Tsourounakis and Repatriation Commission

[2004] AATA 332

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 332

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/460

VETERANS' APPEALS  DIVISION		)
Re		EMMANOUIL and VASILIKI TSOUROUNAKIS

Applicants

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date18 March 2004

PlaceBrisbane

Decision

The Tribunal:

1.  Sets aside the decision under review.

2.  In substitution determines that Emmanouil Tsourounakis and Vasiliki Tsourounakis disposed of a property at 16 Ganges Street, West End in 1992, by giving it to their son, Michael Tsourounakis, and that the said property has not constituted part of their assets from that time on.

3.  Remits the matter to the Respondent for re-assessment of service pension payable to Emmanouil Tsourounakis and Vasiliki Tsourounakis in the light of this decision.

..............SIGNED..........................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

Veterans’ Affairs – service pension – value of assets – house given by Applicants to son in 1992 not part of current assets – decision set aside

Veterans’ Entitlements Act 1986

REASONS FOR ORAL DECISION

Deputy President Don Muller       

1.      This is an application by Emmanouil Tsourounakis and his wife, Vasiliki Tsourounakis, to review a decision relating to the value to them of a house situated at 16 Ganges Street, West End, Brisbane, for the purpose of assessing their assets and the rate at which they are paid service pension, pursuant to the provisions of the Veterans’ Entitlements Act 1986.

2.      Emmanouil Tsourounakis and Vasiliki Tsourounakis are the registered owners of the house in Ganges Street.  Their son, Michael Tsourounakis, has lived permanently in the house since 1991.

3.      In October 2002, a delegate of the Respondent valued the house at $570,000 and assessed the service pension payable to Emmanouil and Vasiliki at $0 per fortnight.

4.      Upon reconsideration, revaluation and receiving information that Michael had spent $352,523 in materials and labour on the house, a delegate of the Respondent revalued the house at $540,000, and assessed the value to Emmanouil and Vasiliki at $334,109.42.  This value still meant that the assets of Emmanouil and Vasilki were assessed as exceeding the threshold and their pensions remained at $0 per fortnight.

5.      The Tribunal had written statements and heard oral evidence from the Applicants and their son, Michael.  The Tribunal also had before it the following documents:

(a)The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, exhibit 1;

(b)Statement of Emmanouil Tsourounakis dated 4 March 2004, exhibit 2;

(c)Statement of Vasiliki Tsourounakis dated 18 March 2004, exhibit 3;

(d)Statement of Michael Tsourounakis dated 10 March 2004, exhibit 4;

(e)Statement of Mary Anne Tsourounakis (Michael’s wife) dated 15 March 2004, exhibit 5;

(f)Statement of William Carter, QC (father of Mary Anne Tsourounakis), exhibit 6;

(g)Will of Emmanouil Tsourounakis dated 27 September 2001, exhibit 7;

(h)Will of Vasiliki Tsourounakis dated 27 September 2001, exhibit 8;

(i)Statement of Affairs of Michael Tsourounakis dated 23 March 2004, exhibit 9;  and

(j)Handwritten letter of Michael Tsourounakis to CRM Pty Ltd dated July 1992, exhibit 10.

6.      The Tribunal was impressed by the witnesses who gave evidence and accepts them as honest and reliable.  Based upon the evidence and the documentary material placed before the Tribunal, I find that:

(a)Emmanouil Tsourounakis was born in Crete on 4 March 1930.

(b)Vasiliki Tsourounakis was born in Crete on 9 April 1929.

(c)Emmanouil served in the Greek Army in Korea from 20 December 1953 to 9 August 1954.

(d)Emmanouil rendered “qualifying service” for the purposes of the Veterans’ Entitlements Act 1986.

(e)Emmanouil and Vasiliki migrated to Australia in the early 1960s.

(f)In about 1966, Emmanouil and Vasiliki bought the house at Ganges Street for approximately £3,000.  This house became their family home until 1988.  It is where they raised their two children, Michael and his sister.

(g)In 1988, Emmanouil and Vasiliki bought a house at Sunnybank and moved there to live.

(h)They had tenants move into the Ganges Street house.

(i)In about 1990, Michael experienced financial difficulties.  He had guaranteed a business loan which was not repaid.  He ultimately lost his home in which he, his wife and children had been living. Michael and his family were initially able to move into the home of his wife’s parents, Mr. and Mrs. Carter, whilst Mr. Carter was away working in Tasmania from March until October 1991.

(j)Upon the return to Brisbane of Mr. and Mrs. Carter, Michael had to find alternative accommodation for his family.

(k)Emmanouil and Vasiliki came to the rescue of Michael.  They asked the tenants of the Ganges Street house to go.  They offered the house to Michael and his family.  They told Michael that it was their intention that he would eventually be given the house, and that, since he had fallen on hard times, he might as well have it at that time, that is, at the end of 1991.  They told Michael that he would not be charged any rent because the house was his and that as far as they were concerned he could do with it what he wanted.  They told Michael that hence-forth they would not spend a cent on the house, nor on any maintenance, rates or outgoings of any description.

(l)The house was in a very run-down, dilapidated condition.  Rain came through the roof;  the stumps needed replacing;  the sewerage pipes needed replacing.

(m)The title to the house at Ganges Street was not transferred to Michael because it was feared that his creditors may take it.

(n)From early 1992, Emmanouil and Vasiliki have had nothing to do with the house.  They have not spent one cent on it.  They have taken no proprietary interest in it.

(o)In March 1992, Emmanouil and Vasiliki applied for the service pension.  At that time they declared ownership of the house at Ganges Street and estimated the value to be $65,000.  They were granted the service pension with effect from 6 May 1992.

(p)The house was later valued in November 1992 as being worth $70,000.  That value did not affect the service pension because the threshold at the time was about $225,000.

(q)Michael was made bankrupt in 1994.

(r)From 1992 until the present, Michael, his wife, and his parents in law have spent over $350,000 on the house, including labour and $208,000 worth of materials. They have done renovations, repairs and extensions.

(s)The house at Ganges Street is now worth $540,000.  A high percentage of the increase in value is probably due to the extensive work done on the house, but there has also been a significant increase in value due to the location of the house.

7.      Over the last 12 years the Applicants have regularly complied with the requirements associated with the receipt of their pensions by completing forms in which their assets and incomes have been declared.  They have on each of those occasions declared themselves to be the owners of the Ganges Street house.  They have done so because they are still registered as the owners.  Up until 2002, the value of the house was not a significant factor in the assessment of their rates of pension, nor was the ownership of it.

8.      However, irrespective of what the documentation may say, I find that Emmanouil and Vasiliki gave the Ganges Street house to Michael in 1992.

9.      I find that in 1992, Emmanouil and Vasiliki Tsourounakis divested themselves of an asset worth $70,000 at that time.

10.     The decision under review is set aside and in substitution the Tribunal determines that Emmanouil and Vasiliki Tsourounakis disposed of a property at 16 Ganges Street West End in 1992 and that the property has not constituted part of their assets from that time on.

11.     The matter is remitted to the Respondent for re-assessment of service pension.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  18 March 2004
Date of Decision  18 March 2004
Counsel for the Applicant         Mr. D. O’Gorman
Solicitor for the Applicant          Gilshenan and Luton
Counsel for the Respondent     Ms. E. Ford
Solicitor for the Respondent     Mr. J. Rule