Walker v Chief Commissioner of State Revenue
[2025] NSWCATAD 270
•05 November 2025
Civil and Administrative Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: Walker v Chief Commissioner of State Revenue [2025] NSWCATAD 270 Hearing dates: 11 August 2025 Date of orders: 05 November 2025 Decision date: 05 November 2025 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr Linda Kirk, Senior Member Decision: The decision made by the Respondent on 25 October 2024 is set aside.
Catchwords: TAXES AND DUTIES — Dutiable transactions —Exemption from duty under First home buyers assistance scheme — Reassessment — Onus of proof satisfied
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Duties Act 1997 (NSW)
Taxation Administration Act 1996 (NSW)
Cases Cited: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 83 ATC 4015
Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25
Ferrington v Chief Commissioner of Taxation (GD) [2004] NSWADTAP 41
Texts Cited: None cited
Category: Principal judgment Parties: Nicholas Walker (Applicant)
Chief Commissioner of State Revenue (Respondent)Representation: Counsel:
I Walker (Applicant)
T Allchurch (Respondent)
File Number(s): 2025/00123125 Publication restriction: None
REASONS FOR DECISION
Introduction
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On 12 November 2019, Nicholas Walker (‘the Applicant’) entered into a contract to purchase a property in Hunters Hill (‘the Property’) for $510,000. The Property was transferred with an existing tenant. [1]
1. s 58 Bundle, Tab 1, Notice of Sale, 1
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The Applicant received a transfer duty exemption (‘the exemption’) under the First Home Buyers Assistance Scheme (‘the FHBAS’) in the Duties Act 1997 (NSW) (‘Duties Act’). The Property was acquired by the Applicant as his first home, and the dutiable value was below the statutory limit at that time: Duties Act, s 74 (1).
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The Chief Commissioner of State Revenue (‘the Respondent’) formed the view that the Applicant had not occupied the Property as required to be eligible for the exemption, and on 25 October 2024 the Respondent made an assessment of the duty payable, plus penalty and interest under the Duties Act (‘the Assessment’).
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The Applicant applied to this Tribunal under s 96 of the Taxation Administration Act 1996 (NSW) (‘TA Act’) for administrative review of the Assessment.
Background
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On 4 September 2024, Revenue NSW (‘RNSW’) contacted the Applicant by email to inform him that it was conducting a review of his purchase of the Property on behalf of the Respondent. On the same day, the Respondent issued a Notice of Investigation which requested that the Applicant provide a completed Residence Declaration and Residence Requirement Evidence. [2]
2. s 58 Bundle, Tabs 11-11(a)
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On 4 September 2024, the Applicant provided evidence in support of his residence at the Property, [3] and a completed Residence Declaration [4] in which he agreed:
3. s 58 Bundle, Tabs 12-12(a)
4. s 58 Bundle, Tabs 13-13(a)
he understood that to retain the exemption he had to occupy the Property as his principal place of residence for a continuous period of at least six months, commencing within 12 months of settlement;
he understood that if the residence requirement has not been met, he may be required to repay the first home benefit which may include penalty tax and/or interest;
he acknowledged that he may be liable for penalties for making false statements in the declaration;
he started residing in the Property on 30 July 2020 and ceased living in the Property on 1 March 2021; and
answered “No” to the question “Did you occupy another property as a residence during the above period?” and therefore did not complete the section “Reasons for not living in the property”.
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RNSW subsequently conducted investigations into the Applicant’s residence at the Property, including further correspondence with the Applicant and requisitions to third parties. [5]
5. S 58 Bundle, Tabs 14-46
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On 25 October 2024, RNSW advised the Applicant that he had not met the residency requirement for FHBAS, following which the Assessment was issued by the Respondent. [6] The Applicant lodged a Notice of Objection on same day. [7]
6. s 58 Bundle, Tabs 50-50(b) Email from RNSW to the Applicant attaching Letter and Duties Notice of Assessment, pages 521-525.
7. s 58 Bundle, Tab 51 Applicant's objection, pages 526-535.
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On 13 January 2025, RNSW completed a report in response to the objection which recommended that the objection be disallowed. [8] On 15 January 2025, the Respondent issued a further Duties Notice of Assessment to the Applicant (‘further Assessment’). [9] It consisted of $18,412 in transfer duty, $4,595.50 in penalty tax, and $7,732.53 in interest, totalling $30,740.03.
8. s 58 Bundle, Tab 53 RNSW objection determination report, pages 538-546.
