1. The issues raised in this case are:
   • First: when did the 'eligible transaction' complete and the 12 month period therefore commence?
   • Second: does the Tribunal have power to approve a longer period than 12 months under either the Act or s 126 of the VCAT Act?
   • Third: if the Tribunal has power to approve a longer period, should any discretion be exercised in favour of the request to do so?
   • Fourth: has Mr Afi complied with the residence requirement in s 12 of the Act?

First issue: when was the eligible transaction completed?

1. At the relevant time, s 12 of the Act required an applicant for the grant to occupy the home to which the application relates as the applicant's principal place of residence for a continuous period of at least six months ....

commencing within the 12 month period immediately after completion of the eligible transaction or within a longer period approved by the Commissioner. [Italics added for emphasis]

1. This issue turns on when 'completion of the eligible transaction' occurred.
2. Under s 13 (1)(b) of the Act, the eligible transaction in this case is:

(b) a comprehensive homebuilding contract made on or after 1 July 2000 by the owner of land in the State, or a person who will on completion of the contract be the owner of land in the state, to have a home built on the land.

1. Under s 13(5)(b) the eligible transaction is completed when:

(b) in the case of a contract to have a home built -

(i) the building is ready for occupation as a place of residence [italics added]; and

(ii) if further requirements for the completion of the transaction are laid down in the regulations - the further requirements are complied with.

1. On 30 May 2011, a building surveyor issued an occupancy permit[2] for the property at Lot 608 Urban Drive Williams Landing PS509588A. The described building works were 'Construction of Detached Dwelling and Garage'.
2. The permit included the following statement:

The building or place of entertainment or part of a building or public entertainment or part of building to which this permit applies is suitable for occupation.

1. Mr Afi contends that the period of 12 months, within which six months continuous occupation as principal place of residence had to commence, did not start on 30 May 2011 when the certificate of occupancy issued. Instead, he contended, it started in July 2012 when appliances were first installed and the house was therefore ready to live in, or in August 2011 when he moved in, or at the earliest on 14 July 2011 when he received the keys from the builder.
2. In his witness statement, discussed further below, Mr Afi stated that the house was not completed until 14 July 2011. He attached a letter from the builders, Henley Properties Group (Henley), dated 8 July 2011 advising that Henley undertook to provide a full render to the whole house as per a variation.
3. The 8 July 2011 letter confirmed agreement that 'any claim for liquidated damages will cease on the date of agreed settlement 12 July 14 July 2011 [handwritten insertion] 2012 and that no further claim for damages of any kind will be accepted beyond this date'.
4. Mr AFI stated that Henley still continued to do some work after 14 July 2011, however he decided to move into the property on 2 August 2011. He did not furnish it at the time he moved in. Tiling and carpet had not been installed by Henley. He moved in so he could supervise those works and make sure that they were done. He had to find his own trades people to complete those works. They continued until late 2011 or early 2012. During this period he would only sleep at the property. Although an occupancy permit issued in 2011, appliances were not installed in the property until 10 July 2012.
5. Mr AFI attached an email from Henley dated 1 August 2007 confirming that appliances were installed on 10 July 2012. In his oral evidence, Mr AFI confirmed that a stove was installed in July 2012, prior to that he did not have anything to cook on, only an electric kettle, hot water was not installed until 2012, and he installed a refrigerator in 2013.
6. Notwithstanding that the words in s 13(5)(b) (i) are 'ready for' occupation, rather than 'suitable for' occupation, as is used in the Occupancy Permit, I agree with the submission of the Commissioner that the eligible transaction was completed on 30 May 2011 when the Occupancy Permit issued, for the following reasons:
   • Section 13(5)(b) uses the words, 'the building is ready for occupation'. It does not state that the eligible traction is completed when the home is furnished or appliances installed or otherwise suitable for the owner's particular needs. It focuses on the building - the bricks and mortar.
   • An occupancy permit is objective evidence that a building is ready for occupation as a place of residence.
   • In contrast, an interpretation that required the date to be determined by when sufficient appliances were installed so that it was, in the owner's opinion, ready for occupation would be subjective, create uncertainty, be unworkable to monitor and be contrary to the scheme of the Act.
   • Any issue to do with render only affects the external building and does not prevent the house being ready for occupation as a place of residence.
   • The Tribunal has previously held that the issue of the occupancy permit determines as a question of fact when the eligible transaction completed: Said v. Commissioner of State Revenue (2016) VCAT 355 at [4].
7. In Said, Senior Member Davis referred at [3] to the declaration the applicant made:
   1. .....In applying for the First Home Owner Grant, the Applicant made a declaration which inter alia stated "I declare that at least one applicant will be residing in the home that is the subject of this application as the principal place of residence for a continuous period of six months commencing within twelve months of the completion of the eligible transaction."
8. The Senior Member continued at [4]:
   1. So, I assume that at the point of time when the Applicant made that declaration he intended to occupy the premises as his principal place of residence. Subsequent to purchasing the land and taking the transfer, the Applicant employed a builder who built the residence on the land and the occupancy permit was issued in respect of that residence, i.e. the Property, on 23 April 2012. That is the relevant date for the commencement of the twelve-month period referred to in section 12. However, I note that the builder was still doing some work at the property and the builder did not hand over the premises to the Applicant until 8 June 2012. I do not believe, for the purposes of this application, that there is any particular relevance as to whether the occupancy period would have commenced on 23 April 2012 or on 8 June 2015. However, as I have said, the relevant twelve-month period in relation to s.12 of the Act commences on 23 April 2013 and concludes on 23 April 2014.
9. I accept that there were delays in this case in works being finalised and appliances installed. Nevertheless, for the purposes of determining the date of completion of the eligible transaction under the Act, I find that it was 30 May 2011 when the Occupancy Permit issued.
10. I note here the submission of the Commissioner that on the evidence in this case it does not matter if the relevant start date was July 2011, August 2011, or July 2012. For completeness I have considered below whether Mr Afi commenced occupation of the property as his principal place of residence at any time up until July 2013.

