1. The applicant is an electrician.
2. He is relatively young, and part of a large Italian family.
3. The house was substantially completed in about September 2017 and the applicant moved in on 12 October 2017.[1] There was still some further work to be done including laying carpets in the bedrooms, some tiling work, some external concrete work and the construction of a retaining wall.
4. The applicant said he built the house with the intention that it would be a long term place of residence, with a hope that when he had children he could raise a family there.
5. He slept at the property between about September 2017 and April 2019. The property was tenanted out from 18 April 2019 ('the relevant period').
6. I find that during the relevant period:
   1. The applicant furnished the property with a fridge, table and chairs, television, couch, bed and microwave oven (albeit that the furnishings were sparse).
   2. He slept most nights at the property. Occasionally he might sleep over at a woman's house, and occasionally he travelled for work or to visit relatives in Melbourne. He lived alone.
   3. He did not have a dishwasher or washing machine. In relation to the latter, his mother lived nearby and did his washing for him.
   4. He intended the house to be his permanent place of residence, and wanted to raise a family there in due course.
   5. His mother cooked for him at his parents' house. He ate most meals there (breakfast and dinner, and at breakfast he would also pick up lunch to take to work that she would make for him). He did not cook at the property. There was junk food in the pantry, but his proper meals were eaten away from the property.
   6. He worked long hours as a trades person, often 10-12 hour days, 6-7 days per week. He would start work at 6:00 a.m. and often work until 6:00 p.m. or 8:00 p.m.
   7. His practice was to shower and eat at his parents' house, and sleep at the property. He would get up and leave the house at about 5:00 a.m. and go to his parents' house for breakfast. At night he would come to his parents' house for dinner, and shower there.
   8. He had his grandmother's dog at the property from 9 August 2018 to 19 January 2018. The electricity meter was often not read during that period because of the dog.
   9. The property was insured.
   10. The property was not tenanted during the relevant period.
   11. He did not have a letter box. Apparently this was because of a dispute over the retaining wall with the neighbouring property, that being the intended location of the letterbox.
   12. His parents' address was used as his mailing address, e.g. on utility bills.
   13. His father attended at the property on a regular basis.
   14. Water use and electricity use at the property were minimal. No gas was used.[2]
7. There was evidence of a 'housewarming party' however given it was late in the chronology I consider it to be an entirely neutral fact.
8. The applicant said his intention originally was not to rent the property out. However, he fell into dispute with the neighbours about a retaining wall, which had two major cost implications - the first was spending a large amount of legal costs on the dispute, the second was that he has been ordered by the Council to move the retaining wall at substantial cost. Those unexpected and substantial costs have made it hard for him to afford to live at the property at the moment and he accordingly decided to rent it out for a while.
9. The property was rented from 18 April 2019. I note that 18 April 2019 is after the initial determination of the Commissioner of 27 February 2019.
10. The applicant was cross examined, largely to elicit further facts, but in cross examination the respondent did not suggest that the applicant was untruthful in his evidence. The respondent did not suggest in oral submissions that the applicant was untruthful. I note that the original investigation report referred to a tip off from a neighbour[3] that the applicant was not residing at the property at all, though the respondent did not ask me at the hearing to reject the evidence that the applicant slept most nights at the property. I specifically asked the respondent's counsel whether the matter turned on whether I accepted or rejected the oral evidence of the applicant, and was told that the position was not that I should not accept his evidence, but rather find, as the Treasurer did, that on those facts as alleged by the applicant, the requisite degree of permanence to give rise to a concept of residence was not made out.
11. I do note however that in written submissions filed after the hearing the respondent made a submission that 'although not relied on for the decision under review it may be open to the Tribunal now to also doubt the credibility of the applicant...'. If that was to be the case of the respondent then his credit should have been challenged in cross examination (even accepting that the Tribunal is not a Court, however procedural fairness in my view requires a represented body who wishes to submit that someone is a liar to expressly give that person a chance to respond to the allegation). There was also a written submission that the Tribunal could find that the applicant never intended to make the property his home, and always intended to rent the property as soon as it was ready to do so. I am not satisfied that this was squarely put to the applicant in cross examination.
12. The respondent argues that the fact that electricity and water use was minimal, that meals and washing occurred at his parents' house, and the fact that the property was tenanted out from about April 2019 indicate that the nature of the residence was transitory.. The applicant argues that the fact that he spent so much time at his parents' place was reflective of his cultural background.