9. s 58 Bundle, Tab 54 Duties Notice of Assessment issued to the Applicant.
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On 24 January 2025, RNSW informed the Applicant that the Respondent had disallowed his objection. [10]
10. s 58 Bundle, Tabs 55-55(a) Email from RNSW to the Applicant attaching Objection determination notice - objection disallowed, pages 549-552.
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The Applicant applied to this Tribunal for review on 31 March 2025. The application was lodged out of time, but the Respondent consented to an extension of time which was granted at a directions hearing on 29 April 2025.
Legislative framework
Duties Act 1997
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Section 69 of the Duties Act provides that the FHBAS is intended to help people who are acquiring their first home. Under the scheme, the acquisition is subject to a concession or exemption from duty.
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Section 74 of the Duties Act provides:
Eligible agreements or transfers
(1) The agreement or transfer must be for the acquisition of a first home or for the acquisition of a vacant block of residential land intended to be used as the site of a first home.
(2) The agreement or transfer must be for the whole of the property.
(3) The dutiable value of the dutiable property that is the subject of the agreement or transfer must be less than:
(a) $800,000 if the property has a private dwelling built on it, or
(b) $450,000 if the property comprises a vacant block of residential land. Note-
The dutiable value of dutiable property is the greater of:
(a) the consideration (if any) for the dutiable transaction (being the amount of a monetary consideration or the value of a non-monetary consideration), and
(b) the unencumbered value of the dutiable property.
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Section 76(1) provides:
Residence requirement
(1) The home must be occupied by the first home owner or one of the first home owners who is acquiring it as a principal place of residence for a continuous period of at least 6 months, with that occupation starting within 12 months (or such longer period as the Chief Commissioner may approve) after completion of the agreement or transfer. This requirement is referred to as the residence requirement.
(2) The Chief Commissioner may, if satisfied there are good reasons to do so in a particular case:
(a) modify the residence requirement by approving a shorter period of occupation by a first home owner, or
(b) exempt a first home owner from the requirement to comply with the residence requirement.
…
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Section 79 provides that the Chief Commissioner may reassess the duty chargeable in respect of an agreement or transfer that is initially approved under the FHBAS if he forms the opinion that the agreement or transfer is not eligible under the scheme (because of failure to comply with the residence requirement or otherwise).
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The Applicant has the onus of proving his case: TA Act, s 100(3). He must prove all matters necessary for the Tribunal to answer the statutory question in his favour: Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [36]. The standard of proof is the balance of probabilities.
Issues for determination
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The issues for determination are first, whether the Applicant occupied the Property for a continuous period of at least six months within 12 months after settlement. If the answer to that question is yes, the second question is whether the Property was occupied by the Applicant as his principal place of residence.
Evidence before the Tribunal
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The Applicant provided a statutory declaration, [11] and gave oral evidence at the hearing. The following witnesses provided written statements and gave oral evidence:
11. AB, Tab 4.6, Statutory Declaration of Nicholas Walker, page 60.
Ian Walker; [12]
James Eccles; [13]
Damon Bottrill; [14]
Nadine Nadall; [15]
Jamie Casaclang [16]
12. AB, Tab 4.2, Statutory Declaration of Ian Walker, page 54,
13. AB, Tab 4.3, Statutory Declaration of James Eccles, page 55.
14. AB, Tab 4.1, Statutory Declaration of Damon Bottrill, page 52.
15. AB, Tab 4.5, Statutory Declaration of Nadine Dallal, page 58
16. AB, Tab 4.4, Statutory Declaration of Jamie Casaclang, page 56
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The Applicant filed a bundle of materials on 13 June 2025 (‘AB’).
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The Respondent filed documents pursuant to s58 of the ADR Act on 6 May 2025 (‘s58 Bundle’).
Occupation of the Property
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It is not in dispute that the tenant vacated the Property on 30 June 2020. [17]
17. s 58 Bundle, Tab 39, Email from Montano Group to RNSW, page 439; AB, Tab 2.6, Tenant History - per Real Estate Agent Montano, page 30.
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In his Notice of Objection dated 25 October 2024, the Applicant claimed that he took up residence at the Property on 30 June 2020. [18]
18. s 58 Bundle, Tab 51(a)
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In other documents filed as part of his evidence, the Applicant claimed that the Property was his principal place of residence between 30 June 2020 and 7 February 2021. [19] Those claims are included in documents seeking to amend his Individual Tax Return for 2020/2021 (‘2021 ITR’), lodged with the Australian Tax Office and instructing a tax agent to do the same.