Second issue: does the Tribunal have power to approve a longer period than 12 months under either the Act or s 126 of the VCAT Act?

1. Through his solicitor Mr Afi contends that in the event that the Tribunal is not satisfied that his occupation in the required sense commenced until a date after 12 months from completion of the eligible transaction, the Tribunal can approve a longer period than 12 months after completion of the eligible transaction.
2. The submission is that:
   • s 12(1) of the Act provides for such approval by the Commissioner;
   • on review, the Tribunal stands in the shoes of the Commissioner and, under s 51(1)(a) of the VCAT Act, exercises all the functions of the decision-maker under the enabling enactment;
   • alternatively, the Tribunal can extend time under s 126 of the VCAT Act.
3. The relevant part of s 12(1) of the Act is in italics:

An applicant for a first home owner grant must occupy the home ..... for a continuous period of at least 6 months (or the lesser period approved by the Commissioner) commencing within the 12 month period immediately after completion of the eligible transaction or within a longer period approved by the Commissioner.

1. Section 51 of the VCAT Act is headed 'Functions of Tribunal on review'. Section 51(1) provides that:

In exercising its review jurisdiction in respect of a decision, the Tribunal -

1. Section 126 of the VCAT Act, headed 'Extension or abridgment of time and waiver of compliance' provides:
   • (1) The Tribunal, on application by any person or on its own initiative, may extend any time fixed by or under an enabling enactment for the commencement of a proceeding.
   • (2) If the rules permit, the Tribunal, on application by a party or on its own initiative, may -

(a) extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or

(b) waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge.

(3) the Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made.

(4) the Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

Relevant enactment means an enactment specified in the rules to be a relevant enactment for the purposes of this section.

1. There is no dispute that the first time any request was made by or on behalf of Mr Afi for a longer period was on the morning of the hearing. Mr Afi's solicitor candidly stated that the reason was that he himself had not thought of the point until he was preparing for the hearing.
2. The Commissioner submitted in essence that:
   • Any power to approve a longer period comes to end once the time for the applicant to comply plus 14 days has ended. An applicant who has not complied with the residence requirement must repay the grant as required by s 20(2), within the time required under that section. Once that time has passed, there is no longer any power to approve a longer period.
   • The power cannot be exercised by the Commissioner retrospectively, and cannot be exercised by the Tribunal retrospectively.
   • The Tribunal has no power under s 126 of the VCAT Act to extend the time in 12(1) of the Act.
   • Even if there is a discretionary power, the Commissioner submits, it should not be exercised in the circumstances of this case.
3. I deal first with the application made under s 126 of the VCAT Act.
4. As submitted by the Commissioner, s 126(1) of the VCAT Act is a discretionary power to extend time fixed by or under an enabling enactment for the commencement of a proceeding. On its face it does not give the Tribunal power to extend time for the taking of a step that lies outside of a proceeding.[3]
5. Section 126(2) likewise refers to extending or abridging time for the doing of any act in a proceeding.
6. I am not satisfied the Tribunal has power under s 126 of the VCAT Act to approve a longer period under s 12(1) of the Act for the applicant to commence occupation in the required sense. It is not a time fixed for commencement of a proceeding, nor is it a time fixed or directed for the taking of any step in a proceeding.
7. Turning to the request made under s 12(1) of the Act, it is uncontentious that s 12(1) allows the Commissioner to approve a longer period within which an applicant must commence a six-month period of occupation in the required sense.[4] The Act does not expressly provide a time within which any request must be made.
8. The Commissioner submitted that as a matter of law the ability to obtain an extension pursuant to Section 12(1) came to an end at the end of 18 months and 14 days after the completion of the eligible transaction, because after that date the Act vested no power in the Commissioner and therefore no power in the Tribunal standing in the shoes of the Commissioner to grant an extension pursuant to Section 12(1). This conclusion is arrived at by a combination of s 12(1) and s 20(2) of the Act:
   • To comply with s 12(1), the applicant needed to start the six-month period of occupation by 30 May 2012 (12 months from completion of the eligible transaction).
   • He was required to complete six months of continuous occupation in the required sense (12 months plus six months = 18 months).
   • Section 20(1) provides that the Commissioner may authorise the payment of a grant in anticipation of compliance with the residence requirement.
   • Under s 20(2), if a grant is paid in anticipation of compliance with the residence requirement, the payment is made on condition that, if the residence requirement is not complied with, the applicant must within 14 days after the end of the period allowed for compliance give written notice of that fact to the Commissioner and repay the amount of the grant.
   • Under s 20(3), a person must comply with the condition imposed under s 20(2). A penalty applies for non-compliance.
   • As a matter of construction, therefore, once the period allowed for compliance expires, an obligation vests upon the applicant to give written notice to the Commissioner that he had failed to start using the house as his home and to repay the grant.
   • A necessary construction of Section 12(1) is that any discretionary power vested in the Commissioner pursuant to that sub-section cannot be exercised after the elapsing of that time period.
   • That is also the construction that has been accepted in two cases: Alexopoulos v Commissioner of State Revenue [2006] VCAT 806; and McKenzie v Chief Commissioner of State Revenue [2005] NSW ADT 214, referred to in Alexopoulos.
9. In Alexopoulos, Deputy President Macnamara treated a similar submission as 'an invitation to the Tribunal as standing in the Commissioner's shoes to approve a longer period than 12 months for the period within which the applicant was required to take up residence in the unit as her principal place of residence' [15].
10. At [17] - [18], the Deputy President considered a number of matters as relevant to the invitation and both for and against the exercise of the discretion. After being addressed by Counsel for the Commissioner, [5] the Deputy President's decision records the following, at [19]:

