1. This case is about whether or not Mr Abela has to repay the First Home Owner Grant, Bonus and Boost payment of $32,000 paid in June 2011(the grant), and accrued interest and whether or not he should pay a penalty.
2. It is a review by VCAT of the Commissioner's determination on 30 March 2016 disallowing Mr Abela's objection to a decision of the Commissioner reversing the original decision to pay the grant.
3. In short, the question for me to decide is whether Mr Abela complied with the residence requirement in s 12 of the First Home Owner Grant Act 2000 (the Act).
4. The residence requirement is that the applicant for the grant must occupy the home to which the grant relates as his or her principal place of residence for a continuous period of six months commencing within the first 12 months after settlement of the purchase or completion of construction. The residence requirement is one of five mandatory criteria for the grant. It is a criterion that neither the Commissioner nor the Tribunal can ignore. If a person receives the grant but does not comply with it, the grant must be repaid.
5. For the reasons that follow I am satisfied that Mr Abela complied with the residence requirement and that the Commissioner's determination should be set aside.
6. This is an unusual case which turned entirely on its own facts. In almost all other cases that have come before the Tribunal, the Tribunal has made its determination about whether the applicant complied with the residence requirement in the context of an applicant who either rented the property out soon after the six month period expired or has sold the property.
7. Although this case had some common elements with others, such as very low initial utility usage, it had one element not found before in a case at the Tribunal, namely that Mr Abela, having moved into the property, never left it, rented it out, put it on the market for sale or otherwise parted with possession.
8. In this case, the fact that Mr Abela has had a long, continuing period of occupation in the property - nearly 6 years - gives his occupation a clear and established degree of permanence and is strong objective evidence of his intention at the relevant time to make it his home.
9. For that reason, this case is not a precedent for other cases where the Tribunal may be evaluating low utility usage and other indicators of impermanent residence in the context of an applicant who after a short period of occupation parted with possession of the property.

1. Mr Abela was born on 21 December 1987. He purchased the property at 11 Montezuma Avenue, Truganina in May 2009.
2. In September 2009, he commenced construction of a dwelling on the property as owner builder and on 26 May 2011 a Certificate of Occupancy issued.
3. In June 2011, Mr Abela applied for and received the grant.
4. In September 2015, after an investigation, the Commissioner's delegate notified Mr Abela that he had reversed the original decision to pay the grant and required Mr Abela to repay it and pay a penalty of $3,200. The Commissioner had concluded that Mr Abela had failed to comply with the residence requirement in s 12 of the Act.
5. On 8 October 2015, solicitors on behalf of Mr Abela lodged an objection to the decision.
6. The Commissioner's determination disallowing the objection is dated 30 March 2016.
7. Mr Abela has exercised the right, given to him by s 29 of the Act, to request the Commissioner to refer the matter to the Tribunal for review.
8. On a review, the Tribunal stands in the shoes of the decision-maker and considers the matter afresh. The Tribunal may take into account evidence not before the original decision-maker. In this case, the additional evidence has been important.
9. As the objector, Mr Abela has the onus of proving his case to the required standard ─ the balance of probabilities. That means he has to provide sufficient evidence to establish that it is more likely than not that he met the residence requirement
10. Both parties filed written submissions and documents and made additional oral submissions at the hearing.
11. Mr Abela made a witness statement and filed a number of witness statements. Four of his witnesses attended the hearing to give additional evidence and be cross-examined if required. Mr Abela gave additional oral evidence at the hearing and Counsel for the Commissioner cross-examined him.
12. I discuss the evidence in more detail below.