19. AB, Tab 2.2 Tax Agent - Updated 2021 Return - Incorrect Dates with Incorrect Figures, page 21; Tab 2.8, Appointment Request Email to Tax Agent -10/6/25, page 34; Tab 2.11, Objections to ATO - Re-lodgement of FY2021 Tax Return, since of 2 years since tax period, 12Jun 25, ATO reference for lodgement by Tax Agent: proof of Receipt no: 501016107627, page 47.
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In his written submissions to the Tribunal, [20] in a statutory declaration, [21] and in his oral evidence at the hearing, the Applicant stated that he resided in the Property from 3 July 2020 to 7 February 2021 (‘the relevant period’). Prior to moving to the Property, the Applicant was living at his parents’ home in North Ryde. The Applicant’s father, Ian Walker, explained to the Tribunal that on the first weekend following 30 June 2020, he and the Applicant loaded up his land cruiser with the Applicant’s personal belongings and took them to the Property. They moved his mattress from his bedroom at his parents’ home to the Property, and the Applicant slept on it until a new Koala sofa bed was delivered some weeks later. [22]
20. AB, 1.
21. AB, Tab 4.6, Statutory Declaration of Nicholas Walker, page 60
22. The tax invoice for the sofa bed is dated 31 July 2020: s 58 Bundle, Tab 42(a), Tax invoice from Koala, page 484.
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The Applicant recalls that shortly after he moved into the Property, he travelled to Byron Bay during the school holiday period at that time. While he was away, he arranged for the Property to be painted. He asked his friend, James Eccles, to check on the work done by the painters in his absence. On 15 August 2020, the Applicant hosted a house-warming party at the Property which was attended by many of his friends. [23]
23. AB, Tab 1.2, Print of Docs/References, page 10; Tab 4.1, Statutory Declaration of Damon Bottrill, page 52; Tab 4.5, Statutory Declaration of Nadine Dallal, page 58; Tab 5.3, House Warming Invitation and Photos, pages 66-67.
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This evidence is consistent with that of James Eccles in his statutory declaration: [24]
I have fond memories of helping Nick set up the unit. Specifically, I recall Nick showing me around his apartment for the first time on 5 July 2020. I had access to the unit to check on the progress of the painters who my mother had arranged through her interior design contacts. Once they were finished, I helped assemble some flat pack furniture on 10 July 2020 and then again on 19 July 2020 while Nick was away at Byron Bay. When Nick returned, we had a house-warming event ...
24. AB, Tab 4.3, Statutory Declaration of James Eccles, page 55.
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Mr Eccles told the Tribunal that he had been able to confirm the dates in his statement by reviewing his Facebook messages with the Applicant at the time. The flat pack furniture he assembled was the Koala sofa bed. A photo taken showing the mattress on the bed is included in the documentary evidence filed by the Applicant. [25]
25. AB, 11.
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The Applicant’s bank statements indicate that he was in Byron Bay from around 13 July to 22 July 2020. [26]
26. s 58 Bundle, Tab 12(a)(i), CBA bank statement for period 15 May 2020 to 14 August 2020, pages 56-59. See references to payments on 13 July 2020 in Montecollum, a town in the Northern Rivers region, and on 22 July 2020 in Forster, a town in the Mid North Coast
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The Applicant’s electricity account with Powershop was connected on 14 August 2020 and it was disconnected on 8 February 2021. [27] The Applicant’s evidence is that when the tenant vacated the property the electricity was not disconnected, and he did not connect the electricity in his name until some weeks after he moved into the Property. [28] The Applicant’s lnternode Fetch TV account was set up on 30 July 2020. [29]
27. s 58 Bundle, Tab 12(f), Screenshot of electricity billing history for period 21 August 2020 to 1 March 2021, page 169.
28. AB, Table of Considerations, page 4, item 10.
29. s 58 Bundle, Tab 23(b), Screenshot of order confirmation from lnternode, page 226.
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The evidence of the Applicant’s friends who provided statutory declarations and gave oral evidence is that the Applicant held a housewarming party at the Property on 15 August 2020. In her oral evidence, Ms Nadall told the Tribunal that the Applicant’s invitation to his friends to attend the housewarming was posted on Facebook.