At that stage Ms Anderson on behalf of the Commissioner rose to draw my attention to a decision of the New South Wales Administrative Decisions Tribunal, General Division constituted by its President, Judge O'Connor [McKenzie v Chief Commissioner]. With respect to a similar New South Wales statute His Honour held that the obligation to repay imposed upon an applicant by Section 20 of the statute, where the applicant did not meet the residency criterion, Criterion 5, would not be outflanked by a retrospective extension under Section 12 such as the one which I was considering. In His Honour's view, the ability to obtain such an extension came to an end once the initial 12 month period stipulated by the Act had run its course and the further 14 days laid down by Section 20(2) within which an applicant is obliged to repay the grant where the residence criterion was not met. If one accepts His Honour's approach then the present review application must fail.

There is I think much to be said for His Honour's approach, though there is also a substantial body of authority to which I have not been taken and cannot at present cite as to the liberality which is customarily given to enlargement of time provision. Independently of His Honour's view, I would have considered that the factors which would otherwise be relevant to the grant of an extension of time to which I have already made reference were first the length of the extension sought and secondly the applicant's explanation as to how these events came to occur, so that independently of the approach taken in McKenzie's case, this review application must fail. Obviously, McKenzie's case provides a further reason in support of that conclusion and so the present review application is dismissed.

1. I disagree with the submission on behalf of Mr Afi that Alexopoulos should be distinguished on its facts, insofar as the Deputy President was considering the view of Judge O'Connor that as a matter of law the ability to obtain an extension comes to an end by the operation of s 20(2).
2. I agree with the submission on behalf of Mr Afi that Alexopoulos is not itself authority for there being no discretion, as, clearly, the Deputy President considered the matter 'independently of' the view of Judge O'Connor in McKenzie.
3. In my view, however, the Deputy President can be said to have approved the decision, stating that there was much to be said for His Honour's approach in that case, and also stating that McKenzie provided a further reason in support of the conclusion that the review application must fail. To the extent that the Deputy President kept the matter open, it appears that he did so on the basis that he had not been taken to other authority.
4. Prior to the conclusion of the hearing before me, I had the benefit of reading the McKenzie decision and a number of cases in which McKenzie has been cited, and discussed those with Mr AFI's solicitor.
5. In my view, McKenzie and the cases that have followed its reasoning, support a conclusion that any request for a longer period must be made and approved ahead of the expiry of 12 months and 14 days, in other words, before the applicant is in default of the condition of payment, which arises once the applicant has failed to comply with the residence requirement. I note that this is a shorter period than the time frame referred to in the Commissioner's submissions.
6. At [20]-[21] His Honour Judge O'Connor stated:
   1. The Parliament intended to set strict boundaries. The usual strict boundary is provided by the twelve months rule, that is people can have the grant in advance but they must move in within twelve months. This view is borne out by the following provisions -s7(1)(b)ii); s 7(2); and s 20(2).
   2. The scheme of the Act contemplates certainty as to the period within which a person must move in. Any change must be made known ahead of the expiry of what might be called the usual period. The period of permitted delay is either twelve months or such extended period as has been permitted ahead of the expiry of that period (plus fourteen days)