Principles to be applied: the six Ferrington principles

1. In Chief Commissioner of State Revenue v Ferrington,[1] the New South Wales Administrative Decisions Tribunal Appeal Panel articulated six principles for determining whether a person has met the principal place of residence criterion.
2. Those principles were extracted and summarised by Senior Member Davis of this Tribunal in Boots v Commissioner of State Revenue [2004] VCAT 2549, and have been followed in numerous decisions of the Tribunal. They are:
   1. The words 'occupy' and "principal place of residence" should be given their ordinary meaning in the context in which they appear.
   2. 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.[2]
   3. The intention of the person concerned, gauged objectively, is relevant but not determinative of the issue.
   4. 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.
   5. The short length of a person's residence, while relevant, is not determinative of the issue, as a short period of occupation may still have the requisite degree of permanence to it; although the fact that a period of actual occupation is short will make it harder to satisfy the requirement.
   6. 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.
3. As observed by then Deputy President Macnamara in D'Amelio v Commissioner of State Revenue,[3] principles 1-3 describe how the inquiry should be approached. Principles 4-6 are substantive, meaning they are at the heart of the inquiry.
4. Principle 5 has a converse which was evident in this case, namely that a long period of occupation which continues up to the date of hearing is more likely to have the requisite degree of permanence to it; and the fact that the period of actual occupation is long will usually make it easier to satisfy the requirement.
5. The requirements of principle 4 are often discussed in the cases.[4] From the cases, it is clear that the residence requirement requires quite a lot more than an occasional, limited or temporary presence. There must be a degree of permanence - an intention to make it your home that is reflected in the reality of your occupation of it.
6. It is clear that occupation aimed only at meeting the six month requirement is not sufficient -what Deputy President Macnamara described in Kyriakou as 'some ritual of occupancy for six months which he believed was necessary to qualify for the grant'.[5]
7. In Kyriakou, Deputy President Macnamara went on to say:

Occupancy for this purpose [qualifying for the grant] and with that limited time frame in view lacks the necessary permanence for someone to be regarded as occupying a house as his principal place of residence. It stands in contrast to someone who moves into a house and makes it his or her home intending to stay permanently or on a long term basis and then changes his or her mind or moves because of a change of circumstances.

1. In Rutko v Commissioner of Taxation [2011] VCAT 2239 Deputy President Macnamara observed:

...someone who takes possession of premises merely for the purpose of meeting Criterion 5 [the residence requirement] and leaving immediately after the six months has ticked over is someone who has taken up residence for a transient, temporary, contingent or passing purpose and not for the permanent purpose that the Act contemplates.

1. In determining whether a person has met the residence requirement, the Tribunal looks at evidence about where the person ate and slept, their use of utilities, the extent to which they furnished the house, whether and when they notified banks, utility companies and others of a change of address, whether they updated their drivers' licence and the electoral roll and so on.[6]
2. It is important to keep some of those matters in perspective. The observations of Deputy President Macnamara in Kyriakou [38] are to be kept in mind:

I am somewhat reluctant however to place too much reliance on issues such as where a person ate his meals or washed his clothes as indicia of where his principal place of residence might be. To give too much attention to those words or to give literal effect to some of the statements in the Tribunal decisions relied upon by the Commissioner might lead to the conclusion that an individual who worked long hours, ate his meals in restaurants and cafes, and had his clothes laundered at work or at a commercial laundry would be a person without any principal place of residence.

1. In other words, the Tribunal takes into account that lifestyles and work responsibilities can differ. What the Tribunal looks for however, is objective evidence that the applicant actually lived at the property, rather than observing a ritual of occupancy while in fact living elsewhere, and that the occupation had the necessary degree of permanence to it. Evidence of witnesses such as friends and family is taken into account but objective evidence has the greatest weight.