12 - Criterion 5 - Residence requirement

(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 for a continuous period of at least 6 months (or a shorter period approved by the Commissioner) (the "residence period"), commencing within 12 months after completion of the eligible transaction (or within a longer period approved by the Commissioner) (the "completion period").

...

(my emphasis)

1. The Act does not itself define what is meant by 'occupy' or 'principal place of residence'.
2. A dictionary definition of 'occupy' includes:

'To fill, exist in, or use a place or period of time'.[4]

'To live or work in a room, house or building'.

1. A dictionary definition of 'residence' includes:

'The place where someone lives, or the condition of living somewhere.'[5]

'To live, have your home, or stay in a place.'[6]

'To live in a particular place'[7]

1. The Butterworths Concise Australian Legal Dictionary uses words in relation to 'occupation' as including 'possession of, or taking up a place in, an area', 'occupier' as including a 'person physically using or taking up a place on a land. Occupation encompasses a degree of control.'
2. The New South Wales Administrative Appeals Tribunal has considered the phrase 'principal place of residence' in the context of New South Wales legislation in Chief Commissioner of State Revenue and Ferrington[8] ('Ferrington').
3. Ferrington considered similar but slightly differently worded legislation. The relevant section of the NSW Act stated:

12(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 twelve months after completion of the eligible transaction or a longer period approved by the Commissioner.

1. The South Australian legislation has the six month requirement. The NSW Act had no minimum requirement.
2. In Ferrington the person applying for the grant had purchased a new home on 24 April 2001. She moved in on 5 June 2001 and then moved back to her parents' house on 28 June 2001. 23 days is an extremely short duration and the decision needs to be read in its factual context.
3. At first instance the finding was as follows:

In my view, occupation has been shown by the documentation annexed to the statutory declaration sworn by Ms Ferrington in reply to the first inquiry by the Chief Commissioner. Those documents show that the gas was connected and used, that the electricity was connected in her name between 5 June and 29 June 2001, and that the telephone was connected for the relevant period and that the telephone bill was paid, showing that she used the telephone at the home at that time.

I am satisfied, therefore, that she occupied the premises for the period 5 June to 28 June. Whether the occupation was by way of her principal place of residence is a question to be answered by reference not only to the purpose of the occupation - in this case, it was as her home - but also to the type of occupation. She says, and it was not contested, that she occupied the property in order to live there and, in leaving her parents' premises, she did so with the intention that the Miranda premises were her principal place of residence.

The question of whether an occupation was by way of principal place of residence is not necessarily answered by the length of time of occupation or, in this case, the lack of a lengthy period of time. No minimum time is specified in the Act and if I am satisfied that the applicant occupied the premises as her main or primary home for a period of time, then she must succeed.