1. As it has happened he has moved in at the thirteen month point. It is an unfortunate case but I think the submissions that have been made and the case law of the Tribunal is irresistible. At this point, the Commissioner is obliged to apply the rules and, as I see it, does not have any power to extend time. Once the taxpayer falls into default the position is irrecoverable and the only hope that one then has is that the Commissioner might not issue a notice; but the notice has issued in this case.
2. The reasoning in McKenzie has been followed in a number of cases since, listed in Doumanis v Chief Commissioner of State Revenue [2012] NSWADT 59 at [13]. Doumanis itself concerned an application to the NSW tribunal to approve a shorter period of residence (shorter than the six months referred to in s 12). Judicial Member A Verick, accepted the contention made on the basis of what was said in McKenzie and followed in a number of cases, that on the proper construction of the relevant sections, an application to shorten the residence requirement had to be made prior to the expiration of the period allowed to comply with the residence requirement [at [22]-[23]].
3. Further, to the extent that Alexopoulos left the matter open in Victoria, in Hare v Commissioner of State Revenue (Taxation) [2006] VCAT 1054, Deputy President Macnamara again considered McKenzie, referred to Alexopoulos, and directly followed McKenzie.
4. The following paragraphs from Hare set out the Deputy President's reasoning:
   1. Section 12 in its then form said, at sub-section (1):

An applicant for a first home owner grant must occupy the home to which the application relates as the applicant's place of residence within 12 months after completion of the eligible transaction or a longer period approved by the Commissioner.

1. It is appropriate I think now to turn to Section 20(2) of the statute. This section in its then form states:

If a first home owner grant is paid in anticipation of compliance with the residence requirement the payment is made on condition that if the residence requirement is not complied with the applicant must within 14 days after the end of the period allowed for complying:

(a) Give written notice of that fact to the Commissioner and

1. Mr Foster who appears for the Commissioner says that in the present circumstances, despite the general proposition that a Tribunal carrying out an administrative review stands in the shoes of the Commissioner, nevertheless I am not in a position to grant a retrospective extension of the term to take up residence. He referred me to a decision of the New South Wales Administrative Divisions Tribunal McKenzie v Chief Commissioner of State Revenue, [2005] NSWAD 214 a decision of the Learned President of that Tribunal, Judge O'Connor, which has been followed in three other decisions of the same Tribunal, namely Taylor v Chief Commissioner of State Revenue [2004] NSWADC 36, Scurry v Chief Commissioner of State Revenue [2005] NSWADC 28 and U H v Chief Commissioner of State Revenue [2005] NSWADC 284.
2. His Honour concluded that the mandatory provisions of Section 20(2) which I quoted earlier mean that the power of the Commissioner and in this Tribunal on review from the Commissioner to extend the 12 month period for an applicant or a recipient of a grant to take up residence is effectively cut-off once the 12 month period has elapsed. His Honour notes that there is a mandatory obligation cast upon an applicant who has failed to meet the residency criterion to give notice to the Commissioner and to repay the amount. Once that mandatory obligation exists it cannot be displaced either by the Commissioner or by the Tribunal on review. Judge O'Connor in his determination in McKenzie regretted the inflexibility which he perceived in that provision but felt constrained to interpret the corresponding provision of the New South Wales statute in that way.
3. In a recent matter of Alexopoulos v Commissioner of State Revenue [2006] VCAT 806, I adopted Judge O'Connor's reasoning in that regard though I note that in any event I had elected not to accept the grant recipient's account of events.
4. With some hesitation I feel constrained to adopt the same construction as Judge O'Connor has adopted of the corresponding provision in the New South Wales Act. I share His Honour's regret in reaching that construction. I reach it for two reasons, first, because the reasoning seems with respect compelling. If there is a mandatory obligation upon a First Home Owner Grant recipient to repay in these circumstances by what right can I dispose of that mandatory obligation. Secondly, since this is a principle which has been applied to corresponding legislation by the President of the New South Wales Tribunal and by other members, it is in the interest of uniformity and comity that this Tribunal should adopt the same construction of the identical statutory provision.
5. Accordingly, I must affirm the respondent's determination.
6. I respectfully agree with and adopt the approach taken by the Deputy President in Hare and respectfully agree that the reasoning in McKenzie is compelling.
7. I am not satisfied that the Tribunal has the power to grant the application for approval of a longer period under s 12 (1) of the Act, and the application is refused.

Third issue: if there is a discretion, should it be exercised in Mr Afi's favour?

1. I have found that the Tribunal has no power to approve a longer period under s 12(1). It is therefore not necessary to determine whether any discretion ought to be exercised in Mr Afi's favour.
2. For the sake of completeness, however, I record that I agree with the submission by the Commissioner that even if there were a discretion, it would not be appropriate to exercise it in Mr Afi's favour, taking into account matters including:
   • Section 20(2) obliges an applicant to be active in monitoring their compliance with the residence requirement and actively notify the Commissioner if, as events turn out, the applicant is not eligible for the grant.
   • Mr Afi made no application to the Commissioner to ask the Commissioner to exercise that power at any time before the Commissioner commenced the investigation, the Commissioner determined Mr Afi's objection, these proceedings were instituted or all materials were filed by the parties.
   • While I acknowledge that Mr Afi did not have the benefit of legal advice at the time when application might have been made, and that it may not have crossed his mind to do so, it would in my view be contrary to the scheme of the Act, including those provisions relating to review by the Tribunal,[6] to allow an extension of the 12 month period in s 12(1) at such a late stage.

