Single v Chief Commissioner of State Revenue

[2006] NSWADT 334

CITATION:	Single v Chief Commissioner of State Revenue [2006] NSWADT 334
DIVISION:	Revenue Division
PARTIES:	APPLICANT Tammie Leigh Single RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	066005
HEARING DATES:	27/06/06
SUBMISSIONS CLOSED:	07/24/2006
DATE OF DECISION:	11/28/2006
BEFORE:	Hole M - Judicial Member
CATCHWORDS:	First Home Owners grant - reversal of original decision
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	First Home Owner Grant Act 2000
CASES CITED:	Chief Commissioner of State Revenue –v- Ferrington [2004] NSW ADTAP 41 Zakariya v Chief commissioner of State Revenue [2003] NSWADT 26 at 14
REPRESENTATION:	APPLICANT R Borg, Solicitor RESPONDENT S Benjamin, Solicitor
ORDERS:	The decision of the Chief Commissioner of State Revenue to request repayment of the First Home Owner Grant in the sum of $7,000.00, together with interest of $1,400.00, is set aside.

REASONS FOR DECISION

The application and the legislative scheme

1 The applicant received a first home owner grant (“the Grant”) of $7,000.00 under the First Home Owner GrantAct 2000 (“the Act”) on 1 May 2003 in respect of a property being 332 Boston Street Moree (“the subject property”). The settlement date for the transaction was the 13 May 2003.

2 The administrator of the Act and the respondent, the Chief Commissioner of State Revenue (“the Commissioner”), has now required the applicant to repay the Grant plus penalty interest in the amount of 20% because the applicant, in the opinion of the Commissioner, has failed to satisfy one of the preconditions to the Grant. In this instance the Commissioner has found that the applicant failed to occupy the subject property as her principal place of residence within 12 months of the date of settlement.

3 The applicant has applied to the Tribunal for review of the Commissioner’s refusal to accede to her objection to the decision.

4 The right to make an application for a Grant is given by Section 7 of the Act. The applicant must satisfy the eligibility criteria. Section 45 gives the Commissioner the power to request the repayment of a Grant and to impose a penalty for non-compliance with such a request or with the conditions of a Grant. See also sections 23 and 24.

5 The Grant is commonly made in advance of the applicant moving into occupation. As a result of a letter of enquiry sent to the applicant the Commissioner concluded that one of the conditions to which the Grant was subject, the “residence criterion”, has not been satisfied. Section 12(1) provides: -

6. “(1) An applicant for a first home owner grant must occupy the home to which the application relates as the applicant’s principal place of residence within 12 months after completion of the purchase of the property.

7. (2) If an application is made by joint applicants and at least one (but not all) of the applicants complies with the residence requirement, the non-complying applicant or applicants are exempted from the residence requirements.”

6 The relevant 12-month period is from 13 May 2003 to 13 May 2004.

The Residence Issue

7 The issue in this case is whether the applicant occupied the subject property as her principal place of residence within the time period required by the Act.

8 Section 29(3) of the Act provides that an applicant who seeks review of the Commissioner’s determination of an objection has the onus of proving his or her case. That is, the onus of proof rests on the applicant to establish, on the balance of probabilities, those matters which he seeks to put before the Tribunal in support of his case.

Reasons

9 Taking into account the evidence provided to the Tribunal the applicant moved into the subject property after the birth of her baby and before the date of purchase. The applicant was not overly diligent about the notification of her change of address as she was engaged in caring for a newborn baby, moving into the subject property as her home straight from hospital, settling the purchase of the subject property, coping with returning to employment on 16 June 2003 and arranging childcare for her young baby (to be able to do so) and her grandmother suffering an injury. These events culminated in her resuming the relationship with her former partner, who is the father of her baby, at 33 Blueberry Road on 14 June 2003 after a separation of approximately 10 months. This activity all occurred between 7 April 2003 and 14 June 2003.

10 The evidence given by the applicant was direct and she impressed the Tribunal as a truthful and straightforward witness.