Principal place of residence
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During the relevant period in which the Applicant claims he lived in the Property, he did not update his address to that of the Property on any of the following:
his NSW driver’s licence; [30]
30. s 58 Bundle, Tab 47, RNSW Full Investigation Report, page 503.
the electoral roll; [31]
his payslips;
his superannuation statements;
his home insurance and policies; and
his car insurance and policies. [32]
31. s 58 Bundle, Tab 47, RNSW Full Investigation Report, page 503.
32. s 58 Bundle, Tab 24, Email from the Applicant to RNSW, page 227.
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The Applicant’s evidence is that his failure to update these addresses was an oversight on his part. [33] The address listed on his electricity account, water bill and council rates was that of the Property.
33. AB, Table of Considerations, page 3, item 1.
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The Applicant told the Tribunal that during the relevant period, he was provided with breakfast and dinner at the school where he works. In the evenings he cooked for himself at the Property, or he would go to his parents’ house for dinner, or he would order Uber Eats.
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The Applicant explained that he decided to move out of the Property and return to live with his parents during the school holidays in December 2020 – January 2021. He had planned for his then-girlfriend to move into the Property and live with him, but their relationship broke down around this time. [34] He explained that his work role was very demanding and stressful at the time, and he was missing the emotional support that his parents provided to him when he was living at their home. During the school holidays, the Applicant packed up his belongings and he arranged for the Property to be listed for rent on 4 January 2021. The Applicant moved back to live with his parents at their home, [35] and a tenant moved into the Property on 8 February 2021. [36]
34. AB, Tab 4.6, Statutory Declaration of Nicholas Walker, page 60. Jamie Casaclang suggests that the Applicant planned for his then-girlfriend to move in with him before they separated: AB, Tab 4.4, Statutory Declaration of Jamie Casaclang, page 56. The Applicant's father also gives evidence that the Applicant ‘mentioned [that his then-girlfriend] may also move to the home unit”: AB, Tab 4.2, Statutory Declaration of Ian Walker, page 54.
35. AB, Tab 4.6, Statutory Declaration of Nicholas Walker, page 60.
36. s 58 Bundle, Tab 37, Email from Ray White Hunters Hill to RNSW, page 351.
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The Applicant originally claimed that he rented the Property for 52 weeks in the 2020-21 tax year and he reported rental income of $23,807 in his 2021 ITR. He subsequently corrected this to report he rented the property for 21 weeks in the 2020-21 tax year and earned $7,112.00 in rental income. [37] In the 2021 ITR, the Applicant claimed expenses associated with renting the Property for items including the Koala bed, plantation shutters, painting and washing machine repair. [38]
37. AB, Tab 2.3, From ATO response to application to change FY2021 Return dated 28 February 2025, page 23.
38. AB, Tab 2.2, Tax Agent — Updated 2021 Return — Incorrect Dates with Incorrect Figures, pages 18, 22, 23.
CONSIDERATION
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This administrative review is conducted under s 9 of the Administrative Decisions Review Act 1997 (NSW) (‘ADR Act’) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
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The Tribunal “stands in the shoes” of the Respondent in conducting a merits review of the Assessment. The Tribunal’s task is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
Is the Applicant entitled to the exemption?
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The Applicant bears the onus of proving his case on the balance of probabilities: TA Acts 100(3). He must satisfy the Tribunal that he is entitled to the exemption, having regard to the relevant statutory criteria. He must prove all matters necessary to enable the Tribunal to answer the statutory questions in his favour. In the absence of that evidence, the Assessment will prevail as correct, as the starting point is that there is no entitlement to an exemption.
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Although there is no statutory requirement for the Applicant to produce as a witness any particular person or produce any documentary evidence (see Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 83 ATC 4015), the Applicant must produce sufficient evidence to discharge the onus. Part of that evidence may comprise documents or correspondence in the s58 materials.
Did the Applicant occupy the Property for a continuous six month period?
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I accept the Applicant’s evidence that he moved into the Property on 3 July 2020 and moved out on 8 February 2021. His evidence that he moved from his parents’ house to the Property after the tenant vacated on 30 June 2020 is supported by his father whose evidence is that he assisted the Applicant to move his personal belongings to the Property on 3 July 2020. Mr Eccles’ evidence is that he went to the Property on 5 July 2020 and met with the Applicant. During the school holiday period in July 2020, the Applicant travelled to Byron Bay. During his absence the Property was painted, and Mr Eccles went to the Property to check on the painter’s progress. Mr Eccles returned to the Property on 10 July 2020, and he assembled some flat pack furniture. He went to the Property again on 19 July 2020. The Applicant returned from Byron Bay on or around 22 July 2020.