Fourth issue: Did Mr Afi meet the residence requirement?

Principles to be applied: the six Ferrington principles

1. In Chief Commissioner of State Revenue v Ferrington,[7] 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 have been followed in numerous decisions of this Tribunal and 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.[8]
   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 [not relevant here].
   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 [not relevant here].
3. As observed by then Deputy President Macnamara in D'Amelio v Commissioner of State Revenue,[9] 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. 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, with the only item of furniture being a bed, while carrying out all the usual activities of a householder - cooking, eating meals, showering, and washing clothes - elsewhere. [10]
5. The residence requirement requires more than an occasional, limited or temporary presence. And the requirement must be met within the time limits provided for in the Act.
6. This is not a case where the applicant moved into the property within the required time and then moved out again, undertaking 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'.[11]
7. Nevertheless the observations of the Deputy President in D'Amelio & Anor v Commission of State Revenue (Taxation) [2012] VCAT 265, at [16] about what is required to meet the requirement are relevant here:

.... I should report also that in my view if she did no more than what is alleged, that is sleep at the property and carry out all the significant elements of her life elsewhere, that would not in my view objectively amount to occupancy of the premises as a principal place of residence in accordance with the Ferrington principles.`

1. The Commissioner contended that between the 30 May 2011 and 30 May 2012, Mr AFI did no more than sleep at the property and did not occupy it as his principal place of residence.
2. The Commissioner relied on three categories of evidence:
   • First, Mr AFI's own evidence that he did no more than sleep at the property during the relevant period;
   • Second, the utility bills (water and electricity) that show that negligible amounts of water and electricity were used at the property during the relevant period; and
   • Mr AFI's own evidence that no appliances were installed in the property until after the relevant period.
3. Mr AFI made a witness statement, gave additional oral evidence and was cross-examined.
4. In his witness statement, Mr Afi stated that:
   • He came from Somalia as a refugee in 1992, and settled in Melbourne.
   • He worked as a tram conductor from the time of his first work in Australia until 1998. He obtained driver accreditation and started to drive taxis from about 1999, which he continues to do.
   • In about 2004, he bought the vacant block of land at 87 Urban Drive, Williams Landing. He had saved the money to buy the land as a result of working since 1992.
   • He continued to save money to build a house and in 2010 was able to engage a builder (Henley) to construct a home for his family and himself. He had married in 1997 and was determined to build a home for his family.
   • By 2010, he had four children ranging in age from 4 - 12 years of age. They had been living in a two-bedroom housing commission flat in North Melbourne.
   • The house was to be completed within 8 months, with a settlement date of 30 May 2011, however it was not completed until after 14 July 2011.
   • Although Henley still continued to do some work after 14 July 2011, he decided to move into the property on 2 August 2011. At the time that he moved into the property he did not furnish it. Tiling and carpet had not been installed by Henley. He moved in so that he could supervise those works which were not part of his contract with Henley.
   • Those works continued until late 2011 or early 2012. During this time, from 2 August 2011 until about late January 2012, he would only sleep at the property. He was working 12-14 hour days and would come to sleep at the property during the day. He was working during the night and sleeping during the day because he was working the night shift from 4 pm until 4 am.
   • Appliances were not installed in the property until 10 July 2012. Accordingly, he was unable to cook prior to that time. As a result of the property not having a stove and other appliances until late 2012, his wife and children remained living in North Melbourne.
   • In addition to this, his children were attending a school in Broadmeadows. He could not get the children enrolled at Werribee Islamic School until 2013. For these reasons, his wife and children did not move into the property with him in August 2011. His wife and children only moved into the property in late 2012. However he lived at the property from 2 August and continues to live there.
   • Apart from himself and his family, no one else has ever lived at the property. He has never rented the property and it has not been vacant since he moved there on 2 August 2011.
   • In about September 2011, he engaged a company to install a solar system on the property [invoice dated 15 September 2011 attached]. As a result of this solar system, his energy consumption has been very little. Also between August 2011 and late 2012, when his family moved to the property, he did not consume much electricity.
   • [Referring to the 'Residence form' declaration at T31 signed and dated by Mr Afi on 6 May 2015] Having read his answers to the questions on the second page,[12] it was clear to him that he did not understand the document, because he did not understand that it was asking information about the time after he moved into the property on 2 August 2011. He understood the questions to relate to the time he was completing the document, in 2015.
5. In Mr Afi's oral evidence at the hearing, he confirmed his witness statement and gave additional evidence:
   • When he moved in there was no cooker (oven). He was sleeping there during the daytime and driving at night, basically "looking after the house".
   • He had limited furniture - a bed, a sofa.
   • His activities at the house were cleaning, gardening, drinking tea, sandwiches.
   • In 2011 there was a gym close by and he would shower there and clean up.
   • The North Melbourne property was a housing commission flat. They gave it back when his wife and family came to live with him.
6. In cross-examination, Mr Afi:
   • Confirmed that he did not have hot water until July 2012
   • Agreed that he said he moved in in August 2011
   • Agreed that the year after that he didn't cook
   • Agreed that he did not start cooking until July 2012
   • When asked if he had washed clothes there from August 2011 for the next 18 months answered first "no", then "sometimes" "not much" and that he gave them to his wife
   • When asked if he had showered at the property from August 2011 to August 2013, he answered that he always went to the gym which was next door; he did not shower there until the property had hot water
   • When asked if he used any water when he cleaned, he answered no
   • When asked if he ever watered the garden, he said no
   • When asked what he did at the house, he answered just cleaning and sleeping and sometimes watching TV; the TV came after July 2012.
7. To clarify an aspect of his evidence I asked Mr Afi when he got a refrigerator. He answered "at the end of 2013".
8. Mr Afi was also cross-examined about the utility bills in evidence, which I discuss below.
9. Mr Afi also provided a witness statement made by Mr Ayanle Osman who is a nephew of Mr Afi. Mr Osman stated that he was aware of Mr Afi building the house at 87 Urban Drive, Williams Landing. At the time he travelled overseas in April 2011, the house was almost completed. Mr Osman returned from Somalia in about July 2011 but did not go and see the house until about November 2011 when he went at Mr AFI's invitation.
10. Mr Osman said that he remembers seeing couches in the sitting area, a bed in Mr AFI's bedroom and a TV in the living room. He noticed that the kitchen did not have a stove in it. To the best of his recollection, the carpets and tiling had been installed.
11. After this visit he continued to see Mr Afi at the house either monthly or every two months. They would generally have a cup of tea and talk. He would usually only visit for about 20 minutes or half an hour to catch up. He stated that Mr Afi told him and he believed that Mr Afi was living at the house. He knew that Mr Afi's wife and children had not moved in at that time because he continued to visit them in North Melbourne.
12. Mr Osman was not required to attend for cross-examination. I accept that his evidence represents his recollection to the best of his ability and his belief based on what he had been told by Mr Afi. It is however inconsistent with Mr Afi's evidence about, for example, what electrical appliances were in the property before July 2012, and its weight is low in relation to whether and how Mr Afi was living at the property because it is based on what Mr Afi told him.

