Security Act; that although financial hardship in the payment of the debt was not a consideration, the ‘corporate veil’ of MMPL should be lifted with the result that the debt owed to Mr Vanderpluym ought to be ‘offset against the value of the home’. In the absence of that step, Mrs Vanderpluym contended she would be unfairly disadvantaged because a lower assets value limit would apply to her by reason of a finding that she was a homeowner, yet at the same time, the amount of the debt to Mr Vanderpluym considered an integral part of the arrangements giving rise to the conclusion that Mrs Vanderpluym was a homeowner, would also be taken into account in determining the assets value limit applicable to Mrs Vanderpluym for the purpose of calculating the amount of any benefit.
The S S A T was unpersuaded by that argument and concluded that no unusual, uncommon or exceptional circumstance had been made out giving rise to ‘special circumstances’. The S S A T considered that it was not uncommon for persons to hold their principal home in a controlled company or as trustee of a trust and that where a person chooses to do so, unpaid loans from a relevant person to the relevant entity are to be treated as an asset for the purpose of determining the assets value limit of that person and, in consequence, ‘a person’, being a member of a couple with that person.
It seems to me that since the question of waiver was expressly raised and dealt with before the S S A T and was the subject of evidence from Mr Vanderpluym in the form of a facsimile to the S S A T dated 27 October 2004 which sought to explain the special circumstances applicable to Mrs Vanderpluym, the Secretary is not taken by surprise by the respondent raising the matter of waiver before this Court. All issues raised before the S S A T were the subject of the review proceedings before the AAT although it became unnecessary for the AAT to determine the matter of waiver as the AAT found that neither Mr Vanderpluym nor Mrs Vanderpluym were a homeowner for the purposes of the Social Security Act.
Accordingly, I propose to give leave to the respondent to file a cross appeal to determine whether the Tribunal erred in concluding that the debt payable by MMPL to Mr Vanderpluym was an asset for the purposes of the assets value limit applicable to Mrs Vanderpluym; whether the Tribunal erred by failing to conclude as a matter of law that the debt ought to have been disregarded by operation of the Social Security Act in the calculation of the assets value limit applicable to Mrs Vanderpluym; and whether, on the facts found by the AAT, special circumstances are made out for the purpose of s 1237AAD.
The respondent’s concession and contention
The respondent conceded at the outset of the appeal that she was a homeowner within s 11(4)(b) of the Social Security Act at the relevant time and that the AAT in finding otherwise was ‘plainly wrong’ for the reasons advanced by the Secretary in written submissions. Mrs Vanderpluym says that the real questions in the appeal are first, that in determining the assets value limit applicable to her, the debt due to Mr Vanderpluym by MMPL ought to have been disregarded as a matter of statutory construction of s 1118(1)(b) because the debt is supported by a ‘vendor’s lien’ in favour of Mr Vanderpluym as unpaid transferor of the land to MMPL (and the lien extends to further advances for improvements); the lien is an ‘interest’ in the land and thus an interest in the residence being the principal home; and that interest as unpaid lien holder is an interest that ‘gave’ Mr Vanderpluym and Mrs Vanderpluym reasonable security of tenure in the home. As a result, the value of the interest must be disregarded in calculating the assets value limit of Mrs Vanderpluym.
Secondly, as a matter of purposive construction of the Social Security Act, the shell of MMPL should be disregarded and Mrs Vanderpluym should be treated as homeowner of the residence and the loan to Mr Vanderpluym simply reflects the real value of the home which is to be disregarded in calculating the assets value limit.
Thirdly, because Mr Vanderpluym, as a matter of law by operation of s 191 of the Land Title Act 1994 (Qld), may be unable to assert a vendor’s unpaid lien, the value of the lien might not be ‘disregarded’ by operation of s 1118(1) since there is no qualifying ‘interest’ for the purposes of that section and thus the value of the lien may form an asset of his. If so, by s 500Q(4), the value of the asset is included in the value of Mrs Vanderpluym’s assets and in that case, Mrs Vanderpluym suffers an unjust outcome as in all other States and the Australian Capital Territory, a vendor’s lien can still be asserted as a source of an equitable interest which would enliven s 1118(1) and disqualify the value of the interest from inclusion in Mrs Vanderpluym’s assets value limit. Accordingly, the ‘special circumstance’ is the consequential differential treatment between citizens under national legislation by force of where they might live.