1. On appeal the Tribunal agreed that the applicant in Ferrington had occupied the house for 23 days, but pointed out that it is not just occupation that is relevant, but also that the house be the principal place of residence.
2. Key paragraphs of the Ferrington decision include:
   1. Care must be taken in applying the principles discussed in these diverse cases to the meaning of "principal place of residence" under the First Home Owners Grant Act 2000 because each of them occurs in the context of differing legislation where that phrase has been used. There are, however, a number of common principles which are apparent from the approach taken in each case.
   2. First, the words "principal place of residence" should be given their ordinary meaning in the context in which they appear: Deane v Commissioner of Stamp Duties; Commissioner of Taxation v Miller; Re Einav Kedem and the Secretary, Department of Community Services and Health; Re Mrs VG and Secretary to the Department of Housing; and Newman v Commissioner for ACT State Revenue. Thus the Commissioner's reference to the provisions of the Land Tax Management Act 1956 is of no assistance. 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: Deane v Commissioner of Stamp Duties; Secretary, Department of Community Services and Health v Paul Theologidi; Secretary, Department of Community Services and Health v Andrew Theologidis; Re Stanley Parzatka and The Secretary, Department of Health, Housing and Community Services; Re Alison Lesley Gaines and Secretary Department of Health, Housing and Community Services and Bates v Chief Commissioner of State Revenue . Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue: Secretary, Department of Community Services and Health v Paul Theologidi; Re Stanley Parzatka and The Secretary, Department of Health, Housing and Community Services; and Re Alison Lesley Gaines and Secretary Department of Health, Housing and Community Services. 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: Re Stanley Parzatka and The Secretary, Department of Health, Housing and Community Services, Fincher v Commissioner for ACT Revenue; Re Alison Lesley Gaines and Secretary Department of Health, Housing and Community Services and Tomasian v Chief Commissioner of State Revenue. Fifthly, the short length of a person's residence, while relevant, is not determinative of the issue: Re Alison Lesley Gaines and Secretary Department of Health, Housing and Community Services. 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, as Gaines demonstrates. 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: Re Alison Lesley Gaines and Secretary Department of Health, Housing and Community Services. In Bates the Tribunal said that "whether the reasons for not residing at the property were as a result of matters entirely out of the control of the applicant" was a factor to be considered. While that is undoubtedly correct, it should not be read as stipulating a requirement that the reasons for departure must be entirely out of that person's control. The facts in Gaines illustrate that there are circumstances, peculiar to the individual concerned, which may, objectively viewed, adequately and reasonably explain a person's decision to move out of a property, but which are not entirely out of the person's control.

1. The appeal Tribunal in Ferrington went on to dismiss the appeal:
   1. In the decision under appeal, the Tribunal found that the Respondent occupied the home as her principal place of residence. The Tribunal accepted her evidence that it was her intention to live in the home as her principal place of residence and found that she took significant steps which were confirmatory of that intention: occupying the premise, connecting and using services. In reaching that conclusion, the Tribunal considered evidence of the circumstances leading up to, during and subsequent to the period of occupation. It ascertained both the Respondent's intention and the nature of her occupation objectively, in the light of that evidence. In doing so the Tribunal noted, as did the AAT in Gaines, that the Respondent's evidence of her intention was not disputed. Implicitly, the Tribunal found that the Respondent's occupation was not transient or contingent or for some other purpose. The Tribunal accepted the Respondent's reasons for moving out of the home, but did not determine whether they should be considered "outside her control". Unlike the Tribunal in Bates, the Tribunal did not find that during her short period of occupation of the premises the Respondent had another "home" or "principal place of residence", either at her parents' home or anywhere else.
2. The Ferrington test has been accepted in a series of cases in Tribunals around Australia as being the appropriate test.
3. Caution is needed in comparing different decisions because different decisions involve different facts and different findings of credit. Caution is also needed in looking at other decisions in a way that detracts focus from the statutory language. The question is whether the applicant occupied the property as his primary place of residence for at least six months. It is important not to substitute factual findings from other cases as a substitute for the statutory test. Different individual facts may be given different weight in different cases. For example a finding in one case that a person did not use much electricity or gas might lead to a finding that the person did not in fact live at the premises. In another case however there might be a finding that low utility use might be because a person lived frugally, the meter was not read, or was otherwise explained. Where a person ate their meals might be relevant to trying to work out whether a person in fact lived at a house, but there is no rule of law that a person who eats meals at places other than their house cannot be said to reside at their house. It is a matter of putting the facts together.