11 Assessed objectively, the period between the 7 April 2003 and 14 June 2004 was turbulent for the applicant. The circumstances that the applicant averred to, allowed her to move into familiar premises with the new baby and in circumstances which, if it had continued satisfactorily, would have allowed her to return to work. Circumstances changed, her grandmother was injured and the applicant re-established her relationship with her former partner, the father of her baby. The applicant moved back to 33 Blueberry Road without taking into account the interpretation which may have been given by the respondent to that move.

12 The applicant’s parents moved her belongings to the subject property while she was in hospital, then she took up residence there prior to the date of purchase continuing for a period of approximately two and a half (2 1/2) months including one (1) month after the date of purchase, moving out when the baby was approximately three (3) months old. This period was not of a transient or temporary nature and was brought to an end due to the changed circumstances which eventuated after her grandmother was injured. The nature of the occupation of the subject property had the requisite element of permanence to establish that for that period, notwithstanding that some addresses were not altered, the subject property became the applicant’s principal place of residence.

13 The representative of the respondent submitted that as the applicant had not attended to changing her address on her driver’s licence and other records and that the applicant had not established the subject property as her principal place of residence.

14 The leading decision in the Tribunal dealing with what is required in order to establish residence is Chief Commissioner of State Revenue –v- Ferrington [2004] NSWADTAP 41 (“Ferrington”) which considered the criteria applicable to section 12(1) of the Act.

15 In particular, paragraph 42 reads (leaving out citations of cases and breaking the matter into paragraphs, for ease of later reference): -

“First, the words “principal place of residence” should be given their ordinary meaning in the context in which they appear [in the Act] …

Secondly, consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling …

Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue. …

Fourthly, to occupy a home as his or her principal place of residence a person’s occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose. …

Fifthly, the short length of a person’s residence, while relevant, is not determinative of the issue. … This is so since a recipient’s occupation of a home, while short, may have the requisite degree of permanence to it. But that will not happen if, when considered objectively, the occupation was transient, temporary, contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time on a transient, temporary, or contingent basis, but one can also occupy for a short time as one’s principal place of residence. It is the nature of that occupation which provides the element of permanence. The fact that a period of actual occupation is short, as in the present case, will in practice make it harder for a recipient to show that the occupation was as his or her principal place of residence, but it will not make it impossible.”

16 The first point is a point of statutory construction. The term “principal place of residence” is not defined in the Act , and thus has its ordinary meaning. The word “principal” can mean “main” as well as “only”, and does not exclude having another, subsidiary, place of residence (such as with parents or friends). In this case, the applicant did not have a subsidiary place of residence available to her at 33 Blueberry Road until events unfolded following her grandmother being injured and her reconciliation with her former partner. This relationship having broken down again at the time of hearing.

17 The second point requires consideration of the “circumstances relating to the actual occupation of the dwelling”. In order to “occupy” a dwelling, it seems that the applicant must be the person “with the immediate supervision and control of the premises, and the power of permitting the entry of other persons” (see Ferrington). The relevant circumstances relating to occupation are that the applicant took over the responsibility of the property from her grandmother on 13 May 2003 and agreed to her grandmother continuing to live there after settlement and to pay certain outgoings.

18 The third point requires a finding as to the intention of the applicant. While intention is not determinative, it is relevant. A mere subjective intention to occupy the property is not enough: see Zakariya v Chief commissioner of State Revenue [2003] NSWADT 26 at 14. I find that the applicant’s intention was, relevantly, that she intended to occupy the property at the time that she purchased the property as her principal place of residence although the application form disclosed her address as 33 Blueberry Road as this form was filled out prior to the completion of the purchase.

19 The fourth point, the “degree of permanence”, requires a finding on the facts of the case as to the permanence, however short, of the occupation. Permanence may be shown by the applicant changing her address with the relevant authorities, introducing substantial furniture to the property, or making changes to it consistent with her permanent occupation. In this case the applicant’s belongings were moved to the property and she made alterations and additions to the property so that she was better accommodated and felt safe. She had changed her address at the local council and on the mortgagee’s records.