Did the Applicant occupy the Property as his principal place of residence?
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The Tribunal must also be satisfied that the Applicant occupied the Property as his principal place of residence for him to qualify for the exemption.
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The term ‘principal place of residence’ is not defined in the Duties Act. In Chief Commissioner of State Revenue v Ferrington (GD) (‘Ferrington’),53 the Appeal Panel set out the following criteria in respect to what is required to establish a principal place of residence:
First, the words ‘principal place of residence’ should be given their ordinary meaning in the context in which they appear.
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 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.
Sixthly, the reasons for a person’s departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances.
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The Respondent contends that the objective evidence does not establish that the Applicant occupied the Property as his primary place of residence for any duration of time, having regard to the criteria identified in Ferrington. [39] In relation to second to fourth criteria in Ferrington, the Respondent contends that the evidence does not establish that the Applicant intended to reside in the Property as his principal place of residence with any degree of permanence. [40] The Respondent points to the Applicant’s failure to update his address on his driver’s licence, the electoral roll, pay slips, superannuation statements, home insurance and policies, and car insurance and policies to support its contention that the Applicant’s occupation of the Property was ‘temporary and transient’. [41] The Respondent also relies on the analysis of the Applicant’s bank statements during his occupation of the Property which do not show a notable change in his spending habits, to support his argument that the Property was not the Applicant’s principal place of residence during the relevant period. [42]
39. Respondent’s Statement of Facts, Issues and Contentions (RSFIC) filed 14 July 2025 [59].
40. RSFIC [60]
41. RSFIC [60].
42. RSFIC [67]: Analysis in s 58 Bundle, Tab 47, RNSW full investigation report, page 505-506; see also the underlying bank statements in S 58 Bundle, Tab 12(a), pages 44-148.
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The Tribunal accepts the Applicant’s evidence that he did not update his address on his driver’s licence, pay slips, superannuation statements, home insurance and policies, and car insurance and policies and on the electoral roll for reason that at the time he was very busy at work, and did not think it was essential to update his address as he would be able to collect any correspondence for him sent to his parents’ home.
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The Tribunal also accepts the Applicant’s evidence that he had planned to make the Property his long-term residence and intended his then-girlfriend to move in with him. I accept that when the Applicant’s personal circumstances changed following the breakdown of his relationship, he decided to move back with his parents where he would receive the emotional support he needed during a difficult time in his life.
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The Tribunal does not accept the Respondent’s contention that the evidence that indicates that there was no notable change in the Applicant’s spending habits during the relevant period establishes that he was not living in the Property on a permanent basis. The Tribunal is satisfied that the Applicant’s spending habits did not change markedly because his daily routine was not significantly impacted by his move to the Property.
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The Respondent further contends that the Applicant’s claiming of deductions in his 2021 ITR for items he purchased for the Property indicate that he purchased the Property as an investment and did not intend for it to be his principal place of residence. The Tribunal notes the inconsistencies in the information the Applicant provided to the ATO, the lack of evidence of the correction he says was made to the amount of rental income he received in the 2020-21 tax year and the verification of this change, and his claiming of deductions for expenses associated with the rental of the Property in the same financial year.
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There is no evidence before the Tribunal that the Property was ever rented out to a tenant or that rent was paid to the Applicant during the relevant period. The Tribunal finds that the Applicant incorrectly declared rental income and claimed expenses associated with renting the Property for 52 weeks during the 2020-21 tax year which he subsequently corrected to align with the Property being rented for 21 weeks from 8 February 2021 when he vacated the Property. The Tribunal finds that the Applicant’s decision to rent the Property when he moved back to live with his parents is not inconsistent with his intention when he purchased the Property that it would be his principal place of residence.
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On an objective assessment of the evidence, the Tribunal is satisfied on the balance of probabilities that the Applicant resided at the Property on a permanent basis from 3 July 2020 to 8 February 2021.
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The Tribunal is satisfied that the Applicant has discharged his onus in relation to establishing that he occupied the Property for a continuous period of six months as his principal place of residence and he therefore qualifies for the exemption.
Conclusion
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Having regard to the above findings on the material before the Tribunal, the correct and preferable decision is to make the order below.
Order
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The decision made by the Respondent on 25 October 2024 is set aside.
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Endnotes
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Amendments
05 November 2025 - Title changed
Decision last updated: 05 November 2025
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