1. The evidence the Commissioner had obtained at the end of the investigation in 2015, on its face, tended to support a conclusion that Mr Abela's occupation of the property had lacked the necessary degree of permanence. His utility usage had been objectively low in the relevant period, as at 2015 he had not updated his address on important personal records and he gave his parents' address as his residential address in some legally significant documents.
2. In other words, except for the fact that the property had never been rented out or sold, as at 2015 it was reasonable to believe from the independent documentary evidence that Mr Abela may not have lived in the property other than in a transient way.
3. The evidence for the Commissioner included:
   • Incoming passenger cards for 7 September 2011, 24 August 2012, and 30 May 2013 all showed 74 Power Street St Albans, Victoria (his parents' address) as his intended address in Australia and as his address/contact details in Australia.
   • The notice of acquisition of an interest in land dated 24 June 2009 listed the address for future correspondence as his parents' address. Although the purchase was land only at that stage the answer to the question 'will property being acquired be your principal place of residence' was 'no'.
   • Water usage was, as submitted by the Commissioner, remarkably low: less than 12 L per day from 5 July 2011 to 4 October 2011, 'nil'[7] from 5 October 2011 to 4 January 2012, around 66 L per day from 5 January 2012 to 3 April 2012, less than 12 L per day from 4 April 2012 to 4 July 2012, and nil from 5 July 2012 to 2 October 2012.[8]
   • Electricity usage was also remarkably low, at between 0.5 and 3kWh per day.[9]
   • There was no gas usage during the period from 8 June 2011 to 7 May 2012 and only minimal gas usage during the period from 8 May 2012 to 5 July 2012.
   • Until 25 August 2015 Mr Abela had not notified VicRoads that his residential address for his driver's licence had changed from his parents address to 11 Montezuma Avenue Truganina.
   • An RTBA bond summary screen printed 29 July 2015 for a different property, 114 Hilma Street Sunshine West, showed Mr Abela as the landlord and showed the landlord's address as '74 Power Street St Albans' [TB 25].
   • Westpac bank statements for various accounts for the period 31 December 2010 to 27 June 2014 show the customer address as 74 Power Street St Albans [TB 31 - 33].
   • In Mr Abela's favour, Wyndham City Council's email dated 5 August 2015 indicated that rubbish and recycling bins were ordered in September 2011.
   • Mr Abela appeared to have purchased minimal furniture, save for a bed in April 2012 and a refrigerator in October 2012.
   • Information from Ford Australia Human Resources [TB 35] was that their records showed Mr Abela commenced employment at Ford on 17/01/2006 and ceased employment on 30/05/2015; and his last known residential address on the HR system was his parents' address. As a maintenance employee he worked a rotating afternoon/day shift.
4. A different picture emerged from Mr Abela's evidence at the hearing including the documentary evidence and the evidence of witnesses on his behalf. His initial utility usage was undoubtedly low but it continues to be low over five years later. He was single, showered at work, did not use gas appliances, and heated meals in his microwave. He does not have a washing machine and does his own laundry at his parents' house.
5. Initially, he only used some rooms. He has now 'spread out' in the house and has increased the number of rooms in the three-bedroom house that he uses on a regular basis. Initially he did not have a garden. Now that he has added some landscaping his water usage has increased, but remains relatively low. His electricity usage increased from the time he purchased a larger television and refrigerator, but again it is remains relatively low. There was also compelling evidence that others in Mr Abela's family are lower than average consumers of utilities.
6. So far as furnishings were concerned, the evidence was that Mr Abela had started small but had slowly, from April 2012 onwards, replaced temporary, borrowed or makeshift furnishings with more substantial items of furniture. He made significant furniture purchases for the house including a bedroom suite, which a friend helped him put together, a larger refrigerator, dining suite, a larger television and other items. They are objective evidence of an intention to make the house his home.
7. Mr Abela gave an explanation for stating his parents' address on incoming passenger cards in 2011, 2012 and 2013. He said that he thought it was better to use it as it was the address on his driver's licence. In answer to the obvious question, why hadn't he changed his driver's licence address, he said that it genuinely hadn't occurred to him, and he hadn't realised it was important, describing that as "stupid", but that any new accounts he opened he put 11 Montezuma Ave Truganina as his address. The documentary evidence was consistent with him doing so.[10]
8. In other cases that have come before the Tribunal, evidence that a person has not changed their driver's licence address and has not put the property address on incoming passenger cards has been persuasive objective evidence that they do not intend the property to be their permanent residence. Here, however, although there was a delay, Mr Abela did eventually change his details for important documents and they continue to be the property address, consistent with him still living there.
9. There was a credible explanation for Mr Abela's use of his parents' address as a mailing address and as a place to eat frequent meals. It was clear on the evidence that Mr Abela is from a particularly close family, for whom his parents' house was, as his sister described it, 'Grand Central Station' for the family. He and his adult siblings are in the habit of using his parents' address as a mail direction and collection location for convenience, given that they were often there either passing through on their way home, as Mr Abela did, or gathering there on a regular basis for meals. Mr Abela's mother sorts the mail out for everyone. Parcels are directed there because someone is usually home.
10. During 2011 and 2012 there were also two important additional reasons for Mr Abela to visit his parents' home on his way home from work. His sister had her first child in this period and was often there, so it was a chance for him to see the baby. His mother had had cancer and was suffering at the time from depression: it was clear form the unchallenged evidence that the siblings combined to make sure someone 'dropped in' each day.
11. Importantly and unusually, in this case there was evidence not only from family members but also statements from neighbours who were in a position to give independent evidence as to his occupation of the property.
12. Of significance was the evidence his neighbour Mrs Singh gave at the hearing of her continuing interactions with Mr Abela from the time their respective properties were being constructed through to the current period. She also described how that Mr Abela's bins came out most weeks, were moved in towards the house by their neighbour Charlie, who performed this service for other working people in the street, and were not there the next day.
13. I also heard compelling evidence from Mr Abela's work colleagues and friends, Mr Jan Slegers and Mr Matthew Grilz who made written statements and gave evidence in person at the hearing. They were impressive witnesses. They carefully thought through their answers to important questions. They did not exaggerate. They gave candid and natural evidence. For example, Mr Slegers spoke of how Mr Abela, as a single man, lived at the house, and said that he himself was a married man with three children and he could not live like that. He said he "knew David was living there because you should have seen his room". He also knew what was in Mr Abela's cupboards, and spoke of how his wife often gave him meal servings for Mr Abela to take home and heat up later.
14. Mr Slegers also impressed me by the evidence he volunteered at the end of cross examination, after he finished answering questions. He said that he knows what this grant is for, how hard it is to get and how important it is and that Mr Abela is the sort of person it is designed for, someone who used it to help them buy their first home.