The Court’s exercise of jurisdiction
Although Mrs Vanderpluym concedes at the outset that she is a homeowner and thus concedes that the AAT erred in its decision that she is not, the Court in exercising the jurisdiction conferred by s 44 of the AAT Act must form its own view of whether an error of law arose in the decision reached by the AAT. Accordingly, it is necessary to consider whether the decision reflects the error of law contended for by the Secretary and supported by the respondent subject to the respondent’s other contentions. Of course, the joint view of the parties will inevitably be highly persuasive in the Court reaching its own determination of the question and in exercising the powers conferred upon the Court by s 44 of the AAT Act. However, the Court must form its own view.
The Secretary urges upon the Court a consideration of the proper construction of the relevant provisions not only as an element of the proper exercise of the jurisdiction but for two other reasons. First, the arguments of the respondent concerning the nature of the interest said to arise by reason of a vendor’s lien and the proper construction of s 1118(1)(b) also go to the proper view to be taken of s 11(4)(b) in any event since there is a symmetry between the two sections. Secondly, the question of the proper approach to the construction of s 11(4)(b) and s 1118(1)(b) and thus the approach in substance to s 1118(1)(a) has been the subject of a number of decisions of the AAT where the approach to the sections has varied. Accordingly, the Federal Court ought to consider the proper construction of the provisions.
The prima facie impression of an orthodox application of the provisions to the facts as found by the AAT suggests that MMPL was at the relevant time the registered proprietor of the land upon which the residential house was built. Mr and Mrs Vanderpluym were tenants of the company under arrangements which were familial, oral and of no fixed duration. They were tenants at will of the company comforted no doubt by the fact that Mr Vanderpluym controlled in every sense of the word the conduct of the landlord. Because they were simply common law tenants at will (and in truth their own will) paying weekly rent neither Mr Vanderpluym nor Mrs Vanderpluym was a homeowner as that term might naturally be understood, of the residence. That right, title and interest fell to MMPL. In such a case, because neither of them was a homeowner, Mrs Vanderpluym was subject to an assets value limit determined by s 500Q(3) at the higher threshold. The assets of Mr Vanderpluym included a debt due by MMPL to him as recorded in the balance sheet of MMPL and the one issued share in MMPL held by him. The value of the only issued share would no doubt be the net asset backing value of the company which having regard to MMPL’s liability to Mr Vanderpluym would presumably not be very significant. Nevertheless, such a prima facie view would accord with the notion that neither Mr Vanderpluym nor Mrs Vanderpluym was a homeowner and all relevant assets of Mr Vanderpluym would be brought to account in a recognised way as required by s 500Q(4) and s 1122 in determining the assets value limit of Mrs Vanderpluym for the purpose of determining the quantum of her benefit entitlement.
However, a view must ultimately be reached by application of the ordinary and natural meaning of the relevant provisions of the legislation in the context of the Social Security Act overall to the facts as found to determine whether either Mrs Vanderpluym or her partner was at the relevant time a homeowner for the purposes of the Social Security Act and whether the scope of the assets to be included within the assets value limit applicable to Mrs Vanderpluym included all or any part of the MMPL debt to Mr Vanderpluym.
Since the respondent relies upon the reasons outlined in the submissions of the Secretary as the basis for error on the issue of homeownership, those contentions require examination on the part of the AAT.
The Secretary contends that the Tribunal erred by concluding that although Mr and Mrs Vanderpluym had entered into a ‘leasing arrangement’ with MMPL which gave them a right of occupancy which in turn gave them security of tenure in the home, the leasing arrangement did not give rise to a ‘right or interest’ in a residence being the relevant principal home for the purpose of the first limb of s 11(4)(b).
The Secretary contends that the proper approach to the construction of s 11(4)(b) involves two steps. First, a view must be formed as to the proper meaning of the phrase ‘right or interest’ in the relevant property and once that right or interest has been characterised, a second and separate question arises as to whether the right or interest so found is one which gives the person (or relevantly the person’s partner) ‘reasonable security of tenure in the home’.
As to the first question, the Secretary, in effect, contends that the right or interest contemplated by s 11(4)(b) is not confined to legal ownership; the right or interest may be a legal or equitable right or interest as distinct from a mere contractual right to use the property; in identifying an equitable right or interest in the property, it may be necessary to identify the source of the bundle of rights exercisable by the relevant person and determine whether a court of equity would grant remedial relief arising out of those rights (for example, specific performance of an agreement or an injunction to restrain either breach of the agreement or, for example, a departure from an obligation of conscience) in connection with the land; the AAT in Re Delos Reyes and Secretary, Department of Social Security (1993) 32 ALD 287 in reliance upon the observations of Aitkin J in Stow v Mineral Holdings (Aust) Pty Ltd (1977) 14 ALR 397 at 411, concluded that the phrase ‘right or interest’ in the property was synonymous with a right or interest of a proprietary nature and not a mere personal right; that the observations in Stow as to the proprietary nature of the notion of an ‘estate or interest in land’ were relied upon in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at p 342 by Mason J in observing that no one who has a mere personal right in relation to land can be said to have an estate or interest in that land; and that in identifying a proprietary right or interest it is necessary to consider both legal and equitable interests.