1. There is no doubt that the applicant had possession of the property during the relevant period, and that the relevant period exceeded the six month period referred to in s 12 of the FHHCG Act.
2. The fact that the respondent did not challenge the applicant's evidence that he slept most nights at the property, together with his evidence being given in a forthright manner leads me to find as a fact that the applicant slept the majority of nights at the property during the relevant period. I also accept that he moved furniture into the property.
3. It follows that there can be no doubt that the applicant occupied the property.
4. The question is whether he occupied it as his principal place of residence.
5. Section 12 of the FHHCG Act refers to the condition of the Grant being to occupy the home to which the application relates as the applicant's principal place of residence for a continuous period of at least 6 months. Thus, the fact that the applicant may have subsequently rented the property out (18 months after the start of the relevant period) does not of itself mean that the property was not his principal place of residence during the relevant period. I also note that in Ferrington a short period of 21 days was still found to be occupation as a principal place of residence.
6. I do not consider that there is merit to the suggestion that the applicant had more than one place of residence during the relevant period, namely his parents' house, or that he might have had no place of residence during the relevant period. The fact that his mother cooked and washed for him does not mean that he resided at his parents' house when he slept at his own place, and does not mean that he did not reside at the house at which he slept simply because he showered and ate at his parents' house. The fact that mail went to his parents' house was explained by him not having a letter box on the property because of the retaining wall problem, and even though one might say that it would have been easy to erect a temporary letter box (and indeed it is a little strange that he did not), that fact does not mean that he was not residing at his house when sleeping there nearly every night.
7. I do not agree with the submission that the applicant's connection with the property was only transient, temporary, contingent or passing in nature. He lived there from October 2017 to March 2019. The Act only required him to have the place as his principal place of residence for 6 months.
8. The respondent in its outline, referring to Dammo v Commissioner of State Revenue[9] said '... the residence requirement is often misunderstood. The cases demonstrate that some people mistakenly see it as requiring only that they sleep at the house occasionally...' yet in this case the applicant did not sleep there 'occasionally' but almost every night during the relevant period. Some care is needed in applying, particularly single member decisions, of Tribunals because the cases are fact specific. Although Dammo has some similarities with the case I am deciding, in Dammo the fact that the electricity usage was so low was a way to undermine the evidence of the applicant so that the applicant's evidence was not accepted - here the fact that electricity usage was so low was not used at the hearing as a means of undermining the evidence of the applicant. I specifically asked in oral argument whether I was being invited to reject the evidence of the applicant, but the respondent's counsel answered in the negative. Although subsequent written submissions invite a different course the respondent should have conducted its case differently in terms of its cross examination and oral argument if it was to attack the credit of the applicant in relation to the question of where he slept or what his intention was. I accept the applicant's evidence that he slept most nights at the property and intended it to be his primary place of residence.
9. The respondent also referred to Abela v Commissioner of State Revenue.[10] In that case notwithstanding very low electricity bills the Tribunal found against the Commissioner and for the applicant. The Tribunal said:
   1. 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.
   2. The requirements of principle 4 are often discussed in the cases. 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.
   3. 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'.
   4. 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.
2. It is important to keep some of those matters in perspective. The observations of Deputy President Macnamara in Kyriakou 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 respondent's argument is that the applicant was a person who, when one looks at where the applicant ate (his parents' house), had unusually low utility bills, did not change his postal address, and therefore falls into the category of person who was just occupying for the purpose of obtaining the grant. However, that was not explicitly put in cross examination; moreover, this applicant did not simply stay for six months - he stayed from October 2017 to March 2019, and then moved because of a change in his financial position. He also slept at the house most nights in the relevant period.
2. The respondent placed reliance on a decision of this Tribunal in Marinis (2017, unreported). That case turned on its own facts. True it is that Senior Member Stevens said that simply sleeping in a property is not enough to establish residence, but that was one matter taken into account out of numerous matters. In my view the place where a person sleeps is a material and important consideration in working out where they reside. I accept that the authorities indicate that someone who sleeps in a house for the minimum period but has no intention that it will be their place of residence, but does so just to get the Grant, whereas in fact they always intended the house to be a rental property, might be found not to have occupied the property as their principal place of residence. Conversely however it may also be the case that someone like a fly in fly out worker, pilot, or airline hostess might not always sleep at the property (e.g. when they are away for work and on such jobs that might be a significant portion of the time) but the property is still occupied by them as their principal place of residence. A person might go on a holiday but still reside at their house. A person might have medium term plans to occupy a property as their principal place of residence, but have a longer term plan to buy another property or build elsewhere. I emphasise each case must turn on its facts.
3. The Tribunal in Marinis was influenced by the fact that the applicant knew about the six month time period in the Act, and immediately looked to find a tenant as soon as the six months was up, which, in combination with the other evidence led the Tribunal to find that the applicant had no intention of making the home their permanent place of residence. The intention of the applicant in Marinis was to acquire the property for investment purposes, and the applicant there, to put it colloquially had simply gone through the charade of living there for six months to qualify for the grant.
4. In this matter the applicant has given evidence of acquiring the property for his long term residence and ultimately raising a family there. He did not simply stay for six months but for about eighteen. The respondent argues that this was because the property was not ready to be tenanted until March or April 2019, however, I am not satisfied that is so on the evidence. If the respondent was going to ask me to reject the evidence of the applicant should have explicitly in cross examination put to the applicant that he was lying, or at the least, put any improper motivations for obtaining the Grant squarely to the applicant for comment. Whilst the Tribunal is not a Court and not bound by rules of evidence, procedural fairness ought to require the respondent to squarely put matters which will be relied upon to draw the inference that the witness is lying. I also take into account that the applicant here did give a good reason for change in financial circumstance, giving evidence about the substantial legal fees involved in the dispute with the neighbour as well as the requirements of the Council to now replace the retaining wall. He gave his evidence in an honest manner, and I accept that evidence.
5. The respondent also referred to the decision of this Tribunal in Liu (2019, unreported). That matter involved a period of occupation of only 6 months, and was one where the applicant also slept with her partner at a different property during that six month period. When the six months was over she permanently moved back in with her partner. The Tribunal found that Ms Liu's occupation of the Property was for the purpose of ensuring that she satisfied what she understood was the formal requirement of 6 months occupation in order to qualify for the Grant, rather than to make it her principal place of residence. The Tribunal in that case rejected Ms Liu's evidence.
6. If I had rejected the applicant's evidence, then it would follow that I would have found for the respondent. However, as I have accepted his evidence the opposite result ensues.
7. In all the circumstances I find that whilst the applicant had an unusual lifestyle compared to many other people in that he ate and showered at his parents' house, he slept on a daily basis at the property during the relevant period, with that period lasting from October 2017 to March 2019, and ending only because of a change in the financial position of the applicant brought about by the costly dispute with the neighbour. I do not find that he stayed at the property for eighteen months only for the purpose of satisfying the first home owners grant eligibility period of six months. I accept that his decision to move out was due to a change in financial circumstances because of the costly dispute with the neighbour, as opposed to improperly obtaining a Grant to which he was then waiting until the first opportunity to rent the property out.