20 The fifth point, the “length of residence”, requires a finding on the period of time during which the applicant lived in the apartment. In this case, the period of occupancy was three (3) months including one (1) month after settlement. Related to the fifth point is the reasonableness or otherwise of the decision to move out of the apartment. In this case it was reasonable for the applicant to move out due to the change to her circumstances which had occurred.

21 The hearing was conducted in difficult circumstances due to the refurbishment being undertaken of the Moree Courthouse.

22 The applicant provided evidence to the Tribunal personally and by way of affidavit.

23 The Grant was made in respect of the purchase of 332 Boston Street Moree. The applicant’s parent’s home at that time was 8 Iris Street Moree (they subsequently moved to 44 Amaroo Street Moree). The applicant had, with her partner, rented 33 Blueberry Road Moree from 1 January 1998 to the “beginning” of March 2003 (as indicated by the lessor by letter dated 6 June 2006 to the respondent in reply to the respondent’s letter dated 14 May 2006). The representative of the respondent provided submissions to the Tribunal which also included the transcription of a conversation between him and the lessor which suggested that the term of the lease was to the “beginning of March 2004”. It is clear from the information supplied by the applicant and the representative of the respondent that the partner of the applicant remained in the property at 33 Blueberry Road Moree for the duration of the lease; however, during that period the applicant was separated from the partner. No evidence was provided as to whether the lessor was apprised of the separation of the applicant and her partner, nor of the resumption of the relationship which endured to the time that they purchased 51 Blueberry Road Moree on or about 1 March 2004.

24 The applicant purchased the subject property from her grandmother. The purchase was structured to allow her grandmother to stay in the subject property after the applicant had purchased it and for the grandmother to continue to pay some of the outgoings while she remained there. Alterations were made to the subject property before and after purchase to better accommodate the grandmother and the applicant.

25 The applicant gave evidence that she had commenced living in the subject property on 7 April 2003 being the day that she was released from hospital after the birth of her first child. That her parents had moved her belongings from their home to the subject property while she had been in hospital giving birth to her first child; that she had been living with her parents at 8 Iris Street from mid 2002 after separating from her partner of five (5) years.

26 The applicant gave evidence concerning the reasons why she purchased the subject property from her grandmother and as to various works that she paid for to be undertaken on the subject property prior to and after the purchase. She also gave evidence concerning her pregnancy and the difficult circumstances of her relationship with her former partner.

27 The applicant stated that the application for the Grant was completed by a staff member of the mortgagee and the residential address for her was shown as 33 Blueberry Road as at 30 April 2003.

28 The applicant “relocated” with her baby to 33 Blueberry Road on approximately 14 June 2003. She gave evidence as to the family background to the relocation. The applicant has not resided at the subject property since that date.

29 The respondent’s representative submitted that as the applicant had not changed her address on her driver’s licence, the electoral roll or her car registration she had not discharged the onus of establishing the subject property as her principal place of residence; that the applicant had remained a tenant of 33 Blueberry Road; that the applicant’s former partner (as at the date of the Grant) was a spouse within the meaning of Criterion 6 of Section11 and that as he had previously owned a property if the applicant had disclosed the relationship (if it then still existed) then the applicant would have been ineligible; that the applicant intended to reside in the subject property (and therefore the stamp duty concession was not revoked).

30 The applicant bears the onus to satisfy the Tribunal that she occupied the subject property as her principal place of residence within twelve (12) months of completion of the purchase. The evidence provided disclosed that the applicant had changed her address at the local council and with the mortgagee to the subject property although she did not change her address on her driver’s licence, car registration or the electoral roll. The applicant filed an affidavit by her mother and one other person although neither of these persons was available for examination and cross examination and consequently their evidence could not be objectively evaluated. The applicant gave evidence.

Conclusion

31 The applicant has complied with the requirements of Criteria 5 Section 12.

Order-interest and penalty

The decision of the Chief Commissioner of State Revenue to request repayment of the First Home Owner Grant in the sum of $7,000.00, together with interest of $1,400.00, is set aside.