1. As Counsel for the Commissioner submitted, the Act does not focus only on temporary or limited periods of occupation. Just as a short period of occupation may nevertheless have the requisite degree of permanence, a long period of very nominal or perfunctory occupation might never have had any degree of permanence to it, as would be the case for example where a person had purchased a property intending to 'land bank' it. Nevertheless, a long period of genuine and continuing occupation commencing within the required time will make it easier to satisfy the residence requirement.
2. I am satisfied on the whole of the evidence discussed above that Mr Abela's occupation of the property had the necessary degree of permanence at the relevant time. His intention, gauged objectively, was to make it his home and he has conclusively done so.
3. I am satisfied that from September 2011, Mr Abela has occupied and continues to occupy the property in a meaningful way as his principal place of residence, slowly furnishing it, improving and adding to it, putting in a garden and living there in a way that is consistent with his lifestyle, his frugal use of utilities and his commitment to family. He does not live anywhere else. Relevantly, he has never rented it out or otherwise parted with possession of it. He is still there.
4. I am satisfied Mr Abela met the residence requirement for the grant and I will set the determination of the Commissioner disallowing the objection and the decision to impose a penalty aside.

[1] [2004] NSWADTAP 41; 2004 57 ATR 170 at [42].

[2] Expressed by Senior Member Davis in Alexander v Commissioner of State Revenue [2013] VCAT 868 at [21] as 'an outsider looking in would come to the opinion that [the property was either someone's principal place of residence or not]

[3] [2012] VCAT 265 at [15].

[4] See, for example, D'Amelio and Sofocleous v Commissioner of State Revenue (Taxation) [2012] VCAT 265; Kyriakou v Commissioner of State Revenue (Taxation) [2011 VCAT 640; Rutko v Commissioner of State Revenue [2011] VCAT 2239; Dammo v Commissioner of State Revenue [2015] VCAT 907.

[5] At [37], per Deputy President Macnamara.

[6] See Ziino v Commissioner of State Revenue [2004] VCAT 1707; and Landrigan v Commissioner of State Revenue [2004] VCAT 152.

[7] Water usage is shown as nil and not charged for if it is less than 1 kL of water consumed in the billing period. One kilo-litre equals one thousand litres.

[8] City West water memorandum dated 26 June 2015 attaching water usage details [TB 23].

[9] Origin Energy statements for electricity usage from 20 June 2011 - 27 August 2013 [TB 14 - 22]

[10] For example, ANZ letter dated 6 February 2012 [TB 40] re successful application for Platinum Card, addressed to 11 Montezuma Avenue Truganina. Also TB [41] and [43] taxation returns for years ending 30 June 2012 and 2013 showing his parents' address as his postal address but Montezuma Ave as his home address.