The Secretary further contends that in identifying equitable interests, it is well accepted that a tenant under a lease has an interest in the land. If the lease is registered, the interest is a legal interest. If not, an agreement for lease would nevertheless give rise to an equitable interest. If the interest is a tenancy at will, it might be necessary to determine whether there is a true tenancy or whether the occupant simply has a licence to occupy the premises. As to that distinction, the Secretary says that Taylor J in Radaich v Smith (1959) 101 CLR 209 at pp 217, 220 put the distinction in these terms: ‘The instrument either makes a grant of an interest in land or it does not; if it does, a leasehold interest is created and if it does not then nothing more than a licence is given’.
The Secretary further contends that the subsistence in the relevant person or their partner of an equitable right or interest of a proprietary nature satisfies the first limb of s 11(4)(b) and that two examples of such a right are a vendor’s lien as a form of equitable charge over property to secure unpaid purchase money and equitable remedial relief to protect an interest in land where the circumstances give rise to a resulting or constructive trust.
Applying these propositions to the facts as found by the AAT, the Secretary contends that an error of law arose when the AAT concluded that a right or interest arising under a lease arrangement or rental agreement is not a right or interest for the purpose of s 11(4)(b). The Secretary contends that on the facts found by the Tribunal Mrs Vanderpluym had a right or interest in the property by way of an informal lease under which a commercial rate of rent was paid to MMPL through the services of MMPL’s real estate agent; and that Mr Vanderpluym had an equitable lien in respect of the unpaid purchase price for the property ($50,000.00).
The second consideration is whether the identified right or interest in the principal home gives the relevant person a ‘reasonable security of tenure in the home’. The Secretary contends that the test of reasonable security of tenure is necessarily an objective one; it means a certainty or assurance of occupation; reasonable security of tenure need not be absolute; the interests of other parties such as a registered mortgagee or the specific character of particular classes of landlord such as a housing commission need to be considered in determining the nature of the security of tenure afforded to the person in all the circumstances; the substance of the arrangements between the person asserting a right to a benefit and the registered proprietor require consideration; the objective intention of the landowner must be ascertained by reference to the identified controlling mind of the company; where the land is held by a trustee of a discretionary trust, the question of intention will be resolved by identifying the intention of the person controlling the trust; and it is a question of fact as to whether in all the circumstances the intention of the parties in the relevant relationship, objectively ascertained, confers certainty or assurance of tenure so as to satisfy the statutory notion of ‘reasonable security of tenure’.
The Secretary further contends first, that the AAT found, as a question of fact, that it was the leasing arrangement that gave Mr and Mrs Vanderpluym reasonable security of tenure and secondly, that a finding by this Court that Mr Vanderpluym held an equitable lien in relation to the unpaid purchase price for the transfer of the land to MMPL supports the finding of reasonable security of tenure.
Some principles guiding decisions in the AAT
The AAT has considered these matters in a number of administrative decisions which provide some contextual background. Inevitably, the facts of each case condition the determination of whether a sufficient right or interest is made out and whether such an interest confers reasonable security of tenure. However, some of the principles guiding administrative decision‑making in the Tribunal on the issues are these. The expression ‘right or interest’ is not defined in the Social Security Act but a right or interest in the principal home is synonymous with a right or interest in real property (Delos Reyes and Secretary, Department of Social Security (1993, supra p 290; Re Schultz and Secretary, Department of Family and Community Services 2003 76 ALD 247); an interest in property is a right of a proprietary nature not a mere personal right (Delos, p 291); a person occupying a property even under a tenancy at will with no written agreement is to be regarded as having an interest in real property and not simply as having rights under a contract and such an interest is a ‘right or interest in a residence’ for the purpose of the section (Re Johnston and Repatriation Commission (31 May 1994, AAT, Full Tribunal, unreported No. 9508); a tenancy at will is enforceable at equity and confers an interest in real property which represents a right or interest under the section (Koch and Secretary, Department of Family and Community Services (2002) 68 ALD 651 at p 655 [18]); lessees under a written lease for three years with two 5 year options from a company controlled by the lessees enjoyed a right of interest under the Act (Re Secretary of Social Security and Williams (1998) 52 ALD 418); established legal relationships put in place by an applicant should be given their real legal effect in determining whether an unpaid loan to a trustee of a discretionary trust should be brought to account as an asset of a claimant (Re Schultz).