1. Utility usage in general terms tells us to what extent someone has carried out the usual activities of a householder such as cooking, using appliances, turning on lights at night, using the bathroom, watering the garden and so on.
2. Low utility usage is one of the objective considerations to which the second Ferrington principle directs the Tribunal when assessing whether a person has been residing in a property as their principal place of residence.[13]
3. The Tribunal has held, for example, that zero water usage means that an applicant cannot have been living in the property at all because it indicates that they did not use the toilet or wash their hands, let alone shower at the property.[14]
4. In assessing whether a person's utility usage is unusually low, the Tribunal is guided by utility companies' estimates of average daily use for one, two or more people.[15] We take into account that everyone uses utilities differently and lifestyles vary, but these estimates provide helpful guidance as to what one would expect in the case of a person genuinely living in the property.
5. South East Water's estimated water usage for a property occupied by one person is 161 litres per day (.161 kl), and efficient water usage by one person is 118 litres per day.
6. AGL's electricity consumption benchmarks estimate average daily usage at 10.6 kWh (with gas hot water) for occupation by one person.
7. In evidence before me were the water bills for the property for the period 19 October 2010 to July 2015; and electricity bills for the period November 2011 to November 2013.
8. They show the following.
9. Water usage at the property:
   • Period 18 July 2011 - 18 October 2011 average daily use 11 L.
   • Period October 2011 to January 2012 average daily use 32 L.
   • Period 19 January 2012 to 19 April 2012 average daily use 11 L.
   • Period April to July 2012 average daily use 22 L.
   • Period July 2012 to October 2012 average daily use 22 L.
   • Period October 2012 to January 2013 average daily use 22 L.
   • Period January 2013 to April 2013 average daily use 22 L.
   • Period April 2013 to July 2013 average daily use 22 L.
   • Period July 2013 to October 2013 average daily use 22 L.
   • Period October 2013 to January 2014 average daily use 65 L.
   • Period January 2014 to April 2014 average daily use 727 L total bill $1,286.25. The average daily use comparison on first page of bill states 'Same time last year: 20 litres This account: 727 litres'.
   • Period April 2014 to 18 July 2014 average daily use 742 L total bill $1298.65 The average daily use comparison on first page of bill states 'Same time last year: 20 litres This account: 742 litres'.
   • Period July 2014 to October 2014 the account is for $1,492.05. The average daily use comparison on first page of bill states 'Same time last year: 20 litres This account: 700 litres'.
   • Period October 2014 to 19 January 2015 total bill $1,837.32 The average daily use comparison on first page of bill states 'Same time last year: 60 litres This account: 600 litres'.
10. In cross-examination, the average daily use figures were put to Mr Afi. He stated that he was not using much water in the period July 2011 to July 2012 and that some time after July 2012 he went overseas.
11. He re-stated that his family moved into the property in late 2012, and continued to live there through 2013.
12. When asked for an explanation about why the water usage continued to be so low from late 2012 through 2013, Mr Afi stated that human beings are different, his family is from Africa, they didn't use much water and they were saving money. When asked if his family showered, he answered yes.
13. As noted above, the Tribunal takes into account that everyone uses utilities differently. I accept that human beings are different, lifestyles and cultural practices vary, some people are more frugal than others, and the need or desire to save money can be a strong motivation for keeping utility bills low.
14. Even taking account of those differences, I am unable to accept Mr Afi's evidence that his family moved in to the property with him in late 2012, for the following reasons.
15. His evidence on this matter is entirely inconsistent with the objective evidence that between October 2012 and October 2013, the average daily water use for the property was 22 L.
16. Average daily usage of 22L per day is less than 20% of 118 L, which is South East Water's estimate of efficient water usage by one person. It is less than 4% of 706 L per day, which would be the estimated efficient water usage by six people.
17. As submitted by the Commissioner, it is not conceivable that a family of six people would be living in a house as their home and using so little water.
18. Further, accepting that the family may be frugal where water usage is concerned, it is remarkable that prior to October 2013 the average daily use was 22 L, and from January 2014 onwards was over 700 L per day. The objective evidence of water usage from January 2014 onwards is consistent with six people living at the property from that time onwards but not before.
19. This matter is damaging to Mr Afi's credit.
20. Further the objective evidence of water usage is inconsistent with Mr Afi living in the property as his principal place of residence at any time before late 2013/ early 2014, even as the sole occupant.
21. In the period July 2011 to October 2013, the water usage was less than 20% of the estimate of efficient water usage for one person.
22. Mr Afi's evidence was that until July 2012 when appliances and hot water were installed, that he only slept at the property, did not shower there, did not water the garden did not cook there and while he cleaned, he did so without using water.
23. The low water usage during that period is consistent with that evidence. I take into account that Mr Afi was working as a taxi driver at the time, but his evidence and the evidence of low water usage supports a conclusion that he 'carried out the significant element of his life'[16] elsewhere during this period.
24. The low water usage between July 2012 and October 2013 is consistent, however, with Mr Afi continuing to do no more than sleep at the property after July 2012 and until late 2013.
25. The bills in relation to electricity usage showed a similar pattern of very low usage extending beyond July 2012.
26. AGL's electricity consumption benchmarks estimate average daily usage at 10.6 kWh (with gas hot water) for occupation by one person.
27. The electricity bills in evidence show that:
    • Between 18 November 2011 and 22 February 2012, an average of 0.10 kWh of electricity was used at the property per day.
    • Between 23 February 2012 and 22 February 2013, an average of 0.77 kWh of electricity was used at the property per day.
    • Electricity usage during this period was therefore less than 10% of the average amount of electricity used by a single occupant.
28. Mr AFI said that the explanation for next to no use of electricity was because they have a solar system, which he had installed in November 2011. He agreed in cross-examination, however, that the electricity generated by his solar system was accounted for in the bills.
29. It is evident from the bills that the solar system did not reduce the usage recorded: it reduced the charges for the electricity consumed. The solar contribution appears as a credit on the bills from February 2012 onwards against total electricity charges. I cannot, accordingly, accept Mr Afi's explanation (that they had a solar system) for low electricity usage.
30. In cross-examination, Mr Afi agreed with the proposition that his usage was so low between May 2011 and November 2011 because he did nothing but sleep at the property. The evidence of electricity usage is, however, also inconsistent with him doing anything more than sleeping at the property until late 2013.
31. The electricity usage through 2013 shows a similar pattern to water usage:
    • For the period May 13 to August 13 average daily use 1.61 kW
    • For the period August 13 to November 13 average daily use 1.04 kW.
32. Bearing in mind the AGL estimate, referred to above, of average daily household use for one occupant with gas hot water system at 10.6 kW, the electricity usage during 2013 is inconsistent with Mr Afi's evidence that his family lived with him at the property from late 2012 onwards. As submitted by the Commissioner, if the family lived there in 2013, they were using less than 20% of the average daily use for one occupant, and less that 3% of the average daily use for six occupants.
33. Mr Afi was not, overall, an impressive witness. Many of his answers were vague or contradictory or non-responsive.
34. In cross-examination, however, when asked when he started to do anything other than sleep at the property, he answered "end of 2013".
35. In light of the objective evidence, my impression is that his answer in this respect was a truthful one. It was also consistent with his answer to a question I asked about when he first got a refrigerator for the property; he answered "end of 2013". The evidence that he did not have a refrigerator in the house is consistent with his occupation in the required sense only commencing in late 2013.
36. I accept that Mr Afi spent time at the property in the period July 2011 to 30 May 2012, but am not satisfied that he did any more than sleep at the property and 'keep an eye on it' during this time. As the cases make clear that is insufficient to satisfy the residence requirement.
37. Nor am I satisfied that Mr Afi did any more than sleep at the property until late 2013.
38. On the whole of the evidence, as considered above, I am not satisfied that Mr Afi occupied the property as his principal place of residence at any time in the period 30 May 2011 and 30 May 2012. I am also not satisfied that he occupied the property as his principal place of residence at any time until late 2013. He has not discharged the onus on him and I must affirm the Commissioner's decision.
39. In reaching that conclusion, I accept that Mr Afi bought the land and had a house built on the land with the intention of making a home for his family, and has achieved that goal through hard working and saving. I acknowledge that his intentions were consistent with the objectives of the grant scheme. The grant carries with it strict conditions, however, and if the residence requirement, as one of the mandatory criteria, is not met, the grant must be repaid.