1. The correct and preferable decision is to uphold the review and set aside the decision.

1. [1]A form filled in by the applicant on 12 December 2018 gives the date of moving in of 12 September 2017, though I understood from his evidence that the date may be out by up to a month - nothing turns on the exact date however.
2. [2] It appears that in the initial determination by the Commissioner greater reliance was placed on the meter readings than was the case by the Treasurer and at the hearing. I note that some of the early bills were not based on meter readings. In the initial determination the Commissioner put it this way: 'Whilst it is possible that this very small amount of electricity use could be explained by you only sleeping at the property, this does not constitute occupation as a principal place of residence for the purpose of the Act.'
3. [3] Being the neighbour that the applicant is in dispute with over the retaining wall. The neighbour was not called to give evidence, although his affidavit was in the book of documents. It can be noted that the neighbour only moved into his house after the 6 month period in s12 of the FHHCG Act expired. The documentary evidence tendered by the respondent included affidavit material from the neighbour which asserted that there was no evidence that anyone lived in the property. However given that the neighbour was not called to give evidence, was in acrimonious dispute with the applicant, and the applicant's credit was not attacked at the hearing, I can place little reliance on the neighbour's affidavit and complaint.

[8] [2004] NSWADTAP 41.

[9] [2015] VCAT 1024.

[10] [2017] VCAT 1024.