Considerations
On 14 November 1999, Mr and Mrs Vanderpluym took up exclusive occupancy of the residence at 43 Compass Crescent as their principal home and resided there as weekly tenants of the registered proprietor MMPL, exercising exclusive occupation until title was transferred to them on 15 April 2001 when they became the registered proprietors. During that period, the tenancy was oral, entirely undocumented as to any terms but evidenced in relation to payment by the arrangement Mr Vanderpluym put in place for a real estate agent to receive payment of the rent by cheque.
The arrangement giving rise to occupation of the residence was familial in the sense that Mr Vanderpluym was the sole director and sole shareholder in MMPL with the result that both Mr and Mrs Vanderpluym knew that the weekly tenancy of the principal home would not be brought to an end unless Mr Vanderpluym presumably with the active engagement of Mrs Vanderpluym chose to do so. In fact, they resided in the home until transfer of title on 15 April 2001 and thereafter. Section 11(4)(b) defines a homeowner for the purposes of the Social Security Act and plainly enough a homeowner is not simply a person who has indefeasible title to land upon which a residential principal home stands. The section seeks to plot a point on a continuum of possible rights or interests that might be held by a relevant applicant person.
It is important to remember that the section speaks of a right or interest in a residence which is the person’s (or partners) principal home in part at least for the statutory role of determining whether that principal home at which parenting occurs is to be excluded from consideration in calculating asset values for eligibility for a partnered parenting allowance. The Social Security Act recognises that a person’s tenure (that is, the conditions under which the principal home is held or occupied) takes many forms with differential degrees of security or continuity of assured occupation. Accordingly, the critical matter is whether the right or interest whatever it may be, gives (that is, is the source of) reasonable security of tenure in the home being the principal place of parenting activity.
Accordingly, a consideration of the nature of, for example, an ‘estate or interest in land’ the subject of consideration in Stow v Mineral Holdings (Australia) Pty Ltd (1977) 14 ALR 397 at pp 404‑411 for the purposes of the Mining Act 1929-1958 (Tas) may not usefully inform the scope or breadth of construction of the terms right or interest in a residence comprising a principal home for the purposes of the Social Security Act.
Analytically, the first step is to identify whether the applicant enjoys a right or interest (either directly or by reason of the right or interest of that person’s partner) in a residence that is a principal home. In this case, Mr and Mrs Vanderpluym assumed exclusive occupancy of the residence as their principal home in the circumstances previously described. They were weekly tenants under an oral undocumented arrangement made with a landlord controlled by Mr Vanderpluym.
No assurance of land is valid to pass an interest at law unless made in writing signed by [MMPL] (s 10(1), Property Law Act 1974 (Qld) (‘PLA’)) although s 10(1), PLA, does not apply to a lease or tenancy not required by law to be made in writing (s 10(2)(c), PLA). No interest in land can be created by parol except by writing signed by the person creating the interest, by will or by operation of law (s 11(1), PLA). Any interest in land created by parol and not put in writing and signed by the person creating the interest takes effect as interests at will only (s 12(1), PLA). Nothing in the PLA affects the creation by parol of a lease taking effect in possession for a term not exceeding three years (s 12(2), PLA). In a lease of premises principally for the purpose of human habitation for a term of three years or any lesser period, the lessor shall provide and maintain the premises in a condition reasonably fit for human habitation (s 106(1)(a)). Although the terms lease, lessor and lessee are defined terms for the purposes of Division 3 of Part 8 of the PLA in dealing with relief from forfeiture, those terms are not generally defined in the PLA. Sections 130, 131, 132 and 133 of the PLA deal with the termination of tenancies. Section 133 of the PLA provides that one week’s notice to terminate a weekly tenancy must be given by the landlord to the tenant.