1. In this case, the Commissioner opened on the basis that penalty was not in issue, as Mr Afi had not objected to the decision to impose a penalty of $1,800.00 only to the decision to repay the grant. There was no indication at any time up to and including the hearing that penalty was in issue.
2. In the course of finalising my reserved decision, however, because of a reference to penalty in the Commissioner's written submissions I asked that the parties confirm penalty was not in fact an issue.
3. In the correspondence with the Tribunal that resulted, the Commissioner re-stated the view that penalty was not in issue because the applicant did not object to the imposition of a penalty and did not, at the hearing, seek leave of the Tribunal to add a further ground of objection.
4. Mr AFI's solicitor agreed that the point was not argued but stated that it was the applicant's position that the Tribunal had the power to set the penalty aside if it is deemed this to be appropriate based on the evidence of the applicant. Mr AFI's solicitor then made an application that the penalty imposed be set aside.
5. The Commissioner indicated that he neither consented nor objected to the applicant's application to set aside the penalty other than to request that consideration be given to the lateness of the application.
6. In the circumstances, including the lateness of the application, I am not minded to grant the application but in any case consider that the imposition of a penalty here was appropriate.
7. With the principles set out in Gravina v Commissioner of State Revenue [17] in mind:
   • The truthfulness of the original statements made by the applicant in his or her application for grant is not in contention.
   • I accept that Mr Afi's intention was to occupy the property as his principal place of residence in due course.
   • The reasons for the failure to comply with the conditions of the grant were that he did not, within the required time, occupy the property as his principal place of residence.
   • He has occupied the property as his principal place of residence since late 2013.
   • The candour of the applicant in his or her responses to inquiries is against Mr Afi in some respects in that I found some of his evidence at the hearing unsatisfactory. On the other hand he answered a number of important questions truthfully.
   • Mr Afi has not refunded the grant. He has therefore had the benefit of the grant for about six years, at a cost to the public.
   • The deterrent effect of the penalty is relevant. It is important that applicants for the grant know and understand that if they do not comply with the conditions of it, they must repay the grant and are likely to pay a penalty.
   • The imposition of a penalty and the amount of the penalty is consistent with other cases.
8. To avoid doubt, I will also confirm the decision of the Commissioner in respect of penalty.