Residential tenancies are also regulated by the Residential Tenancies Act 1994 (Qld). A lessor is a person who grants a right of occupancy of residential premises to another (a tenant – s 9(1)) under a residential tenancy agreement (s 4(1)). Residential premises are premises used or intended to be used as a place of residence (s 6). A residential tenancy is a right to occupy residential premises under the tenancy agreement (s 7). A residential tenancy agreement is an agreement whether wholly oral, wholly written or wholly implied under which a person grants another a right to occupy residential premises as a residence whether or not the right is one of exclusive occupation (s 8(1), (2) and (3)). The lessor must take reasonable steps to ensure that the tenant has quiet enjoyment of the premises (s 101(1)) and the lessor’s agent must not interfere with the reasonable piece, comfort or privacy of the tenant in using the premises (s 101(2)). The lessor must ensure that the premises and inclusions are clean, fit for the tenant to live in and are in good repair (s 103(2)(a), (b) and (c)). The lessor must ensure that the premises remain fit for the tenant to live in and that the premises and inclusions are maintained in good repair (s 103(3)(a) and (b)). The lessor must also ensure that any law dealing with issues concerning the health or safety of persons using or entering the premises is complied with (s 103(3)(c)).
Accordingly, s 106(1) of the PLA and ss 103(2) and (3) of the Residential Tenancies Act 1994 give rise to obligations upon the lessor which are enforceable by remedial action against the landlord. Leaving aside the symmetrical relationship between the landlord and tenant in this case which presumably would give rise to circumstances where no question of relief at the suit of the tenant would actually arise, it may be that in the relevant circumstances a court might grant equitable relief in the form of an injunction to restrain a contravention by a landlord of an obligation arising under the above provisions whether such obligations are characterised as implied terms of the relevant agreement or statutory obligations.
Section 11(4)(b) of the Social Security Act contemplates a point on a continuum of possible rights or interests. An applicant may be a registered proprietor; a beneficiary under a unit or discretionary trust; a party with the benefit of an agreement for lease for three years or more; a lessee under a registered lease pursuant to such an agreement; a lessee occupying premises pursuant to such arrangements where the lease has not been registered by the lessor; a lessee under an unregistered short term lease for a period of less than three years; a tenant under a written tenancy agreement for a fixed term; a weekly tenant under a written agreement or a weekly tenant under oral arrangements with no fixed term and no terms other than those implied by law. In the last case, the measure of the right or interest enjoyed by the applicant tenant might simply be a right to remedial relief in aid of occupation of the premises to restrain a breach of an obligation implied by law and in that sense the tenant might enjoy an equitable interest. Of course, vesting property (land and a residence) in a company or, for example, a corporate trustee of a discretionary trust coupled with a tenancy agreement conferring occupation in favour of a pension applicant related to the shareholders or directors of the entity has the apparent structural advantage of placing ownership of the home at arms‑length yet retaining security of tenure in the home so as to enable a pension applicant to say that he or she is not, in orthodox terms, a homeowner and therefore entitled to a higher assets value limit for the calculation of the relevant pension entitlement. The social policy of the Social Security Act is to adopt a broad notion of ‘homeowner’ by s 11(4)(b) so as to ensure that those applicants (or their partners) who have a right or interest in a residence which gives reasonable security of tenure in the home are to be treated as homeowners for the purposes of calculating assets value limits and thus pension entitlements.
In this case, Mr and Mrs Vanderpluym enjoyed exclusive occupation or exclusive possession of the residence and in that sense occupied the premises under a lease (Radaich v Smith (1959) 101 CLR 209; Street v Mountford [1985] AC 809; Harris v Northern Sandblasting Pty Ltd [1995] Aust Torts Rep 81‑365 per McPherson JA). The weekly tenancy arrangement coupled with occupation and payment of rent gave rise to an equitable interest in the sense that the tenant could secure an order for an equitable remedy in support of a tenancy at common law (Chan & Anor v Cresdon Proprietary Limited (1989) 168 CLR 242).
Section 11(4)(b) of the Social Security Act contemplates an ‘interest’ which is either a legal or an equitable interest. However, the reference to the term ‘right’ also contemplates a class or species of ‘right’ which may not necessarily involve a legal or equitable interest in the residence. Although it might be difficult to identify a right of occupation of a residence which fails to give rise to a remedial entitlement in equity in respect of a breach of an obligation on the part of the landlord (either by injunction or a right to specific performance subject to discretionary factors), a contract which gives rise to bare ‘rights’ in a person in respect of a residence which is a principal home of a person who is an applicant for a parenting pension, creates rights (that is, personal rights) for the purposes of the section. Accordingly, having regard to the objectives of the Social Security Act and the disjunctive reference, the term ‘right’ is not to be read in a way which is simply a synonym for ‘interest’ which comprehends a legal or equitable interest in the residence. The balance the legislation seeks to strike in determining whether an applicant is a homeowner in respect of a principal home is achieved by the application of the second limb of s 11(4)(b) which asks the question whether such a right ‘gives’ to the person with that right, reasonable security of tenure in the home. The same question is asked in respect of a legal or equitable interest. The different character of the right or interest will inform the objective assessment of reasonable security of tenure in the home.
To the extent that the right enjoyed by the relevant applicant is an attenuated personal right in the sense that it is a right derived from a contract or licence and not necessarily a right measured in terms of a legal or equitable ‘interest’ in the residence attached to the land, it would be difficult to envisage circumstances in which such an attenuated right could give reasonable security or continuity of assured occupation. It is the conjunction of the character of the right or interest and the circumstances in which it arises that conveys an objective sense of whether the right or interest confers reasonable security of tenure in the home. However, in this case, Mr and Mrs Vanderpluym enjoyed an equitable interest in the residence in circumstances where they could hold no doubt as to the assured continuity of occupation of the home. The symmetrical relationship between the landlord and the tenant in the sense that either Mr Vanderpluym or Mrs and Mrs Vanderpluym by consensus controlled both the occupation of the premises and the conduct of the landlord makes it clear that Mrs Vanderpluym enjoyed a very high threshold of security of tenure in the residence as principal home. There can be no doubt that Mrs Vanderpluym was at all relevant times a homeowner for the purposes of s 11(4)(b) of the Social Security Act.
Accordingly, the value of that interest was properly excluded from consideration in determining the assets value limit applicable to Mrs Vanderpluym and by reason of her position as a homeowner, the assets value limit applicable to Mrs Vanderpluym was the lower assets value limit prescribed by s 500(Q)(3) of the Social Security Act.
Section 500Q(4) provides that if a person is partnered, the value of the person’s assets includes the value of the partner’s assets. Section 1122 provides relevantly that if a person lends an amount, the ‘value of the assets’ of the person includes so much of that amount as remains unpaid but does not include any amount payable by way of interest under the loan. Mrs Vanderpluym did not lend money which remained unpaid to her. However, Mr Vanderpluym lent money to MMPL which at the relevant date remained unpaid and which is an asset of his, as ‘asset’ means ‘property’ (s 11(1), Social Security Act) and thus the value of that asset is to be included in the value of Mrs Vanderpluym’s assets.
However, Mrs Vanderpluym says that the debt due to Mr Vanderpluym ought not to be included in the value of her assets for the purposes of the assets value limit because the debt represents, in truth, the value of the residence and since a purposive construction ought to be adopted to the Social Security Act, the corporate veil or corporate identity of MMPL should be stripped away with the result that the value of the debt should be disregarded otherwise the very purpose of excluding the value of the right or interest of the applicant in the residence as principal home would be defeated by including the debt drawn down by MMPL from Mr Vanderpluym in order to build the home. Secondly, Mrs Vanderpluym says that the debt due to Mr Vanderpluym bears the character of a secured interest by way of an equitable lien and is thus an ‘interest’ in the residence held by Mr Vanderpluym that is, in turn, the source of Mrs Vanderpluym’s (and also Mr Vanderpluym’s) reasonable security of tenure in the home. Accordingly, by operation of s 1118(1)(b), the value of that interest ought to be treated as an excluded asset.
In relation to the first matter, it seems to me that the proper approach is to give voice to the legal relationships established by the claimant and Mr Vanderpluym. In this case, Mr Vanderpluym chose to establish an independent entity, MMPL; Mr and Mrs Vanderpluym chose to vest title to the land in that company; Mr Vanderpluym elected to make advances (loans) to MMPL in connection with the construction of the residence and for other purposes of MMPL and upon completion Mr and Mrs Vanderpluym chose to become the weekly tenants of MMPL and pay rent to the company through a real estate agent. Although I have been referred to a range of cases in relation to the purposive construction adopted in relation to workers’ compensation legislation as an analogue of a purposive approach appropriate to the construction of the provisions of the Social Security Act, there seems to be nothing inconsistent with the objects sought to be achieved by the Social Security Act in recognising that consistent with s 1118(1)(b) the right or interest of Mrs Vanderpluym (and her partner) in the residence as principal home ought to be disregarded in the calculation of the assets value limit on the one hand and the inclusion within the assets value limit of Mrs Vanderpluym of the value of the debt due to Mr Vanderpluym, on the other. That result is precisely the statutory result s 1122 of the Social Security Act seeks to achieve.