[1] By amendments to s 12(1) in July 2013, the continuous period of occupation changed from six months to 12 months.

[2] 'Form 6 Regulation 1005, Building Act 1993, Building Regulations 2006.'

[3] Cases referred to at [VCAT.126.40] of Pizer's Annotated VCAT Act, 6th Edition, Nekvapil ed, such as Waraglen Developments Pty Ltd v Maroondah CC [2008] VCAT 1608 at [33], and Bonner v Victims of Crimes Assistance Tribunal [2014] VCAT 1438 at [23] support this conclusion.

[4] Occupation as the applicant's principal place of residence.

[5] It is apparent from the fact that there is a note in the decision '[Ms Anderson was heard to address the Tribunal]' before the Deputy President's remarks at [19] that the decision is a transcription of reasons given orally at the hearing.

[7] [2004] NSWADTAP 41; 2004 57 ATR 170 at [42].

[8] 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].

[9] [2012] VCAT 265 at [15].

[10] 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; Mauro v Commissioner of State Revenue (Taxation) [2010] VCAT 1207.

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

[12] For example, 'over the Residence Period, did you cook or otherwise prepare meals at the Property? If so, in an average week during the Residence Period, how many such meals would you cook or otherwise prepare at home? Answer: 'many times ever day Three meals" Mr AFI also answered yes to questions about whether he washed his clothes at the property and whether he showered or otherwise bathed at the property. He was not cross-examined about the Residence form and I accept he may have misunderstood what the Residence Period referred to.

[13] Haddad v Commissioner of State Revenue [2013] VCAT 208.

[14] See for example Patel v Commissioner of State Revenue [2012] VCAT 913 at [13]; Woff v Commissioner of State Revenue [2014] VCAT 477; Alexander v Commissioner of State Revenue. [2010] VCAT 868 at [10].

[15] See Baklis v Commissioner of State Revenue [2012] VCAT 1980 at [36], re water usage; Alexander v Commissioner of State Revenue [2012] VCAT 913, re electricity.

[16] Referring to D'Amelio [2012] VCAT 265 at [16].

[17] [2013] VCAT 347, at [33].