Accordingly, I see no basis for disregarding the corporate personality of MMPL or in treating the legal arrangements expressly put in place by Mr and Mrs Vanderpluym as something else or disregarding the unpaid due debt to Mr Vanderpluym reflected in the balance sheet of the company, as an asset of Mr Vanderpluym for the purposes of s 1122 of the Social Security Act, subject to [69] and [70].
As to the second proposition, it is true that on the facts as found by the AAT, Mr Vanderpluym made advances to MMPL in connection with the construction of the residence and for some other purposes of MMPL. It seems to me that the symmetrical relationship as discussed previously between Mr and Mrs Vanderpluym and MMPL is the source of the high threshold of objective security or continuity of assured occupation of the residence. It is not the fact of the loan or sequence of advances to MMPL by Mr Vanderpluym resulting in the balance sheet debt to Mr Vanderpluym that is the source of Mrs Vanderpluym’s reasonable security of tenure in the home. That objective degree of reasonable security is in part a result of the tenancy arrangement between the company and Mr and Mrs Vanderpluym. The assurance in the security and continuity of the arrangements derives from Mr Vanderpluym’s control of the landlord with the result that all that was required to give reasonable security of tenure in the home was an oral weekly tenancy. The debt due to Mr Vanderpluym, the capacity to call up that debt and any rights derived by reason of the loan arrangement did not give the reasonable security of tenure contemplated by s 1118(1)(b). No doubt, Mr Vanderpluym would never have lent money to an entity he did not control especially in respect of the construction of a residence on land conveyed by Mr Vanderpluym and his wife to that entity. Although those events explain the willingness to make the loan it is not the source of the reasonable security of tenure contemplated by the section.
However, a more fundamental difficulty arises in relation to s 1118(1)(b) and it is this. There is little in the facts as found by the AAT which suggests an equitable lien in Mr Vanderpluym in respect of the loans made to MMPL. Mr Vanderpluym has no expressly identifiable right or interest in the residence other than by reason of the tenancy arrangement coupled with exclusive occupation. So far as the debt is concerned which is sought to be disregarded in the calculation of the assets value limit, the argument proceeds on the footing that the value of the interest ought to be disregarded because it represents a right or interest by way of a charge in the form of an equitable lien both as to the initial $50,000.00 being the value of the land transferred to MMPL and further advances made by Mr Vanderpluym to MMPL. By reason of that equitable lien, Mr Vanderpluym says that his interest as equitable chargee is within the scope of s 1118(1)(b). There is nothing in the facts found by the AAT which suggest that advances or loans made by Mr Vanderpluym to MMPL were to be a charge upon the company or any particular asset of the company such as the residence. In oral submissions the Secretary accepted that the facts found by the AAT give support, in part, to the contention of Mrs Vanderpluym to the extent that by reason of the transfer of the land to MMPL in circumstances where no payment or other value was received by the transferor, a resulting trust arose such that Mr and Mrs Vanderpluym remained the beneficial owners of the land held upon trust by MMPL. The Secretary says that the scope of any such resulting trust was the creation of a beneficial interest in the land to the extent of the unpaid purchase price ($50,000.00) described by the Secretary as a purchase price resulting trust. Mrs Vanderpluym goes further and says that each subsequent advance made by Mr Vanderpluym to MMPL to enable the residence to be constructed (approximately $195,000.00 of the total advances recorded at 30 June 2000, $239,526.00) is the subject of the equitable lien.
An equitable lien is a right against property, real or personal, arising by implication of an ‘equitable doctrine’ applicable to the circumstances of the case. The right, although called a lien, is a form of equitable charge over the particular property enforceable in the same way as any other equitable charge such as the appointment of a receiver for the sale of the asset pursuant to court order. The lien automatically arising by operation of law secures the discharge of an actual or potential indebtedness. Although the best known examples of an equitable lien arise in circumstances where parties are in a contractual or quasi‑contractual relationship such as a lien in favour of a vendor to secure payment of the balance purchase price or a lien in favour of a purchaser to secure repayments of instalments of a purchase price repayable when the contract has failed, an equitable lien arises more broadly in support of an obligation recognised in equity (Hewett & Ors v Court & Anor (1983) 149 CLR 639 per Deane J at p 663 and per Gibbs CJ at pp 645, 646). An equitable lien is properly understood as a positive right to obtain a remedial order for the sale of the subject property or for actual payment from a subject fund rather than a negative right of retention of a legal or equitable interest in the subject property (Hewett v Court per Deane J at p 664).
In this case, I accept that the circumstances of the transaction for the transfer of the land by Mr and Mrs Vanderpluym to MMPL gave rise to a resulting trust and an equitable lien arises by implication of that equitable doctrine to secure the discharge of the obligation upon MMPL to account to the transferor for the value of the land at the date of transfer. However, having regard to the findings of fact by the AAT, Mr Vanderpluym chose to make advances to MMPL and entered into a debtor/creditor relationship. No doubt, as indicated previously, Mr Vanderpluym felt secure in the repayment of that debt either because he controlled MMPL or because upon completion of the construction he had in mind the transfer of the land and residence to him and his wife in discharge of the debt due to him and in discharge of the obligation upon MMPL to account for the purchase price being the value of the land at the date of earlier transfer ($50,000.00). There is nothing in the facts which suggest that the land was to be charged with the burden of the repayment of the debt to Mr Vanderpluym and nor does an equitable lien arise out of the circumstance that Mr Vanderpluym acted as a lender to MMPL. A debtor/creditor relationship does not give rise to an equitable lien and the circumstances of this transaction make it clear that Mr Vanderpluym was simply acting as an unsecured lender to MMPL.
The Secretary says that if the true character of the transaction between Mr and Mrs Vanderpluym and MMPL gave rise to a resulting purchase price trust enlivening a resulting beneficial interest in the land in the transferor, the transaction is not, to that extent, one of lender/borrower for the purposes of s 1122 and the obligation upon MMPL to pay the transfer purchase price does not amount to a remaining unpaid loan within the section.
As to the initial $50,000.00, I accept that submission. Accordingly, that sum ought to be excluded from the assets of Mr Vanderpluym and thus excluded from the assets value limit calculation applicable to Mrs Vanderpluym. As to the monies lent by Mr Vanderpluym to MMPL being the further advances, the remaining unpaid amount of those loans properly forms part of the assets of Mr Vanderpluym and is properly brought to account within the assets value limit calculation applicable to Mrs Vanderpluym.
The final matter involves the question of the waiver of all or part of the debt sought to be recovered by the Secretary upon the grounds said to enliven s 1237AAD of the Social Security Act. A part of that argument involves the notion that by reason of the abolition in Queensland of the concept of a vendor’s lien by reason of s 191 of the Land Title Act 1994 (Qld), Mrs Vanderpluym is disadvantaged in treatment under the legislation as compared with citizens in other places because, but for abolition, a vendor’s lien would have arisen in the circumstances and the entirety of the advance by Mr Vanderpluym to MMPL would have been an excluded asset pursuant to s 1118(1)(b). The abolition of a vendor’s lien does not carry with it the abolition of an equitable lien as a charge in aid of an equitable obligation. I have found that no equitable lien arises on the facts found by the AAT other than in relation to an equitable lien in support of the beneficial interest of Mr and Mrs Vanderpluym arising under the resulting trust in respect of the value of the land at the date of initial transfer ($50,000.00). Accordingly, I am not satisfied that special circumstances have been made out for the purposes of s 1237AAD of the Social Security Act.
Accordingly, I propose to make the following orders pursuant to s 44(4) and (5) of the AAT Act.
First, the appeal is allowed.
Secondly, the decision of the Social Security Appeals Tribunal made on 1 November 2004 the subject of reasons published on 10 November 2004 remitting the decision under review before the S S A T to Centrelink with a direction that the overpayment to Mrs Vanderpluym for the period 14 November 1999 to 10 July 2001 be calculated on the basis that the value of Mrs Vanderpluym’s assets exceeded the assets value limit applicable to her pursuant to the Social Security Act is affirmed, subject to the following further directions:
(i)that in calculating the overpayment Centrelink is to disregard in calculating the value of Mrs Vanderpluym’s assets value limit, the sum of $50,000.00 in respect of which Mr Vanderpluym had the benefit of an equitable charge in respect of the residence at 43 Compass Crescent, Magnetic Island;
(ii)that in the period 14 November 1999 to 10 July 2001 Dolores Vanderpluym and Peter Vanderpluym were homeowners within the meaning of that term in the Social Security Act; and
(iii)that during the said period, Peter Vanderpluym had an asset by way of an unpaid loan to MMPL as part of his property for the purposes of the Social Security Act.
Thirdly, there shall be no order as to costs.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 7 June 2007
Counsel for the Applicant: Ms M M Brennan Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr T D Betts Solicitor for the Respondent: Townsville Community Legal Service Inc Date of Hearing: 13 July 2006 Date of Final Submissions: 21 July 2006 Date of Judgment 7 June 2007
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